Nowakowski v. People

• Decision Date: 26 August 2016
• Docket Number: August Term 2015,Docket No. 14–1964
• Citation: 835 F.3d 210
• Parties: Robert Nowakowski, Petitioner–Appellant, v. The People of the State of New York, Respondent–Appellee.
• Court: U.S. Court of Appeals — Second Circuit

835 F.3d 210

Robert Nowakowski, Petitioner–Appellant,
v.
The People of the State of New York, Respondent–Appellee.

Docket No. 14–1964
August Term 2015

United States Court of Appeals, Second Circuit.

Argued: October 14, 2015
Decided: August 26, 2016

Robert Nowakowski , pro se, Brooklyn, NY.

Victor Barall , Assistant District Attorney (Leonard Joblove, Assistant District Attorney, on the brief), for Kenneth P. Thomson, District Attorney for Kings County, Brooklyn, NY, for Respondent–Appellee.

Before: Straub, Wesley, and Livingston, Circuit Judges.

Judge Livingston dissents in a separate opinion.

Wesley, Circuit Judge:

Petitioner–Appellant Robert Nowakowski was convicted of harassment in the second degree, an offense classified as a violation under state law, and sentenced to one year's conditional discharge, requiring one day of community service. Before completing this sentence, Nowakowski filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in the United States District Court for the Eastern District of New York (Vitaliano, J. ). Because Nowakowski fulfilled the requirements of his sentence during the pendency of the habeas proceeding, the District Court concluded that Nowakowski's case presented no live case or controversy sufficient to establish Article III standing under Spencer v. Kemna , 523 U.S. 1, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998).

We granted a certificate of appealability with instructions to brief two questions of first impression we now answer: First , whether a sentence of conditional discharge and one day's community service, unfulfilled as of the time of filing the habeas petition, satisfies the “in custody” requirement of § 2254. And second , whether a presumption of continuing collateral consequences applies to Nowakowski's conviction, thus presenting a live case or controversy under Article III despite the expiration of his sentence. Because we answer both questions in the affirmative, we VACATE the District Court's dismissal of Nowakowski's petition and REMAND for further proceedings consistent with this opinion.¹

835 F.3d 214

BACKGROUND²

Robert Nowakowski was arrested on October 31, 2006, on charges of assault against another tenant in his building. He contends that these charges were fabricated by his landlord and his neighbors, including the now-deceased victim. After a bench trial, he was convicted of harassment in the second degree—which is classified as a violation under New York state law—in the Criminal Court of the City of New York on September 18, 2008, and ordered to pay a fine of $100. The sentence was stayed for over four years during post-conviction appeals and collateral proceedings. On May 14, 2013, the Criminal Court vacated the fine and sentenced Nowakowski to a one-year conditional discharge, requiring him to complete one day of community service within that time. This change in sentence occurred at Nowakowski's request because he could not afford the fine and administrative charges, which totaled $195.

Pursuant to the amended sentence, the Kings County District Attorney's Office sent Nowakowski a “Notice of C.S. Obligation,” dated June 6, 2013. This notice informed Nowakowski that he had been referred for community service on July 2, 2013, with the Parks Department. It informed him that he was required to appear on that date in a specific location, that the date would “NOT be rescheduled,” and that if he failed to appear or complete the required service, “a warrant may be issued for [his] arrest.” Appellant App. 18.³

On July 1, 2013, Nowakowski filed a petition under 28 U.S.C. § 2254 for habeas relief. He then appeared and completed his community service before appearing in the Criminal Court on July 9, 2015, with proof of completion.⁴ Prior to filing his federal habeas petition, Nowakowski had filed a pro se civil complaint in the United States District Court for the Eastern District of New York, alleging violations of 42 U.S.C. § 1983 by arrest and imprisonment without probable cause, assault and excessive force, and the state tort of malicious abuse of process. See Second Am. Compl., Nowakowski v. City of New York et al. , No. 1:08–cv–00399–RJD–LB (E.D.N.Y. filed May 19, 2008), ECF No. 17. His civil action remains stayed pending resolution of his federal habeas proceeding.

On November 7, 2013, the District Court initially dismissed Nowakowski's petition without prejudice, because it contained an unexhausted claim of ineffective assistance of appellate counsel. Nowakowski both moved to vacate the dismissal, stating he wished to delete his unexhausted claim and proceed only on his exhausted claims, and filed a motion in our Court for a certificate of appealability. We construed the motion as one for remand to the District Court for consideration of his Rule 59(e) motion and

835 F.3d 215

granted it. On April 2, 2014, the District Court reopened Nowakowski's case and granted Nowakowski's motion for reconsideration, allowing his exhausted claims to proceed.

