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United States District Court, S.D. New York

August 2, 2005.

BRIAN FISCHER, Superintendent, Respondent.

The opinion of the court was delivered by: DENNY CHIN, District Judge


By letter dated July 15, 2005 sent to the Court ex parte, petitioner Jerome Bellamy requests leave to amend his habeas petition, brought pursuant to 28 U.S.C. § 2254, to challenge a 1995 conviction for which he is currently in custody (the "1995 Conviction"). The Court sent a copy of petitioner's letter to attorneys for respondent. By letter dated July 26, 2005, attorneys for respondent indicated that they do not oppose the request. Accordingly, and in the interest of justice, petitioner's request to amend his petition is hereby granted.

Petitioner's original petition challenges a November 8, 1990 conviction for criminal possession of a controlled substance, for which he pled guilty and was sentenced to five years' probation (the "1990 Conviction").*fn1 It appears that the 1990 conviction was not directly appealed but that petitioner collaterally attacked it by filing a motion to vacate the judgment pursuant to N.Y.C.P.L.R. § 440.10 (McKinney 2005). That motion was denied and, on October 8, 2004, the Appellate Division, First Department, denied petitioner leave to appeal to the New York Court of Appeals. It is not clear from the petition whether petitioner exhausted his state remedies for those federal constitutional claims that were presented in the collateral attack. Compare Klein v. Harris, 667 F.2d 274, 283-84 (2d Cir. 1981) (finding habeas exhaustion requirement met once Appellate Division denied petitioner leave to appeal denial of § 440.10 motion and explaining that "to meet the exhaustion requirement, a petitioner must have presented his claim to the state courts at least once, on direct or collateral review") (quotations omitted) with Brown v. Costello, No. 00 Civ. 4734, 2003 U.S. Dist. LEXIS 423, *17-18 (S.D.N.Y. Jan. 13, 2003) (finding petitioner's claims procedurally defaulted and considered waived where petitioner failed to raise them on direct appeal, they were denied under § 440.10 because of procedural default, and petitioner failed to show cause for the default and prejudice resulting therefrom). If petitioner has not exhausted his state court remedies for the convictions that he seeks to challenge, he must do so first.

  It is also not clear whether petitioner was "in custody" pursuant to the 1990 Conviction at the time he filed the original petition, a requirement for habeas relief under § 2254. The Supreme Court has held that a habeas petitioner must be in custody pursuant to the conviction or sentence under attack at the time the petition is filed. Maleng v. Cook, 490 U.S. 488, 490-91 (1989). "In custody" does not require that a prisoner be physically confined — it includes being subject to parole requirements or other supervised release. See, e.g., Jones v. Cunningham, 371 U.S. 236, 243 (1963). Here, it would seem that petitioner was imprisoned when he filed this petition in 2005 under the 1995 Conviction, for which he was sentenced to 27-and-a-half to 55 years imprisonment, and not for the 1990 Conviction. If petitioner's term of probation for the 1990 Conviction had expired by the time he filed this petition in 2005, he would no longer have been "in custody" as a result of the 1990 Conviction.

  Although petitioner is now granted leave to amend his petition to challenge the 1995 Conviction, he must still satisfy procedural and substantive requirements for habeas relief for any new federal claims. In particular, in his amended petition, petitioner should make clear 1) whether he is challenging the 1990 Conviction as well as the 1995 Conviction; 2) whether he exhausted his state court remedies for the challenged conviction(s); 3) whether he was "in custody" for the challenged conviction(s) at the time this petition was originally filed; and 4) on what grounds he is challenging the conviction(s).

  It appears that petitioner would like to independently challenge the 1995 Conviction, but it is not clear whether petitioner also plans to argue that the 1990 Conviction was unconstitutional and that the 1990 Conviction affects the constitutionality of the 1995 Conviction. It should be noted that a petitioner generally may not challenge an enhanced sentence in a subsequent conviction through a § 2254 petition on the grounds that the prior conviction was unconstitutionally obtained. Lackawanna County Dist. Att'y v. Coss, 532 U.S. 394, 403-04 (2001). There are narrow exceptions to this rule, such as where the trial court failed to appoint counsel in the prior conviction. Id. at 404.

  As stated above, petitioner's request is granted and it is HEREBY ORDERED that petitioner shall file an amended petition no later than August 30, 2005. Respondent shall file an answer or other pleading in response to the petition no later than September 27, 2005, and petitioner may file any reply papers no later than October 25, 2005.


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