Wright v. Lee
MEMORANDUM AND ORDER dated 2/28/14 that this Court lacks jurisdiction over the petition. The instant petition pursuant to 28:2254 is dismissed. A certificate of appealability shall not issue because petitioner has not made a substantial showing of th e denial of a constitutional right. 28:2253(c)(2). The Court certifies that any appeal from this order would not be taken in good faith and therefore in forma pauperis is denied for the purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45(1962). ( Ordered by Judge Sandra L. Townes on 2/28/14 ) c/m (Guzzi, Roseann)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
NOT FOR PUBLICA nON
MEMORANDUM AND ORDER
TOWNES, United States District Judge:
Petitioner Gerald Wright, appearing pro se, files the instant petition for a writ of habeas
corpus pursuant to 28 U.S.c. § 2254 challenging two Kings County convictions (for burglary in
the first degree under Indictment No. 951111988 and for burglary in the second degree under
Indictment No. 1080611988). I Pursuant to Rule 4 of the Rules Governing Section 2254 Cases,
the Court has conducted an initial consideration of this petition and, for the reason set forth
below, determined that the Court lacks jurisdiction over this petition.
On May 19, 1989, petitioner was sentenced before the New York Supreme Court, Kings
County, to concurrent terms of five to ten years upon his guilty pleas under each Indictment. See
1-6; People v. Wright, 182 A.D.2d 849 (2d Dep't, 1992). On April 27, 1992,
petitioner's conviction was affirmed. People v. Wright, 182 A.D.2d 849 (2d Dep't), leave to
appeal denied, 80 N.Y.2d 840 (1992). On June 18, 1999, petitioner completed his maximum
sentence for these convictions. See htlp:llnysdoccslookup.doccs.ny.gov (last visited on Feb. 18,
is in custody at Green Haven Correctional Facility for a different conviction which he
challenged by filing a petition for a writ of habeas corpus in this Court on May 20,2010. See
Wright v. Lee, No. 10-CV-2348-SLT (E.D.N.Y. July 8,2010) (petition dismissed as time-barred).
Petitioner filed post-conviction motions
state court which were all denied.
Petition at 6-10.
A habeas corpus petitioner must be "in custody" pursuant to a state conviction when the
petition is filed in order to vest the district court with jurisdiction. 28 U.S.C. § 2254(a); Maleng
v. Cook, 490 U.S. 488, 490 (1989). When a petitioner's sentence for a conviction has fully
expired, the convict;.on may not be challenged because the petitioner is no longer "in custody"
pursuant to that conviction. Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394, 401-02
The collateral consequences of a conviction for which the sentence has completely
expired are insufficient to render a petitioner "in custody" under 28 U.S.C. § 2254(a); Maleng,
490 U.S. at 492. Here, petitioner challenges two convictions to which he pled guilty in 1989.
The five-to-ten year term sentence he challenges here has fully expired prior to the filing of this
petition on February 5, 2014. Thus, at the time petitioner filed the instant petition, he was no
longer serving his sentence of imprisonment for these convictions. Lackawanna, 532 U.S. at
Because petitioner is currently serving three concurrent twenty-five-to-life sentences, see
Wright v. Lee, No. 10-CV-2348 (SLT) (petitioner challenged Indictment Nos. 5535/2001 and
7334/2001), "the 'in custody' requirement for federal habeas jurisdiction" could be satisfied
when a pro se petition, liberally construed, "can be read as asserting a challenge to [a current]
sentence, as enhanced by [an] allegedly invalid prior conviction," Maleng, 490 U.S. at 493-94.
The Court, however, declines to construe the instant petition as a challenge to his current state
sentence since petitioner has already challenged this conviction in Wright v. Lee, No.
1O-CV -2348 (SL T) (dismissed as time-barred) and this Court would not have jurisdiction over
any second or successive petition. 28 U.S.C. § 2244(b)(3)(A); Torres v. Senkowski, 316 F.3d
147, 151 (2d Cir. 2003) (The Antiterrorism and Effective Death Penalty Act of 1996 "allocates
jurisdiction to the courts of appeals, not the district courts, to authorize successive habeas
motions or applications.").
Accordingly, petitioner fails to satisfy the "in custody" requirement and therefore this
Court lacks jurisdiction over the petition. The instant petition pursuant to 28 U.S.C. § 2254 is
A certificate of appealability shall not issue because petitioner has not made a
substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Court
certifies that any appeal from this order would not be taken in good faith and therefore in forma
pauperis status is denied for the purpose of an appeal. Coppedge v. United States, 369 U.S. 438,
.' SANDRA L. TOWNES
United States District Judge
Dated: FebruarylZ, 2014
Brooklyn, New York
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