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KIRSH v. MICHETTI

March 24, 1992

MARA KIRSH Plaintiff-Petitioner, against FELICE MICHETTI, as Commissioner of the New York City Department of Housing Preservation and Development, PHILLIP A. GRIMALDI, as Sheriff of New York City, HARRY WEISBERG, as Under Sheriff for New York County, N.Y., and BARNEY CARBIN, as Under Sheriff for Bronx County, N.Y. Defendants-Respondents.


The opinion of the court was delivered by: ROBERT L. CARTER

 CARTER, District Judge

 Mara Kirsh petitions this court for a writ of habeas corpus preventing the Sheriff defendants from imprisoning her pursuant to an order of the New York City Civil Court. She also advances a claim for the same relief under 42 U.S.C. § 1983. The history of this case is essential to the determination of the petition, and accordingly is set forth below.

 Mara Kirsh and her husband own an apartment building on Elizabeth Street in New York City. Various housing code violations were brought to the attention of the New York City Department of Housing Preservation and Development ("HPD"), and HPD petitioned the Civil Court to appoint an administrator for the property under New York Real Property Actions and Proceedings Law, Art. 7-A (McKinney 1979). On March 1, 1988 the Civil Court appointed a 7-A administrator for the property and ordered Kirsh not to interfere with the administrator's management of the property and to turn over control of the premises to that administrator.

 Kirsh moved to vacate the default judgment of contempt, but the Civil Court denied this motion on September 1, 1988. The Appellate Term, First Department affirmed this denial on January 19, 1989. Kirsh was still not sent to prison, however, apparently because HPD could not locate her. In November, 1989, Kirsh moved to reopen both her contempt adjudication and the original appointment of the 7-A administrator for her building. Kirsh then modified this renewal motion by withdrawing her application to reopen the 7-A administration proceeding and the substance of the contempt adjudication, choosing instead to focus her application for reconsideration solely on the appropriateness of the prison term imposed for the contempt. The Civil Court granted the reconsideration application and, after a hearing, reduced the prison sentence from 30 to 15 days in February, 1990.

 Kirsh appealed this decision, arguing to the Appellate Term that the lack of a transcript for the hearing that was the basis of her contempt judgment violates the due process clause of the United States Constitution. In May, 1991, the Appellate Term affirmed the Civil Court's order on the grounds that the prison term was not an abuse of discretion and that the constitutional claims had not been preserved for appellate review, since they had not been raised on the earlier appeal or pursued at the reconsideration hearing. The Appellate Division and the New York Court of Appeals each denied review of the Appellate Term's decision on procedural grounds, without opinion.

 This petition for habeas corpus and for relief under section 1983 followed. *fn1" The petition challenges the constitutionality of the contempt commitment on the grounds that the lack of a transcript of the evidentiary hearing, and the lack of sufficient findings of fact in the decision itself, constitute a due process violation.

 I.

 As an initial matter Kirsh's assertion that she states a valid claim for relief under 42 U.S.C. § 1983 must be rejected. While "a § 1983 action is a proper remedy for a state prisoner who is making a constitutional challenge to the conditions of his prison life," Preiser v. Rodriguez, 411 U.S. 475, 499, 36 L. Ed. 2d 439, 93 S. Ct. 1827 (1973), Kirsh makes no claim about the conditions of her prospective confinement. Instead, she seeks to challenge the judgment under which the city seeks to imprison her. As explained in Preiser, "when a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus." 411 U.S. at 500; see also McCarthy v. Bronson, 114 L. Ed. 2d 194, U.S. , 111 S. Ct. 1737, 1741 (1991); Abdul-Hakeem v. Koehler, 910 F.2d 66, 68-69 (2d Cir. 1990). Thus Kirsh cannot avoid the numerous requirements that accompany a petition for a writ of habeas corpus by invoking section 1983.

 II.

 Since she states no claim for relief under section 1983, Kirsh must resort to her petition for habeas corpus. Respondents argue that this court may not consider the constitutional arguments advanced in Kirsh's habeas petition because of a procedural default in the state court. To determine whether there was a procedural default, the court must look to the basis of decision in the last reasoned opinion by a court considering the petitioner's appeals. Ylst v. Nunnemaker, 115 L. Ed. 2d 706, U.S. 111 S. Ct. 2590, 2594 (1991). In this case that decision is the 1991 Appellate Term opinion reviewing the Civil Court's 1990 reconsideration of the contempt commitment, which reads in relevant part as follows:

 The fifteen-day jail sentence imposed for criminal contempt represented a permissible exercise of the court's discretion and was not excessive. Appellant's constitutional challenge to the underlying adjudication of contempt, neither raised on the prior appeal to this court nor pursued at the hearing on appellant's renewal motion below, has not been preserved for appellate review (see, Matter of Chauvel v. Nyquist, 55 A.D.2d 76, 79, 389 N.Y.S.2d 636, aff'd 43 N.Y.2d 48, 400 N.Y.S.2d 753, 371 N.E.2d 473 ). In any event, the claim is without merit.

 Complaint, Ex. 7. Thus the Appellate Term held that Kirsh was procedurally barred from raising her constitutional claims on appeal.

 Under the "plain statement rule" announced in Michigan v. Long, 463 U.S. 1032, 1042-43, 77 L. Ed. 2d 1201, 103 S. Ct. 3469 (1983), and extended to federal habeas corpus cases in Harris v. Reed, 489 U.S. 255, 103 L. Ed. 2d 308, 109 S. Ct. 1038 (1989), such a procedural default prevents federal habeas review where the state court "'clearly and expressly' states that its judgment rests on a state procedural bar." Harris, supra, 489 U.S. at 263. Since the Appellate Term's decision clearly states that "appellant's constitutional challenge . . . has ...


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