Opinion
22-CV-5812 (LTS)
09-13-2023
RAMI BALY, Plaintiff, v. CERTIFICATE OF APPEALS SUPREME COURT OF NEW YORK, Defendant.
ORDER
LAURA TAYLOR SWAIN, UNITED STATES DISTRICT JUDGE
Petitioner, who was not incarcerated when he filed this action, proceeds pro se. He styled his original application as a “motion for a certificate of appealability” to challenge his 2017 conviction in the New York Supreme Court, New York County.By order dated August 9, 2022, the Court notified Petitioner that, because he was attacking his state court conviction, the application would be construed as a petition for a writ of habeas corpus under 28 U.S.C. § 2254, but he could withdraw it if he did not wish for it to be recharacterized. The Court directed Petitioner, if he intended to proceed, to file an amended Section 2254 petition demonstrating that he was in custody (physical or constructive) on the challenged conviction; stating all of his federal law grounds for relief; and identifying what he had done to exhaust his federal law claims in state court.
See People v. Baly, 157 N.Y.S.3d 662 (1st Dep't Jan. 10, 2022), lv denied, 8 N.Y.3d 948 (Mar. 31, 2022).
Petitioner did not file an amended petition within the deadline, and on September 12, 2022, the Court dismissed the action without prejudice for his failure to do so. Petitioner then filed the amended petition (ECF 10), and on November 16, 2022, more than two months after judgment was entered, he filed a “motion to reargue” (ECF 13) a notice of appeal (ECF 17), and a motion for an extension of time to appeal (ECF 16).On November 18, 2022, Petitioner filed a motion for reconsideration (ECF 14) and an affidavit. The Second Circuit dismissed the appeal because the Court's order of dismissal had denied a certificate of appealability. Baly v. Certificate of Appeals Sup. Ct. of New York, No. 22-2975 (2d Cir. Issued as Mandate Feb. 9, 2023).
This matter is now before the Court on Petitioner's motions to reargue (ECF 13) and for reconsideration (ECF 14) of the order of dismissal, which the Court construes collectively as a motion under Rule 60(b) of the Federal Rules of Civil Procedure. After reviewing the arguments in Petitioner's submission, the Court grants the motion, and reviews the amended petition.
DISCUSSION
A. Motion for Reconsideration under Rule 60(b)
Under Rule 60(b), a party may seek relief from a district court's order or judgment for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or other misconduct of an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason justifying relief.Fed. R. Civ. P. 60(b). A motion based on reasons (1), (2), or (3) must be filed “no more than one year after the entry of the judgment or order or the date of the proceeding.” Fed.R.Civ.P. 60(c)(1). Petitioner's Rule 60(b) motion is timely, and the Court concludes that Petitioner's failure to submit the amended Section 2254 petition within the time allowed based on problems with the mail was excusable neglect. The Court therefore grants Petitioner's Rule 60(b) motion (ECF 13, 14) to the extent of reopening this action and proceeds to review the amended petition.
B. Amended Petition for a Writ of Habeas Corpus
As set forth in the Court's order to amend, federal district courts have jurisdiction to entertain petitions for habeas corpus relief only from persons who are “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3); 28 U.S.C. § 2254(a). The United States Supreme Court has interpreted these provisions as “requiring that the habeas petitioner be ‘in custody' under the conviction or sentence under attack at the time his petition is filed.” Maleng v. Cook, 490 U.S. 488, 490-91 (1989); Lackawanna Cnty. Dist. Attorney v. Coss, 532 U.S. 394, 401 (2001).
Custody, for purposes of a petition for a writ of habeas corpus in federal court, is not limited to actual, physical confinement. A habeas petitioner is deemed in custody where he has sufficient restraints on his liberty because of his conviction and sentence, Jones v. Cunningham, 371 U.S. 236 (1963), such as where a petitioner is released on his own recognizance pending trial, Hensley v. Municipal Court, 411 U.S. 345 (1973), or is on supervised release, Earley v. Murray, 451 F.3d 71, 75 (2d Cir. 2006), or probation, United States v. Shelly, 430 F.2d 215, 217 n. 3 (2d Cir. 1970). Upon expiration of the period of supervision or restraint, however, a habeas petitioner is no longer “in custody.” Scanio v. United States, 37 F.3d 858, 860 (2d Cir. 1994); Valdez v. Hulihan, 640 F.Supp.2d 514, 515 (S.D.N.Y. 2009) (“[O]nce a sentence has been completely served and thus expired, an individual is no longer ‘in custody' under that conviction”).
