Opinion
9:09-cv-632 (GLS/ATB).
June 28, 2011
Keith Maguire, Pro Se, Rhinebeck, NY, Attorney for the petitioner.
PAUL B. LYONS, Assistant Attorney General, HON. ERIC T. SCHNEIDERMAN, New York State Attorney General, The Capitol, Albany, NY, Attorneys for the respondent.
MEMORANDUM-DECISION AND ORDER
I. Introduction
Pro se petitioner Keith Maguire filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging, inter alia, the addition of three years of parole supervision to the sentence resulting from his third conviction. ( See Pet., Dkt. No. 1.) In a Report and Recommendation (R R) filed May 6, 2010, Magistrate Judge Andrew T. Baxter recommended that Maguire's petition be denied. (Dkt. No. 18.) Pending are Maguire's timely objections to the R R. (Dkt. No. 19.) For the reasons that follow, the R R is adopted, and Maguire's petition is denied and dismissed.
The Clerk is directed to append the R R to this decision, and familiarity therewith is presumed.
II. Standard of Review
Before entering final judgment, this court routinely reviews all report and recommendation orders in cases it has referred to a magistrate judge. If a party has objected to specific elements of the magistrate judge's findings and recommendations, this court reviews those findings and recommendations de novo. See Almonte v. N.Y. State Div. of Parole, No. 04-cv-484, 2006 WL 149049, at *6-7 (N.D.N.Y. Jan. 18, 2006). In those cases where no party has filed an objection, or only a vague or general objection has been filed, this court reviews the findings and recommendations of a magistrate judge for clear error. See id.
III. Discussion
The court incorporates the factual recitation contained in Judge Baxter's R R. ( See R R at 2-4, Dkt. No. 18.)
A. Habeas Corpus
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), where a state court has adjudicated the merits of a petitioner's claim, a federal court may grant an application for a writ of habeas corpus only if the state adjudication "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). Under § 2254(d)(1), a state-court decision is contrary to clearly established Supreme Court precedent if its "conclusion on a question of law is 'opposite' to that of the Supreme Court or if the state court decides a case differently than the Supreme Court 'on a set of materially indistinguishably facts.'" Brown v. Alexander, 543 F.3d 94, 100 (2d Cir. 2008) (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000).) A state-court decision involves an unreasonable application of clearly established Supreme Court precedent if "it identifies the correct governing legal principle but unreasonably applies that principle to the facts of the [particular] case." Williams, 529 U.S. at 413.Under AEDPA, a state court's factual findings are presumed correct, unless that presumption is rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). If the state court failed to decide a claim "on the merits," the pre-AEDPA standard of review applies, and both questions of law and mixed questions of law and fact are reviewed de novo. See Washington v. Schriver, 255 F.3d 45, 55 (2d Cir. 2001).
B. Maguire's Objections
Maguire challenges Judge Baxter's conclusion that his claims fail to satisfy the "case-or-controversy" component of subject matter jurisdiction because he challenges only the "recomputation of his sentence, not any underlying conviction." ( See Objections at 1-2, Dkt. No. 19; R R at 9, Dkt. No. 18.) Federal courts have jurisdiction only over those cases that present a "case or controversy." Spencer v. Kemna, 523 U.S. 1, 7 (1998); Baur v. Veneman, 352 F.3d 625, 631-32 (2d Cir. 2003). Thus, a case is moot and should be dismissed "when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." Cnty. of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (internal quotation marks and citation omitted). Additionally, for a habeas corpus petition to continue after the petitioner is released from custody, he must present a "concrete and continuing injury . . . [that is a] 'collateral consequence' of the conviction." Spencer, 523 U.S. at 7 (citing Carafas v. LaVallee, 391 U.S. 234, 237-38 (1968)).
Maguire identifies two categories of harm he is alleged to have suffered as a result of his imprisonment: first, past injuries, including loss of a job opportunity, loss of three years to apply for a certificate of good conduct, and loss of housing opportunities; and second, injuries to personal relationships, including loss of the opportunity to care for his sick father and attend his funeral, estrangement from his common law spouse, and loss of his pet. ( See Objections at 2, Dkt. No. 19.) Here, the only remedy for the alleged violation is release from prison. However, as the record demonstrates, Maguire was released from state prison on June 30, 2009. ( See R R at 9, Dkt. No. 18; Statement in Supp. of Pet. at 8, Dkt. No. 1; Notice of Change of Address letter, Dkt. No. 7.) Thus, given Maguire's release, there is no further relief available to him, and his petition must be denied and dismissed.
