Williams v. Spitzer et al

Filing 41

MEMORANDUM AND ORDER: As set forth in the Court's October 23, 2017 Memorandum of Decision and Order, Petitioners motion for a writ of habeas corpus 1 is DENIED as moot (see attached Memorandum of Decision and Order for details). The Clerk of Court is respectfully directed to close the case. Ordered by Judge LaShann DeArcy Hall on 10/23/2017. (Valentin, Winnethka)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

EARL WILLIAMS,
MEMORANDUM OF
DECISION AND ORDER

Petitioner,

05-CV-5289(LDH)
-againstERIC T. SCHNEIDERMAN,New York State

Attorney General, and BRIAN FISCHER,
Superintendent, Sing Sing Correctional Facility,
Respondents.

LaSHANN DeARCY hall.United States District Judge:
Petitioner Earl Williams,formerly incarcerated at Otisville Correctional Facility, brings a
habeas corpus petition pursuant to 28 U.S.C. § 2254,challenging his July 3,2001 conviction in

New York Supreme Court, Queens County for first-degree assault, fourth-degree criminal
mischief, and fourth-degree possession ofa weapon. (Pet.

1-4, ECF No. 1.) For the reasons

stated below. Petitioner's request for a writ of habeas corpus is denied.
BACKGROUND

On March 15, 2000,Petitioner was involved in an altercation with a livery cab driver.
(Resp't Opp'n at 5,ECF No. 12-2). Petitioner reached into the victim's car and punched him

several times, after which he pulled the victim from the car and beat him with an anti-theft
device. (Jd.) On June 11,2001, a Queensjury foimd Petitioner guilty offirst-degree assault,

fourth-degree criminal mischief, and fourth-degree criminal possession of a weapon. (Trial Tr.,

ECF No. 15 at 982:1-983:24.)^ On July 3,2001, Petitioner was sentenced to a determinate
prison term offifteen years for the assault conviction, to run concurrently with one-year prison

terms on the other charges.^ (Sentencing Tr., ECF No. 15 at 18:6-13.)
On direct appeal. Petitioner argued that:(1)the prosecution had failed to disprove his

defense ofjustification beyond a reasonable doubt;(2)the verdict was against the weight ofthe
evidence; and(3)the fifteen-year sentence was unduly harsh. See People v. Williams, 759
N.Y.S.2d 329(App. Div. 2003). The Appellate Division affirmed the conviction on April 7,
2003. Id. Petitioner requested leave to appeal to the New York Court of Appeals, which was
denied on June 27,2003. See People v. Williams, 100 N.Y.2d 567(2003).
Following his direct appeal. Petitioner moved to vacate hisjudgment of conviction under
New York Criminal Procedure Law Section § 440.10 on the basis that both his pre-trial and trial

counsel had provided ineffective assistance and that his sentence was excessive. (Resp't Opp'n
at 21.) Petitioner asserted that:(1)his pre-trial counsel was unaware ofPetitioner's whereabouts

on a certain court date, did not inform Petitioner ofthat court date, and failed to properly convey

a plea offer ofthree and a half years to Petitioner;(2) his trial attorney failed to conduct a proper
investigation ofthe pre-trial record, which would have enabled Petitioner to accept the plea offer;
and(3)both his trial attorney and her supervisor misrepresented Petitioner's maximum
sentencing exposure as five and seven years, respectively. (Resp't Opp'n,Ex. G at 7-11, ECF
'Although the pre-trial and trial transcripts were assigned ECF numbers, they were filed in hard copy only.
^ The trial court originally failed to impose any term of post-release supervision. On January 19, 2012,the court
resentenced Petitioner to a statutorily required term of post-release supervision in addition to the determinate term of

imprisonment imposed on July 3, 2001. Petitioner appealed, arguing that:(1)a resentence more than ten years after
the original conviction subjected him to double jeopardy; and(2)in any event, the court should have imposed the
minimum available term of post-release supervision(two and a half years) as opposed to the maximum (five years).
On August 7, 2013, the Appellate Division affirmed the resentence, holding:"Since the defendant had not yet
completed his originally imposed sentence ofimprisonment when he was resentenced, his resentencing to a term
including the statutorily required period of post-release supervision did not subject him to double jeopardy or violate
his right to due process." People v. Williams, 969 N.Y.S.2d 918,919(2013). The court additionally held that the

period of post-release supervision imposed was not excessive. The instant petition does not contain any claims
arising out ofthis resentencing.

