REPORT-RECOMMENDATION AND ORDER1

CHRISTIAN F. HUMMEL, Magistrate Judge.

Presently pending before the Court is a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by petitioner pro se Daniel P. Taylor ("petitioner"), formerly an inmate in the custody of the New York Department of Correction and Community Supervision ("DOCCS"). Dkt. No. 1 ("Pet."). On June 27, 2013, after a jury trial, petitioner was convicted of assault in the second degree and criminal possession of a weapon in the fourth degree. Id. at 2. Petitioner was sentenced to seven years imprisonment on the assault charge, and one year imprisonment on the weapons charge. Id. On October 6, 2016, petitioner filed a pro se petition seeking a writ of habeas corpus on the grounds that petitioner's trial counsel was ineffective. Id. at 5-8. Respondent opposes the petition, and seeks dismissal on the grounds that petitioner's petition is now moot. Dkt. No. 32. For the reasons that follow, it is recommended that the petition be denied as moot.

I. Background

On June 27, 2013, after a trial in Saratoga County Court, a jury convicted petitioner of second-degree assault and fourth-degree criminal possession of a weapon. See Pet. at 2. The Appellate Division, Third Department affirmed the judgment, and, on July 30, 2014, the Court of Appeals denied leave to appeal. See People v. Taylor, 118 A.D.3d 1044 (N.Y. App. Div. 2014), lv. denied, 23 N.Y.3d 1043 (N.Y. 2014). On October 6, 2016, petitioner filed a petition for a writ of habeas corpus alleging ineffective assistance of trial counsel. See Pet. In the petition, petitioner acknowledged that his state remedies had not been exhausted, as his New York C.P.L. § 460.15 motion was pending in state court. Id. at 1. Thus, petitioner requested that the Court stay his petition until his state remedies were exhausted. See id.

On October 31, 2016, the Court granted petitioner's request for a stay, and instructed petitioner to advise the Court in writing every thirty days of the status of the state court proceedings. Dkt. No. 5. On November 2, 2017, the New York State Appellate Division, Third Department found petitioner's trial counsel ineffective, and vacated the judgment of his conviction and remitted petitioner's case to Saratoga County Court for a new trial. See People v. Taylor, 156 A.D.3d 86 (N.Y. App. Div. 2017); Dkt. No. 18. The People's application for leave to appeal to the New York Court of Appeals was denied on February 1, 2018. See People v. Taylor, 30 N.Y.3d 1120 (N.Y. 2018); Dkt. No. 27 at 2. On March 1, 2018, petitioner entered into a negotiated guilty plea to one count of assault in the second degree in satisfaction of the indictment, and was sentenced to time served. See Dkt. No. 27-2 at 2.

This Court directed respondent to file an answer to the petition and stated that respondent may "limit his response to addressing the present procedural posture of [p]etitioner's state court proceedings and whether those proceedings have rendered [his] habeas petition moot in this action[.]" Dkt. Nos. 18, 28. On June 25, 2018, respondent filed a response, arguing that petitioner's "petition should be dismissed as moot because the judgment challenged therein has been vacated and petitioner has been released from custody." Dkt. No. 32-1 at 4.

II. Discussion

"Mootness is a jurisdictional matter relating to the Article III requirement that federal courts hear only `cases' or `controversies.'" Blackwelder v. Safnauer, 866 F.2d 548, 550 (2d Cir.1989) (citing Preiser v. Newkirk, 422 U.S. 395, 401 (1975)). "A case becomes moot `when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.'" Hunter v. Gibson, 534 F.Supp.2d 395, 398 (W.D.N.Y. 2008) (quoting Blackwelder, 866 F.2d at 551). If a case fails to satisfy the "case or controversy" requirement at any stage of the proceedings, the court must dismiss the case as moot. See Gutierrez v. Laird, No. 05-CV-5135 (DLI), 2008 WL 3413897, at *1 (E.D.N.Y. Aug. 8, 2008) (citing Kamagate v. Ashcroft, 385 F.3d 144, 150 (2d Cir. 2004)). However, it has been held that "[u]nconditional release from custody does not render the matter moot if there are any significant collateral consequences as a consequence of the conviction." Caroselli v. Smith, 665 F.Supp.2d 104, 110 (N.D.N.Y. 2009) (citing Carafas v. LaVallee, 391 U.S. 234, 237-38 (1968). Thus, "a habeas petition challenging a criminal conviction is rendered moot by a release from imprisonment `only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction.'" Perez v. Greiner, 296 F.3d 123, 125 (2d Cir. 2002) (quoting Sibron v. New York, 392 U.S. 40, 57 (1968)).

