Opinion
Civil Action 22 Civ. 3323 (JPC) (SLC)
01-11-2023
PHILIP S. AURECCHIONE, Petitioner, v. NEW YORK ATTORNEY GENERAL LETITIA JAMES (OFFICIAL CAPACITY); NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION THROUGH ACTING COMMISSIONER ANTHONY J. ANNUCCI (OFFICIAL CAPACITY); NEW YORK STATE PAROLE BOARD THROUGH CHAIRWOMAN TINA M. STANFORD (OFFICIAL CAPACITY); PEEKSKILL DIVISION OF COMMUNITY SUPERVISION UNDER THE NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION; PAROLE OFFICERS RYAN AND JOHNSON (OFFICIAL CAPACITY), Respondents.
REPORT AND RECOMMENDATION
SARAH L. CAVE, United States Magistrate Judge.
TO THE HONORABLE JOHN P. CRONAN, United States District Judge:
I. INTRODUCTION
On April 23, 2022, Petitioner Philip S. Aurecchione (“Aurecchione”), filed a counseled petition for a writ of habeas corpus under 28 U.S.C. §§ 2241(a) and 2252(a), challenging his arrest by Rockland County Sheriff's Deputies and continued parole supervision by the New York State Department of Corrections and Community Supervision (“DOCCS”). (ECF No. 1 (the “Petition”)). Subsequently, on May 11, 2022, Aurecchione's term of parole supervision expired. (ECF No. 13-2 at 29). 1 Respondents have now moved to dismiss the Petition as moot. (ECF Nos. 13; 14 (the “Motion”)). Aurecchione has not opposed the Motion, but instead has cross-moved for attorneys' fees under the New York State Equal Access to Justice Act, N.Y. C.P.L.R. § 8601 (the “NY EAJA”). (ECF No. 15 (the “Fee Motion”)).
Respondents are New York Attorney General Letitia James (the “Attorney General”), DOCCS through Acting Commissioner Anthony J. Annucci, New York State Parole Board through Chairwoman Tina M. Stanford, Peekskill Division of Community Supervision under DOCCS, and Parole Officers Ryan and Johnson, all of whom are represented by the Office of the New York State Attorney General. (See ECF Nos. 8; 9).
For the reasons set forth below, I respectfully recommend that the Motion be GRANTED and the Fee Motion be DENIED.
II. BACKGROUND
The following background is drawn from the Petition, the allegations of which “are assumed to be true for the purposes of this” Report and Recommendation, the exhibits to the Petition, and public records of which the Court may take judicial notice pursuant to Federal Rule of Evidence 201. Brewer v. Lee, No. 16 Civ. 4051 (RRM), 2019 WL 1384074, at *1 (E.D.N.Y. Mar. 26, 2019); see Kramer v. Time Warner, Inc., 937 F.2d 767, 774 (2d Cir. 1991) (“[C]ourts routinely take judicial notice of documents filed in other courts, . . . not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings.”); Johnson v. City of New York, No. 15 Civ. 8195 (GHW), 2017 WL 2312924, at *3 n.4 (S.D.N.Y. May 26, 2017) (on motion to dismiss, taking judicial notice of court order in another proceeding); Quizhpe v. Superintendent of E. Corr. Facility, No. 21 Civ. 1709 (KMK) (PED), 2 2022 WL 5202275, at *1 (S.D.N.Y. Aug. 22, 2022), adopted by, 2022 WL 5197319 (S.D.N.Y. Oct. 5, 2022).
Unless otherwise indicated, all internal citations and quotation marks are omitted from case citations.
