Ristau v. Kirk

• Decision Date: 21 October 1987
• Docket Number: No. CV-85-4197.,CV-85-4197.
• Citation: 671 F. Supp. 955
• Parties: John RISTAU, Plaintiff, v. William S. KIRK, Superintendent of Wallkill Correctional Facility, State of New York; Elizabeth Holtzman, District Attorney, Kings County; and Robert Abrams, New York State Attorney General, Defendants.
• Court: U.S. District Court — Eastern District of New York

671 F. Supp. 955

John RISTAU, Plaintiff, v. William S. KIRK, Superintendent of Wallkill Correctional Facility, State of New York; Elizabeth Holtzman, District Attorney, Kings County; and Robert Abrams, New York State Attorney General, Defendants.

No. CV-85-4197.

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

October 21, 1987.

John Ristau, pro se.

Steven H. Kessler, Asst. Dist. Atty., Brooklyn, N.Y., for defendants.

GLASSER, District Judge:

On November 18, 1985, pro se petitioner John Ristau filed a petition pursuant to 28 U.S.C. § 2254, alleging that his 1944 misdemeanor conviction was unconstitutionally obtained because he had not been represented by counsel nor advised of his right to be so represented. Petitioner, at the time he filed his application, was serving a sentence for a 1962 murder conviction. He asserted that he had been denied parole in 1982 and 1984 because the parole board relied, in part, on his allegedly infirm misdemeanor conviction. Petitioner was released on parole in January 1986.

In response to this Court's order to show cause, respondents argued that the petition should be dismissed on grounds of mootness and pursuant to Rule 9(a) of the Rules Governing Section 2254 Cases in the United States District Courts. Without making a determination with respect to any of respondents' arguments, the Court directed respondents to submit certain documents pursuant to Rules 5 and 7 of the Rules Governing Section 2254 Cases. See Order dated February 6, 1987. The Court indicated that respondents' Rule 9(a) argument might have merit but noted that respondents would have to make a particularized showing of prejudice resulting from petitioner's delay since 1972 in bringing this petition.

On February 27, 1987, respondents submitted some of the material requested by this Court¹ and a further affidavit in opposition to the petition. Respondents have renewed their arguments that the petition is moot and that the State is prejudiced by petitioner's delay.

For the reasons set forth below, petitioner's application is denied.

A. Mootness

Respondents argue that the claim raised by petitioner is moot because petitioner has obtained some of the relief he seeks — that is, release on parole. Petitioner's claim, however, is arguably not moot because the 1944 conviction may subject him to "disabilities or burdens" or to "collateral consequences." Carafas v. LaVallee, 391 U.S. 234, 237-38, 88 S.Ct. 1556, 1559-60, 20 L.Ed.2d 554 (1968) (citations omitted); Mizell v. Attorney General, 586 F.2d 942, 947-48 (2d Cir.1978), cert. denied, 440 U.S. 967, 99 S.Ct. 1519, 59 L.Ed.2d 783 (1979). While petitioner's 1944 misdemeanor conviction might appear to be a minor factor in any possible future proceeding, given petitioner's 1962 murder conviction, its potential consequences arguably preclude a determination that petitioner's claim is moot. See, e.g., Lane v. Williams, 455 U.S. 624, 632, 102 S.Ct. 1322, 1327, 71 L.Ed.2d 508 (1982) ("a criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction") (quoting Sibron v. New York, 392 U.S. 40, 57, 88 S.Ct. 1889, 1900, 20 L.Ed.2d 917 (1968)).

On the other hand, the Court takes note of respondents' argument that petitioner's claim is moot because it fails to fall within the realm of the "capable of repetition, yet evading review" doctrine. See Weinstein v. Bradford, 423 U.S. 147, 148-49, 96 S.Ct. 347, 348-49, 46 L.Ed.2d 350 (1975) (citing Sosna v. Iowa, 419 U.S. 393, 399-400, 95 S.Ct. 553, 557-58, 42 L.Ed.2d 532 (1975)). Under this doctrine, a claim may not be rendered moot when "(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again." Id. 423 U.S. at 149, 96 S.Ct. at 349. In this case respondents argue that because petitioner has been granted parole it cannot be reasonably expected that he will be subject to denial of parole by this board, at any time in the future. The mootness issue need not be decided in this case, however, because the Court has determined that it does not possess the requisite jurisdiction.

