Vega v. Schneiderman

Filing

OPINION, affirming the judgment of the district court, by DJ, BDP, DAL, FILED.[2064782] [16-2364]

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16-2364-cv
Emily Vega v. Eric T. Schneiderman

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In the

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United States Court of Appeals

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For the Second Circuit

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August Term, 2016

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No. 16-2364-cv
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EMILY VEGA,
Petitioner-Appellant,

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v.

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ERIC T. SCHNEIDERMAN, Attorney General of the State of New York,
Respondent-Appellee.

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________

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Appeal from the United States District Court
for the Southern District of New York.
No. 12-cv-6994 ¯ Paul G. Gardephe, Judge.

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________

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Argued: April 5, 2017
Decided: June 23, 2017
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Before: JACOBS, PARKER, AND LIVINGSTON, Circuit Judges.
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Petitioner-Appellant Emily Vega was convicted in New York
state court of attempted criminal contempt in the second degree, a

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misdemeanor, and harassment in the second degree, a violation
under state law. She was sentenced to a one-year conditional
discharge, with the condition that she abide by a two-year order of
protection. After exhausting remedies in state court, Vega filed a
petition for writ of habeas corpus in the United States District Court
for the Southern District of New York. See 28 U.S.C. § 2254. The
magistrate judge (Fox, M.J.), to whom the case had been referred,
recommended the petition be dismissed for lack of jurisdiction,
concluding that § 2254(a)’s custody requirement had not been
satisfied because the one-year conditional discharge expired before
she filed her petition. On review of the magistrate’s
recommendation, the district judge (Gardephe, J.) dismissed the
petition on separate grounds, ruling that it was moot because Vega
failed to identify non-speculative collateral consequences flowing
from her conviction. Because we conclude that the order of
protection did not place Vega “in custody” for purposes of § 2254(a),
we affirm the district court’s dismissal of the petition.
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JODY RATNER (Robert S. Dean, on the brief), Center
for Appellate Litigation, New York, NY, for
Petitioner-Appellant.
CATHERINE M. RENO (Nancy D. Killian, on the
brief), Assistant District Attorney for Darcel D.
Clark, District Attorney for Bronx County, Bronx,
NY, for Respondent-Appellee.
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BARRINGTON D. PARKER, Circuit Judge:
This appeal considers whether a state court order of protection
that prohibited Petitioner-Appellant Emily Vega from contacting the
victim of her harassment places her “in custody” within the meaning
of the habeas statute, 28 U.S.C. § 2254. We conclude that it does not.
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I. BACKGROUND

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In July 2009, Vega confronted Magdalena Camacho in front of
an apartment building in the Bronx and an altercation ensued.
Because at the time of this confrontation there was an order of
protection in place against Vega directing her to stay away from
Camacho, Vega was arrested and charged with criminal contempt in
the second degree and harassment in the second degree. Before trial
in Bronx County Supreme Court, the criminal contempt charge was
reduced to attempted criminal contempt, a misdemeanor, which was
tried to the court along with the harassment charge. At the close of
the evidence, the court told the parties it would waive closing
arguments and that closing memoranda would not be accepted.
Vega was convicted on both charges and was sentenced to a
one-year conditional discharge, with the condition that she abide by
a two-year order of protection. The order of protection required
Vega to “stay away from [Camacho] and/or from” Camacho’s home,
school, business, and place of employment until September 20, 2012.
Appendix (“App.”) 109. While Camacho did not live at the Bronx
apartment where the confrontation occurred, she visited the
building every day so that her mother, who lived there, could look
after her children. Vega’s mother-in-law also lived in the building.
After exhausting state court remedies, Vega filed a petition
under § 2254 seeking habeas relief on the ground that the trial
court’s denial of an opportunity for defense counsel to make a
closing argument violated her Sixth Amendment right to assistance
of counsel under Herring v. New York, 422 U.S. 853 (1975). Vega
contended that although she was not incarcerated at the time she
filed her petition, she was still “in custody” within the meaning of
§ 2254(a) because she was subject to an order of protection that
imposed a significant restraint on her liberty.
Magistrate Judge Fox recommended that the petition be
dismissed for lack of jurisdiction, concluding that, for a different
reason than we express here, § 2254(a)’s custody requirement had

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not been satisfied. Judge Fox did not address the merits of Vega’s
claim. On review of Judge Fox’s recommendation, Judge Gardephe
dismissed the petition as moot, concluding that the potential
collateral consequences of Vega’s convictions were too speculative to
demonstrate the existence of a live case or controversy sufficient to
establish Article III standing. The district court granted Vega a
certificate of appealability on her Sixth Amendment claim.

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II. DISCUSSION
We review de novo a district court’s dismissal 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). 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 (1989). The custody requirement
may be satisfied by restraints other than “actual, physical custody”
incarceration. Jones v. Cunningham, 371 U.S. 236, 239–40 (1963). A
petitioner may satisfy this requirement where she is subject to a
significant restraint upon her physical liberty “not shared by the
public generally.” Id. at 240. The focus is not so much on actual
physical custody, but “the ‘severity’ of an actual or potential
restraint on liberty.” Poodry v. Towanda Band of Seneca Indians, 85 F.3d
874, 894–95 (2d Cir. 1996).
It is well settled that the custody requirement is “designed to
preserve the writ of habeas corpus as a remedy for severe restraints
on individual liberty.” Hensley v. Mun. Ct., San Jose Milpitas Jud. Dist.,
411 U.S. 345, 351 (1973). Indeed, even before the Antiterrorism and
Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat.
1214, the use of habeas corpus was long “limited to cases of special
urgency, leaving more conventional remedies for cases in which the
restraints on liberty are neither severe not immediate.” See id.; see
also 28 U.S.C. § 2254(d), (e).