Here, Petitioner was not physically incarcerated when he filed this habeas petition on July 7, 2022, and his allegations that he was sentenced to three years' probation in 2017 suggested that his probation had already expired and that his sentence was fully served. The Court had therefore directed Petitioner to plead any facts in his amended petition showing that, at the time that he filed the initial petition, he was still in custody for this conviction.
In the amended petition, Petitioner alleges the following regarding his custody:
The sentence was violated the 8th Amendment cruel and unusul punishment. A letter to terminate sentence was never received, and custody in the form of quasi-jurisdictional manner is a restraint on liberty which approves for “habeas corpus” prohibition.(ECF 10 at 10.)
The spelling and punctuation in all quoted material is from the original.
Petitioner further explains the following:
The Sentencing Judge in March 2017 issued 3 yrs, Probation and other restitution. Within the time of the restitution, the Probation officer, Arato, William, and Maraz. The order RAMI BALY to visit, to Centre St. once a week for two yrs, with monthly visits to the residence. Within that two year a request for early discharge was denied. The final third year, the order changed to appear at the Dept. of Probation, every other week, with monthly visits to the residence. The probation sentence was terminate the month the pandemic began, in 2020. Baly never received discharge papers. The other restitution was from BALY to go to Job interviews for employment, and schedule check ups for a toxicology test.... Since the termination papers were never issued, and signed, the liability is one the department of probation.(Id. at 35-36.)
Petitioner states that he is not in possession of paperwork regarding his discharge from probation. He clarifies, however, that his obligations to report to his probation officer and permit the probation officer to make home visits have ended, and that his “probation sentence was terminate[d] the month the pandemic began, in 2020.” (Id. at 35.) Because Petitioner's probation ended in 2020, two years before he filed this action in 2022, Petitioner's probation cannot be the basis for concluding that he was “in custody” on this 2017 conviction when he filed this suit.
Petitioner also contends that he was subject to “other restitution,” and the Court therefore considers whether this could be a basis for finding that Petitioner was in custody for the challenged conviction. Petitioner elaborates in the amended petition that what he refers to as “restitution” included requirements such as finding employment and undergoing drug testing. These allegations are not sufficient to demonstrate that he was “in custody” when he filed this suit. First, Petitioner does not allege that these employment and drug testing requirements continued after his probation ended in 2020. Next, the collateral consequences of a conviction (such as disqualification from voting, jury duty, or certain occupations) have not been considered a restraint on liberty that satisfies the “in custody” requirement. See Maleng, 490 U.S. at 492.
Finally, it is true that the United States Court of Appeals for the Second Circuit has “not adopted a rule declaring fines and restitution orders to be, ipso facto, noncustodial.” Kaminski v. United States, 339 F.3d 84, 87 (2d Cir. 2003); see also Gonzalez v. United States, 792 F.3d 232, 237 (2d Cir. 2015) (noting that the Second Circuit has “not as yet foreclosed the possibility that a restitution order might entail a sufficiently severe restraint on liberty, not shared by the public at large, as to amount to a form of custody”). Nevertheless, the Second Circuit has held that “circumstances where the restitution order amounts to a severe restraint on liberty . . . will likely be . . . rare.” Id.; Carter v. United States, No. 3:13-CV-00820, 2015 WL 4250483, at *5 (D. Conn. July 13, 2015) (concluding that restitution order was noncustodial where it limited payments to $200 per month); Kaminski, 339 F.3d at 87 (restitution order limiting monthly payments to the greater of 10% of monthly income or $100 “plainly does not come close” to being a severe restraint on liberty). There is no allegation that Petitioner's “restitution” obligations continue, but, even if they did, he has not pleaded facts suggesting that this is the rare case where the restitution order amounts to a severe restraint on his liberty. Petitioner's amended petition thus does not satisfy his burden of establishing that he was “in custody” for purposes of challenging his conviction, which was already fully expired when he filed this action. The Court therefore lacks jurisdiction to entertain the amended petition.
CONCLUSION
Petitioner's motion for an extension of time to appeal (ECF 16) is denied as moot because his appeal was dismissed. Petitioner's motions for reargument and reconsideration (ECF 13, 14) are granted to the extent that the Court reopens this matter and has reviewed the amended petition. After reviewing the amended petition (ECF 10), the Court denies it because Petitioner does not show that he was in custody on this fully served conviction when he brought this action.
Because the petition makes no substantial showing of a denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.