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George v. Campbell

February 8, 2008

MICHAEL T. GEORGE, PETITIONER,
v.
JAMES CAMPBELL, SHERIFF, ALBANY COUNTY CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Neal P. Mccurn Senior, United States District Judge

MEMORANDUM-DECISION AND ORDER

I. Background

A. State Court Proceedings

The state court records provided to the Court reflect that on December 10, 1998 petitioner pro se Michael T. George pleaded guilty in Rensselaer County Court to a Superior Court Information which accused him of the crime of Attempted Burglary in the Second Degree, a class D felony, in violation of N.Y. Penal L. §§ 110.00 and 140.25(2). See State Court Record ("Record")*fn1 at 3. That plea, which George entered before Rensselaer County Court Judge Patrick J. McGrath, included a waiver of George's right to appeal his conviction and sentence.*fn2

See Record at 12, 16-17, 36.*fn3

On December 23, 1998, George was sentenced by Judge McGrath to a determinate sentence of four years in state prison. See Sentencing Tr. at 3. At that time, the County Court did not note that George's sentence also included a legally required term of post-release supervision that would begin to run upon his release from prison.*fn4 See Sentencing Tr.

On or about August 19, 2002, petitioner filed a CPL § 440.20 motion in which he sought an order that set aside his sentence, or, alternatively, scheduled a hearing to determine whether such sentence should be vacated because it was unauthorized, illegally imposed or otherwise invalid as a matter of law. See Record at 49-56. That motion was denied by Judge McGrath in his Decision and Order dated December 2, 2002. See Record at 81-84.*fn5 In its order dated January 23, 2003, the New York State Supreme Court Appellate Division, Third Department, denied George's application for permission to appeal Judge McGrath's December, 2002 order to the Appellate Division. See Record at 42.

B. This Action

On June 10, 2003, George filed a prosepetition in this District seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See Dkt. No. 1. By order filed July 2, 2003, United States District Judge Thomas J. McAvoy directed George to file an amended pleading if he wished to proceed with this action, see Dkt. No. 4, and on July 10, 2003, George filed that amended petition. See Am. Pet.

Judge McAvoy reviewed George's amended pleading, and, after finding that it complied with the pleading requirements applicable to habeas corpus petitions, Judge McAvoy directed the respondent to file his response to that pleading in the Court's Order filed August 18, 2003. See Dkt. No. 8.*fn6

On October 16, 2003, the Office of the Attorney General for the State of New York, acting on respondent's behalf, filed a response in opposition to George's amended petition. See Dkt. No. 13. Petitioner thereafter submitted a "traverse" in further support of his amended habeas application. See Dkt. No. 16. On January 5, 2006, then-Chief United States District Judge Frederick J. Scullin, Jr. re-assigned this action to the undersigned for disposition. Dkt. No. 19.

II. Discussion

In his amended petition, George notes that on October 29, 2002, he completed the term of imprisonment imposed on him by the County Court See Am. Pet. at 5. His three year term of supervised release commenced upon his release from prison. See N.Y. Penal L. § 70.45(5) ("post-release supervision shall commence upon the person's release from imprisonment"); see also Record at 51 (George noting in CPL § 440.20 motion that he would commence serving post-release supervision upon his release in October, 2002). Thus, it is apparent that such term of supervised release was fully completed by George in or about October, 2005.*fn7

Article III, Section 2 of the United States Constitution limits the subject matter of the federal courts to cases that present a "case or controversy." Spencer v. Kemna, 523 U.S. 1, 7 (1998); Baur v. Veneman, 352 F.3d 625, 631-32 (2d Cir. 2003). As the Spencer Court noted, where the federal action no longer presents a case or controversy, the action is moot and the court no longer retains subject matter jurisdiction over the proceeding. Spencer, 523 U.S. at 7; see also Marrero Pichardo v. Ashcroft, 374 F.3d 46, 51 (2d Cir. 2004) ("[a] case becomes moot when it no longer satisfies the 'case-or-controversy' requirement of Article III, Section 2 of the Constitution") (citing Spencer); Baur v. Veneman, 352 F.3d 625, 631-32 (2d Cir. 2003); Greif v. Wilson, Elser, Moskowitz, Edelman & Dicker LLP, 258 F.Supp.2d 157, 160 (E.D.N.Y. 2003). Thus, where ...


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