BROWN v. LAGANA et al

Filing 16

OPINION. Signed by Judge Dickinson R. Debevoise on 3/26/15. (dc, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

BARRY BROWN,
Petitioner,

Civil Action No. 13-2215 (DRD)

v.
PAUL LAGANA,

OPINION

Respondents.

APPEARANCES:
BARRY BROWN
710 South 10th Street, Ground Floor
Newark, New Jersey 07108
Petitioner Pro Se
LUCILLE M. ROSANO, ESQ.
ESSEX COUNTY PROSECUTOR
50 West Market Street
Newark, New Jersey 07102
Attorneys for Respondents
Debevoise, Senior U.S. District Judge
Barry Brown filed a Petition and an Amended Petition for a Writ of Habeas Corpus under
28 U.S.C. ' 2254. He challenges a judgment of conviction filed in the Superior Court of New
Jersey, Essex County, on September 1, 2006, after a jury found him guilty of burglary and
aggravated assault.

The State filed an Answer and the state court record.

After carefully

reviewing the arguments of the parties and the state court record, this Court will dismiss the
Petition and the Amended Petition for lack of jurisdiction because Petitioner is not in custody and
deny a certificate of appealability.

I. BACKGROUND
After a trial, a jury sitting in the Superior Court of New Jersey, Law Division, Essex
County, found Petitioner guilty of second-degree burglary and third-degree aggravated assault on
Tonya Peterson, the mother of his two children. On September 1, 2006, the trial judge sentenced
him to an aggregate term of nine years in prison, subject to the 85% period of parole ineligibility
mandated by New Jersey’s No Early Release Act. On January 9, 2009, the Appellate Division of
the Superior Court of New Jersey affirmed the conviction and sentence. See State v. Brown, 2009
WL 47394 (N.J. Super. Ct., App. Div., Jan. 9, 2009). The New Jersey Supreme Court denied
certification on April 2, 2009. See State v. Brown, 199 N.J. 129 (2009) (table).
Brown filed a pro se petition for post-conviction relief on May 28, 2009. On December
9, 2009, the trial court denied the petition for post-conviction relief without conducting an
evidentiary hearing. Petitioner appealed and the Appellate Division affirmed the order denying
post-conviction relief on December 15, 2011. See State v. Brown, 2011 WL 6218274 (N.J. Super.
Ct., App. Div., Dec. 15, 2011). The New Jersey Supreme Court denied certification on May 25,
2012. See State v. Brown, 210 N.J. 263 (2012) (table).
Brown signed but did not date his initial § 2254 Petition. (ECF No. 1-2 at 5.) He signed
his affidavit of poverty, which accompanied the § 2254 Petition, on April 8, 2013. (ECF Nos. 1
at 5, 1-2 at 6.) The Clerk received the § 2254 Petition and affidavit of poverty on April 9, 2013.
After the Court notified Petitioner of his rights pursuant to Mason v. Meyers, 208 F.3d 414 (3d
Cir. 2000), he filed an Amended Petition. Brown raises the following grounds in the Amended
Petition: (1) the trial judge denied his constitutional rights by not allowing him to use evidence
to prove his innocence; (2) he was denied his Sixth Amendment right to the effective assistance of
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counsel in that counsel failed to properly cross-examine Ms. Peterson; and (3) he “was denied his
right to due process because of improper, uncorrected assessment and weighing of aggravating
and mitigating factors during sentencing proceedings.” (ECF Nos. 5 at 7, 8 at 1.)
Respondent filed the state court record and an Answer arguing that the Court lacks
jurisdiction over the Petition because Petitioner was not in custody when he filed it, the Petition is
barred by the one-year statute of limitations, and Petitioner is not entitled to habeas relief on the
merits. (ECF No. 14.)
II. DISCUSSION
A.

