Opinion
No. 04 Civ. 8020 (LAP)(KNF).
April 29, 2005
REPORT and RECOMMENDATION
TO THE HONORABLE LORETTA A. PRESKA, UNITED STATES DISTRICT JUDGE.
I. INTRODUCTION
Rafael Emilio Medrano Lara ("Lara") has petitioned this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. By notice dated February 18, 2005, the respondent moved to dismiss the petition for lack of subject matter jurisdiction. The respondent contends that Lara is not "in custody" for purposes of the federal habeas corpus statute because he is not now and has never been incarcerated pursuant to the sentence imposed on him following the state conviction he has challenged through his habeas corpus petition. The petitioner opposes the motion. He maintains that he has satisfied the statute's "in custody" requirement because he will serve the sentence imposed on him as a result of his state conviction after his current term of imprisonment is completed.
II. BACKGROUND
In January 1995, following a trial by jury, in absentia, in New York State Supreme Court, New York County, petitioner was convicted for criminal possession of a weapon in the second degree, see N.Y. Penal Law § 265.03, and criminal possession of a weapon in the third degree, see N.Y. Penal Law § 265.02. Petitioner was sentenced in absentia to concurrent indeterminate terms of four to eight years imprisonment for the second-degree weapons possession conviction and three and one-half to seven years imprisonment for the third-degree weapons possession conviction.
Petitioner did not surrender himself to state officials after his conviction and was not returned to state court on a warrant. In 2001, petitioner pled guilty to conspiracy to possess cocaine with the intent to distribute in the United States District Court, Southern District of Florida, and was sentenced to a term of imprisonment of seven years and three months for that offense.
The respondent contends that, according to federal prison officials, petitioner's federal sentence is not running concurrently with any state sentence and there is no indication in their records that petitioner will serve a state sentence or that he must be placed in state custody after he has completed his federal sentence. Therefore, respondent argues, petitioner is not "in custody" pursuant to 28 U.S.C. § 2241 and the court has no subject matter jurisdiction over his petition.
III. DISCUSSION
"The federal habeas statute gives the United States district courts jurisdiction to entertain petitions for habeas relief only from persons who are ' in custody in violation of the Constitution or laws or treaties of the United States.'" Maleng v. Cook, 490 U.S. 488, 490, 109 S. Ct. 1923, 1925 (1989) (quoting 28 U.S.C. § 2241[c][3]) (emphasis in original). A challenged conviction establishes custody for habeas corpus purposes if, inter alia, it subjects the petitioner to future incarceration in another jurisdiction See id. at 493, 1926. Ordinarily, in a circumstance of that kind, the second jurisdiction lodges a detainer with an official responsible for a prisoner's current incarceration. See id. However, even in the absence of a detainer, a challenged conviction will establish custody for habeas corpus purposes if "there is a reasonable basis to apprehend that the jurisdiction that obtained the consecutive sentence will seek its enforcement." Frazier v. Wilkinson, 842 F.2d 42, 45 (2d Cir. 1988). In particular, if state authorities have made no contrary contention, it is reasonable to suppose that a state that has imposed a consecutive sentence intends to require that it be served. See id. Therefore, in such circumstances, "the pendency of the consecutive sentence satisfies the 'in custody' requirement of section 2241(c)(3)." Id.
In this case, the respondent argues that petitioner has not satisfied the "in custody" requirement of the federal habeas corpus statute because there is no record that a detainer supported by the sentence imposed on petitioner pursuant to his 1995 state conviction was lodged with federal prison officials. Additionally, respondent maintains, there is no record of a state fugitive warrant or of an agreement between New York officials and federal prison officials pertaining to petitioner's release into state custody following the completion of the federal sentence he is now serving. Therefore, respondent contends, the court may not entertain the instant habeas corpus petition.
The respondent's argument is unavailing. The respondent has provided no evidence demonstrating that the state does not intend to take petitioner into custody following the completion of his federal sentence. Moreover, the petitioner has submitted to the Court a copy of a certificate issued by the New York State Supreme Court, New York County, and signed by the clerk of that court on April 22, 2003, confirming the petitioner's state conviction and the sentence imposed upon him. Consequently, the absence of a lodged detainer or other document based on petitioner's sentence does not have controlling significance in this context. Nor, under these circumstances, is petitioner required to produce evidence of such a document. Furthermore, the Court notes that petitioner will not have completed his federal sentence until 2007. Thus, although, as respondent contends, federal prison officials have no record at this time of any documentation or agreement pertaining to petitioner's release into state custody following the completion of his federal sentence, there is nothing to prevent the state from lodging a detainer closer to that event. Under the circumstances, the Court finds that it is reasonable to suppose that New York intends to require the petitioner to serve his New York County sentence upon his release from federal custody. Therefore, the "in custody" requirement of the federal habeas corpus statute is satisfied in this case. Accordingly, the court has jurisdiction to entertain Lara's petition.
New York's Criminal Procedure Law ("CPL") provides, in pertinent part:
[A] certificate of conviction showing the sentence pronounced by the court, or a certified copy thereof, constitutes the authority for execution of the sentence and serves as the order of commitment, and no other warrant, order of commitment or authority is necessary to justify or to require execution of the sentence.
CPL § 380.60.
It appears that respondent, by filing the instant motion to dismiss Lara's petition, has violated Rule 11(b) of the Federal Rules of Civil Procedure. That provision states, in its most pertinent part:
Representations to the Court. By presenting to the court . . . a pleading, written motion, or other paper, an attorney . . . is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances . . . the claims, defenses, and other legal contentions therein are warranted by existing law. . . .
Here, as long ago as 1988, the Second Circuit made clear inFrazier that a petitioner is "in custody" for habeas corpus purposes, and, therefore, may bring a habeas challenge to a consecutive sentence, even in the absence of a detainer or warrant; hence, the argument urged by the respondent, that petitioner has not satisfied the "in custody" requirement of the habeas corpus statute because there is no warrant in his federal prison records and no detainer has been placed upon him, fails to comport with circuit precedent. Accordingly, the Court finds that the attorney for the respondent should be directed to show cause why there has not been a violation of Fed.R.Civ.P. 11(b) in the case at bar. See Fed.R.Civ.P. 11(c)(1)(B).
IV. RECOMMENDATION
For the reasons set forth above, the Court recommends that: (1) the respondent's motion to dismiss petitioner's application for habeas corpus relief be denied; and (2) the attorney for the respondent be directed to show cause to the assigned district judge why she has not violated Fed.R.Civ.P. 11(b).
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also, Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Loretta A. Preska, 500 Pearl Street, Room 1320, New York, New York, 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Preska. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985);IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992);Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988);McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).