IV. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge Andrew T. Baxter's Report and Recommendation (Dkt. No. 18) is ADOPTED and Maguire's petition for a writ of habeas corpus is DENIED and DISMISSED; and it is further
ORDERED that the court DECLINES to issue a certificate of appealability because Maguire has failed to make a "substantial showing of the denial of a constitutional right" pursuant to 28 U.S.C. § 2253(c)(2); and it is further
ORDERED that the Clerk close this case and provide a copy of this Memorandum-Decision and Order to the parties.
IT IS SO ORDERED.
REPORT AND RECOMMENDATION
This matter has been referred to me for Report and Recommendation pursuant to 28 U.S.C. § 636(b) and LOCAL RULES N.D.N.Y. 72.3(c).I. Introduction
Petitioner Keith Maguire brings this action for a writ of habeas corpus, challenging the addition of three years of parole supervision to the sentence he received after his third conviction. (Pet. ¶ 1). He raises following grounds in support of the petition: (1) petitioner's due process rights were violated, and he was subjected to "double jeopardy" when the time remaining from his first sentence was added to his third sentence after petitioner had finished serving his second sentence; (2) New York State Division of Parole ("NYSDP") and New York State Department of Corrections ("DOCS") increased petitioner's third sentence without any authorization or direction of the sentencing court and contrary to all statutes; (3) Parole Manual Item #9212.10, MEPS is invalid because it was not properly promulgated; and (4) the NYSDP has voided and disregarded all valid contractual agreements to unlawfully reclaim jurisdiction over petitioner for an expired and served sentence. (Pet. ¶ 12).Petitioner filed his pro se habeas corpus petition on June 2, 2009, together with a memorandum of law in support of his claims. (Dkt. Nos. 1, 2). Respondent has filed an answer, memorandum of law, and the pertinent state court records. (Dkt. Nos. 12, 13, 14). Petitioner filed a traverse on November 30, 2009. (Dkt. No. 16). For the following reasons, this court finds that the petition should be denied as moot.
II. Background
A. Facts
Petitioner was convicted in 1985 for Robbery in the First Degree (N.Y. PENAL LAW § 160.15) in Westchester County Supreme Court, Attempted Robbery in the First Degree (N.Y. PENAL LAW §§ 110.10, 160.15) in New York County Supreme Court, and Robbery in the First Degree (N.Y. PENAL LAW § 160.15) in Bronx County Supreme Court, for which he was sentenced to concurrent prison terms of 7 to 14 years, 4 to 8 years, and 6 to 12 years, respectively ("Sentence #1"). (Stmt. in Supp. of Pet. 2; Ans. ¶ 2).
While on parole for Sentence #1, petitioner was convicted as a second felony offender on May 28, 1992, for Robbery in the Third Degree (N.Y. PENAL LAW § 160.05) in Supreme Court, Bronx County, for which he was sentenced to a prison term of 2.5 to 5 years ("Sentence #2"). Id. When DOCS calculated the maximum expiration date of petitioner's sentence and parole supervision for Sentence #2, it erroneously failed to include the time remaining on Sentence #1, which, pursuant to N.Y. Penal Law section 70.25(2-a), would run consecutively to Sentence #2. (Resp.'s Mem. of Law 3). Petitioner was conditionally released in 1995, but returned to DOCS custody in 1996 for violating parole, and was again released on parole in 1996. (Stmt. in Supp. of Pet. 2; Ans. ¶ 2). Due to the error in calculation, petitioner received a "final discharge" in 1997 because the remaining time on Sentence #1 was not included. (Resp.'s Mem. of Law 3).
Petitioner was again convicted as a second felony offender on February 9, 2001, for Grand Larceny in the Third Degree (N.Y. PENAL LAW § 155.35) in Dutchess County Court, for which he was sentenced to a prison term of 3 to 6 years ("Sentence #3"). (Stmt. in Supp. of Pet. 2; Ans. ¶ 2). In 2001, DOCS realized its computation error and recalculated petitioner's maximum expiration date of parole supervision to June 3, 2009. (Resp.'s Mem. of Law 3). When petitioner was released to parole supervision on August 4, 2003, the Certificate of Release erroneously indicated that Sentence #2 was to expire on August 5, 2006. (Resp. Ex. W, Pet. Ex. C).
