Wright v. Lee

Filing 4

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 not issue because petitioner has not made a substantial showing of the 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 status 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)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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NOT FOR PUBLICATION

GERALD WRIGHT,
MEMORANDUM & ORDER
Petitioner,
-against-

14-CV -1078 (SL T)

WILLIAM LEE,
Respondent.

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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 a Kings County conviction for burglary in the
second degree under Indictment No. 2698/94. 1 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.
BACKGROUND
On January 3, 1995, petitioner was sentenced, after a jury trial, by the New York
Supreme Court, Kings County, to a seven-to-fourteen year term of imprisonment. See Petition at
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1-6; People v. Wright, 244 A.D.2d 439 (2d Dep't 1997). On November 10,1997, petitioner's

conviction was affirmed. People v. Wright, 244 A.D.2d 439 (2d Dep't 1997), leave to appeal
denied, 91 N.Y.2d 979 (1998). Petitioner filed a post-conviction motion and an error coram
nobis petition in state court which were both denied. See Petition at 6-10; Unmarked Exhibits:
"Decision and Order" dated Aug. 15,2011 by the Hon. Albert Tomei, Decision & Order entered

Petitioner 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. 1O-CV-2348-SLT (E.D.N.Y. July 8, 2010) (petition dismissed as
time-barred).
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by the Appellate Division, Second Department and Order Denying Leave entered by the State of
New York, Court of Appeals.
DISCUSSION
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 conviction 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
(2001). 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 a conviction which was imposed in 1995. This

seven-to-fourteen year state sentence he challenges here fully expired in 2009, 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 this conviction. Lackawanna, 532 U.S. at
401-02.
Because petitioner is currently serving three concurrent twenty-five-to-life sentences, see
Wright v. Lee, No.1 O-CV-2348 (SL T) (petitioner challenged Indictment Nos. 5535/2001 and
733412001), "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. 10-CV2348 (SL T) (dismissed as time-barred) and this Court would not have jurisdiction over any

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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.")

CONCLUSION
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
dismissed. A certificate of appealability shall not issue because petitioner has not made a
substantial showing of the denial ofa 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,
444-45 (1962).

/s/(SLT)

SO ORDERED.

Dated: February :l...<6 2014
Brooklyn, New York

United States District Judge

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