The opinion of the court was delivered by: Michael Mukasey, Chief Judge, District
Carlos Hernandez petitions pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (2000), challenging his 1994 state court judgment of conviction for three counts of criminal sale of a controlled substance. In a Report and Recommendation dated May 23, 2002 ("Report"), Magistrate Judge Henry Pitman recommended that the petition be dismissed as time-barred by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). For the reasons set forth below, the Report is adopted with modifications, the writ is denied, and the petition is dismissed as time-barred.
On April 7, 1994, Hernandez pleaded guilty to three counts of criminal sale of a controlled substance. (Report at 2) On April 18, 1994, he was sentenced pursuant to a plea agreement to concurrent sentences of one to three years' imprisonment. (Id) Petitioner served this sentence and was discharged from parole on April 18, 1997. (Id) He never filed a direct appeal of his 1994 conviction. (Id. at 3) Although Hernandez claims that, despite the guilty plea, he asked his attorney to file such an appeal (Hernandez Aff. of 8/15/97 ¶ 6), the attorney says that no such request was made. (Salaway Aff. ¶¶ 7-8)
After his discharge, Hernandez was convicted again, and [ Page 2]
the 1994 conviction was apparently used to enhance his second sentence. (Id. at 2-3) He is now serving the sentence for this later conviction. (Id. at 2)
On August 15, 1997, Hernandez moved for a writ of coram nobis, pursuant to N.Y. Grim. Proc. Law § 440.10 (McKinney 2003), to vacate his 1994 conviction. (Report at 3) His motion was denied on November 14, 1997; the Appellate Division, First Department, denied leave to appeal on May 5, 1998. (Id)
On June 30, 1999, Hernandez filed the present petition, dated May 1, 1999. (Id) He seeks to vacate his 1994 judgment of conviction on the ground that it was obtained in violation of his constitutional rights to effective assistance of counsel and due process. (Id) Magistrate Judge Pitman has recommended in his Report that the petition be dismissed as time-barred. Petitioner objects to all relevant aspects of the Report and requests an evidentiary hearing "to fashion out what relief is available." (Hernandez Objection at 5) Accordingly, I must conduct de novo review. See 28 U.S.C. § 636(b)(1).
Respondent has made two procedural objections to Hernandez's petition for habeas corpus. First, respondent argues that petitioner is ineligible for habeas relief based on his 1994 conviction because he is no longer in custody for that [ Page 3]
conviction, having already served his sentence. Second, respondent argues that Hernandez's application for habeas relief is time-barred.
Hernandez has satisfied the "in custody" requirement of § 2254 even though he is challenging an expired sentence. To be eligible for a writ of habeas corpus, a prisoner must be in custody in violation of the Constitution or other federal law. See 28 U.S.C. § 2254(a). A prisoner is considered "in custody" for the purposes of § 2254(a) if he is currently serving a sentence that has been enhanced as a result of the allegedly invalid prior conviction. Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394, 401-02 (2001). Under these circumstances, a habeas corpus petition can be construed as challenging the prisoner's current sentence, as enhanced by the allegedly invalid prior conviction. Id. Hernandez's petition satisfies § 2254(a)'s custody requirement because it challenges the enhancement of his current sentence by the 1994 conviction he seeks to invalidate.
Although Hernandez satisfies the "in custody" requirement of § 2254(a), his petition must be denied as time-barred because his 1994 conviction has become conclusively valid. A state conviction may be regarded as conclusively valid if the defendant did not pursue, or pursued unsuccessfully, direct or collateral review to attack that conviction when such remedies [ Page 4]
were available. Coss, 532 U.S. at 403. Once a prior state conviction has become conclusively valid, a defendant generally may not argue in a § 2254 petition that a later enhanced sentence that results from the prior conviction is invalid because the prior conviction was unconstitutionally obtained. Id. at 403-04. There is an exception to this general rule if the prior conviction was obtained following a failure to appoint counsel in ...