Petitioner "was informed" of the recalculated date (June 3, 2009) for his parole supervision "sometime during the Spring of 2006," and his parole officer was inquiring about the change when petitioner was detained at the Ulster County Jail on August 11, 2006, "for an arrest which was not prosecuted." (Stmt. in Supp. of Pet. 7-8). Petitioner's Sentence # 3 parole was then revoked for a technical violation that occurred in late July 2006. Id. Petitioner was detained at the Ulster County Jail and transferred into DOCS custody on July 12, 2007. Id. Petitioner filed this petition on June 2, 2009 (the day before his maximum expiration date), and by June 30, 2009, had been released from custody and was no longer subject to parole supervision. (Dkt. No. 1, Resp. Mem. of Law 13).
B. State Court Proceedings
Petitioner challenged the recalculation of his maximum expiration date in an Article 78 proceeding filed in Albany County Supreme Court dated March 26, 2002. (Resp. Ex. Q). In a decision and order dated June 26, 2002, petitioner's claim was dismissed as meritless. (Resp. Ex. R). Petitioner appealed to the Appellate Division, Third Department, which affirmed the decision of the Supreme Court on April 17, 2003. (Resp. Ex. S). The Appellate Division, Third Department denied petitioner's motion for argument and/or permission to appeal to the Court of Appeals on July 11, 2003. (Resp. Ex. T).
Interestingly, petitioner alleges in his petition that he "was informed" about the change by his parole officer in 2006 as if this were the first time that he was being told about the extra three years. (Dkt. No. 1 at 7-8). It is clear, however, that he knew about the allegedly erroneous addition of three years to his sentence in 2002 when he filed this Article 78 proceeding to challenge the alleged miscalculation.
After returning to DOCS custody in July 2007, petitioner filed a state habeas corpus proceeding on September 20, 2007, again challenging the recalculation of his maximum expiration date. (Resp. Ex. Z). In a decision and order dated May 2, 2008, petitioner's claim was dismissed. (Resp. Ex. CC). Petitioner appealed to the Appellate Division, Fourth Department, which ultimately affirmed the decisions of the Supreme Court on February 6, 2009. (Resp. Ex. HH). Petitioner applied to the New York Court of Appeals for leave to appeal, which leave was denied on May 7, 2009. (Resp. Ex.'s II, KK).
Petitioner filed another Article 78 proceeding in Dutchess County Supreme Court, again challenging the recalculation of his maximum expiration date. (Resp. Ex. LL). The Supreme Court denied petitioner's claim on March 9, 2009. (Resp. Ex. MM). Petitioner's appeal to the Appellate Division, Second Department, is still pending. (Resp. Mem. of Law 12).
Although respondent argues both that this petition is untimely and that petitioner's claims are unexhausted, this court need not address these additional issues since the petition is clearly moot.
III. Discussion
A. Custody and Mootness
Habeas corpus relief is available to a state prisoner if he is "in custody pursuant to the judgment of a State court." 28 U.S.C. § 2254(a). Regardless of a petitioner's subsequent release, it is within the jurisdiction of a federal court to issue a writ of habeas corpus if the petitioner was "in custody" at the time his application for relief was filed. Carafas v. LaVallee, 391 U.S. 234, 237-38 (1968).
Subject matter jurisdiction, however, is limited by Article III, Section 2 of the United States Constitution to cases that present a "case or controversy." Spencer v. Kemna, 523 U.S. 1, 7 (1998); Baur v. Veneman, 352 F.3d 625, 631-32 (2d Cir. 2003). Even when the custody requirement is satisfied, the Court must also determine whether Petitioner has satisfied the "case-or-controversy" requirement. If not, the petition is moot and the Court may not consider it. See Spencer, 523 U.S. at 7. Habeas petitioners no longer in custody must demonstrate the existence of a "concrete and continuing injury" or some "'collateral consequence' of the conviction" in order for a petition to be granted. Id. (quoting Carafas, 391 U.S. at 237-38).
