United States District Court, N.D. New York
FELIPE MERCEDES, Petitioner, pro se, Bronx, NY.
THOMAS B. LITSKY, Ass't Attorney General, HON. ERIC T. SCHNEIDERMAN, New York State Attorney General, New York, NY.
DAVID N. HURD, Senior District Judge.
Currently pending is petitioner's petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Dkt. No. 1 ("Pet."). Petitioner argues in his petition that he received ineffective assistance of counsel because (1) counsel failed to file a notice of appeal; (2) counsel failed to pursue a defense that the county court lacked jurisdiction; and (3) counsel failed to advise petitioner of the immigration consequences of his guilty plea. Pet.'s Mem. of L. at 11-20, Dkt. No. 1-1. Respondent opposes the petition. Resp.'s Mem. of Law in Opp'n to the Pet. for a Writ of Habeas Corpus, Dkt. No. 16. For the reasons below, the petition will be denied and dismissed.
II. Effect of Petitioner's Release from Custody
According to publicly available records maintained by the New York State Department of Corrections and Community Supervision ("DOCCS"), and in petitioner's letter updating his address, petitioner was released from state custody on this conviction on February 28, 2014. See Dkt. No. 23; http://nysdoccslookup.doccs.ny.gov. Petitioner's post-release supervision is set to expire on or about February 28, 2014. See http://nysdoccslookup.doccs.ny.gov. Regardless of a petitioner's subsequent release, it is within the jurisdiction of a federal court to issue a writ of habeas corpus if the petitioner was "in custody" when his petition was filed. Carafas v. LaVallee, 391 U.S. 234, 237-38 (1968). Since petitioner was in custody when he filed his petition, the court retains jurisdiction over the petition.
Subject matter jurisdiction, however, is limited by Article III, Section 2 of the United States Constitution 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). Habeas petitioners no longer in custody must demonstrate the existence of a "concrete and continuing injury" or some "collateral consequence' of the conviction" in order for a petition to be granted. Spencer, 523 U.S. at 7.
The Supreme Court has stated that a challenge to an underlying conviction itself carries the presumption that a collateral, adverse consequences exists. Spencer, 523 U.S. at 12 ("[I]t is an obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences.'") (quoting Sibron v. New York, 392 U.S. 40, 55 (1968)); see Evitts v. Lucey, 469 U.S. 387, 391 n.4 (1985). Accordingly, this petition does not appear to have been rendered moot by petitioner's release from prison, and thus it will be addressed. Cobos v. Unger, 534 F.Supp.2d 400, 403 (W.D.N.Y. Feb. 14, 2008) (citing Sibron, 392 U.S. at 54-56).
III. RELEVANT BACKGROUND
In a 112 count sealed indictment naming twenty-one individuals, petitioner was charged with one count of conspiracy in the second degree (Count 1); two counts of criminal sale of a controlled substance in the first degree (Counts 72 and 104); two counts of criminal possession of a controlled substance in the first degree (Counts 70 and 102); and two counts of criminal possession of a controlled substance in the third degree (Counts 71 and 103). See County Court Decision Denying Pet.'s § 440.10 Motion at 1, Dkt. No 1-2. The indictment was the result of a lengthy investigation by the New York Statewide Organized Crime Task Force, with the assistance of several law enforcement agencies, and alleged that petitioner, along with other defendants, conspired to possess and sell large amounts of cocaine in several counties throughout New York State. Id. On August 5, 2010, petitioner was convicted, upon a negotiated guilty plea, of an amended count of criminal possession of a controlled substance in the second degree (Count 102) in full satisfaction of the charges naming him in the indictment. Id; see also August 5, 2010 Plea Tr., Dkt. No. 17-9. On November 17, 2010, he was sentenced to a determinate term of imprisonment of six years and five years of post-release supervision. Id; see also November 17, 2010 Sent. Tr., Dkt. No. 17-9. As a condition of the plea, petitioner waived his right to appeal. Id. After the expiration of his time to file a Notice of Appeal, petitioner sought permission from the Appellate Division, Fourth Department to file a late notice of appeal. Id. That motion, and his subsequent motion to reconsider, were denied. Id.
Petitioner filed a motion to vacate the judgment of conviction pursuant to N.Y. C.P.L. § 440.10 ("440.10 Motion"), which alleged that the Cayuga County Court lacked jurisdiction and that petitioner received ineffective assistance of counsel. See Pet.'s 440.10 Motion, Dkt. No. 17-8; County Court Decision Denying Pet.'s 440.10 Motion, Dkt. No. 17-10. On November 4, 2011, the motion was denied. The Appellate Division denied petitioner's motion for leave to appeal the denial of petitioner's 440.10 Motion on March 7, 2012. App. Div. Decision Denying Pet.'s Motion for Leave to Appeal, Dkt. No. 17-14. This action followed.
A. Standard of ...