Kirsh v. Michetti

• Decision Date: 24 March 1992
• Docket Number: No. 92 Civ. 198 (RLC).,92 Civ. 198 (RLC).
• Citation: 787 F. Supp. 403
• Parties: Mara KIRSH, Plaintiff-Petitioner, v. Felice MICHETTI, as Commissioner of the New York City Department of Housing Preservation and Development, Phillip A. Grimaldi, as Sheriff of New York City, Harry Weisberg, as Under Sheriff for New York County, N.Y., and Barney Carbin, as Under Sheriff for Bronx County, N.Y., Defendants-Respondents.
• Court: U.S. District Court — Southern District of New York

787 F. Supp. 403

Mara KIRSH, Plaintiff-Petitioner, v. Felice MICHETTI, as Commissioner of the New York City Department of Housing Preservation and Development, Phillip A. Grimaldi, as Sheriff of New York City, Harry Weisberg, as Under Sheriff for New York County, N.Y., and Barney Carbin, as Under Sheriff for Bronx County, N.Y., Defendants-Respondents.

No. 92 Civ. 198 (RLC).

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

March 24, 1992.

Eleanor Jackson Piel, New York City, Robert Cammer, Larchmont, N.Y., for plaintiff-petitioner.

O. Peter Sherwood Corp. Counsel (Janessa Nisley, Jerald Horowitz, Gail Donoghue, of counsel), New York City, for defendants-respondents.

OPINION

ROBERT L. CARTER, District Judge.

Mara Kirsh petitions this court for a writ of habeas corpus preventing the Sheriff defendants from imprisoning her pursuant to an order of the New York City Civil Court. She also advances a claim for the same relief under 42 U.S.C. § 1983. The history of this case is essential to the determination of the petition, and accordingly is set forth below.

Mara Kirsh and her husband own an apartment building on Elizabeth Street in New York City. Various housing code violations were brought to the attention of the New York City Department of Housing Preservation and Development ("HPD"), and HPD petitioned the Civil Court to appoint an administrator for the property under New York Real Property Actions and Proceedings Law, Art. 7-A (McKinney 1979). On March 1, 1988 the Civil Court appointed a 7-A administrator for the property and ordered Kirsh not to interfere with the administrator's management of the property and to turn over control of the premises to that administrator.

In April, 1988, HPD moved before the Civil Court to have Kirsh held in civil and criminal contempt for having interfered with the management of the building and having refused to surrender control of the entire building to the administrator. Kirsh appeared on the scheduled date and obtained a continuance of the contempt hearing. On July 5, 1988, the continued contempt hearing was held, but Kirsh failed to appear. The Civil Court held an inquest at which three witnesses testified and other evidence was received. A court stenographer was present at the hearing, but apparently no transcript of the hearing was recorded or produced. On August 2, 1988, the Civil Court issued an opinion finding Kirsh in civil and criminal contempt of court for failing to obey the March 1, 1988 order. Kirsh was fined and sentenced to 30 days in prison.

Kirsh moved to vacate the default judgment of contempt, but the Civil Court denied this motion on September 1, 1988. The Appellate Term, First Department affirmed this denial on January 19, 1989. Kirsh was still not sent to prison, however, apparently because HPD could not locate her. In November, 1989, Kirsh moved to reopen both her contempt adjudication and the original appointment of the 7-A administrator for her building. Kirsh then modified this renewal motion by withdrawing her application to reopen the 7-A administration proceeding and the substance of the contempt adjudication, choosing instead to focus her application for reconsideration solely on the appropriateness of the prison term imposed for the contempt. The Civil Court granted the reconsideration application and, after a hearing, reduced the prison sentence from 30 to 15 days in February, 1990.

Kirsh appealed this decision, arguing to the Appellate Term that the lack of a transcript for the hearing that was the basis of her contempt judgment violates the due process clause of the United States Constitution. In May, 1991, the Appellate Term affirmed the Civil Court's order on the grounds that the prison term was not an abuse of discretion and that the constitutional claims had not been preserved for appellate review, since they had not been raised on the earlier appeal or pursued at the reconsideration hearing. The Appellate Division and the New York Court of Appeals each denied review of the Appellate Term's decision on procedural grounds, without opinion.

This petition for habeas corpus and for relief under Section 1983 followed.¹ The petition challenges the constitutionality of the contempt commitment on the grounds that the lack of a transcript of the evidentiary hearing, and the lack of sufficient findings of fact in the decision itself, constitute a due process violation.