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Accordingly, we have held that penalties that do not impose a
severe restraint on individual liberty or the imminent threat of such
a restraint do not satisfy the “in custody” requirement. See, e.g.,
Kaminski v. U.S., 339 F.3d 84, 87–88 (2d Cir. 2003) (holding a
restitution order could not be challenged through habeas petition
because a monetary fine was not a sufficient restraint on liberty to
meet the ‘in custody’ requirement); Ginsberg v. Abrams, 702 F.2d 48,
49 (2d Cir. 1983) (petitioner’s removal from the bench, revocation of
his license to practice law, and disqualification as a real estate broker
and insurance agent did not satisfy the custody requirement). We
believe that the “restriction” on Vega’s liberty is an analogue to ones
we have held to be insufficient.
Vega, pointing to our recent decision in Nowakowski v. New
York, 835 F.3d 210 (2d Cir. 2016), argues that her sentence of a oneyear conditional discharge in which she was to abide by a two-year
order of protection was a sufficiently severe restraint on her liberty
for habeas purposes. In that case, we held that a sentence of one
year’s conditional discharge, which required the performance of one
day of community service within that time, sufficiently restrained
Nowakowski’s liberty to satisfy the “in custody” statutory
requirement. Id. at 217.
We found it significant that Nowakowski’s sentence required
his physical presence at particular times and locations both for
community service and court appearances. Id. We pointed to cases in
which the Supreme Court and other Courts of Appeals “considered
even restraints on liberty that might appear short in duration or less
burdensome than probation or supervised release severe enough
because they required petitioners to appear in certain places at
certain times . . . or exposed them to future adverse consequences on
discretion of the supervising court.” Id. at 216 (collecting cases).
Here, Vega’s sentence does not rise to the same level of
restraint as did the sentence in Nowakowski. First, Vega concedes
that, unlike in Nowakowski, her sentence never required her physical
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presence at a particular time or location. Nor was she affirmatively
required to do anything such as perform community service.
Although she contends that this is a “distinction without a
difference,” Appellant’s Br. at 28–29, we disagree. The only restraint
on Vega’s freedom was that she stay away from Camacho. This
narrow and pinpointed restriction is neither severe nor significant.
In fact, at Vega’s trial in 2010, she testified that she had not seen
Camacho since 2006, and Camacho testified that she had only
encountered Vega “a couple of times” in the previous five years.
App. 47. In any event, the restriction is far less intrusive than the
restrictions imposed on Nowakowski which required him to be in a
particular place at a particular time and perform a specific act under
the threat of further penal sanction. See Triestman v. Schneiderman,
1:16-CV-01079 (LEK/DEP), 2016 WL 6106467, at *3 (N.D.N.Y. Oct. 19,
2016), appeal filed (Nov. 14, 2016) (No. 16-3831) (“[S]omeone who
must appear in court is required to be there at a specified time. She
has only one real choice as to how she spends the time allotted for
her court appearance, because if she fails to show up, she may face
serious consequences. But Triestman can go anywhere he likes at
any time so long as he avoids his daughter. The range of options
available to him on a given day is therefore much greater than that
open to someone who must appear in court that day.”) By contrast,
Vega can go anywhere at any time and do anything she wants as
long as she avoids an intentional confrontation with Camacho. We
view this “restriction” as modest, not severe.
Moreover, the order of protection did not expose Vega to
future adverse consequences at the discretion of a supervising court
as did the order in Nowakowski. Although Vega faced the possibility
of some new charge and future sanction if she were to violate the
order of protection, we are not convinced that the entirely
speculative possibility of a future charge for a future violation is
sufficiently severe to place Vega “in custody” for purposes of the

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habeas statute. If this were enough, every state order of protection
could become the subject of federal habeas litigation.
Vega argues that because Camacho visited the apartment
building where Vega’s mother-in-law lived every day to drop off
and pick up her children, “it was possible” that Vega would
encounter Camacho. Appellant’s Br. at 29. Again, we are not
convinced. It is clear to us that an inadvertent encounter with
Camacho would not violate the order of protection unless Vega
engaged with her or drew attention to Vega’s presence. Under N.Y.
Penal Law § 215.50, violation of the order of protection would
require the state to establish “intentional disobedience” of the order.
Thus, the chance or inadvertent encounter that concerns Vega would
not suffice. To place herself in jeopardy, Vega must intentionally
confront Camacho. In Holmes v. Satterberg, 508 Fed. App’x 660 (9th
Cir. 2013), the Ninth Circuit held that the district court lacked
jurisdiction over a habeas petition because “[t]he state court’s order
that Holmes ‘shall have no contact with’ the victims of his
harassment did not place a ‘severe’ and ‘immediate’ restraint on
Holmes’ individual liberty, and thus does not render him ‘in
custody’ for habeas purposes.” Id. at 661 (citations omitted). The
court rejected the same argument that Vega makes here, holding that
the possibility of accidental contact would violate the order was
“highly speculative.” Id.; see also Dremann v. Frances, 828 F.2d 6, 7
(9th Cir. 1987) (concluding petitioner was not “in custody” where a
significant restraint was merely speculative); Triestman, 2016 WL
6106467, at *3 (holding that because the petitioner, who was ordered
to stay away from his daughter, could coordinate with the mother of
his child to ensure that their daughter’s schedule did not overlap
with his, he was not sufficiently constrained to rise to the level of
being “in custody”). We agree. For these reasons, we conclude that
the order of protection does not constitute a significantly severe
restraint to satisfy the “in custody” requirement of § 2254(a).
CONCLUSION
The judgment of the district court is affirmed.

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