The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Petitioner Larry Neal ("Neal") filed a pro se petition (Docket No. 1) seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Following a jury trial in Supreme Court, Monroe County, Larry Neal was found guilty of one count of Course of Sexual Conduct Against a Child in the Second Degree (N.Y. Penal Law § 130.80(a)) and five counts of Endangering the Welfare of a Child (N.Y. Penal Law § 260.10(1)).
This conviction stems from a series of incidents which occurred inside Neal's residences on McEwen Road and later Stone Road, both in the Town of Greece. Between June 15 and September 1, 1997, Neal repeatedly displayed a pornographic magazine and a pornographic videotape to five children, three of which were girls from the neighborhood, two were Neal's son and stepson, and all were less than eleven years of age. The three girls, Amanda Mosher, Emily Halloran, and Amanda Thompson, testified that Neal either directed the children to engage in simulated sexual intercourse or was present in the room when the children were engaged in simulated sexual intercourse. T. 329, 401-02, 404, 406, 500-01.*fn1 Amanda Mosher and Amanda Thompson also testified that Neal sexually abused them. T. 407, 502. Amanda Thompson testified that Neal said he would hurt the girls or make them walk home alone in the dark if they told any one about what happened inside Neal's house. T. 504.
During an evening when Crystal Erdin was baby-sitting Amanda Mosher and her sister Emily Halloran, a television program with nudity came on the TV. Erdin told the girls they could not watch it, and Emily Halloran said that she had "watched that before" at "Larry [Neal's] house." T. 297, 336. Erdin told her father what Emily Halloran said to her, and he contacted Emily Halloran and Amanda Mosher's mother who subsequently confronted the girls about what occurred at Neal's residences. T. 304, 470.
Neal did not testify at trial but the defense called nine-year-old Kyle Sheehan, his stepson. Kyle Sheehan testified that he, his younger brother Shawn Neal, and the three girls viewed Neal's pornographic magazine and videotape, though he testified that contrary to the three girls' contention that Neal showed them the pornographic magazine and video, the magazine was found by Emily Halloran while looking for "gummy worms" in Neal's closet and the tape was found by one of the two girls named Amanda. T. 596, 583. Kyle Sheehan also testified that he "had sex" with Emily Halloran with their clothes on inside of Neal's house, but Neal was sleeping or in another room in the house. T. 578, 580-83, 585-88. Additionally, Kyle Sheehan testified that Neal never sexually touched the three girls nor suggested they engage in sexual activity or remove their clothes in front of him. T. 587-90.
After two days of deliberation, on May 16, 2000, the jury convicted Neal of five misdemeanor counts of endangering the welfare of a child, pertaining to each of the five children, and one felony count of a course of sexual conduct against a child in the second degree, pertaining to Amanda Mosher. T. 730. The jury found Neal not guilty of Sodomy in the first degree and three counts of Sexual Abuse in the first degree. T. 729-30. Neal was sentenced as a second felony offender to an aggregate determinate sentence of four years and six months in state prison. Sentencing of May 16, 2000, at 4, 14.
Neal directly appealed the trial court's judgment to the Appellate Division of the Fourth Department ("Appellate Division"). His appeal alleged two issues: that the trial court improperly altered the mode of proceedings at trial because it failed to consult defense counsel before replacing a sworn juror with an alternate juror; and that the lower court improperly restricted Neal's cross-examination of two complainants about a prior false complaint. See Brief For Appellant, Dec. 11, 2001, attached as Appendix D to Resp't's Answer in Opposition to Petitioner's Application for a Writ of Habeas Corpus. On May 3, 2002, the Appellate Division unanimously affirmed the judgment and conviction of the trial court, finding those issues were not preserved for review and "in any event are without merit." People v. Neal, 294 A.D.2d 869, 869 (2002). Neal's application to the Court of Appeals for leave to appeal was denied on July 30, 2002. See People v. Neal, 98 N.Y.2d 700 (2002). On October 15, 2002, Neal made a motion for a writ of error coran nobis alleging the following: his appellate counsel was ineffective for omitting significant issues when pursuing significantly weaker issues; trial court committed reversible error by denying trial counsel's motions for a mistrial because evidence was improperly admitted concerning alleged uncharged crimes; and that the trial court failed to dismiss count six of the indictment as it failed to conform to New York State requirements. See Defendant's Pro Se Memorandum of Law, Writ of Error Coram Nobis, Oct. 6, 2002, attached as Appendix M to Resp't's Answer in Opposition to Petitioner's Application for a Writ of Habeas Corpus. The Appellate Division denied Neal's motion on December 12, 2002, and application to the Court of Appeals for leave to appeal was denied on February 21, 2003.
