United States District Court, S.D. New York
August 2, 2005.
JEROME BELLAMY, Petitioner,
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.