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Vega v. Schneiderman

United States Court of Appeals, Second Circuit

June 23, 2017

Emily Vega, Petitioner-Appellant,
v.
Eric T. Schneiderman, Attorney General of the State of New York, Respondent-Appellee.

          Argued: April 5, 2017

         Appeal from the United States District Court for the Southern District of New York. No. 12-cv-6994 ¯ Paul G. Gardephe, Judge.

         Petitioner-Appellant Emily Vega was convicted in New York state court of attempted criminal contempt in the second degree, a misdemeanor, and harassment in the second degree, a violation under state law. She was sentenced to a one-year conditional discharge, with the condition that she abide by a two-year order of protection. After exhausting remedies in state court, Vega filed a petition for writ of habeas corpus in the United States District Court for the Southern District of New York. See 28 U.S.C. § 2254. The magistrate judge (Fox, M.J.), to whom the case had been referred, recommended the petition be dismissed for lack of jurisdiction, concluding that § 2254(a)'s custody requirement had not been satisfied because the one-year conditional discharge expired before she filed her petition. On review of the magistrate's recommendation, the district judge (Gardephe, J.) dismissed the petition on separate grounds, ruling that it was moot because Vega failed to identify non-speculative collateral consequences flowing from her conviction. Because we conclude that the order of protection did not place Vega "in custody" for purposes of § 2254(a), we affirm the district court's dismissal of the petition.

          Jody Ratner (Robert S. Dean, on the brief), Center for Appellate Litigation, New York, NY, for Petitioner-Appellant.

          Catherine M. Reno (Nancy D. Killian, on the brief), Assistant District Attorney for Darcel D. Clark, District Attorney for Bronx County, Bronx, NY, for Respondent-Appellee.

          Before: Jacobs, Parker, and Livingston, Circuit Judges.

          Barrington D. Parker, Circuit Judge

         This appeal considers whether a state court order of protection that prohibited Petitioner-Appellant Emily Vega from contacting the victim of her harassment places her "in custody" within the meaning of the habeas statute, 28 U.S.C. § 2254. We conclude that it does not.

         I. BACKGROUND

         In July 2009, Vega confronted Magdalena Camacho in front of an apartment building in the Bronx and an altercation ensued. Because at the time of this confrontation there was an order of protection in place against Vega directing her to stay away from Camacho, Vega was arrested and charged with criminal contempt in the second degree and harassment in the second degree. Before trial in Bronx County Supreme Court, the criminal contempt charge was reduced to attempted criminal contempt, a misdemeanor, which was tried to the court along with the harassment charge. At the close of the evidence, the court told the parties it would waive closing arguments and that closing memoranda would not be accepted.

         Vega was convicted on both charges and was sentenced to a one-year conditional discharge, with the condition that she abide by a two-year order of protection. The order of protection required Vega to "stay away from [Camacho] and/or from" Camacho's home, school, business, and place of employment until September 20, 2012. Appendix ("App.") 109. While Camacho did not live at the Bronx apartment where the confrontation occurred, she visited the building every day so that her mother, who lived there, could look after her children. Vega's mother-in-law also lived in the building.

         After exhausting state court remedies, Vega filed a petition under § 2254 seeking habeas relief on the ground that the trial court's denial of an opportunity for defense counsel to make a closing argument violated her Sixth Amendment right to assistance of counsel under Herring v. New York, 422 U.S. 853 (1975). Vega contended that although she was not incarcerated at the time she filed her petition, she was still "in custody" within the meaning of § 2254(a) because she was subject to an order of protection that imposed a significant restraint on her liberty.

         Magistrate Judge Fox recommended that the petition be dismissed for lack of jurisdiction, concluding that, for a different reason than we express here, § 2254(a)'s custody requirement had not been satisfied. Judge Fox did not address the merits of Vega's claim. On review of Judge Fox's recommendation, Judge Gardephe dismissed the petition as moot, concluding that the potential collateral consequences of Vega's convictions were too speculative to demonstrate the existence of a live case or controversy sufficient to establish Article III standing. The district court granted Vega a certificate of appealability on her Sixth Amendment claim.

         II. ...


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