The opinion of the court was delivered by: Joseph F. Bianco, District Judge
Dmitri Ali Davis (hereinafter "petitioner") petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his 1998 conviction in state court for Sexual Abuse in the First Degree. Petitioner pleaded guilty to that crime and was sentenced to a determinate term of imprisonment of three years. Petitioner completed his sentence on September 16, 2000, when he was discharged from parole. Given that petitioner's conviction has fully expired, the question is whether he is still "in custody" for purposes of habeas review because of (1) the ongoing requirement that he register as a convicted sex offender; or (2) the criminal penalties subsequently imposed on him when he moved to Oklahoma due to his failure to register according to Oklahoma sex offender laws.
For the reasons stated below, the habeas petition is dismissed. Specifically, the Court holds that the sex offender registration requirement, including any penalties resulting from failure to comply with that requirement, are collateral consequences from the underlying expired conviction and, thus, cannot satisfy the "in custody" requirement for purposes of federal habeas review on the underlying conviction.
The following facts are adduced from the instant petition and underlying record, and are undisputed for purposes of this petition. Petitioner was arrested by Nassau County detectives on September 16, 1997. On or about September 30, 1997, the grand jury of Nassau County indicted petitioner for Rape in the First Degree (N.Y. Penal Law § 130.35), Rape in the Second Degree (N.Y. Penal Law § 130.30), Sexual Abuse in the First Degree (N.Y. Penal Law § 130.65), and Endangering the Welfare of a Child (N.Y. Penal Law § 260.10) (Indictment #2777N/97). Petitioner pleaded guilty to the charge of Sexual Abuse in the First Degree on March 17, 1998, in Nassau County Court. As a part of his plea agreement, petitioner waived his right to appeal.
On May 5, 1998, petitioner was sentenced in Nassau County Court, as a second felony offender, to a determinate term of imprisonment of three years. On or about March 2, 2000, a hearing was held in compliance with New York's Sex Offender Registration Act ("SORA"), N.Y. Corr. Law § 168. At the hearing, petitioner was determined to be a Level 2 sex offender.
Petitioner successfully completed his sentence under Indictment # 2777N/97, and was discharged from parole on September 16, 2000. Upon release, in compliance with New York's SORA, petitioner was required to register as a convicted sex offender. SORA obligations mandate that petitioner provide relevant authorities with his address and other personal information, and that he appear in person every three years to provide a current photograph. See N.Y. Corr. Law § 168-f. In the six years since petitioner's release, he has moved to Oklahoma and has notified the appropriate authorities in the New York State Sex Offender Registry of his move.
Since his move to Oklahoma, however, petitioner was re-incarcerated on April 21, 2007, due to failure to register according to Oklahoma sex offender laws. Petitioner pleaded guilty in the District Court of Oklahoma County, State of Oklahoma, to his failure to register as a sex offender, and received a five-year sentence, with all but one year suspended. He was released on the Oklahoma state court conviction on October 12, 2007 and is subject to probation as part of his sentence.
In or about July 1998, petitioner, acting pro se, filed a notice of appeal in New York State Court in connection with his 1998 conviction. (Pet. ¶ 2). Petitioner then filed a motion requesting leave to appeal in forma pauperis. The Appellate Division denied the motion. Petitioner never perfected his appeal from his judgment of conviction. Neither petitioner's conviction, nor his sentence has been overturned or modified by any appellate court. (Id.)
On September 11, 2006, petitioner moved before this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, to challenge his 1998 conviction for sexual abuse. On April 19, 2007, petitioner advised the Court of his re-incarceration in Oklahoma stating on April 21, 2007 due to his failure to register as a sex offender in Oklahoma. By letter dated October 7, 2007, petitioner advised the Court that he was going to be released from prison in Oklahoma on October 12, 2007, and subject to four years' probation. By letter dated October 27, 2007, following petitioner's release, petitioner advised the Court of his new address. On November 13, 2007, at the direction of the Court, documentation regarding petitioner's Oklahoma conviction was submitted.
To determine whether petitioner is entitled to a writ of habeas corpus, a federal court must apply the standard of review set forth in 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty ...