The opinion of the court was delivered by: Gary L. Sharpe United States District Judge
MEMORANDUM-DECISION AND ORDER
The records reflects that on May 24, 1994, petitioner, pro se Elvin LeBron pleaded guilty in New York County to the crimes of first degree manslaughter, first degree robbery, third degree criminal possession of a weapon, and a parole violation. See People v. Lebron, 238 A.D.2d 150 (1st Dep't 1997). He was thereafter sentenced to an indeterminate prison term of between seven and one-third (7 1/3) to twenty-two (22) years on the manslaughter conviction, eleven (11) to twenty-two (22) years on the robbery conviction, and lesser, concurrent sentences on the remaining convictions. Id. The New York State, Supreme Court, Appellate Division, First Department, unanimously affirmed the judgment of conviction, id., and New York's Court of Appeals denied Lebron's subsequent application seeking leave to appeal that decision. People v. Lebron, 90 N.Y.2d 895 (1997).
The record further reflects that Lebron was denied release to parole on four separate occasions; in June, 2004, July, 2006, November, 2007, and August, 2008. See Dkt. No. 6-4; see also Petition (Dkt. No. 1) at p. 7.*fn1
In the habeas petition he filed with this Court on September 4, 2009, Lebron asserts several arguments in support of his claim that his parole applications were wrongfully denied. Specifically, he claims that the New York State Board of Parole ("Parole Board"): i) did not possess documents it was required to consider in conjunction with his parole applications, including, inter alia, sentencing recommendations made by the trial court, the prosecutor, and Lebron's trial counsel, reports relating to Lebron's behavior while in prison, the sentencing transcript, and "mitigating and aggravating factors" relating to Lebron's crimes; ii) did not accurately state the circumstances relating to Lebron's crimes in conjunction with its decisions that denied his applications for parole; iii) improperly suggested that Lebron was incarcerated for a sentence that he had already fully served; and iv) utilized both incomplete and factually inaccurate information in denying those parole applications. See Petition at pp. 7-10. By this action, Lebron requests that this Court reverse the Parole Board's decisions and release him to parole. Id. at p. 10.
On October 23, 2009, Lebron was conditionally released from prison to parole supervision by the New York State Department of Correctional Services ("DOCS"). See Dkt. No. 6-5. In his memorandum of law in opposition to Lebron's petition, respondent argues that petitioner's release to parole supervision has rendered the current habeas application moot, and that therefore this Court must grant his motion to dismiss the petition. See Motion to Dismiss (Dkt. No. 6); Respondent's Memorandum of Law in Support of Motion to Dismiss (Dkt. No. 6-1) ("Resp. Mem.") at pp. 3-6.
Lebron has submitted a reply memorandum of law in further support of his petition. Dkt. No. 8 ("Reply"). In arguing that this action is not moot notwithstanding his release from prison, Lebron contends that his release on October 23, 2009 was unrelated to any actions taken by the Parole Board but rather due to the fact that he was conditionally released on that date by DOCS based upon the time he had already spent in prison vis-a-vis the overall length of his indeterminate sentences. See Reply at pp. 1-2. He claims that because the Parole Board never properly considered his prior applications for parole, this Court must issue a decision addressing his challenges to those decisions. Id.
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) (citation omitted); S.E.C. v. Monarch Funding Corp., 192 F.3d 295, 303 (2d Cir. 1999) (citation omitted); Hill v. Mance, 598 F.Supp.2d 371, 377 (W.D.N.Y. 2009) (citation omitted) (Bianchini, M.J., on consent).*fn2 This constitutional requirement "means that, throughout the litigation, the [litigant] 'must have suffered, or be threatened with, an actual injury traceable to the [respondent] and likely to be redressed by a favorable judicial decision.' " Spencer, 523 U.S. at 7 (quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990)).
This Court must therefore ascertain whether this § 2254 action is moot due to Lebron's release from prison.
The "case-or-controversy" requirement of Article III is typically satisfied in the context of federal habeas petitions challenging the validity of a criminal 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; see also Geraci v. Sheriff, Schoharie County Jail, No. 99-CV-0405, 2004 WL 437466, at *1-2 (N.D.N.Y. Feb. 20, 2004) (Sharpe, D.J.). However, as noted above, the present action does not challenge Lebron's criminal convictions but instead asserts that the Parole Board wrongfully denied his prior applications for release to parole supervision.
In Spencer, the Supreme Court considered the issue of when a habeas petition challenging a revocation of an individual's parole becomes moot. In that case, the petitioner challenged the wrongful termination of his parole status, however while his challenge was pending, his term of imprisonment expired. Spencer, 523 U.S. at 6. The Spencer Court noted that "[t]he reincarceration that he incurred as a result of [the revocation of his parole] is now over, and cannot be undone." Id. at 8. The Spencer Court noted that federal courts would continue to retain subject matter jurisdiction over that proceeding only if continuing "collateral consequences" relating to the parole revocation decision were either proven by the petitioner or properly presumed by the court.*fn3 Spencer, 523 U.S. at 8. Since the petitioner in Spencer failed to demonstrate the existence of such consequences, and the Court found that it would be inappropriate to "presume that collateral consequences adequate to meet Article III's injury-in-fact requirement resulted from petitioner's parole revocation," the petition was denied and dismissed as moot. Id. at pp. 14-18.
In the present action, Lebron has not articulated in his Reply, and this Court is unable to envision, any collateral consequences he will suffer as a result of the Parole Board's failure to grant him parole at the hearings that form the subject of the present action. See, e.g., Cobos v. Unger, 534 F.Supp.2d 400, 404 (W.D.N.Y. 2008) ("There is no basis for presuming that [petitioner] will suffer any collateral consequences due to the fact parole was denied on several occasions prior to his release to parole supervision").
Moreover, if this Court were to now consider the substance of Lebron's petition, and ultimately conclude that his habeas claims had merit, he would, at most, be entitled to a new parole hearing. See Jones v. Giambruno, No. 05-CV-0008, 2009 WL 1362847, at *11 (W.D.N.Y. May 14, 2009) ("A prisoner who successfully challenges a denial of parole is entitled to a rehearing, not release") (citing Wilkinson v. Dotson, 544 U.S. 74, 82 (2005)). However, Lebron has already been released from prison. Therefore, any ruling by this Court on the substance of his claims challenging the Parole Board's decisions denying his prior applications for parole would plainly be an advisory opinion as ...