A. Prior Federal and State Criminal Proceedings
On June 7, 2013, Aurecchione pled guilty to a single count indictment charging him with making a false statement in connection with the purchase of a firearm, in violation of 18 U.S.C. §§ 922(a)(6) and 924(a)(2). (United States v. Aurecchione, No. 12 Cr. 688 (E.D.N.Y.) (“Aurecchione I”), ECF min. entry May 2, 2013; see Aurecchione I, ECF No. 4 at 1). On September 4, 2013, the Honorable Sterling Johnson, Jr., United States District Judge for the Eastern District of New York, imposed a sentence of time served “to run concurrent with the state sentence to be served in federal custody[,]” followed by five years of supervised release. (ECF No. 13-1 at 5-6, 10 (the “Judgment”); see Aurecchione I, ECF min. entry Sept. 4, 2013).
Although the sentencing occurred on September 4, 2013, the Judgment was entered on October 16, 2013. (Aurecchione I, ECF No. 4; see ECF No. 13-1 at 4-9).
On September 3, 2018, Aurecchione was arrested for unlawful possession of a firearm and driving while intoxicated, and detained in the Rockland County Correctional Facility in Rockland Country, New York, where he remained for 388 days, until September 25, 2019. (ECF Nos. 1 ¶ 24; 1-1 at 6; see Aurecchione I, ECF min. entry Sept. 6, 2018). Aurecchione's conduct also violated the conditions of his federal supervised release, (see ECF No. 1 ¶ 25; see Aurecchione I, ECF No. 4 at 3-6), and on September 25, 2019, he was transferred to federal custody at the Metropolitan Detention Center in Brooklyn, New York. (ECF No. 1 ¶¶ 26-27). On September 26, 2019, Aurecchione entered a plea of guilty to two of the charged violations, for 3 which Judge Johnson sentenced him to two concurrent 18-month terms of imprisonment “with no supervision to follow[]” (the “Federal Sentence”). (Aurecchione I, ECF min. entry Sept. 26, 2019; see Aurecchione I, ECF No. 18; ECF Nos. 1 ¶ 28; 13-1 at 10-11).
The two violations to which Aurecchione pled guilty were committing the crime of “Petit[] Larceny” and possession of a firearm. (ECF No. 1-1 at 3).
On February 5, 2020, while he was still serving the Federal Sentence, the Rockland County Court sentenced Aurecchione to a term of two to four years' imprisonment, to run concurrently with his federal sentence, for criminal possession of a weapon in the third degree. (ECF No. 1-1 at 1 (the “Rockland Sentence”); see ECF Nos. 1 ¶ 29; 1-2 at 1; 13-1 at 12; 13-2 at 4). The Rockland Sentence did not specify a term of parole supervision. (ECF Nos. 1 ¶ 29; 1-2).
On or about February 25, 2020, Aurecchione completed his Federal Sentence, but no state detainer was imposed, and Aurecchione was released from custody. (ECF Nos. 1-4 ¶¶ 3-5; 1-6 ¶ 3; id. at 7). On July 30, 2020, because he had “not completed” the Rockland Sentence, the District Attorney asked the Rockland County Court to calendar Aurecchione's case “for the issuance of a bench warrant, so that [he] may complete his sentence.” (ECF No. 1-2 at 1; see ECF Nos. 1 ¶ 31; 1-4 ¶¶ 3-4). The Rockland County Court denied the request for a bench warrant. (ECF Nos. 1 ¶ 31; 1-4 ¶ 7; 13-1 at 15). For the next eleven months, Aurecchione was not in federal or state custody. (ECF No. 1 ¶ 32).
On June 1, 2021, Rockland County Sheriff's Deputies arrested Aurecchione and detained him in a facility in Rockland County. (ECF Nos. 1 ¶ 33; 1-4 ¶¶ 3, 8, 15; 1-6 ¶ 11). On June 24, 2021, Aurecchione resumed serving the Rockland Sentence. (ECF Nos. 1-1 at 1-2; 1-3 at 1-2). 4
At some point, Aurecchione was transferred from Rockland County to Downstate Correctional Facility (“Downstate”). (ECF No. 1-4 ¶ 15).