On June 3, 2003, Neal filed the instant federal habeas corpus petition pursuant to 28 U.S.C. § 2254, raising the following grounds for habeas relief: (1) Neal's rights at trial were violated when the trial court discharged a sworn juror without his consent; (2) Neal's right to present a defense and confront his accusers was violated by the trial court's limitation on the scope of his cross-examination; and (3) ineffective assistance of appellate counsel. (Docket No. 1). Respondent answered the petition, asserting that Neal's claims are without merit. Resp't's Answer to Petitioner's Application for a Writ of Habeas Corpus at 6 (Docket No. 8).
For the reasons set forth below, the petition is denied.
I. Exhaustion Requirement
The writ of habeas corpus requires that petitioners "fairly presented" their claims to the state courts before the federal system can issue the writ. See Jimenez v. Walker, 458 F.3d 130, 148-49 (2d Cir. 2006); see also Coleman v. Thompson, 501 U.S. 722, 731 (1991) (noting the exhaustion requirement, codified at 28 U.S.C. § 2254(b)(1), is "grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights."). A federal district court does have the discretion to deny a petition containing unexhausted claims. See 28 U.S.C. § 2254(b)(2).
"In developing and refining the 'fairly present[ed]' standard, the Supreme Court concentrated on the degree of similarity between the claims that a petitioner presented to the state and federal courts." Jackson v. Edwards, 404 F.3d 612, 619 (2d Cir. 2005). Neal has raised on direct appeal and his motion for a writ of error coram nobis the same or substantially similar claims as raised in this petition. His motions for leave to appeal to the New York Court of Appeals were both denied, exhausting his state remedies. Respondent "make[s] no claim that the petitioner has failed to exhaust state remedies as to his habeas corpus claims." Resp't Answer at 6 (Docket No. 8). Accordingly, this Court finds that Neal has exhausted his available state court remedies.
II. In Custody Requirement
Section 2241(c)(1) of Title 28 of the United States Code provides that district courts may consider habeas petitions only from prisoners "in custody under or by color of the authority of the United States." 28 U.S.C. § 2241(c)(1). The statutory language is interpreted as requiring that the habeas petitioner be "in custody" under the conviction or sentence under attack at the time his petition is filed. See Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (per curiam) (citing Carafas v. LaVallee, 391 U.S. 234, 238 (1968)).
There is no question that Neal filled his petition for habeas relief while in custody. He was incarcerated on May 16, 2000 in the Wyoming Correctional Facility to an aggregate determinate sentence of four and a half years. The present petition was filed on May 27, 2003. Neal was released from state custody on September 27, 2004, at which time he expressed his desire to continue his petition for habeas relief. See Petitioner's Letter to the Court of Sept. 17, 2004. Neal satisfies the custody requirement because he was in prison "at the time the petition was filed, which is all the 'in custody' provision of 28 U.S.C. § 2254 requires." Spencer v. Kemna, 523 U.S. 1, 7 (1998).
A petition may be moot, however, when a habeas petitioner has been released from custody after filing a petition. The relevant inquiry becomes whether the case still presents a case or controversy under Article III, § 2 of the U.S. Constitution. See Spencer, 523 U.S. at 7. A habeas petition challenging a criminal conviction "is not necessarily mooted when the petitioner is released from prison, as collateral consequences of that conviction may still impinge on the petitioner post-release, and therefore a case or controversy may continue to exist." Perez v. Greiner, 296 F.3d 123, 125 (2d Cir. 2002)(citing Pollard v. United States, 352 U.S. 354, 358 (1957)). Thus, when a term of imprisonment has expired, "some concrete and ...