Following briefing, the District Court concluded that the expiration of Nowakowski's conditional discharge on May 14, 2014, rendered his petition moot, unless Nowakowski could demonstrate a continuing collateral consequence under Spencer , supra . Nowakowski argued that his conviction would preclude his § 1983 action from proceeding under Heck v. Humphrey , 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) ; the District Court held that Spencer rejected this argument against mootness as an insufficient collateral consequence. Thus, the District Court entered a Memorandum and Order on May 30, 2014, dismissing the petition as moot and denying a certificate of appealability. Nowakowski moved for a certificate of appealability in this Court, which we granted. See Order, Nowakowski v. New York , No. 14–1964 (2d Cir. Dec. 8, 2014), ECF No. 21.

DISCUSSION

We review de novo a district court's denial of a § 2254 petition, including whether a petitioner was in custody at the time of filing, see Carvajal v. Artus , 633 F.3d 95, 104 (2d Cir. 2011), and whether his petition is moot, Marrero Pichardo v. Ashcroft , 374 F.3d 46, 50–51 (2d Cir. 2004). As Nowakowski briefed and argued this case pro se , we construe his “appellate briefs and submissions liberally and interpret them to raise the strongest arguments they suggest.” Wright v. Comm'r , 381 F.3d 41, 44 (2d Cir. 2004).

I.

The first question we must decide is whether Nowakowski was “in custody” and thus able to seek federal habeas relief.⁵ In order for a federal court to have jurisdiction over a habeas petition, the petitioner must be “in custody pursuant to the judgment of a State court” at the time the petition is filed. 28 U.S.C. § 2254(a) ; Maleng v. Cook , 490 U.S. 488, 490–91, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989).

Despite the “chief use of habeas” being “the release of persons held in actual, physical custody in prison or jail,” the Supreme Court has affirmed “that, besides physical imprisonment, there are other restraints on a man's liberty, restraints not shared by the public generally, which have been thought sufficient in the English-speaking world to support the issuance of habeas corpus.” Jones v. Cunningham , 371 U.S. 236, 240, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963) ; see also id. at 238, 83 S.Ct. 373. The Jones Court found jurisdiction where an individual was released from imprisonment on parole subject to explicit conditions—for example, regular reporting to his parole officer; remaining in a particular community, residence, and job; and refraining from certain activities. Id. at 242, 83 S.Ct. 373. The Supreme Court has likewise found jurisdiction where a petitioner was released on his own recognizance prior to trial but had to appear in criminal court when ordered and where failure to do so would result in issuance of an arrest warrant. See Hensley v. Mun. Court, San Jose–Milpitas Judicial Dist. , 411 U.S. 345, 351, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973) ; see also Justices of Bos. Mun. Court v. Lydon , 466 U.S. 294, 300–01, 104 S.Ct. 1805, 80 L.Ed.2d 311 (1984) (finding jurisdiction

835 F.3d 216

over petitioner released on his own recognizance prior to trial “subject to the conditions that he would appear when ordered by the court, that he would waive extradition if he was apprehended outside the State, and that a court could revoke the order of release and require that he be returned to confinement or post bail”).

The Courts of Appeals, including ours, have recognized that a variety of nonconfinement restraints on liberty satisfy the custodial requirement. See, e.g. , Earley v. Murray , 451 F.3d 71, 75 (2d Cir. 2006) (post-release supervision); Barry v. Bergen Cty. Prob. Dep't , 128 F.3d 152, 160–62 (3d Cir. 1997) (500 hours of community service); Poodry v. Tonawanda Band of Seneca Indians , 85 F.3d 874, 894–95 (2d Cir. 1996) (banishment from tribal land); Dow v. Circuit Court of First Circuit Through Huddy , 995 F.2d 922, 923 (9th Cir. 1993) (per curiam) (mandatory fourteen-hour alcohol rehabilitation program); Sammons v. Rodgers , 785 F.2d 1343, 1345 (5th Cir. 1986) (per curiam) (unexpired suspended sentence); United States ex rel. B. v. Shelly , 430 F.2d 215, 217 n.3 (2d Cir. 1970) (probation). Those cases where courts have...