On August 25, 2021, Aurecchione, through counsel, filed in New York State Supreme Court, Dutchess County, a combined petition for a writ of habeas corpus seeking release from DOCCS custody under N.Y. C.P.L.R §§ 7002(a), 7002(b)(1), and 7003, and application under N.Y. C.P.L.R. Article 78 seeking “a computation of time he is due as a credit against his New York State sentence, including all time since the date of his federal release on February 25, 2020 to the present[.]” (ECF No. 1-4 ¶ 3 (the “State Petition”); see ECF No. 1 ¶ 35). On September 9, 2021, Aurecchione completed the Rockland Sentence and was released from Downstate. (ECF Nos. 1 ¶¶ 34, 36; 1-1 at 2; 1-3 at 2; 1-7 at 1).
On November 10, 2021, Justice Maria G. Rosa of the New York State Supreme Court, Dutchess County, issued an Amended Decision and Order on the State Petition, denying the writ of habeas corpus as moot, but granting Article 78 relief to the extent that DOCCS was ordered to give Aurecchione “credit towards his sentence, including that portion of his sentence being served while on release to parole supervision, for the period of time he was incarcerated from February 5, 2020 through the present[,]” including “the twenty days he was incarcerated in federal custody from February 5 through February 25, 2020 and the time he was at liberty from February 25, 2020 through his arrest and incarceration on June 1, 2021.” (ECF No. 1-8 at 2 (the “Nov. 2021 Order”)). On March 23, 2022, Justice Rosa denied the Attorney General's motion to reargue the Nov. 2021 Order. (ECF No. 1-13).
The Nov. 2021 Order replaced a substantially similar order Justice Rosa issued on November 9, 2021. (Compare ECF No. 1-8 at 1-3 with ECF No. 13-2 at 1-2).
According to DOCCS records, on May 11, 2022, Aurecchione was “discharged” from DOCCS parole supervision. (ECF No. 13-2 at 28-29, 32). 5
B. Federal Habeas Corpus Petition
On April 23, 2022, while he was still under DOCCS parole supervision, Aurecchione, through counsel, filed the Petition. (ECF No. 1 ¶ 18). In the Petition, Aurecchione asserted claims under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments. (Id. ¶¶ 41, 56-73). He sought an order directing DOCCS to release him from the remainder of his term of parole supervision, declaring the Federal and Rockland Sentences as “having been satisfied and served[,]” and awarding attorneys' fees and costs under the Equal Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”). (Id. at 13).
On June 24, 2022, Respondents filed the Motion. (ECF No. 13). Aurecchione did not oppose the Motion, and instead, on August 1, 2022, filed the Fee Motion. (ECF No. 15). On January 3, 2023, Respondents filed an opposition to the Fee Motion (ECF No. 22), and on January 10, 2023, Aurecchione filed a reply in support of the Fee Motion. (ECF No. 23).
III. DISCUSSION
A. The Petition
1. Legal Standard
“Article III, Section 2 of the United States Constitution limits the subject matter jurisdiction of the federal courts to those cases that present a ‘case or controversy.'” United States v. Probber, 170 F.3d 345, 347 (2d Cir. 1999) (quoting Spencer v. Kemna, 523 U.S. 1, 7 (1998)). “The case-or-controversy requirement ‘subsists through all stages of federal judicial proceedings, trial and appellate.'” Probber, 170 F.3d at 347 (quoting Spencer, 523 U.S. at 7). This requirement “means that the [petitioner] ‘must have suffered, or be threatened with, an actual 6 injury traceable to the [respondent] and likely to be redressed by a favorable judicial decision.'” Probber, 170 F.3d at 347-48 (quoting Spencer 523 U.S. at 7).