In his petition, petitioner requested that his convictions be vacated, and that the Court "order[] that the State release [him] from custody if, within sixty days of this Court's order, it ha[d] not provided [him] with a new trial." Pet. at 9. Plaintiff received that relief through the Third Department's 2017 decision vacating the judgment of his convictions. See People v. Taylor, 156 A.D.3d 86 (N.Y. App. Div. 2017); Dkt. No. 18. The Court of Appeals denied leave to appeal, and, as respondent notes, the People's time to seek certiorari to the United States Supreme Court has expired. See People v. Taylor, 30 N.Y.3d 1120 (N.Y. 2018); Dkt. No. 27 at 2; Dkt. No. 32-1 at 8 (citing U.S. Sup. Ct. Rule 13). Thus, the only relief that could be provided by this Court has already been granted. See id.

As respondent argues, petitioner no longer has a personal stake in the outcome of this litigation, as his "[p]rior counsel's performance at the now-nullified 2013 trial cannot have affected petitioner's 2018 guilty plea." Dkt. No. 32-1 at 8; see Arthur v. DHS/ICE, 713 F.Supp.2d 179, 182 (W.D.N.Y. 2010) ("[W]hen the parties have no legally cognizable interest or practical personal stake in a dispute and a court is therefore incapable of granting a judgment that will affect the legal rights as between the parties, there is mootness in the constitutional sense."). Thus, this Court is unable to order the 2018 judgment vacated due to any improprieties that occurred during the 2013 trial. See Dkt. No. 32-1 at 8.

Moreover, the undersigned notes that petitioner has failed to communicate with the Court since October 16, 2017; as such, he has not demonstrated that he continues to suffer a concrete injury-in-fact. See Spencer v. Kemma, 523 U.S. 1, 7 (1998) ("Once the convict's sentence has expired, however, some concrete and continuing injury other than the now-ended incarceration or parole — some `collateral consequence' of the conviction — must exist if the suit is to be maintained."); So v. Reno, 251 F.Supp.2d 1112, 1121 (E.D.N.Y. 2003) ("In order for a habeas petitioner who is no longer in custody to demonstrate a case or controversy, a concrete and continuing injury that is a collateral consequence of the detention and can be remedied by granting the writ must exist.") (internal quotation marks omitted). In reviewing the record, the undersigned finds that such a showing has not been made herein. Linares v. Barkley, No. 9:09-CV-1191 (DNH/RFT), 2010 WL 4962998, at *3 (N.D.N.Y. Oct. 8, 2010) (recommending dismissal of the petitioner's habeas petition where he failed to demonstrate that he continued to suffer from a concrete injury-in-fact still existed). Thus, because "[p]etitioner has received all the relief that this Court could provide in this proceeding, the matter complained of is not capable of repetition yet evading review, and there are no collateral consequences at bay," it is recommended that petitioner's petition be dismissed as moot. Id.

III. Conclusion

For the reasons stated herein, it is hereby,

RECOMMENDED, that petitioner's petition for a writ of habeas corpus (Dkt. No. 1) be DENIED as moot; and it is further

RECOMMENDED, that no certificate of appealability should be issued with respect to any of petitioner's claims as petitioner has not made a "substantial showing of the denial of a constitutional right" pursuant to 28 U.S.C. § 2253(c)(2). See 28 U.S.C. § 2253(c)(2) ("A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right."); see also Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000); and it is

ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation and Order on all parties in accordance with Local Rules.

IT IS SO ORDERED.

Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge 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 (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Small v. Sec'y of HHS, 892 F.2d 15 (2d Cir. 1989); 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72, 6(a), 6(e).

Attorneys and Law Firms

Jorge Linares, Cape Vincent, NY, pro se.

Hon. Andrew M. Cuomo, Attorney General of the State of New York, Paul B. Lyons, Esq., Assistant Attorney General, of Counsel, New York, NY, for Respondent.

REPORT—RECOMMENDATION and ORDER

RANDOLPH F. TREECE, United States Magistrate Judge.

*1 Pro se Petitioner Jorge Linares brings this Petition for a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, challenging a disciplinary conviction and sentenced he received on November 23, 2007, while he was incarcerated at the Riverview Correctional Facility. Dkt. No. 1, Pet., at ¶¶ 1-2. Respondent has filed a Motion to Dismiss the Petition as Moot, Dkt. No. 13, which Petitioner opposes, Dkt. No. 15.1 For the reasons that follow, we recommend granting Respondent's Motion and dismissing the Petition.

