Opinion
03 Civ. 9820 (AKH).
March 4, 2005
ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Jose De la Rosa filed his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on December 11, 2003, alleging that the New York courts violated his constitutional rights by denying his motion to withdraw his guilty plea at sentencing.
De la Rosa is no longer in custody; he was deported to the Dominican Republic on February 25, 2004. This does not, however, automatically render his petition moot. A petitioner may continue to challenge his conviction, even though he has been released from custody, to the extent that the conviction presents him with collateral consequences, such as loss of the right to vote, join a union, operate certain businesses, or serve as a juror. See Carafas v. LaVallee, 391 U.S. 234, 238 (1968). Therefore I must determine whether the conviction that De la Rosa challenges has collateral consequences that make his petition a live case or controversy as required by Article III, § 2 of the Constitution.
I. Background
De la Rosa was arrested for selling cocaine to an undercover police officer and was charged with various counts of criminal possession of a controlled substance on May 21, 1990, in Kings County, New York. On October 2, 1990, De la Rosa pleaded guilty to the second count in the indictment, Attempted Criminal Possession of a Controlled Substance in the Third Degree under New York Penal Law §§ 110.00, 220.16(1), in satisfaction of all the charges, in exchange for a promised sentence of five years probation. On November 19, 1990, the trial court sentenced De la Rosa as promised, to five years probation.
On May 21, 1990, De la Rosa was charged with Criminal Sale of a Controlled Substance in the Third Degree (NYPL § 220.39(1)), Criminal Possession of a Controlled Substance in the Third Degree (NYPL § 220.16(1)), and Criminal Possession of a Controlled Substance in the Fourth Degree (NYPL § 220.09(1)). See Resp. Mem. Opp. Pet. at 2.
On September 10, 1992, De la Rosa was convicted on unrelated charges of criminal possession of a controlled substance. Therefore, on September 29, 1992, the trial court terminated Petitioner's probation. Petitioner received an indeterminate sentence of 15 years to life.
On September 10, 1992, De la Rosa was convicted of one count of Criminal Possession of a Controlled Substance in the First Degree (NYPL § 220.21) and one count of Criminal Possession of a Controlled Substance in the Third Degree (NYPL § 220.16).See id. at 4.
Petitioner De la Rosa filed a notice to appeal his 1990 conviction on November 28, 1990. For reasons that are not explained by the petitioner, however, he waited eight years to file a motion for the appointment of counsel. The Appellate Division unanimously affirmed De la Rosa's 1990 conviction on April 17, 2001. See People v. De la Rosa, 723 N.Y.S.2d 361 (1st Dept. 2001), leave to appeal denied, People v. De la Rosa, 99 N.Y.2d 557 (2002).
On June 29, 2001, De la Rosa filed a petition for writ of habeas corpus challenging his 1992 conviction in the United States District Court for the Eastern District of New York. The District Court dismissed the petition as untimely. See De la Rosa v. Keane, 2001 U.S. Dist. LEXIS 19398, *7 (2001). Finally, De la Rosa filed the present petition for writ of habeas corpus attacking his 1990 conviction. Respondent concedes that De la Rosa's petition is timely and that he has exhausted his state law claims.
On January 26, 2004, De la Rosa was paroled to the custody of the United States Citizenship and Immigration Services (CIS). On February, 13, 2004, De la Rosa wrote the Court to inform that he had been transferred to CIS custody. Shortly thereafter, on February 25, 2004, De la Rosa was removed from the United States to the Dominican Republic. He is therefore no longer in state custody or custody of the United States.
De la Rosa's transfer to the Immigration and Naturalization Service was brought to the Court's attention by the Assistant District Attorney for the Office of the District Attorney, Kings County, Thomas M. Ross. See Letter from Thomas M. Ross to Alvin K. Hellerstein of February 18, 2004 at 1. The website for the New York State Department of Correctional Services confirms this information. See http://nysdocslookup.docs.state.ny.us/GCA00P00/WIQ3/WINQ130 (last visited February 18, 2005).
See Letter from Jose De la Rosa to Pro Se Office, United States District Court for the Southern District of New York of February 13, 2004 at 1.
This information was obtained in conversation with John Lawton of the CIS on February 18, 2005. Search of the federal Bureau of Prisons database confirms that all detainees by the name of De la Rosa have been released or removed.
II. Discussion
The party who collaterally attacks his conviction by filing a petition for writ of habeas corpus must be in custody pursuant to state or federal judgment. See 28 U.S.C. §§ 2254, 2255. De la Rosa was in custody at the time he filed his petition, "which is all the `in custody' provision of 28 U.S.C. § 2254 requires."Spencer v. Kemna, 523 U.S. at 7. Once the convict's sentence has expired, however, a concrete and continuing injury resulting from the conviction — that is, a collateral consequence of the conviction — must exist if the suit is to be maintained. See id.
