Opinion
23-CV-9863 (LTS)
01-04-2024
RUSSELL D. PALMER, Petitioner, v. D. MCINTOSH, Respondent.
ORDER OF DISMISSAL
LAURA TAYLOR SWAIN, Chief United States District Judge:
Petitioner, who is currently incarcerated at Clinton Correctional Facility, brings this pro se petition for a writ of habeas corpus, under 28 U.S.C. § 2254.He challenges his 2001 conviction Bronx County conviction, and indicates that he was resentenced in 2011, in order to add a term of post-release supervision. Petitioner is currently incarcerated pursuant to an unrelated 2015 conviction in Albany County. The Court denies the petition for the reasons set forth below.
On December 13, 2023, Petitioner paid the $5.00 filing fee for this action.
STANDARD OF REVIEW
The Court may entertain a petition for a writ of habeas corpus on “behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Under Rule 4 of the Rules Governing § 2254 Cases, the Court has the authority to review and dismiss a § 2254 petition without ordering a responsive pleading from the state, “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Rules Governing § 2254 Cases, Rule 4; see Acosta v. Artuz, 221 F.3d 117, 123 (2d Cir. 2000). The Court is obliged, however, to construe pro se pleadings liberally and interpret them “to raise the strongest arguments they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original); see Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001). Nevertheless, a pro se litigant is not exempt “from compliance with relevant rules of procedural and substantive law.” Triestman, 470 F.3d at 477 (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
BACKGROUND
Petitioner Russell Palmer challenges his Bronx County judgment of conviction, in which a jury found him guilty of criminal sale of a controlled substance in or near school grounds and third-degree criminal possession of a controlled substance. He was sentenced as a second felony offender, to concurrent terms of 10 to 20 years' incarceration. The Appellate Division, First Department affirmed the conviction, and the Court of Appeals denied Petitioner leave to appeal. See People v. Palmer, 299 A.D.2d 235, 235 (1st Dep't Nov. 19, 2002), lv denied, 99 N.Y.2d 584 (Jan. 31, 203). Petitioner's first petition for a writ of habeas corpus challenging this Bronx County conviction was denied. Palmer v. Phillips, No. 04-CV-1414, 2008 WL 2596225 (RMB) (DF) (S.D.N.Y. June 27, 2008).
Petitioner states that on August 10, 2011, an amended judgment was entered for this Bronx County conviction, resentencing him to a determinate sentence of nine years' incarceration, plus three years of post-release supervision. (ECF 1 at 1, ¶¶ 2-3.) According to public records of the New York State Department of Corrections and Community Supervision (DOCCS), Petitioner reached the maximum expiration date on this sentence on October 10, 2012, and was released.
Petitioner is currently incarcerated pursuant to a 2015 conviction on charges of murder in the second degree, conspiracy in the second degree, criminal possession of a weapon in the second degree (two counts) and criminal possession of a controlled substance in the second degree. People v. Palmer, 161 A.D.3d 1291, 1292 (3d Dep't May 10, 2018), lv denied, 31 N.Y.3d 1151 (July 19, 2018).
Petitioner acknowledges that his Bronx County conviction “is completed” but states that “want[s] it removed.” (ECF 1 at 14.)
DISCUSSION
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). Thus, to bring a Section 2254 petition challenging a state court conviction, a petitioner must be in custody pursuant to the challenged judgment of the state court. See Lackawanna Cnty. Dist. Attorney v. Coss, 532 U.S. 394, 401 (2001).
Because Petitioner is no longer in custody on his fully served Bronx County conviction, the Court cannot entertain his Section 2254 petition. The Court therefore denies the petition on the ground that Petitioner is not in custody on the challenged conviction.
CONCLUSION
The Clerk of Court is directed to mail a copy of this order to Petitioner and note service on the docket. The petition for a writ of habeas corpus, filed under 28 U.S.C. § 2254, is denied. 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, pursuant to 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). Judgment shall enter.
SO ORDERED.