Kelly v. New York State Board of Parole
ORDER: For the reasons stated in the attached Order, the petition for a writ of habeas corpus is dismissed as moot. It is further ordered that no certificate of appealability shall issue. The Clerk of Court is directed to serve a copy of this Order on the petitioner at his last known address, note service on the docket, and close this case. Ordered by Judge Kiyo A. Matsumoto on 7/12/2016. (McNulty, John)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
NOT FOR PUBLICATION
WARDEN, RIKERS ISLAND CORRECTIONAL
MATSUMOTO, United States District Judge:
Plaintiff Andre Kelly, proceeding pro se, filed this
action against the New York State Board of Parole on May 5, 2016
seeking his release from Rikers Island Correctional Facility
(“Rikers Island”), where he had been held pending resolution of
a state court parole violation.
(See ECF No. 1.)
Judge Lois Bloom construed the complaint as a petition for
habeas corpus (“Petition”) pursuant to 28 U.S.C. § 2241, and
amended the Petition to name the Warden of Rikers Island as the
respondent because petitioner was in custody at Rikers Island
when the Petition was filed.
(ECF No. 5, Order to Show Cause.)
On May 21, 2016, Judge Bloom issued an order directing
respondent to show cause in writing why a writ of habeas corpus
should not be issued.
On July 5, 2016, the New York State Board of Parole,
which is a branch of the New York State Department of
Correctional and Community Services (“DOCCS”), filed a
declaration in opposition to the Petition asserting that the
Petition “is moot because petitioner has been released from
Rikers Island, and he is also no longer under DOCCS’
(ECF No. 7, Decl. in Opp. to Pet., at ¶ 2.)
declaration explained that petitioner was released because the
sentence for his underlying state conviction in Georgia had
reached its maximum expiration date.
(Id. at ¶ 4.)
day, respondent confirmed that “Petitioner has been discharged
as of June 8, 2016 and is no longer in DOC custody.”
11, Decl. of Susana Hersh in Opp. to Writ of Habeas Corpus, at ¶
Respondent’s declaration attached as an exhibit a printout
from the Department of Corrections “Inmate Lookup System,” which
is publically available on DOC’s website and reflects that
Petitioner was discharged from DOC custody on June 8, 2016.
Accordingly, because petitioner is no longer “in
custody” as contemplated by 28 U.S.C. § 2241(c)(3), the Petition
is dismissed as moot.
It is further ordered that no certificate
of appealability shall issue.
See 28 U.S.C. § 2253(c).
Clerk of Court is directed to serve a copy of this Order on the
petitioner at his last known address, note service on the
docket, and close this case.
Dated: July 12, 2016
Brooklyn, New York
Kiyo A. Matsumoto
United States District Judge
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