Argued: April 5, 2017
from the United States District Court for the Southern
District of New York. No. 12-cv-6994 ¯ Paul G. Gardephe,
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.
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
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.
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.
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.
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
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