Ashman v. Hassell

Filing 3

DECISION AND ORDER, this court lacks jurisdiction over this habeas corpus petition. The instant petition for a writ of habeas corpus, is therefore, DENIED. The court certifies pursuant to 28:1915(a)(3) that any appeal would not be taken in good fait h and therefore in forma pauperis status is denied for purposes of appeal. Coppedge v. U.S, 369 U.S. 438, 444-45 (1962). Further, since petitioner has failed to make a substantial showing of the denial of a constitutional right, a certificate of appealability shall not issue. See 28 U.S.C. 2253.. Ordered by Judge William F. Kuntz, II on 7/25/2014. c/m along with appeals package to petitioner (Piper, Francine)

FILED

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

_________________________________X
WILLIAM ST. ELMO ASHMAN,

IN CLERK'S OFFICE
US DISTRICT COURT E.O.N.Y.

*

JUL 2 9 20Vt

*

BROOKLYN OFFICE

Petitioner,
DECISION
AND ORDER
14-CV-4312 (WFK)

-againstSCOTT HASSELL, Chief, Etowah
County Jail,
Respondent.

----------------------------~X
WILLIAM F. KUNTZ, II, UNITED STATES DISTRICT JUDGE:

On July 14, 2014 pro se Petitioner William St. Elmo Ashman, 1 currently detained as a
"deportable alien" at Etowah County Jail in Gadsden, Alabama, commenced this action under 28
U.S.C. § 2254 challenging his 1997 Richmond County Supreme Court conviction.

For the

reasons set forth below, the petition is dismissed.
BACKGROUND

On July 31, 1997, Petitioner pled guilty to criminal possession of a controlled substance
in the fifth degree in the Supreme Court of the State of New York, Richmond County. On
September 22, 1997, he was sentenced to five years of probation. On October 17,2001, he was
resentenced to six months imprisonment for a probation violation.

Petitioner has since

completed that sentence.
In March 2011, the United States Department of Homeland Security initiated removal
proceedings against Ashman-a citizen of Jamaica who was admitted to the United States on
September 12, 1970 as a lawful permanent resident-based on the 1997 conviction challenged
herein and two other prior New York state court convictions from 1989 and 1993, respectively.
1

Petitioner has paid the filing fee required to commence this action.

-1-

Petitioner's removal is based on three subsections of Section 237 of the Immigration and
Nationality Act.

2

Petitioner does not provide the status of the removal proceedings beyond that

he has been detained since August 22, 2012.
Petitioner challenges his 1997 conviction on the grounds that his trial counsel failed to
advise him of the immigration consequences of his guilty plea as well as prosecutorial
misconduct, police misconduct, and ineffective assistance of counsel.

Petitioner raised these

same grounds in a recent state court post-conviction motion which was denied by the Supreme
Court of the State of New York, Richmond County on April9, 2013. The Supreme Court of the
State of New York, Appellate Division, Second Department denied a certificate for leave to
appeal on September 27, 2013; Petitioner's motion to reargue his prior application was denied on
May 5, 2014.
DISCUSSION

A "court . . . entertaining an application for a writ of habeas corpus shall forthwith award
the writ or issue an order directing the respondent to show cause why the writ should not be
granted, unless it appears from the application that the applicant or person detained is not entitled
thereto." 28 U.S.C. § 2243. This language has been construed by the United States Court of
Appeals for the Second Circuit as implying that courts have "the power to dismiss a habeas
petition when it is patently apparent that the court lacks jurisdiction to grant the relief
demanded." Cephas v. Nash, 328 F.3d 98, 103 (2d Cir. 2003). Similarly, Rule 4 of the Rules
Governing Section 2254 Cases provides that "[i]f it plainly appears from the petition and any
annexed exhibits that the petitioner is not entitled to relief in the district court, the judge must
dismiss the petition."

2

§§ 237(a)(2)(A)(ii); 237(a)(2)(B)(i); 237(a)(2)(A)(iii).

-2-

Here, the facts, as alleged in the petition, establish that this Court lacks jurisdiction to
entertain Petitioner's application for a writ of habeas corpus under 28 U.S. C. § 2254. District
courts have 'jurisdiction to entertain petitions for habeas relief only from persons who are 'in
custody in violation of the Constitution or laws or treaties of the United States."' Mal eng v.
Cook, 490 U.S. 488, 490 (1989) (quoting 28 U.S.C. § 224l(c)(3)) (emphasis in original); see
also 28 U.S.C. § 2254(a). The Supreme Court has long interpreted this statutory language "as

requiring that the habeas petitioner be 'in custody' under the conviction or sentence under attack
at the time his petition is filed." Maleng, 391 U.S. at 490-91 (citing Carafas v. LaVallee, 391
U.S. 234, 238 (1968)).

A habeas petitioner in immigration detention or under an order of

removal as the result of a prior criminal conviction is not in custody for the purpose of a habeas
challenge to that underlying criminal conviction. Ogunwomoju v. United States, 512 F.3d. 69, 75
(2d Cir. 2008); see also Camara v. New York, No. 11-CV-8253, 2012 WL 3242697, at *4
(S.D.N.Y. Aug. 9, 2012) (Karas, J.) (collecting cases).
The petition in this case states that Petitioner was resentenced in October 2001 to six
months imprisonment for violation of the five-year probation imposed for his July 1997
conviction. That sentence fully expired more than twelve years before the filing of this petition
in July 2014. Therefore, Petitioner is not "in custody" for the conviction he seeks to challenge.
Nor does Petitioner's immigration detention qualifY as "in custody" for purposes of bringing a §
2254 challenge against his earlier state court conviction.

Ogunwomoju, 512 F.3d. at 75.

Accordingly, at the time petitioner filed the instant habeas corpus petition, he was not "in
custody" pursuant to the judgment of a state court and this Court lacks subject matter jurisdiction
to entertain a§ 2254 petition challenging that conviction. Maleng, 490 U.S. at 491; see e.g.,

-3-

Ortiz v. State of New York, 75 Fed. App'x 14, 17 n.2 (2d Cir. 2003) (summary order) (petitioner
who was no longer in state custody could not bring a § 2254 petition).

CONCLUSION
For the reasons set forth above, this Court lacks jurisdiction over this habeas corpus
petition. The instant petition for a writ of habeas corpus is, therefore, DENIED. The Court
certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and
therefore in forma pauperis status is denied for purposes of appeal. Coppedge v. United States,
369 U.S. 438, 444--45 (1962). Further, since Petitioner has failed to make a substantial showing
of the denial of a constitutional right, a certificate of appealability shall not issue. See 28 U.S.C.

§ 2253.

SO ORDERED.

s/William F. Kuntz, II

AJ'tf1MY1 F. KlMrZ, I
UNITED STATES DI

Dated: July 25, 2014
Brooklyn, New York

---4-

r_/
RICT JUDGE