The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Petitioner Kevin Medley ("Medley") filed a pro se petition (Docket No. 20) seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, Medley's petition is denied.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Following a jury trial in the Monroe County Court, Kevin Medley was found guilty of two counts of Criminal Possession of a Weapon in the Third Degree (N.Y. Penal Law § 265.02(1)).
This conviction arises from an incident that occurred on August 22, 2000 in the City of Rochester, New York. According to trial testimony, at approximately 12:45 a.m. that morning, Rochester Police Officer Trevor Powell responded to Frontier Field at Morrie Silver Way pursuant to a 911 dispatch call reporting a fight between a male and a female with gun shots fired. T. 204-05, 216.*fn1 Upon his arrival, Officer Powell saw Medley struggling with a female later identified as Kimberly Liptrot, Medley's girlfriend.
T. 205-08. Regina Thomas, Liptrot's friend, was also at the scene. T. 205. According to Officer Powell's police report, he was informed by Thomas to "be careful" when approaching Medley and that Medley had a gun. Docket No. 20, Exhibit C. Thomas corroborated this version of the facts in a deposition she gave in connection with the criminal proceedings in which she stated that she told "the officers that [Medley] had a gun and he was beating up my friend." Docket No. 20, Exhibit F at 2. At trial, however, Officer Powell testified that Liptrot was the one who told him to "be careful." T. 207. Thomas did not testify at trial. Investigator Joseph Spagnolo of the Monroe County District Attorney's office testified that Thomas now lived in Atlanta, Georgia, and could not be located prior to trial despite the issuance of a material witness order from the court. T. 266-67.
Officer Powell, the first officer at the scene, handcuffed Medley and patted him down for weapons "because of the nature of the call and officer safety reasons." T. 217. After determining that Medley did not have a gun on his person, Officer Powell and other officers who had just arrived searched the surrounding area and found a black Jennings .22 caliber automatic handgun in the northeast corner gate of Frontier Field, no more than two to three feet away from where Medley and Liptrot were standing. T. 205-09, 218. According to Investigator David Mace's testimony, after Medley was transported to the Public Safety Building he admitted to Mace that the gun was his. T. 244-47. Medley declined, however, to sign a written statement. T. 298-99.
At trial, Medley acknowledged that he waived his Miranda rights and agreed to talk to Investigator Mace, but denied that he admitted the gun was his or that he was involved in a physical struggle with Liptrot when officers arrived on the scene. T. 291-99, 307. Medley did admit he was "arguing" with Liptrot. T. 292. Liptrot, who lived with Medley and was pregnant with his child at the time of trial, testified that she and Medley were in an argument and she told Medley to stop the car and got out while Thomas stayed in the car. T. 274-76. She testified their argument was getting "heated" and going in "a violent direction," but that Medley only had his arm around her shoulder when the officers showed up and he was not being forceful. T. 283-86. Liptrot denied ever seeing a gun. T. 284.
After two days of deliberation, the jury returned a verdict of guilty on two counts of Criminal Possession of a Weapon in the Third Degree. T. 432. On August 22, 2001, Medley received a sentence of seven years in state prison on each conviction, to be served concurrently. Sentencing Hearing of August 22, 2001, at 9.
Medley directly appealed the trial court's judgment to the Appellate Division of the Fourth Department ("Appellate Division"), which unanimously affirmed the judgment and conviction of the trial court. See People v. Medley, 300 A.D.2d. 1096 (4th Dept. 2000). Medley's application to the Court of Appeals for leave to appeal was denied on March 4, 2003. See People v. Medley, 99 N.Y.2d 630 (2003).
Thereafter Medley filed a petition for a federal writ of habeas corpus in February of 2004. The respondent, in his answer filed August 3, 2004, stated that Medley's claims were substantially unexhausted. (Docket No. 10). On August 10, 2005, while his petition for habeas relief was awaiting a decision, Medley filed a state court motion pursuant to section 440.10 of the New York Criminal Procedure Law ("CPL") to vacate the judgment, which was denied on January 30, 2006 primarily on state procedural grounds. See Amended Appendix, State Court Records, Appendix "S" at 304. Medley then filed a pro se motion to amend his habeas corpus petition by adding issues which he had raised in his state collateral motion. (Docket No. 13). On July 12, 2006, this Court issued a Scheduling Order directing Medley to serve the respondent with a proposed amended habeas corpus petition to be accepted in place of the petition filed in February 2004. (Docket No. 12). Medley filed his proposed amended habeas corpus petition on or about July 28, 2006, and respondent answered on October 11, 2006. (Docket No. 15; 17).
On April 8, 2008, Medley re-filed his 2006 petition after adding additional complaints and factual arguments. (Docket No. 20). This instant federal habeas corpus petition alleges that: (1) Medley's constitutional right to confrontation and cross-examination were violated; (2) the trial court's jury charge was erroneous; (3) the People failed to prove guilt beyond a reasonable doubt; (4) the prosecutor engaged in misconduct; and (5) Medley received ineffective assistance of trial counsel. (Docket No. 20). Respondent answered the amended petition, asserting that none of Medley's claims have merit. Resp't Answer at 7 (Docket No. 21).
For the reasons set forth below, the petition is denied.
I. 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 Medley filed his petition for habeas relief while in custody. He was incarcerated on August 22, 2001 in the Orleans Correctional Facility pursuant to a concurrent determinate sentence of seven years. Medley's first petition was filed in February 2004, and an amended petition was filed on or about July 28, 2006. Medley was released from state custody on June 29, 2007. The present amended petition filed on April 8, 2008 is a re-filing of the 2006 petition, and does not allege any additional or different grounds for relief. Medley 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); see also Acaiturri v. Ashcroft, 2004 WL 951531, *3 (E.D.N.Y. April 29, 2004) (finding petitioner who amended petition for writ of habeas corpus after release from incarceration satisfied "in custody" requirement because he was "undoubtedly in custody when he initially filed his Petition.").
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 claim 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)); see, e.g., Sibron v. New York, 392 U.S. 40, 54-56 (1968) (citing deportation, inability to become a citizen, impeachment evidence in future criminal trials, and increased future sentences as examples of collateral consequences and asserting a presumption that these consequences attach to criminal convictions post-release)). Thus, when a term of imprisonment has expired, "some concrete and continuing injury other than the now-ended incarceration or parole - some collateral consequence of the conviction - must exist if the suit is to be maintained." Spencer, 523 U.S. at 7 (internal citations omitted).
The Supreme Court has "been willing to presume that a wrongful criminal conviction has continuing collateral consequences" so that a habeas petition does not become moot after a petitioner's release. Id. at 8. This presumption applies to Medley, who is challenging the validity of his criminal conviction in federal court. Accordingly, this Court finds that Medley's petition for habeas relief presents a justiciable "case or controversy" for the purpose ...