No. 12-3.) On September 3, 2003,the trial court denied Petitioner's motion, holding that it was
procedurally barred and without merit. (Resp't Opp'n, Ex. J at 3,EOF No. 12-3.)

Subsequently, Petitioner applied to the Appellate Division for a writ of error coram
nobiSy claiming that his appellate counsel's failure to raise his trial counsel's treatment ofthe

plea offer was itself ineffective assistance and requesting an evidentiary hearing to develop the
record, (Resp't Opp'n, Ex. V at 13-34, EOF No. 12-10.) On March 14,2005, his application

was denied without a hearing. People v. Williams, 790 N.Y.S.2d 613(N.Y. App. Div. 2005).
The instant petition followed on November 9, 2005. (Pet. at 1.) Petitioner claims that:
(1)he was denied the effective assistance ofcounsel at trial when counsel failed to communicate

a plea offer made by the government and inaccurately stated his maximum sentencing exposure

and(2)his sentence was excessive.^ {Id. atf 13.)
Petitioner's fifteen-year determinate sentence expired in July 2015. {Id. at ^ 3.)
According to the website maintained by the New York State Department of Corrections and
Community Supervision, Petitioner was serving a concurrent sentence on a separate

manslaughter charge during this same period, with a maximum expiration date of March 15,
2021. See DOCCS Inmate Lookup at http://nysdoccslookup.doccs.ny.gov (Department
Identification Number Ol-A-4217). Petitioner was conditionally released to parole on March 15,
'
Petitioner briefly references additional claims in the opening paragraph of his memorandum, which were not
included in the petition itself and which are not discussed at all in the remainder of his brief: "[T]rial counsel was
also ineffective in failing to preserve [an] objection that the State failed to carry its burden in rebutting Williams'

justification defense,[and] appellate counsel was ineffective in failing to preserve said objection, furthermore,
Williams' due process right to a fair trial was violated where the State failed to disprove Williams'justification
defense beyond a reasonable doubt." (Pet. Br. at 1.) Respondent did not address these claims in its response, and
Petitioner elected not to file a reply brief. {See Resp't Opp'n. at 29-50; Letter Noting that after review ofthe parties'
submissions. Petitioner will not supplement his habeas submissions, EOF No.20 at 1.) The Court therefore deems
the other claims abandoned. See, e.g. Manson v. Haponik, No.05-CV-3412(BMC),2007 WL 2077895, at *3
(E.D.N.Y. July 18,2007)(deeming a claim withdrawn where petitioner "failed to raise [the claim] in his petition and
subsequently abandoned the claim in his supplemental memorandum"); Taylor v. Sabourin,269 F.Supp.2d 20,22
(E.D.N.Y. 2003)(considering claim mentioned by pro se petitioner that was not included in relevant section of

habeas petition, and that was not addressed by respondent in its opposition or by petitioner on reply, to be
abandoned).

2017. See id.
DISCUSSION

Article III, Section 2 ofthe United States Constitution limits the subject matter ofthe

federal courts to cases that present a "case or controversy." A case is properly dismissed as moot
"when the issues presented are no longer 'live' or the party lacks a legally cognizable interest in
the outcome." City ofErie v. Pap's A.M.,529 U.S. 277,287(2000)(internal citation and
quotation marks omitted).

"[Mjootness is not fixed at the time offiling but must be considered at every stage ofthe

habeas proceeding." Nowakowski v. New York, 835 F.3d 210,217(2d Cir. 2016)(citing Carafas
V. LaVallee, 391 U.S. 234,237(1968)). "An incarcerated convict's(or a parolee's) challenge to
the validity of his conviction always satisfies the case-or-controversy requirement, because the

incarceration(or the restriction imposed by the terms ofthe parole) constitutes a concrete injury,
caused by the conviction and redressable by invalidation ofthe conviction." Spencer v. Kemna,

523 U.S. 1,7(1998)(holding that habeas petition challenging parole revocation did not present a
concrete, redressable injury); United States v. Mercurris, 192 F.3d 290,293-95(2d Cir. 1999)