Federal habeas corpus jurisdiction exists only if the petitioner is “in custody[.]” 28 U.S.C. § 2254(a); see Maleng v. Cook, 490 U.S. 488, 490-91 (1989); Nowakowski v. New York, 835 F.3d 210, 215 (2d Cir. 2016); Johnson v. Levine, No. 00 Civ. 8402 (AKH), 2001 WL 282719, at *1 (S.D.N.Y. Mar. 21, 2001) (“It is axiomatic that district courts have jurisdiction to entertain a petition for habeas corpus only in those cases where the petitioner making the application is in custody.”). The Supreme Court has explained “that, besides physical imprisonment, there are other restraints on a [person]'s liberty, restraints not shared by the public generally, which have been thought sufficient in the English-speaking world to support the issuance of habeas corpus.” Jones v. Cunningham, 371 U.S. 236, 240 (1963). For example, if a petitioner is on parole with conditions to report to a parole officer, remain in a particular community, residence, or job, or refrain from certain activities, see id. at 242, or has continuing obligations to appear in court under threat of an arrest warrant, the Supreme Court has recognized habeas corpus jurisdiction continues to exist. See Hensley v. Mun. Ct., San Jose Milpitas Jud. Dist., Santa Clara Cnty., Cal., 411 U.S. 345, 351 (1973); Nowakowski, 835 F.3d at 216 (collecting cases providing examples of “a variety of nonconfinement restraints on liberty [that] satisf[ied] the custodial requirement”).
Where a federal habeas corpus petitioner has completed his sentence, the court must evaluate whether the petition has become moot. See Carafas v. LaVallee, 391 U.S. 234, 237 (1968). “Unlike the ‘in custody' requirement, mootness is not fixed at the time of filing but must be considered at every stage of the habeas proceeding.” Nowakowski, 835 F.3d at 217. If a petitioner's sentence has expired, “some concrete and continuing injury other than the now- 7 ended incarceration (or parole)-some ‘collateral consequence' of the conviction-[must exist] if the suit is to be maintained.” Spencer, 523 U.S. at 7. The burden is on the petitioner to “demonstrate concrete injury-in-fact to survive dismissal as a result of his release from custody.” Johnson, 2001 WL 282719, at *1 (citing Spencer, 523 U.S. at 13); see Probber, 170 F.3d at 348 (requiring a petitioner “challenging the revocation of his parole-and whose term of reincarceration has expired-[to] bear[] the burden of demonstrating that some concrete and continuing injury continues to flow from the fact of the revocation[]”).
2. Application
Respondents argue that Aurecchione's discharge from parole supervision on May 11, 2022 moots the Petition, which challenges only his state sentence, not any underlying conviction. (ECF No. 14 at 7). As noted above, Aurecchione has not opposed the Motion, and, in fact, in the Fee Motion, acknowledges that he was discharged from parole supervision on May 11, 2022. (ECF No. 16 at 4 (“Several weeks following the filing of [the] [P]etition, and just before [the] answer was due from the Attorney General, [Aurecchione] received notice that his sentence was discharged effective May 11, 2022.”)).
To determine whether federal habeas corpus jurisdiction exists, the Court must assess whether Aurecchione was “‘in custody'” within the meaning of § 2254(a) when the Petition was filed, and whether the Petition has since become moot. See Nowakowski, 835 F.3d at 217 (quoting 28 U.S.C. § 2254(a)); Mahon v. Comm'n of N.Y.S. Div. of Parole, No. 19 Civ. 9498 (JLR) (SLC), 2022 WL 16540879, at *10 (S.D.N.Y. Oct. 3, 2022), adopted by, 2022 WL 16541083 (S.D.N.Y. Oct. 28, 2022). 8
As an initial matter, the Court finds that Aurecchione was in custody when the Petition was filed in April 2022 because his term of supervised release had not yet expired. See Maleng, 490 U.S. at 491; Jones, 371 U.S. at 242-44; Scanio v. United States, 37 F.3d 858, 860 (2d Cir. 1994); Mahon, 2022 WL 16540879, at *10; see also Plato v. Morrissey, 638 F.Supp.2d 338, 343 (W.D.N.Y. 2009) (noting that “the Supreme Court and the Second Circuit have recognized that a prisoner who has been released from physical custody but has been placed on parole/supervised release remains ‘in custody' for habeas purposes where such status results in restrictions on freedom and liberty.”).