I. BACKGROUND

The following facts are not in dispute. While incarcerated at Riverview, Linares received a Misbehavior Report, dated November 7, 2007, charging him with violating Prison Rule 113.15, which provides that "[a]n inmate shall not purchase, sell, loan, give or exchange a personally owned article without authorization." N.Y. COMP.CODES R. & REGS. tit. 7, § 270.2(B)(14) (v); Dkt. No. 13-2, Paul B. Lyons, Esq., Decl., dated May 21, 2010, Ex. A, Misbehavior Rep. The Report, authored by Lieutenant E.D. Cross, stated that two copies of an affidavit, prepared by Linares, were recovered from another inmate's cell and that Linares had no authorization to give such documents to that inmate. Lyons Decl., Ex. A.

On November 16, 20, and 23, 2007, Rebecca Fiacco, Deputy Superintendent for Administration, conducted a Tier III Disciplinary Hearing as to the charged violation. Id., Ex. B, Tier III Disciplinary Hr'g Tr. On November 23, 2007, at the conclusion of the Hearing, Hearing Officer Fiacco found Linares guilty of an "unauthorized exchange" in violation of Rule 113.15. Id. at pp. 26-27. A sentence of 180 days confinement in a special housing unit (SHU) with corresponding loss of privileges was assessed. Id. at p. 26. Hearing Officer Fiacco also recommended a loss of 180 days of good time credit and that Linares be removed as an Inmate Grievance Resolution Committee representative. Id. Such disposition was administratively appealed by Linares. Id., Ex. C, Inmate Appeal. On January 25, 2008, Norman R. Bezio, Director of Special Housing/Inmate Disciplinary Program, reduced the penalty to three months confinement in SHU, with corresponding loss of privileges and loss of good time. Id, Ex. D, Review of Supt. Hr'g. The stated reason for the sentence reduction was that the "[c]ircumstances surrounding the incident [did] not warrant the penalty imposed." Id. at p. 2.

On February 19, 2008, Linares submitted a pro se Article 78 petition to the Albany County Supreme Court, which was transferred to the Appellate Division, Third Department, for disposition. Id., Exs. E—K. On February 5, 2009, the Third Department unanimously dismissed the petition, and leave to appeal to the Court of Appeals was subsequently denied. Id., Exs. L-0. Petitioner filed the current Habeas Petition on October 15, 2009, asserting the following due process violations, which were also raised in his Article 78 petition:2

*2 [1] The hearing officer failed to consider evidence presented by petitioner denying him due process[;] . . .

Pet. at ¶¶ 12(A)-(D).

During the pendency of this Petition, Norman Bezio issued a Memorandum, dated March 29, 2010, noting that, pursuant to a discussion with the Office of the Attorney General, he is administratively reversing the findings of the November 23, 2007 Superintendent's Hearing and ordering that "all records containing references" to the Hearing be expunged. Lyons Decl., Ex. P.

II. DISCUSSION

A. Standard of Review

"A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000) (citing FED. R. CIV. P. 12(b)(1)). In considering such a motion, a court must accept the material factual allegations in the complaint as true. J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir.2004). Where jurisdictional facts are disputed, "the district court can refer to evidence outside the pleadings and the plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that [jurisdiction] exists." Luckett v. Bure, 290 F.3d 493, 496-97 (2d Cir.2002) (citations omitted); see also Societe Nationale d'Exploitation Industrielle des Tabacs et Allumettes v. Salomon Bros. Ina Ltd., 928 F.Supp. 398, 402 (S.D.N.Y.1996) ("[T]he Court need not accept as true contested jurisdictional allegations and may resolve disputed jurisdictional facts by reference to affidavits and other material outside the pleadings."). As the party "seeking to invoke the subject matter jurisdiction of the district court," the plaintiff/petitioner bears the burden of demonstrating that there is subject matter jurisdiction in the case. Scelsa v. City Univ. of New York, 76 F.3d 37, 40 (2d Cir.1996); see also Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir.2005).

B. Mootness

Respondent contends that the reversal and expungement of Linares's Superintendent Hearing renders this matter moot since he has been afforded all the relief he would be entitled. Dkt. No. 13-1, Resp't Mem. of Law. Linares counters that his Petition remains relevant because the state decisions in conjunction with his Article 78 petition have not been expunged and this issue is capable of repetition, yet evading review. Dkt. No. 15, Pet'r Resp.