I.

As an initial matter Kirsh's assertion that she states a valid claim for relief under 42 U.S.C. § 1983 must be rejected. While "a § 1983 action is a proper remedy for a state prisoner who is making a constitutional challenge to the conditions of his prison life," Preiser v. Rodriguez, 411 U.S. 475, 499, 93 S.Ct. 1827, 1841, 36 L.Ed.2d 439 (1973), Kirsh makes no claim about the conditions of her prospective confinement. Instead, she seeks to challenge the judgment under which the city seeks to imprison her. As explained in Preiser, "when a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus." 411 U.S. at 500; see also McCarthy v. Bronson, ___ U.S. ___, 111 S.Ct. 1737, 1741, 114 L.Ed.2d 194 (1991); Abdul-Hakeem v. Koehler, 910 F.2d 66, 68-69 (2d Cir.1990). Thus Kirsh cannot avoid the numerous requirements that accompany a petition for a writ of habeas corpus by invoking section 1983.

II.

Since she states no claim for relief under section 1983, Kirsh must resort to her petition for habeas corpus. Respondents argue that this court may not consider the constitutional arguments advanced in Kirsh's habeas petition because of a procedural default in the state court. To determine whether there was a procedural default, the court must look to the basis of decision in the last reasoned opinion by a court considering the petitioner's appeals. Ylst v. Nunnemaker, ___ U.S. ___, 111 S.Ct. 2590, 2594, 115 L.Ed.2d 706 (1991). In this case that decision is the 1991 Appellate Term opinion reviewing the Civil Court's 1990 reconsideration of the contempt commitment, which reads in relevant part as follows:

The fifteen-day jail sentence imposed for criminal contempt represented a permissible exercise of the court's discretion and was not excessive. Appellant's constitutional challenge to the underlying adjudication of contempt, neither raised on the prior appeal to this court nor pursued at the hearing on appellant's renewal motion below, has not been preserved for appellate review (see, Matter of Chauvel v. Nyquist, 55 A.D.2d 76, 79 389 N.Y.S.2d 636 (1976), aff'd 43 N.Y.2d 48 400 N.Y.S.2d 753, 371 N.E.2d 473 (1977)). In any event, the claim is without merit.

Complaint, Ex. 7. Thus the Appellate Term held that Kirsh was procedurally barred from raising her constitutional claims on appeal.

Under the "plain statement rule" announced in Michigan v. Long, 463 U.S. 1032, 1042-43, 103 S.Ct. 3469, 3477, 77 L.Ed.2d 1201 (1983), and extended to federal habeas corpus cases in Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), such a procedural default prevents federal habeas review where the state court "`clearly and expressly' states that its judgment rests on a state procedural bar." Harris, supra, 489 U.S. at 263, 109 S.Ct. at 1043-44. Since the Appellate Term's decision clearly states that "appellant's constitutional challenge ... has not been preserved for appellate review," it satisfies the plain statement rule, insulating the decision from federal habeas corpus review.

Kirsh argues that the fact that the Appellate Term addressed the merits of the constitutional issue (albeit briefly) makes her case reviewable in federal court. However, the Supreme Court has explicitly held that a state court's alternative holding addressing the merits of a constitutional issue does not invalidate a separate procedural ground of decision. As the Court explained in Harris:

A state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law.... Wainwright v. Sykes 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) curtails reconsideration of the federal issue on federal habeas as long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision. In this way, a state court may reach a federal question without sacrificing its interests in finality, federalism, and comity.

489 U.S. at 264 n. 10, 109 S.Ct. at 1044 n. 10 (emphasis in original).

Furthermore, the cases Kirsh cites in support of her argument are clearly distinguishable. In Harris, supra, the state court remarked that the prisoner's claims "could have been raised on direct appeal" but then went on to decide the claims on their merits. The Supreme Court permitted federal habeas review of the constitutional claims, finding the reference to the state procedural rule an insufficiently clear statement that the procedural bar was an independent basis for the state court's decision. Here, the Appellate Term's reference to the procedural bar is not the ambiguous "could have" of the state court in Harris but instead is a definitive statement that Kirsh's constitutional claims have "not been preserved for appellate review." This constitutes a clear statement by the state court that the procedural grounds are an independent and adequate basis for its decision.

Kirsh also seeks to rely on Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), where a prisoner had not raised a constitutional issue on his appeal to the state supreme court. The state court raised the constitutional issue sua sponte and...