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John Banchs Rivera v. People of the State of New York

April 18, 2012

JOHN BANCHS RIVERA, PLAINTIFF,
v.
PEOPLE OF THE STATE OF NEW YORK, RESPONDENT.



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

DECISION AND ORDER

I. Introduction

John Banchs Rivera ("Rivera" or "Petitioner") has filed a pro se habeas corpus application pursuant to 28 U.S.C. § 2254, alleging that he is being held in state custody in violation of his federal constitutional rights. Petitioner's state custody arises from an August 8, 1994, judgment of Monroe County Court of New York State, convicting him on drug-sale and weapons-possession charges. Petitioner was sentenced to concurrent, indeterminate prison terms, the longest of which was six years to life. On May 12, 2008, Petitioner was released from prison and is currently under parole supervision.

For the reasons that follow, the Court concludes that it has jurisdiction to hear the petition. However, none of Petitioner's claims warrant habeas relief, and therefore the petition is dismissed.

II. Jurisdiction

A. "In Custody" Requirement of 28 U.S.C. § 2254(a)

On May 3, 2010, while this petition was pending, Petitioner was released on parole. "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)). Here, Petitioner 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

Petitioner'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 Supreme Court, citing various collateral consequences such as deportation, inability to become a citizen, impeachment evidence in future criminal trials, and increased future sentences, asserted a presumption that collateral consequences attach to criminal convictions post-release. Id. at 54-56; accord Perez v. Greiner, 296 F.3d 123, 125 (2d Cir. 2002). In light of Sibron, the Second Circuit has 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, Petitioner continues to bear certain adverse collateral consequences of his criminal conviction in terms of continuing restraints on his liberty, including being subject to parole supervision by the New York State Department of Corrections and Community Supervision. Therefore, the Court concludes that the petition is not moot.

III. Factual Background and Procedural History

A. The Underlying Convictions

On April 20, 1993, Petitioner was arrested after he sold more than one-half ounce of cocaine to an undercover police officer. On July 5, 1993, Petitioner was stopped in his car by the police for speeding, and was found to be intoxicated. During the course of the stop, the police recovered a loaded .22-caliber revolver under the front passenger seat of Petitioner's car and a loaded .38-caliber ...


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