Jurisdiction
Section 54 of Title 28 of the United States Code confers jurisdiction on district courts to

issue “writs of habeas corpus on behalf of a person in custody pursuant to the judgment of a state
court . . . 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). Lack of subject matter jurisdiction may be raised by
the Court at any time. See Bender v. Williamsport Area School Dist., 475 U.S. 534, 541 (1986);
Louisville & Nashville Railroad Co. v. Mottley, 211 U.S. 149, 152 (1908); Van Holt v. Liberty
Mutual Fire Ins. Co., 163 F.3d 161, 166 (3d Cir. 1998).
To invoke habeas corpus review by a federal court under § 2254, the petitioner must satisfy
two jurisdictional requirements: the status requirement that the person be “in custody,” and the
substance requirement that the petition challenge the legality of that custody on the ground that it
is in violation of the Constitution or laws or treaties of the United States. See Maleng v. Cook,
490 U.S. 488, 490 (1989); see also Keitel v. Mazurkiewicz, 729 F.3d 278 (3d Cir. 2013). The
Supreme Court has “interpreted the statutory language as requiring that the habeas petitioner be
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‘in custody’ under the conviction or sentence under attack at the time his petition is filed.”
Maleng, 490 U.S. at 490-91; see also Spencer v. Kemna, 523 U.S. 1, 7 (1998); Government of
Virgin Islands v. Vanterpool, 767 F.3d 157, 163-164 (3d Cir. 2014).
The threshold question in this case is whether Mr. Brown satisfies the “in custody”
requirement with respect to the challenged 2006 conviction resulting in a nine-year term of
imprisonment that, according to Respondent and the New Jersey Department of Corrections,
expired on February 23, 2013, when the Department of Corrections released Brown from custody.
See

N.J.

Dept.

of

Corrections,

Inmate

Locator,

at

https://www6.state.nj.us/DOC_Inmate/details?x=1362087&n=0 (Mar. 16, 2015). The answer to
this question is no. Mr. Brown’s nine-year sentence expired on February 23, 2013, 45 days before
he filed his initial § 2254 Petition under the mailbox rule on April 8, 2013. Because Mr. Brown
was not “in custody” as a result of the 2006 conviction at the time he filed his habeas petition
challenging that conviction, this Court lacks jurisdiction over his habeas petition under § 2254. 1
See Maleng, 490 U.S. at 490-92; Vanterpool, 767 F.3d at 163 (“The Supreme Court has interpreted
the statutory language under § 2254 as requiring that the habeas petitioner be ‘in custody’ under
the conviction or sentence under attack at the time his petition is filed) (emphasis in original)
(citation and internal quotation marks omitted); Obado v. New Jersey, 328 F.3d 716, 717 (3d Cir.

1

While collateral consequences may avoid mootness of a habeas petition where the petitioner was
released from the challenged conviction after the petition was filed, collateral consequences of the
conviction are not sufficient to satisfy the “in custody” requirement where the sentence expired
before the filing of the petition. See Spencer, 523 U.S. at 7-8; Maleng, 490 U.S. at 492; Obado,
328 F.3d at 718 n.2.
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2003) (“While the ‘in custody’ requirement is liberally construed for purposes of habeas corpus,
for a federal court to have jurisdiction, a petitioner must be in custody under the conviction he is
attacking at the time the habeas petition is filed.”); Leyva v. Williams, 504 F.3d 357, 363 (3d Cir.
2007) (“In making a custody determination, [federal courts look] to the date that the habeas petition
was filed.”) (quoting Barry v. Bergen County Probation Dept., 128 F.3d 152, 159 (3d Cir. 1997)).
This Court will dismiss the Petition for lack of jurisdiction.
B.

Certificate of Appealability
The AEDPA provides that an appeal may not be taken to the court of appeals from a final order

in a § 2254 proceeding unless a judge issues a certificate of appealability on the ground that “the
applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). This Court denies a certificate of appealability because jurists of reason would not find it
debatable that dismissal of the Petition for lack of jurisdiction is correct. See Slack v. McDaniel, 529
U.S. 473, 484 (2000).

III. CONCLUSION
This Court dismisses the Amended Petition for lack of jurisdiction and denies a certificate
of appealability.

s/Dickinson R. Debevoise
DICKINSON R. DEBEVOISE
U.S.S.D.J.
Dated: March 26, 2015

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