Past decisions of the Supreme Court stated a strong presumption that collateral consequences flowed from the conviction. See, e.g., Carafas v. LaVallee, 391 U.S. at 238 (1968) (enumerating civil disabilities likely to flow from conviction). Therefore the Supreme Court did not require judicial inquiry into the actual consequences of any given conviction, observing that it is "an obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences." Sibron v. New York, 392 U.S. 40, 55 (1968).
As several Circuit Courts have indicated, the Supreme Court's decision in Spencer v. Kemna changed the tone of Sibron andCarafas while leaving the basic holding intact. See e.g., United States v. Probber, 170 F.3d 345, 348 (2d Cir. 1999) ("In the recently-decided Spencer case, the Court criticized its own precedents establishing the presumption of collateral consequences in challenges to a criminal conviction."); Diaz v. Duckworth, 143 F.3d 345, 348 (7th Cir. 1998) (in Spencer, "the Court spoke disparagingly of the cases that had led up to and followed Sibron, and of Sibron itself").
Thus the import of Spencer v. Kemna is broader than its specific holding: "an individual challenging the revocation of his parole — and whose term of re-incarceration has expired — bears the burden of demonstrating that some concrete and continuing injury continues to flow from the fact of the revocation." United States v. Probber, 170 F.3d 345, 348 (2d Cir., 1999). In particular, Spencer v. Kemna emphasizes that "standing cannot be inferred argumentatively from averments in the pleadings." Spencer v. Kemna, 523 U.S. at 10 (internal quotations omitted). See also Diaz v. Duckworth, 143 F.3d at 347 ("Spencer as we read it tries to bring the law of habeas corpus into conformity with a general `hardening' of standing requirements in recent years.").
The question of whether the deported petitioner has standing to challenge his conviction after Spencer v. Kemna does not command universal agreement in the Circuit Courts. The Seventh Circuit has stated in dicta that deportation does not presumptively provide standing to the petitioner. See generally Diaz v. Duckworth, supra. Diaz timely filed his petition for writ of habeas corpus, but was released and deported prior to its evaluation by the Circuit Court. Id. Although Diaz contested an administrative decision by the prison authorities that caused him to lose 180 days of "good-time credit," id. at 346, as opposed to the conviction itself, Judge Posner nevertheless wrote, "Whatever is left of Sibron is too little for a deportee to invoke, even if the deportee is complaining about a conviction, and not about a parole revocation, like Spencer, or a prison disciplinary sanction, like Diaz." Id. at 348.
The Second Circuit Court of Appeals, by contrast, has held that the Sibron presumption of collateral consequences applies to deported petitioners who challenge their conviction in federal court. See Perez v. Greiner, 296 F.3d 123, 125 (2d Cir., 2002) (deported convict who challenges his conviction entitled to presumption of collateral consequences under Sibron). The Third and Tenth Circuits have also held that deportation is a collateral consequence of conviction. See Steele v. Blackman, 236 F.3d 130, 135 n. 4 (3d Cir. 2001); Tapia Garcia v. INS, 237 F.3d 1216, 1218 (10th Cir. 2001).
In Perez v. Greiner, the Second Circuit Court held that although the presumption of collateral consequences applied, the circumstances of the deported petitioner negated that presumption, and thus found "no material possibility that Perez will suffer collateral consequences on the basis of the challenged conviction." Id. at 125. Like De la Rosa, Petitioner Perez was deported pursuant to multiple convictions, one of which was criminal possession of a controlled substance. Under 8 U.S.C. § 1182(a)(2)(A)(i)(II), thus, Perez is permanently inadmissible; therefore, a successful challenge to his robbery conviction would have no effect on his legal capacity to re-enter the United States. The Second Circuit ordered that Perez's petition be dismissed as moot.
Perez v. Greiner is directly controlling for the purposes of De la Rosa's petition. Like Perez, De la Rosa is the subject of two convictions. Both of De la Rosa's convictions are for criminal possession of controlled substances. Even if this Court reversed his 1990 conviction, his 1992 conviction would remain, effectively barring him from entering the United States. Therefore, I find that De la Rosa's petition does not meet the case-or-controversy requirement under Article III, § 2 of the Constitution because defendant's inability to legally enter the United States — the collateral consequence of his various convictions — cannot be "redressed by a favorable judicial decision." Spencer v. Kemna 523 U.S. at 7. The petition is dismissed as moot.
SO ORDERED.