Fowler v. Fischer
| Decision Date | 30 May 2019 |
| Docket Number | 18 Civ. 2769 (ER)(HBP) |
| Parties | JAMARR FOWLER, Petitioner, v. BRIAN FISCHER, Respondent. |
| Court | U.S. District Court — Southern District of New York |
REPORT AND RECOMMENDATION
Petitioner Jamarr Fowler, proceeding pro se, seeks by his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, an Order vacating a judgment entered on July 31, 2008 by the Supreme Court of the State of New York, Bronx County (Stadtmauer, J.), after a jury trial, which convicted Fowler of one count of rape in the second degree, in violation of New York Penal Law Section 130.30(1), colloquially known as statutory rape. By that judgment, petitioner was sentenced as a second felony offender to an indeterminate term of imprisonment of three and one-half to seven years. Petitioner was released from custody on November 6, 2013, after serving the full seven years. At or about the time he completed his sentence, petitioner was adjudicated a Level Two sex offender. At the time he filed his petition, petitioner was incarcerated in the State of Connecticut on unrelated charges brought by that state.
Respondent has moved to dismiss the petition on the ground that petitioner was not "in custody" pursuant to the judgment he seeks to challenge at the time he filed his petition, and, therefore, the Court lacks subject matter jurisdiction. Specifically, respondent contends that petitioner's being subject to the registration and reporting requirements of New York's sex offender registration statute do not constitute "custody" for the purpose of bringing a habeas corpus petition.
For the reasons set forth below, I respectfully recommend that respondent's motion be granted and that the petition be dismissed.
Because they are not material to the pending motion, an extended discussion of the facts giving rise to petitioner's conviction is not necessary. In short, petitioner's conviction arose out of his having sexual intercourse with a fourteen-year-old girl ("AH"). Petitioner was 25 years of age at the time of the crime. The evidence offered at trial tended to established that petitioner engaged in anal and vaginal intercourse with AHthrough forcible compulsion 2018 ("Stracquadanio Aff."), Ex. 2 at 5-10).
Assisted by counsel, petitioner appealed his conviction, claiming that the evidence against him was insufficient and that there was a technical, state law defect in his sentencing. The Appellate Division of the Supreme Court for the First Department affirmed petitioner's conviction on November 10, 2009. Although the Appellate Division found that the evidence against petitioner was sufficient, it remanded for re-sentencing to correct the technical defect in the imposition of petitioner's sentence. People v. Fowler, 67 A.D. 3d 476, 886 N.Y.S.2d 885 (1st Dep't 2009). The New York Court of Appeals denied leave to appeal on March 11, 2010. People v. Fowler, 14 N.Y.3d 800, 925 N.E.2d 938, 899 N.Y.S.2d 134 (2010).
On April 20, 2010, the technical defect concerning petitioner's sentence was corrected, and petitioner was resentenced to the same sentence that was originally imposed (Stracquadanio Aff., Ex. 3).
Again with counsel's assistance, petitioner filed a second appeal to the Appellate Division, this time claiming that the sentence was harsh and excessive (Stracquadanio Aff., Ex. 4). The Appellate Division affirmed the sentence on November 1, 2011. People v. Fowler, 89 A.D.3d 436, 932 N.Y.S.2d 757 (1st Dep't2011). The New York Court of Appeals denied leave to appeal on February 1, 2012. People v. Fowler, 18 N.Y.3d 924, 965 N.E.2d 965, 942 N.Y.S.2d 463 (2012).
On or about November 23, 2011, petitioner filed a motion in the Trial Court pursuant to New York Criminal Procedure Law Section 440.10, seeking to vacate his conviction on the ground that his trial counsel was ineffective (Stracquadanio Aff., Ex. 6). After conducting an evidentiary hearing, the Trial Court denied the motion on September 2, 2014 (Stracquadanio Aff., Ex. 12). The Appellate Division affirmed the denial of the 440.10 motion on December 1, 2016. People v. Fowler, 145 A.D.3d 437, 43 N.Y.S.3d 275 (1st Dep't 2016). The New York Court of Appeals denied leave to appeal on February 23, 2017 and March 28, 2017. People v. Fowler, 28 N.Y.3d 1184, 75 N.E.3d 102, 52 N.Y.S.3d 710 (2017); People v. Fowler, 29 N.Y.3d 902, 80 N.E.3d 398, 57 N.Y.S.3d 705 (2017).1
Petitioner was released from New York State custody on November 6, 2013, while his 440.10 motion was pending in the Trial Court (Stracquadanio Aff., Ex. 8). Shortly after his release from custody, the Trial Court adjudicated petitioner to be a Level Two sex offender, thereby making him subject to thereporting and registration requirements of New York's Sex Offender Registration Act, N.Y. Correction Law, Sections 168-a, et seq. (Stracquadanio Aff. ¶ 15). This adjudication was also affirmed in the Appellate Division's December 1, 2016 decision. People v. Fowler, supra, 145 A.D.3d at 438, 43 N.Y.S.3d at 277-78.