As the Petition has been pending, however, Aurecchione completed his term of parole supervision and his status now reflects that his sentence has been “discharged.” (ECF No. 13-2 at 28-29, 32; see ECF No. 16 at 4). He is therefore no longer “in custody” for purposes of § 2254. See Chattley v. Benson, No. 05 Civ. 6742 (VEB), 2007 WL 4377686, at *3 (W.D.N.Y. Dec. 12, 2007) (dismissing petition as moot where petitioner was no longer incarcerated or on parole). Because Aurecchione only challenged his sentence, not any underlying conviction, no presumption of collateral consequences exists to satisfy the case-or-controversy requirement, and Aurecchione was required to “demonstrat[e] that some concrete and continuing injury continues” to impact him. Probber, 170 F.3d at 348; see Spencer, 523 U.S. at 7. Aurecchione has failed to show any reason, let alone “any valid reason why his petition is not moot as a result of his release and subsequent discharge from supervision.” Artis v. Smith, No. 12 Civ. 5863 (NSR) (PED), 2015 WL 4271098, at *5 (S.D.N.Y. July 13, 2015). Because he challenged only his sentence of parole supervision, not any underlying conviction, and has now been discharged from that supervision, the Court concludes that the relief he seeks “is no longer needed or available[.]” 9 Champion v. Connell, No. 07 Civ. 1266, 2009 WL 290451, at *2 (N.D.N.Y. Feb. 4, 2009) (recommending dismissal on mootness a petition that challenged denial of parole, not underlying conviction); see Lane v. Williams, 455 U.S. 624, 633 (1982) (dismissing as moot petitions that challenged only sentences where “[t]hrough the mere passage of time, [petitioners] have obtained all the relief that they sought”). Indeed, by his non-opposition to the Motion, Aurecchione has conceded that the relief he sought in the Petition has become moot and the Court no longer has subject matter jurisdiction. See Broad v. DKP Corp., No. 97 Civ. 2029 (LAP), 1998 WL 516113, at *2-3 (S.D.N.Y. Aug. 19, 1998) (holding that plaintiff's failure to oppose motion to dismiss under Rule 12(b)(1) constituted an implied concession that federal subject matter jurisdiction was lacking), aff'd, 182 F.3d 898 (2d Cir. 1999).
Finally, the doctrine of “capable of repetition, yet evading review” does not salvage the Petition from mootness. Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911). As the Supreme Court has explained, “[t]hat doctrine . . . is applicable only when there is ‘a reasonable expectation that the same complaining party would be subjected to the same action again.'” Lane, 455 U.S. at 634 (quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975)). The mere possibility, however, “that other persons may litigate a similar claim does not save this case from mootness.” Lane, 455 U.S. at 634.
Accordingly, because Aurecchione is no longer “in custody,” he cannot demonstrate a redressable injury-in-fact, and the Court lacks subject matter jurisdiction over the Petition. Accordingly, I respectfully recommend that the Motion be GRANTED and the Petition be DISMISSED as moot. 10
B. The Fee Motion
Aurecchione seeks an award under the NY EAJA of attorneys' fees in the amount of $21,993.50. (ECF Nos. 15-16). He argues that he was the prevailing party, and that Respondents' position was not substantially justified. (ECF Nos. 16 at 4-6; 23). Respondents oppose the Fee Motion on the grounds that there is no legal basis to award attorneys' fees in this action, and, in any event, Aurecchione is not entitled to fees because his claims are moot and he is not the prevailing party. (ECF No. 22).
