United States District Court, W.D. New York
DECISION AND ORDER
MICHAEL A. TELESCA, United States District Judge
pro se, Charles Horton (“Petitioner”)
has filed a Petition for a writ of habeas corpus pursuant to
28 U.S.C. 2254. At the time he filed the instant Petition,
Petitioner was incarcerated pursuant to a Federal criminal
conviction at Federal Correctional Institution
(“FCI”) McKean, in Bradford, Pennsylvania.
Accordingly, he named Warden Monica Recktenwald as the
Respondent in this action. However, the Petition challenges a
judgment entered against him in New York State Supreme Court,
Erie County (Tills, A.J.), more than 17 years ago, after he
pled guilty to sexual abuse and weapons-possession charges.
The Erie County District Attorney's Office therefore
answered the Petition.
reasons discussed herein, the Petition is dismissed.
Factual Background and Procedural History
31, 2000, under Erie County File No. 99-1628-001, Petitioner
entered a counseled guilty plea to Sexual Abuse in the First
Degree (N.Y. Penal Law § 130.65(1)). Also on that date,
Petitioner pleaded guilty to Criminal Possession of a Weapon
in the Third Degree (N.Y. Penal Law § 265.02(4)), under
Erie County File No. 99-2081-011. On September 8, 2000,
Petitioner was sentenced to concurrent terms of two
years' imprisonment on each conviction, plus a mandatory
period of post-release supervision (“PRS”).
Petitioner did not take appeals from either conviction.
the time of his conviction and the filing of the Petition,
Petitioner filed several pro se motions to vacate
the judgment pursuant to N.Y. Criminal Procedure Law
(“C.P.L.”) § 440.10 in Erie County Supreme
Court, the most recent of which was filed on October 31,
2014. Petitioner argued that his plea was involuntary because
he was not advised of the mandatory PRS term, that trial
counsel was ineffective in failing to advise him about the
PRS term, and that he was entitled to DNA testing to prove
that he could not have committed the sexual abuse offense to
which he pled guilty. On February 4, 2015, Erie County
Supreme Court (Boller, A.J.) denied the motion without a
hearing. On March 6, 2015, Petitioner filed a timely notice
of appeal in the Appellate Division, Fourth Department, of
New York State Supreme Court (“the Fourth
Department”). On May 27, 2015, the Fourth Department
denied Petitioner's leave application.
November 11, 2015, Petitioner filed the instant request for
habeas relief, asserting the same grounds raised in the 2014
C.P.L. § 440.10 motion. Petitioner also filed a motion
for appointment of counsel. In its answer to the Petition,
the Erie County District Attorney's Office that the
Petition is untimely, and that Petitioner has failed to
fulfill the “in custody” requirement of the
Federal habeas statute. Petitioner did not file a traverse.
argues that the Petition is untimely because it was filed
well past the expiration date of the one-year statute of
limitations set forth in 28 U.S.C. § 2244(d)(1), and
Petitioner is not entitled to statutory or equitable tolling.
Respondent's timeliness argument is incomplete inasmuch
as Respondent has ignored the existence of more than one
C.P.L. § 440.10 motions filed by Petitioner between 2000
and 2014. This information is apparent from the face of the
Petition and the attached order issued by Acting Justice
Boller denying Petitioner's 2014 C.P.L. § 440.10
motion. These motions would have given rise to periods of
statutory tolling under 28 U.S.C. § 2244(d)(2).
Therefore, Respondent's argument, as presented to the
Court, cannot serve as a basis for dismissing the Petition.
The “In Custody” Requirement
is clearly settled that a writ of habeas corpus may only be
issued where a petitioner is “in custody” at the
time the petition is filed. See Maleng v. Cook, 490
U.S. 488, 490-91 (1989) (“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.'”) (quoting 28 U.S.C. § 2241(c)(3);
citing 28 U.S.C. § 2254(a)) (emphasis in original).
Thus, “[t]he first showing a §2254 petitioner must
make is that he is ‘in custody pursuant to the judgment
of a State court.'” Lackawanna Cnty. Dist.
Att'y v. Coss, 532 U.S. 394, 401 (2001) (quoting 28
U.S.C. §2254(a)). The petitioner must “be
‘in custody' under the conviction or sentence under
attack at the time his petition is filed.”
Finkelstein v. Spitzer, 455 F.3d 131, 133 (2d Cir.
2006) (quoting Maleng, 490 U.S. at 490-91). Once the
petitioner is no longer serving a sentence on a particular
conviction, he cannot bring a federal habeas petition
directed solely at that conviction. Coss, 532 U.S.
was convicted in Erie County Supreme Court in 2000, and
sentenced to a maximum term of two years' imprisonment
plus a mandatory term of PRS, which, by statute, could not
exceed five years. Petitioner, however, did not file the
instant Petition until 2015, well after his sentence on the
Erie County Supreme Court convictions had fully expired.
Although Petitioner is currently incarcerated, it is pursuant
to a wholly separate Federal criminal conviction. Because
Petitioner was not “in custody” pursuant to the
2000 Erie County Supreme Court convictions that the Petition
challenges, at at the time he filed the Petition in 2015, he
is not “in custody” for purposes of obtaining
habeas review of his Erie County Supreme Court convictions.
See Coss, 532 U.S. at 403-04 (“Coss is no
longer serving the sentences imposed pursuant to his 1986
convictions, and therefore cannot bring a federal habeas
petition directed solely at those convictions.”)
(citing Maleng, 490 U.S. at 493-94)). Following the
reasoning of Coss, because Petitioner ...