On July 13, 2015, petitioner was convicted in a Connecticut State court of second degree forgery and interfering with an officer, in violation of Connecticut Penal Code Sections 53a-139 and 53a-167a, respectively. Petitioner was initially given a sentence of probation. However, on November 19, 2015, petitioner was found guilty of violating the terms of his probation and was sentenced to a term on imprisonment of three years (Stracquadanio Aff., ¶ 22 and Ex. 17).
Petitioner signed the pending petition on February 22, 2018, and I deem that to be its filing date. Houston v. Lack, 487 U.S. 266, 276 (1988); Noble v. Kelly. 246 F.3d 93, 97-98 (2d Cir. 2001). Petitioner claims that his conviction should be vacated for two reasons. First, he claims that his trial counsel was ineffective because he failed investigate exculpatory leads, failed to offer exculpatory evidence and committed other errors. Second, he claims that his conviction is defective because the indictment against him charged him with having anal intercoursewith AH, but that the Trial Court charged the jury on the theory that petitioner had vaginal intercourse with AH.
A federal court's jurisdiction to consider a petition for a writ of habeas corpus is limited to petitions filed 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(a) (emphasis added); Nowakowski v. New York, 835 F.3d 210, 215 (2d Cir. 2016).
The federal habeas statute gives the United States district courts jurisdiction to entertain petitions for habeas relief only from persons who are "incustody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3) (emphasis added); seealso 28 U.S.C. § 2254(a). We have interpreted the statutory language as requiring that the habeas petitioner be "in custody" under the conviction or sentence under attack at the time his petition is filed. SeeCarafas v. LaVallee, 391 U.S. 234, 238 (1968).
Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (emphasis in original); accord Scanio v. United States, 37 F.3d 858, 860 (2d Cir. 1994).
Actual physical confinement is not required to satisfy the "in custody" requirement.
A petitioner may satisfy this requirement where [he] is subject to a significant restraint upon [his] physical liberty "not shared by the public generally." [Jones v. Cunningham, 371 U.S. 236, 240 (1963)]. The focus is not so much on actual physical custody, but "the 'severity' of an actual or potential restraint on liberty." Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 894-95 (2d Cir. 1996).
Vega v. Schneiderman, 861 F.3d 72, 74 (2d Cir. 2017). Conditional release programs which "significantly confine and restrain [an individual's] freedom" satisfy the "in custody" requirement. Jones v. Cunningham, 371 U.S. 236, 243 (1963); see Earley v. Murray, 451 F.3d 71, 75 (2d Cir. 2006) (); Eisemann v. Herbert, 401 F.3d 102, 105 n.1 (2d Cir. 2005) (). Other types of restraints that will satisfy the "in custody" requirement include an obligation to perform community service, banishment from tribal land, mandatory attendance at an alcohol rehabilitation program and an unexpired suspended sentence. Nowakowski v. New York, supra, 835 F.3d at 216. Restitution orders, fines and civil disabilities, such as disbarment or the suspension of a license, do not satisfy the "in custody" requirement. Nowakowski v. New York, supra, 835 F.3d at 216.
The fact that a petitioner's sentence expired while the petition is pending does not affect the court's jurisdiction so long as the petitioner was "'in custody' when the application forhabeas corpus [was] filed." Carafas v. LaVallee, 391 U.S. 234, 238 (1968).
Once a sentence has fully expired, however, it is no longer subject to challenge by way of a petition for a writ of habeas corpus in federal court.
We have never held . . . that a habeas petitioner may be "in custody" under a conviction when the sentence imposed for that conviction has fullyexpired at the time his petition is filed. . . . [O]nce the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual "in custody" for the purposes of a habeas attack upon it.
Maleng v. Cook, supra, 490 U.S. at 491-92 (emphasis in original); see also Williams v. Edwards, 195 F.3d 95, 96 (2d Cir. 1999) (per curiam) (...
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