1. Additional Background
As of September 1, 2021, DOCCS calculated the “maximum expiration date” of Aurecchione's Rockland Sentence, including any parole, to be January 11, 2023. (ECF No. 13-1 at 40, 44-45, 51). On September 17, 2021, New York enacted the Less is More Community Supervision and Revocation Reform Act (the “Less is More Act”), which modified the State's parole statutes by, inter alia, providing defendants on parole with retroactive “earned time credits.” 2021 N.Y. Laws 1279 § 1(4); see N.Y. Penal L. § 70.40(4)(c) (“Retroactive earned time credits shall be awarded to eligible persons subject to community supervision” as of March 1, 2022, “provided, however, that the maximum allowable retroactive earned time credit awarded shall not exceed a period of two years.”)). The Less is More Act became effective on March 1, 2022, but granted DOCCS six months from that date, i.e., until August 1, 2022, to “calculate and award all earned time credits” to which defendants on parole were entitled under the new statute. 2021 N.Y. Laws 1290 § 10. Pursuant to the Less is More Act, on May 17, 2022, DOCCS recalculated the “maximum expiration date” of Aurecchione 's Rockland Sentence to be May 11, 2022, 11 and, accordingly, deemed the Rockland Sentence “discharged” as of that date. (ECF Nos. 13-2 at 28-32; 22-1 at 11-13).
2. Legal Standard
The NY EAJA provides that “a court shall award to a prevailing party, other than the state, fees and other expenses incurred by such party in any civil action brought against the state, unless the court finds that the position of the state was substantially justified or that special circumstances make an award unjust.” N.Y. C.P.L.R. § 8601(a). The party seeking fees under the NY EAJA must submit, “within thirty days of final judgment in the action,” an application containing: “(1) the facts supporting the claim that the party is a prevailing party and is eligible to receive an award under [§ 8601], (2) the amount sought, and (3) an itemized statement from every attorney or expert witness for whom fees or expenses are sought stating the actual time expended and the rate at which such fees and other expenses are claimed.” Id. § 8601(b). The NY EAJA “was enacted to improv[e] access to justice for individuals and businesses who may not have the resources to sustain a long legal battle against an agency that is acting without justification[.]” N.Y. State Clinical Lab'y Ass'n v. Kaladjian, 85 N.Y.2d 346, 351 (1995). The NY EAJA “was modeled on the [EAJA] ‘and the significant body of case law that has evolved thereunder[.]'” Id. (quoting N.Y. C.P.L.R. § 8600). Thus, in applying the NY EAJA, New York courts regularly look to federal precedent in determining whether a litigant meets the requirements for an award of counsel fees. See, e.g., Kaladjian, 85 N.Y.2d at 351-52 (considering federal precedent analyzing the EAJA to determine whether litigant was a “prevailing party” under NY EAJA); id. at 356 (considering federal precedent in determining whether State's position was “substantially justified”); Criss v. N.Y. State Dep't of Health, Off. of Temp. & Disability Assistance, 192 A.D.3d 1545, 1546 (4th Dep't 2021) (same); 12 Clarke v. Annucci, 190 A.D.3d 1245, 1246 (3rd Dep't 2021) (same); Gonzalez v. N.Y. State Dep't of Corr. & Cmty. Supervision, 152 A.D.3d 680, 683 (2d Dep't 2017) (same).