B. Rule 9(a)

On the Rule 9(a) issue, the Court notes preliminarily that respondents have not fully complied with the Order of February 6, 1987. In that Order, the Court noted that respondents' 9(a) argument could succeed only if respondents made a particularized showing of prejudice caused by petitioner's delay since 1972.² The Court noted, for instance, that respondents should show on what dates the trial judge, counsel, and court reporter became unavailable and should indicate whether the court reporter's notes are currently available. In his February 27, 1987 affirmation, Assistant District Attorney Kessler addressed only part of this request. He indicated that petitioner appeared before Magistrate Mason on January 5, 1944 but did not indicate whether Magistrate Mason is since deceased or otherwise unavailable. Mr. Kessler did indicate that one of the justices on the three-justice sentencing panel died in 1963 and one died in 1983. Mr. Kessler also indicated that he has been unable to obtain information about the third justice. Mr. Kessler did not discuss the availability of the court reporter or the notes of the court reporter, nor did he discuss the availability of the prosecutor.

Thus, the Court is left with the following scenario: respondents have alleged prejudice based on the unavailability of transcripts and other pertinent court documents and respondents have shown that petitioner delayed forty years in bringing his claim; petitioner, in rebuttal, has shown that he could not have asserted his constitutional right to counsel claim until at least 1972 or 1973 and that the state's prejudice caused by the destruction of court records in 1969 is thus not attributable to his delay and does not bar his claim; finally, respondents have shown that at least some prejudice has resulted from petitioner's delay since 1972 because one of the three justices on the sentencing panel died in 1983 and a second one cannot now be found.

While this case appears to be particularly appropriate for a summary disposition on the issue of undue prejudice, respondents have thus far not met their burden. Because the Court finds that dismissal is warranted on other grounds, it will not pursue the Rule 9(a) issue further.

C. Jurisdiction

As a preliminary matter, the Court notes that neither petitioner nor respondents have addressed the issue of jurisdiction, which is an issue analytically distinct from that of mootness. See, e.g., Anderson v. Smith, 751 F.2d 96, 100-01 (2d Cir.1984); Ward v. Knoblock, 738 F.2d 134, 137-39 (6th Cir.1984), cert. denied, 469 U.S. 1193, 105 S.Ct. 970, 83 L.Ed.2d 974 (1985); Sevier v. Turner, 742 F.2d 262, 269 n. 6 (6th Cir.1984). Section 2254(a) provides:

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in 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).

This Court thus has jurisdiction only if petitioner is "in custody" in a sense that meets the statutory requirements. The "in custody" requirement has been liberally construed to include both actual physical restraint due to incarceration as well as other significant restraints on a person's liberty such as those existing when a prisoner is released on parole or bail. See generally Ward, 738 F.2d at 138. While petitioner's release on parole would generally satisfy the "in custody" requirement, see, e.g., Anderson, 751 F.2d at 100 n. 4, the Court perceives a separate problem that precludes jurisdiction. At the time of filing his application, petitioner was "in custody" for a 1962 murder conviction, not the 1944 misdemeanor conviction he is currently challenging. At the time of his incarceration for the 1962 conviction, petitioner had apparently fully served his time on the misdemeanor conviction and the papers before the Court show no relationship between the 1944 and 1962 convictions and sentencings.

Under the reasoning followed by several courts, these facts would bar petitioner's claim. In Carter v. Procunier, for instance, the Fifth Circuit explained the statutory requirements as follows:

It is well settled that a habeas corpus petitioner meets the statutory "in custody" requirements when, at the time he files the petition: (1) he is in custody pursuant to the conviction he attacks or (2) he is in custody pursuant to another conviction that is positively and demonstrably related to the conviction he attacks. 28 U.S.C. §§ 2241(d); 2254(a), (b), Sinclair v. Blackburn, 599 F.2d 673 (5th Cir.1979), cert. denied, 444 U.S. 1023, 100 S.Ct. 684, 62 L.Ed.2d 656 (1980). It is also clear that the court's jurisdiction continues over a habeas petition filed at the time he is incarcerated pursuant to the conviction he attacks, even if the petitioner is released from actual physical custody before the application is finally adjudicated. Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968). The court's jurisdiction does not continue, and a petitioner does not meet the statutory "in custody" requirement, however, when he (1) files the petition while in custody pursuant to a conviction that is positively and demonstrably related to the conviction he attacks, and (2) later is discharged from custody on that related offense before the petition is finally adjudicated. Escobedo v. Estelle, 655 F.2d 613 (5th Cir.1981).

755 F.2d 1126, 1129 (5th Cir.1985) (emphasis in original).

Thus, under the authority of Carter v. Procunier, even if petitioner could show that his 1962...