Aponte v. Modica (Judge) of Queens Ciminal Courthouse, NY

Filing 7

MEMORANDUM AND ORDER: For the same reasons as stated in this Court's February 28, 2011 memorandum and order, Aponte's instant habeas petition is dismissed. Aponte is not in custody pursuant to the 2006 conviction because his probation term inated on June 22, 2007, and the Court is therefore without jurisdiction to hear his § 2254 petition. Since Aponte has failed to make a "substantial showing of the denial of a constitutional right," a Certificate of Appealability shall not issue. 28 U.S.C. § 2253(c). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith, and therefore denies in forma pauperis status for purposes of appeal. Coppedge v. United States, 369 U.S. 438, 444-46 (1962). The Clerk of the Court is directed to enter judgment and to close the case. Ordered by Chief Judge Carol Bagley Amon on 10/21/2013. (fwd for judgment) (Fernandez, Erica)

FILED

IN Ol!I'IK'S OFPICE
U.S. DISTRICT Ct:''"!RT E.O.N.Y.

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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OCT 2 2 2013

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BROOKLYN OFFICE

HERBERT APONTE,

NOT FOR PUBLICATION
MEMORANDUM & ORDER
13-CV-05149 (CBA) (LB)

Petitioner,
-againstMODICA (JUDGE) OF QUEENS CRIMINAL
COURTHOUSE, NY,
Respondent.

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AMON, Chief United States District Judge.

On September 5, 2013, Herbert Aponte, proceeding prose, filed this petition under 28
U.S.C. § 2254, challenging his 2006 conviction, in the Criminal Court of the City of New York,
Queens County, for Attempted Stalking in the Third Degree, N.Y. Penal Law§§ 110.00
&120.50, and Harassment in the First Degree, N.Y. Penal Law§ 240.25. Aponte also sought in
forma pauperis status and appointment of counsel. The petition was transferred to this Court
from the United States District Court for the Southern District of New York by Order dated
September II, 2013. The Court now grants Aponte's request to proceed in forma pauperis solely
for the purpose of this Order, denies his motion for appointment of counsel, and dismisses his
habeas petition.
Aponte previously brought a§ 2254 petition before this Court in September 2009. In
February 20 II, the Court dismissed that petition for lack of subject matter jurisdiction, finding
that because Aponte's sentence- a one-year term of probation- terminated on June 22, 2007, he
was not "in custody" as required for this Court to have jurisdiction under § 2254(a), see Aponte
v. Brown, No. 09-CV-4334 (CBA), 2011 WL 797406, at *2 (E.D.N.Y. Feb. 28, 2011) (citing
Maleng v. Cook, 490 U.S. 488, 490-92 (1989)). Aponte sought a Certificate of Appealability
I

from the Second Circuit in order to appeal that determination; the Second Circuit denied his
motion on August 18, 20 II.
For the same reasons as stated in this Court's February 28, 2011 memorandum and order,
Aponte's instant habeas petition is dismissed. Aponte is not in custody pursuant to the 2006
conviction because his probation terminated on June 22, 2007, and the Court is therefore without
jurisdiction to hear his § 2254 petition. Since Aponte has failed to make a "substantial showing
ofthe denial of a constitutional right," a Certificate of Appealability shall not issue. 28 U.S.C.
§ 2253(c). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be
taken in good faith, and therefore denies in forma pauperis status for purposes of appeal.
Coppedge v. United States, 369 U.S. 438,444-46 (1962). The Clerk of the Court is directed to
enter judgment and to close the case.
SO ORDERED.

Dated: Brooklyn, New York
October.Jj, 2013

s/Carol Bagley Amon
Carol Bagle'/Amfi) I -Chief United States District Judge

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