The Supreme Court has stated that a challenge to the underlying conviction itself carries the presumption that a collateral, adverse consequences exists. Spencer, 523 U.S. at 12 ("[I]t is an 'obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences.'") (quoting Sibron v. New York, 392 U.S. 40, 55 (1968)). See Evitts v. Lucey, 469 U.S. 387, 391 n. 4 (1985) (habeas petition not moot despite the expiration of the petitioner's sentence and despite the fact that "his civil rights, including suffrage and the right to hold public office, [had been] restored" because "respondent has not been pardoned and some collateral consequences of his conviction remain, including the possibility that the conviction would be used to impeach testimony he might give in a future proceeding. . . ."); Benton v. Maryland, 395 U.S. 784, 791 (1969) ("[B]oth of petitioner's convictions might some day be used to impeach his character if put in issue at a future trial."). Additionally, the Supreme Court has "expressed its disapproval of requiring a citizen to suffer a legal disability based on a prior conviction before enlisting federal aid to attack the validity of that conviction." Velez v. People of the State of New York, 941 F. Supp. 300, 309 (E.D.N.Y. 1996) (quoting Sibron, 392 U.S. at 57).
A case is moot, and the court has no jurisdiction when the "parties lack a legally cognizable interest in the outcome." Powell v. McCormack, 395 U.S. 486, 496 (1969). Federal courts are without power to decide questions that cannot affect the rights of the parties in the case before the court. Bragger v. Trinity Capitol Enter. Corp., 30 F.3d 14, 16 (2d Cir. 1994). The plaintiff or petitioner must have a "personal stake" in the litigation. Fox v. Board of Trustees of the State University of New York, 42 F.3d 135, 140 (2d Cir. 1994). A party must, at all stages of the litigation, have an "actual injury" that may be redressed by a favorable court decision. United States v. Williams, 475 F.3d 468, 478-79 (2d Cir. 2007). The court has an obligation to consider whether the action is moot. In re Kurtzman, 194 F.3d 54, 58 (2d Cir. 1999).
An exception to mootness occurs when the alleged violation is "capable of repetition, yet evading review." Id. See Murphy v. Hunt, 455 U.S. 478, 482 (1982) (per curiam)). This exception only applies if the challenged action was too short in duration to be fully litigated prior to cessation of the action, and there is a reasonable expectation that the same individual would be subjected to the same action again. Id.
B. Application
According to publicly available records maintained by DOCS and petitioner's Notice of Change of Address letter, petitioner's maximum expiration of parole supervision expired on June 3, 2009, and his Sentence #3 expired on or about June 30, 2009. See http://nysdocslookup.docs.state.ny.us; (Dkt. No. 7). Petitioner was released from custody on June 30, 2009. This petition was filed on June 2, 2009. Although petitioner satisfied the custody requirement when he filed his petition, his later release, coupled with the lack of collateral consequences, fail to satisfy the "case-or-controversy" component discussed above. Petitioner is only challenging the recomputation of his sentence, not any underlying conviction. Because the only relief that the court could have given petitioner in this action was release from custody, there is no relief that the court could give him at this time. Petitioner's claims are therefore moot. and his petition for habeas corpus relief must be denied and dismissed as moot.
Petitioner alleges two types of what he calls "collateral consequences." ( See Traverse ¶ 11). The first type are things that happened in the past, such as losing three years to apply for a "certificate of good conduct, three years credit held against [him] for housing, employment, etc." Id. The second type are described as "the gap" between petitioner and his family, "especially [his] now estranged common law spouse." Id. Neither type are consequences contemplated by the caselaw given above, and the court finds petitioner's argument to be meritless. See, e.g., Carafas v. LaVallee, 391 U.S. 234.
There appear to have been some errors made in petitioner's case, one of which was in his favor. Regardless of the errors and whether they would have risen to the level of a constitutional violation, the fact that the petition is moot means that the court may not proceed further with a consideration of whatever merits there may have been. This includes a determination of whether the Parole Board's Policies and Procedures Manual was "properly promulgated."
WHEREFORE, based on the findings above, it is RECOMMENDED, that the petition be DENIED and DISMISSED.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72.
Dated: May 6, 2010