The NY EAJA does, however, “depart[] from the Federal model in certain significant respects.” Kaladjian, 85 N.Y.2d at 353. Among the differences pertinent here, while the EAJA does not define “prevailing party,” the NY EAJA defines prevailing party as a “‘plaintiff or petitioner in the civil action against the state who prevails in whole or in substantial part where such party and the state prevail upon separate issues[.]"' Id. (quoting N.Y. C.P.L.R. § 8602(f)). The New York Court of Appeals has explained that the NY EAJA's definition of prevailing party “indicates that the degree of success obtained by a plaintiff in relation to the other goals of the lawsuit is a threshold factor in determining eligibility for a fee award of any kind.” Kaladjian, 85 N.Y.2d at 353. In addition, as to the degree of success required, the New York Court of Appeals has interpreted the NY EAJA's use of the phrase “in whole or in substantial part” to “evince[] an intent to impose a stricter standard for demonstrating prevailing party status under the [NY] EAJA than under its [f]ederal counterpart.” Id. at 353-54. In sum, “as it specifically relates to the term ‘prevailing party', the legislative history suggests that the [NY] EAJA's departure from the federal model was intended to limit the State's liability for fee awards.” Id. at 355. Accordingly, to be a prevailing party under the NY EAJA, the party must have:
Among other differences, “the Federal EAJA defines an eligible party more expansively than the [NY] EAJA[,]” but Respondents do not dispute Aurecchione's eligibility. Kaladjian, 85 N.Y.2d at 354-55; see N.Y. C.P.L.R. § 8602(d) (defining “[p]arty” to include, inter alia, individuals with net worth less than $50,000).
succeeded in acquiring a substantial part of the relief sought in the lawsuit. [] [A] ‘prevailing party' is not one who has succeeded on merely ‘any significant issue' in the litigation which achieved only ‘some of the benefit' sought in bringing the lawsuit-which is the Federal standard . . . Rather, it is a plaintiff who can show13
that it succeeded in large or substantial part by identifying the original goals of the litigation and by demonstrating the comparative substantiality of the relief actually obtained.Id.
In determining whether the government's position was substantially justified, New York courts look to federal precedent analyzing the same language in the EAJA. See Kaladjian, 85 N.Y.2d at 356. Under that precedent, courts “look only to the government's position in the litigation),]” not “the underlying agency action.” Boudin v. Thomas, 732 F.2d 1107, 1115 (2d Cir. 1984). The question is whether the government has made a “‘strong showing' that its litigation position was substantially justified, which is ‘essentially [a showing] of reasonableness.'” Id. at 1116 (quoting Env't Def. Fund, Inc. v. Watt, 722 F.2d 1081, 1085 (2d Cir. 1983)).
Boudin “remains good law in [the Second] Circuit),]” although its holding “that the EAJA term ‘civil actions' does not apply to habeas petitions [has since been] limited to criminal habeas petitions),]” like this action. Vacchio v. Ashcroft, 404 F.3d 663, 668 (2d Cir. 2005).
3. Application
The Court finds that Aurecchione has failed to demonstrate that he is entitled to an award of fees under the NY EAJA for three reasons. First, this Court lacks authority to grant fees in this habeas corpus action. It is well-settled that “[a] congressional statute is required in order to award attorney's fees in federal court actions when, as is the case here, no common law exceptions apply.” Boudin, 732 F.2d at 1114. As the Second Circuit, has noted, however, “Congress has never passed a statute authorizing the award of attorney's fees in state custody habeas corpus cases litigated in the federal courts.” Id.; see also Larsen v. Sielaff, 702 F.2d 116, 118 (7th Cir. 1983) (holding that attorneys' fees may not be awarded in habeas corpus action challenging length of parole). Further, a petition for habeas corpus is not a “civil action” within 14 the meaning of the NY EAJA. Cf. Boudin, 732 F.2d at 1114-15 (holding that Congress did not “clearly manifest[] its affirmative intention to include habeas petitions within” the definition of civil action in EAJA). Aurecchione does not cite, nor has the Court's nor the Respondents' research found, any case awarding attorneys' fees to a successful federal habeas corpus petitioner under the EAJA, let alone the NY EAJA. (See ECF No. 22 at 4). Accordingly, just as “the EAJA does not authorize an award of fees against the United States in habeas actions litigating the propriety of federal custody[,]” the Court must similarly conclude that the NY EAJA-which, of course, is not a congressional statute-does not authorize an award of fees against New York State in a habeas corpus action such as this challenging the length of a term of state parole. Boudin, 732 F.2d at 1114; see also id. at 1115 (explaining that, to the extent plaintiff's action was a petition for habeas corpus, “the district court could not award her attorney's fees because the action did not fall within the provisions of the EAJA”) (emphasis added).
