The opinion of the court was delivered by: Pitman, United States Magistrate Judge:
REPORT AND RECOMMENDATION
TO THE HONORABLE RICHARD J. SULLIVAN, United States District Judge,
By notice of motion dated October 4, 2010 (Docket Item 5), respondent moves to dismiss the petition on the ground that it is moot and unexhausted. Petitioner has not responded to the motion. For the reasons set forth below, I respectfully recommend that the motion be granted and that the petition be dismissed.
On January 24, 2008, petitioner was convicted upon his plea of guilty in the Supreme Court of the State of New York, New York County, to one count of criminal sale of a controlled substance in the third degree, in violation of New York Penal Law Section 220.39(1). Pursuant to that judgment, petitioner was sentenced to a determinate term of imprisonment of three-and-one-half years to be followed a three-year term of post-release supervision. Petitioner was incarcerated pursuant to that judgment from January 31, 2008 through April 30, 2010.
Petitioner does not challenge either his conviction or his sentence. Rather, he challenges only the execution of his sentence. Specifically, he claims that his eligibility for early release was improperly delayed. On March 17, 2009, petitioner was issued "merit time"*fn1 because he had earned a High School Equivalency Diploma and completed certain educational goals.
After receiving this merit time, petitioner was eligible for release on October 31, 2009.
On April 20, 2009, petitioner was transferred to a work release program. One month later, however, petitioner admitted to having used drugs and was transferred to a relapse program, which he successfully completed in July 2009. As a result of his having relapsed and participating in a relapse program, petitioner was denied his merit time. DOCS Directive 4790 § (D)(2)(c). Even if petitioner had not participated in the relapse program, his admitted drug use would have rendered him ineligible for merit time. DOCS Directive 4790 § (B)(2)(r).
Petitioner challenges the delay of his release eligibility date beyond October 31, 2009. Petitioner was actually released on April 30, 2010. Petitioner has never challenged the delay of his release eligibility date in any court of the State of New York.
The petition suffers from a number of facial defects including the failure to exhaust state remedies and the resulting procedural bar and the failure to allege the deprivation of a federally protected right.*fn2 Although either of these grounds are sufficient to warrant the dismissal of the petition, I shall limit my analysis to the petition's most fundamental defect --lack of subject matter jurisdiction due to mootness.
The subject matter jurisdiction of the federal courts is limited to live controversies.
In order for there to be a valid exercise of subject matter jurisdiction, a federal court must have before it an actual controversy at all stages of review, not simply at the time the complaint was filed. Steffel v. Thompson, 415 U.S. 452, 459 n.10, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). In general, if an event occurs while an [action] is pending that renders it impossible for the court to grant any form of effectual relief to plaintiff, the matter becomes moot and subject matter jurisdiction is lost. Altman v. Bedford Cent. Sch. Dist., 245 ...