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George v. Campbell


February 8, 2008


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


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 the issues presented by a party in an action are no longer "live," the federal action is properly dismissed as moot. City of Erie v. Pap's A.M., 529 U.S. 277, 287 (2000) (internal quotations and citations omitted).*fn8

The "case-or-controversy" requirement of Article III is typically satisfied in the context of federal habeas petitions challenging the validity of a state court conviction because the incarceration "constitutes a concrete injury, caused by the conviction and redressable by invalidation of the conviction." Spencer, 523 U.S. at 7; seealso Geraci v. Sheriff, Schoharie County Jail, No. 99-CV-0405, 2004 WL 437466, at *1-2 (N.D.N.Y. Feb. 20, 2004) (Sharpe, J.). Moreover, a habeas petition challenging a criminal conviction is not necessarily rendered moot when the petitioner is released from prison because collateral consequences of that conviction survive an inmate's release.*fn9 See, e.g., Spencer, 523 U.S. at 12 ("it is an 'obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences'") (quoting Sibron v. New York, 392 U.S. 40, 55 (1968)).

In the present action, however, George is not challenging the validity of his conviction but rather the portion of the imposed sentence that subjected him to a term of supervised release after his discharge from prison. See Am. Pet.; see, e.g., Memorandum of Law in Support of CPL § 440.20 Motion (Record at 50-54) (counsel conceding that George did not wish to vacate plea but was instead requesting that he be re-sentenced).

In Spencer, the Supreme Court considered the issue of when a habeas petition challenging a parole revocation proceeding becomes moot because it no longer presents a case or controversy. The petitioner in Spencer had challenged the wrongful termination of his parole status, however while that action was pending, the term of his imprisonment expired. Spencer, 523 U.S. at 6. In considering whether the petition was moot, the SpencerCourt noted: "[t]he reincarceration that he incurred as a result of [the revocation of his parole] is now over, and cannot be undone. Subsistence of the suit requires, therefore, that continuing 'collateral consequences' of the parole revocation be either proved or presumed." Id. at 8. Since the petitioner in Spencer was unable to establish any collateral consequences relating to the decision to revoke his parole,*fn10 the Court affirmed the judgment of the Eighth Circuit Court of Appeals which had dismissed petitioner's case as moot. Spencer, 523 U.S. at 18; see also Williams, 475 F.3d at 479 (appeal of sentence rendered moot upon appellant's release from prison; even though appellant was subject to a period of supervised release, there "[wa]s no possibility that the ... court could impose a reduced term of supervised release" following a remand for re-sentencing).

In the case sub judice, when George's period of supervised release fully expired in 2005, any injury from which he was suffering as a result of the imposed period of supervised release necessarily "disappear[ed] and [his] case cease[d] to meet the requirements of Article III." Wing Lee Woo v. United States, No. CV00-2389, 2007 WL 3034210, at *4 (E.D.N.Y. Oct. 15, 2007).

Since this action has clearly become moot since it was commenced by George, this Court no longer has subject matter jurisdiction over this proceeding and George's amended petition must be dismissed.

III. Certificate of Appealability

Finally, the Court notes that 28 U.S.C. § 2253(c) provides in relevant part that:

Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from --

(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court ....

28 U.S.C. § 2253(c)(1)(A).*fn11 A Certificate of Appealability may only be issued "if the applicant has made a substantial showing of the denial of a constitutional right." See 28 U.S.C. § 2253(c)(2). Since petitioner has failed to make such a showing herein, the Court declines to issue any Certificate of Appealability in this matter.

WHEREFORE, after having reviewed the state court record, the documents submitted by the parties in conjunction with this action, the applicable law, and for the reasons discussed herein, it is hereby

ORDERED, that George's amended habeas petition (Dkt. No. 5), is DENIED and DISMISSED as MOOT, and it is further

ORDERED, that the Clerk of Court serve a copy of this Memorandum-Decision and Order upon the parties to this action by regular or electronic mail, and it is further

ORDERED, that any state court records that were not filed and docketed in this action be returned directly to the Attorney General at the conclusion of these proceedings (including any appeal of this Memorandum-Decision and Order filed by any party).


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