Second, even if the NY EAJA were applicable, Aurecchione was not a prevailing party. To recover fees under the NY EAJA, Aurecchione's Petition must have “prompted a change in position by the party from which [he] seeks reimbursement[,]” i.e., the Respondents must have been “prompted into action” by Aurecchione's filing of the Petition. Solla v. Berlin, 24 N.Y.3d 1192, 1195 (2015). Here, however, the Less is More Act is what prompted DOCCS to calculate Aurecchione's retroactive earned time credits, determine that the maximum expiration date of the Rockland Sentence was May 11, 2022, and deem him “discharged” as of that date. (ECF No. 13-2 at 20, 28-32; see ECF No. 22-1 at 2-3, 11-13). See Gonzalez, 152 A.D.3d at 683 (holding that plaintiff was not a prevailing party where requested relief was “rendered moot”). Aurecchione cannot invoke the “catalyst” theory of who constitutes a prevailing party, which the 15 United States Supreme Court has rejected, see Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598, 603-05 (2001),and which the New York Court of Appeals and the Second Department have not adopted. See Solla, 24 N.Y.3d at 1195; Gonzalez, 152 A.D.3d at 682; see also Criss, 192 A.D.3d at 1548 (collecting Second Department decisions “consistently reject[ing] application of the catalyst theory”).
The catalyst theory “posit[ed] that a plaintiff is a ‘prevailing party' if it achieves the desired result because the lawsuit brought about a voluntary change in the defendant's conduct.” Buckhannon, 532 U.S. at 601.
The Rockland County Court falls within the Second Department. See About the Court, SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT, https://www.nycourts.gov/courts/ad2/aboutthecourt.shtml (last visited Jan. 7, 2023).
Third and finally, Respondents' position in this litigation was substantially justified. As set forth above, Aurecchione has not opposed the MTD, effectively agreeing with the Respondents that the Petition is moot, and the Court has recommended that the Petition, accordingly, be dismissed. (See § III.C.2, supra). To the extent that Aurecchione contends that Respondents acted unreasonably in re-arresting him in June 2021, (see ECF No. 16 at 5), as noted above, the Court does not evaluate whether Respondents actions before the Petition were substantially justified, only their positions in this litigation. See Boudin, 732 F.2d at 1115-16. Even if the Court were to evaluate the Respondents' decisions before the Petition was filed, however, the Court finds that they were substantially justified. DOCCS' calculation of his maximum release date before the Less is More Act became effective reflected that his term of parole under the Rockland Sentence would not expire until January 11, 2023. (ECF No. 1-3). Thus, at the time he was rearrested in June 2021, DOCCS reasonably believed that Aurecchione had time that remained to be served on the Rockland Sentence. (ECF No. 13-1 at 51 (noting that, as of July 7, 2021, DOCCS calculated Aurecchione's conditional release date as September 9, 2021 and his maximum 16 expiration date as January 11, 2023)). DOCCS then released Aurecchione from Downstate on September 9, 2021, the calculated conditional release date. (ECF No. 13-1 at 37). As required by the Less is More Act, on May 17, 2022, well within the statutory six-month period, DOCCS recalculated his maximum expiration date to be May 11, 2022 and deemed him discharged as of that date. (ECF No. 22-1 at 2-3). Under these circumstances, Respondents have demonstrated that their position in this litigation was reasonable.
Accordingly, I respectfully recommend that the Fee Motion be DENIED.
IV. CONCLUSION
For the reasons set forth above, I respectfully recommend that the Motion be GRANTED and the Petition be DISMISSED as moot, and the Fee Motion be DENIED. 17
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Cronan.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985). 18