Article III, Section 2 of the United States Constitution limits the subject matter of the federal courts to those cases which present a "case or controversy." Spencer v. Kemna, 523 U.S. 1, 6 (1998); Greif v. Wilson, Elser, Moskowitz, Edelman & Dicker LLP, 258 F.Supp.2d 157 (E.D.N.Y.2003). An actual case or controversy must exist at all stages of federal court proceedings to support subject matter jurisdiction. U.S. Const. Art. III. Thus, a case is moot "when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome." City of Erie v. Pap's A.M., 529 U.S. 277, 287 (2000) (internal quotation marks and citations omitted); Lavin v. United States, 299 F.3d 123, 128 (2d Cir.2002). "The hallmark of a moot case or controversy is that the relief sought can no longer be given or is no longer needed." Martin-Trigona v. Shift, 702 F.2d 380, 386 (2d Cir.1983).

*3 If a court determines an action is moot, it may still entertain such action if it is one that is "capable of repetition, yet evading review." Olmstead v. L. C. ex rel. Zimring, 527 U.S. 581, 594 n. 6 (1999). An otherwise moot claim is "capable of repetition" if 1) the duration of the challenged condition was too limited in duration to permit litigation prior to its cessation, or 2) if there is a reasonable expectation that the plaintiff will be subject to the same action again. Weinstein v. Bradford, 423 U.S. 147, 149 (1975). A federal court may also entertain a claim if collateral consequences would ensue from denial of the relief sought on mootness grounds. Werber v. United States, 149 F.3d 172, 176 (2d Cir.1998).

In this action, the only relief to be provided by this Court has already been granted through Bezio's March 29, 2010 reversal and expungement order. Therefore, we agree with Respondent that this Habeas Petition is now moot. Lebron v. Graham, 2010 WL 2771878, at *3 (N.D.N.Y. July 12, 2010) (dismissing habeas petition after petitioner had obtained the sole relief sought by his petition, to wit, release to parole supervision); Arturo v. Bureau of Immigration and Customs Enforcement, 2003 WL 22139797 (N.D.N.Y. Sept. 16, 2003) (petitioner's deportation rendered habeas petition, seeking same relief, moot); Arthur v. DHSIICE, 713 F.Supp.2d 179, 2010 WL 1983075 (W.D.N.Y. May 14, 2010) (petitioner's release from administrative custody, which was the only remedy offered through his habeas petition, rendered the petition moot); Champion v. Connell, 2009 WL 290451 (N.D.N.Y. Feb. 4, 2009) (petition challenging denial of parole rendered moot once petitioner was released on parole). Linares asserts that other relief is available to him through this proceeding. However, it is simply not within this Court's province nor authority, as Linares suggests, to order the Appellate Division to expunge its records or references to Petitioner's now-reversed disciplinary sentence, nor can we fathom how the existence of such state court records could prejudice Linares. Linares's proposed relief is plainly not cognizable in this Habeas matter. Nor can the Court fathom how the Appellate Division's discrete ruling on the Article 78 petition would have "adverse legal consequences" on future cases. Pet'r Resp. Mem. of Law at p. 5.

Lastly, the current Petition could be maintained if Linares established that collateral consequences stemming from the Superintendent conviction still exist. Green v. McGinnis, 2003 WL 548826, at *2 (W.D.N.Y. Feb. 5, 2003) (citing Carafas v. LaVallee, 391 U.S. 234, 236 (1968)); see also Spencer v. Kemna, 523 U.S. at 7. In the situation where a petitioner challenges his underlying criminal conviction, a presumption exits that collateral consequences flow from such conviction. See Sibron v. New York, 392 U.S. 40, 54-55 (1968) (acknowledging that "most criminal convictions do in fact entail adverse collateral legal consequences") (quoted in So v. Reno, 251 F.Supp.2d 1112, 1121 (E.D.N.Y.2003)). However, courts have declined to extend such presumption to challenges of proceedings other than the underlying criminal conviction. See Butti v. Fischer, 385 F.Supp.2d 183, 185-86 (W.D.N.Y.2005) (citing cases). Instead, to proceed, Linares would have to establish that he suffers a concrete injury-in-fact. Spencer v. Kemna, 523 U.S. at 7-8; So v. Reno, 251 F.Supp.2d at 1121 ("In order for a habeas petitioner who is no longer in custody to demonstrate a case or controversy, a concrete and continuing injury that is a collateral consequence of the detention and can be remedied by granting the writ must exist.") (internal quotation marks omitted) (quoted in Butti v. Fischer, 385 F.Supp.2d at 185). Such a showing has not been made herein. Since Petitioner has received all the relief that this Court could provide in this proceeding, the matter complained of is not capable of repetition yet evading review, and there are no collateral consequences at bay, we recommend that this matter be dismissed as moot.3

