The opinion of the court was delivered by: Sprizzo, District Judge:
MEMORANDUM OPINION AND ORDER
The above-captioned habeas corpus petition, filed pursuant to
28 U.S.C. § 2254 (1988), was referred to Magistrate Naomi Reice
Buchwald for a report and recommendation and the Magistrate
recommended that the petition be dismissed. For the reasons that
follow, the report is adopted insofar as it recommends that the
petition be dismissed because petitioner has concededly failed to
exhaust available state remedies.
The facts relevant to the determination of this action are set
forth in the Magistrate's report and are briefly summarized here.
On January 5, 1955, petitioner was admitted to the practice of
law in the state of New York. However, on April 21, 1988, the
petitioner was disbarred by the Appellate Division, First
Department, for non-compliance with its prior order indefinitely
suspending petitioner from practicing law in New York and for
disobedience of other orders. See In re Crescenzi, 136 A.D.2d 386,
527 N.Y.S.2d 221 (1st Dep't 1988). Furthermore, the
Appellate Division found the petitioner guilty of civil and
criminal contempt based on this non-compliance and referred the
question of sanctions to a special referee. Id.
Petitioner then moved in the New York Court of Appeals for
leave to appeal the
April 21, 1988 contempt finding. The Departmental Disciplinary
Committee ("DDC") moved to dismiss the appeal and petitioner
cross-moved for a stay of the Appellate Division's order. The
DDC's motion was granted because the Appellate Division's ruling
on the contempt issue was not a final determination and because
the challenge to petitioner's disbarment did not present a
substantial constitutional question. The motion for a stay was
dismissed as academic.*fn1 See 72 N.Y.2d 906, 528 N.E.2d 1225,
532 N.Y.S.2d 752 (1988). Petitioner also sought leave to appeal
an order of the Appellate Division denying his motion for
reargument. That motion was also denied. See 72 N.Y.2d 906,
528 N.E.2d 1225, 532 N.Y.S.2d 752 (1988). Similarly, petitioner
sought and was denied reargument of the Court of Appeals'
decisions. See 72 N.Y.2d 953, 529 N.E.2d 428, 533 N.Y.S.2d 60
(1988). Thereafter, on January 5, 1989, the referee recommended
that petitioner be fined $250 for civil contempt, $250 for
criminal contempt and imprisoned for thirty days. The Appellate
Division adopted this recommendation in its entirety on March 30,
1989. See In re Crescenzi, 146 A.D.2d 86, 539 N.Y.S.2d 18 (1st
Dep't 1989). On April 5, 1989, petitioner filed a notice of
appeal of the Appellate Division's March 30, 1989 order.
On April 17, 1989, petitioner filed this petition for habeas
corpus contesting his contempt conviction and on April 27, 1989
began serving the thirty day sentence.*fn2 On May 1, 1989,
petitioner filed an amended petition and submitted an application
for release on bail pending determination of his petition. The
bail question was referred to Magistrate Buchwald who recommended
that the application be denied. The Court adopted this
recommendation on May 22, 1989. Shortly thereafter, petitioner
was unconditionally released from custody.
On July 31, 1989, the Magistrate issued the report and
recommendation presently under review in which she recommended
that the petition be dismissed as moot because petitioner had
been unconditionally released from custody and alternatively
because petitioner had failed to exhaust available state
remedies. Thereafter, petitioner filed his objections to the
report in which he conceded that he had not exhausted his state
remedies to contest the contempt sanctions but argued that the
Court should retain jurisdiction over the petition pending
completion of the state proceedings.
Under 28 U.S.C. § 2254, a habeas petitioner must establish that
he is "in custody in violation of the Constitution or laws . . .
of the United States." See 28 U.S.C. § 2254(a) (1988). However,
a petitioner need not actually be imprisoned to meet the "in
custody" requirement, and may satisfy this requirement if he
presently suffers from substantial restraints not shared by the
public generally. See, e.g., Hensley v. Municipal Court,
411 U.S. 345, 351, 93 S.Ct. 1571, 1574-75, 36 L.Ed.2d 294 (1973)
(release on own recognizance); Jones v. Cunningham,
371 U.S. 236, 243, 83 S.Ct. 373, 377, 9 L.Ed.2d 285 (1963) (parole).
Moreover, once the petitioner has satisfied the "in custody"
requirement, jurisdiction is not thereafter defeated by
petitioner's subsequent release from custody. See Carafas v.