(application of aggravated felony enhancement during sentencing was insufficient to satisfy the
case-or-controversy requirement where habeas petitioner had already completed his sentence).
Once a petitioner's sentence has expired,"some concrete and continuing injury other than
the now-ended incarceration or parole—some 'collateral consequence' ofthe conviction—^must
exist ifthe suit is to be maintained." Spencer,523 U.S. at 7. When a habeas petitioner
challenges the criminal conviction itself, the Supreme Court"has been willing to presume the
existence of collateral consequences sufficient to satisfy the case-or-controversy requirement; or,
in a practice that it views as 'effectively the same,' the Court has been willing 'to count collateral

consequences that are remote and unlikely to occur.'" United States v. Probber, 170 F.3d 345,
348(2d Cir. 1999)(quoting Spencer, 523 U.S. at 8).
When a petitioner challenges only an expired sentence, however,"the question becomes

whether th[e] Court is capable of granting him any effective relief." Bomasuto v. Perlman,680
F.Supp.2d 449,457(W.D.N.Y. 2010)(citing Lane v. Williams, 455 U.S. 624,631-33(1982)).
Courts have repeatedly held that "challenges to the validity of a sentence are mooted by the
expiration ofthat sentence." Garcia v. Schultz, No. 05-CV-2428(BSJ)
(MHD),2010 WL

1328349, at *7(S.D.N.Y. Jan. 13, 2010), report and recommendation adopted, No.05-CV-2428
(BSJ),2010 WL 1328333(S.D.N.Y. Apr. 2,2010). In Mercurris, the Second Circuit declined to
adopt the presumption of collateral consequences where the petitioner's sentence had expired

and the petitioner challenged only the sentencing enhancement and not the underlying
conviction. Mercurris, 192 F.3d at 293-95. See also Bomasuto,680 F.Supp.2d at 459("Because

[petitioner] does not challenge his conviction, this is not a situation where the presumption of
collateral consequences... applies"); Brown v. Breslin, No.04-CV-7970(PAC)
(DF),2008 WL
857767, at *16(S.D.N.Y. Mar. 31,2008)(presumption of collateral consequences did not apply
where petitioner was challenging "the duration of an already-served sentence, as opposed to the
conviction itself). The same outcome is warranted here.
Petitioner's ineffective assistance claim and excessive sentence claim both challenge the
validity of his sentence, rather than the underlying conviction. {See Pet. Br. at 11-13,ECF No.

10-2.)^ See Garcia,2010 WL 1328349, at *1 (dismissing habeas petition as moot where
petitioner, who claimed counsel's actions prevented him from accepting a plea offer, had already
Petitioner included this claim in his petition and lists it in the opening paragraph of his brief("Williams' sentence
ofa flat 15 years violates the contours ofcruel and unusual punishment"). (Pet. Br. at 1.) He does not reference the
claim again; the "Argument" section ofthe brief is limited to a discussion ofthe ineffective assistance claim. {See
Pet. Br. 11-12.) Respondent argues that this claim should be deemed abandoned. (Resp. Br. at 44-45.) The Court
need not reach this question, as the claim itself is moot following Petitioner's completion of his sentence.

been released from custody). As Petitioner's sentence is now expired, the only remaining relief
would be a reduction in his term of post-release supervision. However,even ifPetitioner's

habeas petition were granted,"[r]edress... would not appear to be available through the early
termination of his supervision ... as the controlling statute on post-release supervision, N.Y.
Penal Law § 70.45, does not appear to reduce the length of a supervised release term because of
unlawful excess time served in prison." Brown,2008 WL 857767, at *16, fh. 18;see also
Bomasuto,680 F. Supp. 2d at 461 (holding challenge to sentence moot where Petitioner was no

longer incarcerated and was serving a three-year term of supervised release).
CONCLUSION

For the foregoing reasons, the Court denies Petitioner's motion for a writ of habeas

corpus as moot. Because Petitioner has not made a substantial showing ofthe denial of any
constitutional right, no certificate of appealability will issue. See 28 U.S.C. § 2253;see also
Lucidore v. N.Y. State Div. ofParole, 209 F.3d 107,112-13(2d Cir. 2000). The Court certifies
pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good

faith. See Coppedge v. United States, 369 U.S. 438,444-45 (1962). The Clerk of Court is
respectfully directed to close the case.

Dated: Brooklyn, New York
October 23,2017

SO ORDERED.

S/LaShann DeArcy Hall

LaSHANN DeARCY hall

United States District Judge