III. CONCLUSION

*4 For the reasons stated herein, it is hereby

RECOMMENDED, that the Respondent's Motion to Dismiss (Dkt. No. 13) be GRANTED and the Petition for a Writ of Habeas Corpus (Dkt. No. 1) be DENIED; and it is further

RECOMMENDED, that because the Court finds Petitioner has not made a "substantial showing of the denial of a constitutional right" pursuant to 28 U.S.C. § 2253(c)(2), no certificate of appealability should be issued with respect to any of Petitioner's claims. See 28 U.S.C. § 2253(c)(2) ("A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right."); see also Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir.2000); and it is further

ORDERED, that the Clerk of the Court serve a copy of this Report—Recommendation and Order upon the parties to this action.

Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) 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 (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir.1989)); see also 28 U.S.C. § 636(b) (1); FED. R. CIV. P. 72, 6(a), & 6(e).

All Citations

Not Reported in F.Supp.2d, 2010 WL 4962998

Attorneys and Law Firms

Herminio Gutierrez, Brooklyn, NY, pro se.

Anthony Kyriakakis, Evan M. Norris, United States Attorneys Office, Eastern District of New York, Brooklyn, NY, for Respondent.

SUMMARY ORDER

DORA L. IRIZARRY, District Judge.

*1 Petitioner Herminio Gutierrez, pro se, initiated this action on October 28, 2005, seeking a writ of habeas corpus, pursuant to 28 U.S.C. § 2241. Petitioner sought credit for time he served in New York State custody prior to his parole revocation hearing before the United States Parole Commission ("Commission"). Since filing the instant action, the United States Bureau of Prisons has re-released petitioner to parole. For the reasons set forth below, the court dismisses petitioner's claim as moot.

DISCUSSION

"A writ of habeas corpus under § 2241 is available to a federal prisoner who does not challenge the legality of his sentence, but-challenges instead its execution subsequent to his conviction." Carmona v. United States Bureau of Prisons, 243 F.3d 629, 632 (2d Cir.2001). Litigants in federal courts must satisfy the case-or-controversy requirement of Article III of the Constitution to be eligible for relief. See U.S. Const. Art. III, § 2. If a case fails to satisfy this requirement at any stage of the proceedings, the case becomes moot, and dismissal is required. See Kamagate v. Ashcroft, 385 F.3d 144, 150 (2d Cir.2004) (emphasis added) (citing Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998)). Habeas petitioners no longer in custody must demonstrate a concrete and continuing injury that is a collateral consequence of detention. So v. Reno, 251 F.Supp.2d 1112, 1120 (E.D.N.Y.2003) (internal quotation marks omitted) (citing Spencer, 523 U.S. at 7). There is a presumption of collateral consequences for challenges to criminal convictions; however, no such presumption exists for challenges to other aspects of criminal proceedings. See Cobos v. Unger, 534 F.Supp.2d 400, 403 (W.D.N.Y.2008) (holding that petitioner's challenge to denial of parole was rendered moot by his subsequent release to parole).

On October 28, 2005, prior to his parole revocation hearing, Petitioner filed a petition seeking a writ of habeas corpus under § 2241. (Resp.Letter, Apr. 23, 2008.) Petitioner did not challenge his underlying criminal conviction or the sentence imposed upon him; rather, he sought credit for the time he served in New York State custody before his revocation hearing. Petitioner is no longer in federal custody, as he was re-released to parole on May 26, 2006. Under the circumstances, there is no presumption of collateral consequences from his detention, and he presented no evidence of a continuing or concrete injury after re-release. Thus, his petition for credit no longer satisfies the case-or-controversy requirement of Article III § 2 and is dismissed as moot.

CONCLUSION

For the reasons set forth above, petitioner's petition seeking a writ of habeas corpus is denied as moot.

SO ORDERED.

All Citations

Not Reported in F.Supp.2d, 2008 WL 3413897