LaValle, 391 U.S. 234, 238, 88 S.Ct. 1556, 1559-60, 20 L.Ed.2d
554 (1968). It is clear therefore that since petitioner began
serving his sentence for contempt on April 27, 1989, he satisfied
the "in custody" requirement at the time he filed his amended
petition on May 1, 1989.
Moreover, his petition was not rendered moot by petitioner's
subsequent release from custody because a contempt conviction is
presumed to carry sufficient collateral consequences to create an
actual controversy between the parties. See United States v.
Martin-Trigona, 759 F.2d
1017, 1024 (2d Cir. 1985); see also Leonard v. Hammond,
804 F.2d 838, 842 (4th Cir. 1986) (in light of short period of
confinement, contempt conviction not moot because it is "capable
of repetition yet evading review").*fn3
However, under § 2254(b)*fn4 the petitioner must still exhaust
available state remedies before seeking relief in federal court
and a petition including unexhausted claims must be dismissed.
See Rose v. Lundy, 455 U.S. 509, 510, 102 S.Ct. 1198, 1199, 71
L.Ed.2d 379 (1982). Furthermore, absent special circumstances,
the Court may not retain jurisdiction pending resort to the state
courts for that purpose. See Slayton v. Smith, 404 U.S. 53, 54,
92 S.Ct. 174, 174-75, 30 L.Ed.2d 209 (1971) (per curiam). In this
case, petitioner admits that he has not exhausted his state
remedies but argues, however, that special circumstances
warranting retention of jurisdiction are present because if the
Court dismisses his petition, a subsequent habeas petition
challenging his conviction would be dismissed for failure to meet
the "in custody" requirement at that time. See Maleng, supra,
109 S.Ct. at 1925-26; see supra n. 3.
Petitioner will not be able to satisfy the "in custody"
requirement in a subsequent habeas action challenging the
contempt finding. That circumstance, however, does not justify
the retention of habeas corpus jurisdiction. See Johnson v.
Moran, 812 F.2d 23, 24 (1st Cir. 1987). A writ of habeas corpus
"has been limited to cases of special urgency, leaving more
conventional remedies for cases in which the restraints on
liberty are neither severe nor immediate." Hensley, supra 411
U.S. at 351, 93 S.Ct. at 1574-75; see Preiser v. Rodriguez,
411 U.S. 475, 498-500, 93 S.Ct. 1827, 1840-1842, 36 L.Ed.2d 439
(1973). It follows that the writ is not designed to assure
petitioner of a federal forum for collateral attack upon his
conviction where the exhaustion of state remedies does not take
place until after he has been released from custody. See
Johnson, supra, 812 F.2d at 24; see also Hanson v. Circuit
Court of First Judicial Circuit, 591 F.2d 404, 407 (7th Cir.),
cert. denied, 444 U.S. 907, 100 S.Ct. 220, 62 L.Ed.2d 143
(1979) (federal courts are not given "roving commissions to
correct all constitutional errors in state criminal
proceedings"). This is especially true where, as here, petitioner
has a remedy to redress any claimed deprivation of his
constitutional rights in a damage action pursuant to
42 U.S.C. § 1983. See Preiser, supra, 411 U.S. at 489-90, 93 S.Ct. at
1836-37; Mack v. Varelas, 835 F.2d 995, 998 (2d Cir. 1987);
Williams v. Ward, 556 F.2d 1143, 1150 (2d Cir.), cert.
dismissed, 434 U.S. 944, 98 S.Ct. 469, 54 L.Ed.2d 323 (1977).
Accordingly, the above-captioned petition for habeas corpus
shall be and hereby is dismissed. The Clerk of the Court is