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Thomas W. Boyde, Iv v. David M. Unger - Superintendent

October 26, 2011

THOMAS W. BOYDE, IV, PETITIONER,
v.
DAVID M. UNGER - SUPERINTENDENT, RESPONDENT.



The opinion of the court was delivered by: Michael A. Telesca United States District Judge

DECISION AND ORDER

I. Introduction

Pro se petitioner Thomas W. Boyde, IV ("Boyde" or "Petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his conviction, following a guilty plea on January 8, 2008, in New York State Supreme Court (Monroe County) on two counts of Insurance Fraud in the Third Degree (N.Y. Penal Law § 176.20).

II. Factual Background and Procedural History

Boyde's guilty plea stems from his involvement in a scheme, conducted from about June 2002, until November 2005, to defraud his insurance company. Boyde, who owned and operated an escort service in Monroe County, staged car accidents with the help of his employees. At Boyde's direction, certain employees rented trucks with his money and then used those trucks to crash into various vehicles owned by Boyde. The employees received remuneration from Boyde for participating in this scam. After each "accident", Boyde submitted fraudulent insurance claims and secured payment for the "damages" arising therefrom. Boyde's scheme was eventually discovered, and he was indicted for a total of 19 crimes, including insurance fraud, falsifying business records, grand larceny, and engaging in a scheme to defraud.

Boyde chose to enter a guilty plea to avoid a lengthy sentence which could have been enhanced by his adjudication as a persistent felony offender. On January 8, 2008, Boyde entered a guilty plea to two counts of Insurance Fraud in the Third Degree (N.Y. Penal Law § 176.20), in full satisfaction of the 19-count indictment. He was sentenced as a second felony offender, which authorized imposition of a less severe sentence than if he had been adjudicated as a persistent felony offender. He received two consecutive terms of 21/2 to 5 years in state prison, for an aggregate term of 5 to 10 years.

Before perfecting his direct appeal, Boyde submitted a pro se motion pursuant to New York Criminal Procedure Law ("C.P.L.") §§ 440.10 and 440.20 attacking his conviction and sentence. That motion was summarily denied on April 29, 2009, with leave to appeal also being denied.

Boyde then perfected his direct appeal. The Appellate Division, Fourth Department, unanimously affirmed the conviction on March 19, 2010. The New York Court of Appeals denied leave to appeal on June 24, 2010.

This timely habeas petition followed. For the reasons set forth below, the petition is dismissed.

III. Jurisdiction

A. The Habeas Statute's "In Custody" Requirement

"The federal habeas statute gives the United States district courts jurisdiction to entertain petitions for habeas relief only from persons who are 'in custody in violation of the Constitution or laws or treaties of the United States.'" Maleng v. Cook, 490 U.S. 488, 491 (1989) (quotation omitted) (citing 28 U.S.C. § 2254(a) (emphasis in original)). On March 2, 2011, while this petition was pending, Petitioner was released on parole. However, Boyde was incarcerated when he filed the instant petition, and he thus meets the "in custody" requirement of the habeas statute. Carafas v. LaVallee, 391 U.S. 234, 238 (1968).

B. Mootness

Boyde's release to parole supervision raises the question of whether the petition satisfies Article III, § 2 of the U.S. Constitution, by presenting a live "case or controversy." E.g., Spencer v. Kemna, 523 U.S. 1, 7 (1998). "[W]here the issues presented by a party in an action are no longer 'live,' or the party lacks a legally cognizable interest in the outcome, the federal action is properly dismissed as moot." City of Erie v. Pap's A.M., 529 U.S. 277, 287 (2000). 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.

In Sibron v. New York, 392 U.S. 40 (1968), the United States Supreme Court determined that collateral consequences are presumed to attach to criminal convictions post-release. Id. at 54--56; accord, e.g., Perez v. Greiner, 296 F.3d 123, 125 (2d Cir. 2002). Following Sibron, the Second Circuit held that "a habeas petition challenging a criminal conviction is rendered moot by a release from imprisonment only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction." Perez, 296 F.3d at 125 (internal citations omitted).

At the present time, Boyde continues to bear certain adverse collateral consequences from his criminal conviction in terms of continuing restraints on his liberty, including being subject to supervision by the New York State Division of ...


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