Davis v. Nassau County, 06-CV-4999 (JFB).

• Decision Date: 29 November 2007
• Docket Number: No. 06-CV-4999 (JFB).,06-CV-4999 (JFB).
• Citation: 524 F.Supp.2d 182
• Parties: Dmitri Ali DAVIS, Petitioner, v. NASSAU COUNTY, Respondent.
• Court: U.S. District Court — Eastern District of New York

524 F.Supp.2d 182

Dmitri Ali DAVIS, Petitioner, v. NASSAU COUNTY, Respondent.

No. 06-CV-4999 (JFB).

United States District Court, E.D. New York.

November 29, 2007.

COPYRIGHT MATERIAL OMITTED

Dmitri Ali Davis, Pro se.

Kathleen M. Rice, Esq., Nassau County District Attorney by Andrea M. DiGregorio, Nassau County District Attorney's Office, Mineola, NY, for Respondent.

MEMORANDUM AND ORDER

JOSEPH F. BIANCO, District Judge.

Dmitri Ali Davis (hereinafter "petitioner") petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his 1998 conviction in state court for Sexual Abuse in the First Degree. Petitioner pleaded guilty to that crime and was sentenced to a determinate term of imprisonment of three years. Petitioner completed his sentence on September 16, 2000, when he was discharged from parole. Given that petitioner's conviction has fully expired, the question is whether he is still "in custody" for purposes of habeas review because of (1) the ongoing requirement that he register as a convicted sex offender; or (2) the criminal penalties subsequently imposed on him when he moved to Oklahoma due to his failure to register according to Oklahoma sex offender laws.

For the reasons stated below, the habeas petition is dismissed. Specifically, the Court holds that the sex offender registration requirement, including any penalties resulting from failure to comply with that requirement, are collateral consequences from the underlying expired conviction and, thus, cannot satisfy the "in custody" requirement for purposes of federal habeas review on the underlying conviction.

I. BACKGROUND

A. The Facts

The following facts are adduced from the instant petition and underlying record, and are undisputed for purposes of this petition.

Petitioner was arrested by Nassau County detectives on September 16, 1997. On or about September 30, 1997, the grand jury of Nassau County indicted petitioner for Rape in the First Degree (N.Y. Penal Law § 130.35), Rape in the Second Degree (N.Y. Penal Law § 130.30), Sexual Abuse in the First Degree (N.Y. Penal Law § 130.65[1]), and Endangering the Welfare of a Child (N.Y. Penal Law § 260.10[1]) (Indictment # 2777N/97). Petitioner pleaded guilty to the charge of Sexual Abuse in the First Degree on March 17, 1998, in Nassau County Court. As a part of his plea agreement, petitioner waived his right to, appeal.

On May 5, 1998, petitioner was sentenced in Nassau County Court, as a second felony offender, to a determinate term of imprisonment of three years. On or about March 2, 2000, a hearing was held in compliance with New York's Sex Offender Registration Act ("SORA"), N.Y. Corr. Law § 168. At the hearing, petitioner was determined to be a Level 2 sex offender.

Petitioner successfully completed his sentence under Indictment # 2777N/97, and was discharged from parole on. September 16, 2000. Upon release, in compliance with New York's SORA, petitioner was required to register as a convicted sex offender. SORA obligations mandate that petitioner provide relevant authorities with his address and other personal information, and that he appear in person every three years to provide a current photograph. See N.Y. Corr. Law § 168-f.

In the six years since petitioner's release, he has moved to Oklahoma and has notified the appropriate authorities in the New York State Sex Offender Registry of his move. Since his move to Oklahoma, however, petitioner was re-incarcerated on April 21, 2007, due to failure to register according to Oklahoma sex offender laws. Petitioner pleaded guilty in the District Court of Oklahoma County, State of Oklahoma, to his failure to register as a sex offender, and received a five-year sentence, with all but one year suspended. He was released on the Oklahoma state court conviction on October 12, 2007 and is subject to probation as part of his sentence.

B. Procedural History

In or about July 1998, petitioner, acting pro se, filed a notice of appeal in New York State Court in connection with his 1998 conviction. (Pet. ¶ 2). Petitioner then filed a motion requesting leave to appeal in forma pauperis. The Appellate Division denied the motion. Petitioner never perfected his appeal from his judgment of conviction. Neither petitioner's conviction, nor his sentence has been overturned or modified by any appellate court. (Id.)

On September 11, 2006, petitioner moved before this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, to challenge his 1998 conviction for sexual abuse. On April 19, 2007, petitioner advised the Court of his re-incarceration in Oklahoma stating on April 21, 2007 due to his failure to register as a sex offender in Oklahoma. By letter dated October 7, 2007, petitioner advised the Court that he was going to be released from prison in Oklahoma on October 12, 2007, and subject to four years' probation. By letter dated October 27, 2007, following petitioner's release, petitioner advised the Court of his new address. On November 13, 2007, at the direction of the Court, documentation regarding petitioner's Oklahoma conviction was submitted.

II. DISCUSSION

A. Standard of Review

To determine whether petitioner is entitled to a writ of habeas corpus, a federal court must apply the standard of review set forth in 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which provides, in relevant part:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254. "Clearly established Federal law" is comprised of "the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Green v. Travis, 414 F.3d 288, 296 (2d Cir.2005) (quoting Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)).

A decision is "contrary to" clearly established federal law, as determined by the Supreme Court, "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413, 120 S.Ct. 1495. A decision is an "unreasonable application" of clearly established federal law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id.

AEDPA establishes a deferential standard of review: "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir.2001) (quoting Williams, 529 U.S. at 411, 120 S.Ct. 1495). The Second Circuit added that, while "[s]ome increment of incorrectness beyond error is required ... the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Gilchrist, 260 F.3d at 93 (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir.2000)).

B. "In Custody" Requirement

The respondent contends that the instant petition should be dismissed because petitioner was not "in custody" pursuant to the 1998 New York judgment of conviction for Sexual Abuse in the First Degree when he filed his 2006 petition because he was discharged from parole on that conviction in 2000. As set forth below, this Court agrees and finds that this Court has no jurisdiction to entertain petitioner's claims on the 1998 conviction.

A federal court has jurisdiction to consider a petition for a writ of habeas corpus on "behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254 (emphases added). The question presented by this case is whether petitioner's habeas corpus petition asserts claims for which he is "in custody" within the meaning of 28 U.S.C. § 2254. See Scanio v. United States, 37 F.3d 858, 860 (2d Cir.1994) (denying a petition for writ of habeas corpus because the petitioner failed to satisfy "in custody" requirement); see also 28 U.S.C. §§ 2241, 2254(a); Lackawanna Cty. Dist. Att'y v. Coss, 532 U.S. 394, 401, 121 S.Ct. 1567, 149 L.Ed.2d 608 (2001) (holding that relief is generally unavailable through a writ of habeas corpus when a petitioner seeks to challenge a prior conviction for which the person is no longer "in custody"). As the Third Circuit has noted, "custody is the passport' to federal habeas corpus jurisdiction." United States ex rel. Dessus v. Pennsylvania, 452 F.2d 557, 560 (3d Cir.1971).

Physical confinement is not necessary to satisfy the "in custody" requirement; for example, a petitioner who is on parole orserving a term of supervised release is considered to be "in custody" for purposes of federal habeas corpus statutes. See Earley v. Murray 451 F.3d 71, 75 (2d Cir.2006). The custody requirement is also met where a prisoner attacks any one of a number of sentences, see, e.g., Peyton v. Rowe, 391 U.S. 54, 67, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968), and when a prisoner attacks an earlier conviction, the effect of which was to delay the start of...