Triestman v. Schneiderman
DECISION AND ORDERED, that the Report-Recommendation (Dkt. No. 2) is APPROVED and ADOPTED in its entirety; and it is further ORDERED, that Petitioners Petition for a Writ of Habeas Corpus (Dkt. No. 1) is DISMISSED without leave to amend. Signed by Senior Judge Lawrence E. Kahn on October 19, 2016.***A copy of this Order & subsequent Judgment were served upon pro se party via US Mail & Certified Mail. (sas)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
BEN GARY TRIESTMAN
DECISION AND ORDER
This matter comes before the Court following a Report-Recommendation filed on
September 20, 2016, by the Honorable David E. Peebles, U.S. Magistrate Judge, pursuant to 28
U.S.C. § 636(b) and Local Rule 72.3. Dkt. No. 2 (“Report-Recommendation”). Pro se Plaintiff
Ben Gary Triestman timely filed Objections. Dkt. No. 3 (“Objections”).
Within fourteen days after a party has been served with a copy of a magistrate judge’s
report-recommendation, the party “may serve and file specific, written objections to the proposed
findings and recommendations.” Fed. R. Civ. P. 72(b); L.R. 72.1(c). If no objections are made, or
if an objection is general, conclusory, perfunctory, or a mere reiteration of an argument made to
the magistrate judge, a district court need review that aspect of a report-recommendation only for
clear error. Barnes v. Prack, No. 11-CV-0857, 2013 WL 1121353, at *1 (N.D.N.Y. Mar. 18,
2013); Farid v. Bouey, 554 F. Supp. 2d 301, 306–07, 306 n.2 (N.D.N.Y. 2008); see also
Machicote v. Ercole, No. 06-CV-13320, 2011 WL 3809920, at *2 (S.D.N.Y. Aug. 25, 2011)
(“[E]ven a pro se party’s objections to a Report and Recommendation must be specific and
clearly aimed at particular findings in the magistrate’s proposal, such that no party be allowed a
second bite at the apple by simply relitigating a prior argument.”). “A [district] judge . . . may
accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b). Otherwise, a court “shall make a de novo determination of
those portions of the report or specified proposed findings or recommendations to which
objection is made.” Id.
Triestman objects to the Report-Recommendation’s finding that he “cannot satisfy the in-
custody requirement necessary for him to pursue [federal habeas] claims under [18 U.S.C. §§]
2241 and 2254.” Rep.-Rec. at 7. Judge Peebles found that the order of protection issued against
Triestman “restricts only [his] access to his child,” and therefore does not place him in custody
for purposes of §§ 2241 and 2254. Id. Judge Peebles also rejected as “speculative”1 Triestman’s
“contention that he may inadvertently come into contact with his child and, therefore, subject
himself to potential incarceration.” Id.
In his Objections, Triestman vividly illustrates the constraints on his liberty allegedly
created by the order of protection requiring him to stay away from his daughter. Woodstock, New
York, where he and his daughter live, is a small town, and so “[i]f [he] is shopping for groceries,
with a full cart, perhaps ready or in the middle of checkout, [and] the child comes into the
market, [he] must leave all his groceries where they are and exit the market.” Objs. at 10. “If [he]
Triestman argues that Judge Peebles erred in finding the allegations in the Petition to be
speculative. Triestman notes that courts must accept as true any factual allegations contained in
pleadings. Objs. at 16. This argument is moot because in addressing Triestman’s objection
below, the Court takes as true Triestman’s allegations concerning the effects on his liberty of the
order of protection.
has a dinner date with someone, and the child enters the same restaurant, [he] must abandon the
companion immediately and leave the restaurant, not even having the opportunity to pay for the
meal, or time to explain why he must leave.” Id. at 8. Triestman offers up several other scenarios
in which his freedom of movement is compromised by the order of protection. The upshot of
these examples, according to Triestman, is that “[t]his is the classic circumstance and condition
that is anticipated and described in . . . case law regarding constraints of liberty [for purposes of
federal habeas relief].” Id. at 10.
Habeas petitioners seeking to challenge state court rulings on domestic relations typically
argue that their children are in the custody of the state because, for example, they are in foster
care. E.g., Davis v. Baldwin, No. 12-CV-6422, 2013 WL 6877560, at *6 (S.D.N.Y. Dec. 31,
2013). Courts have uniformly rejected this argument. Id. (citing Lehman v. Lycoming Cty.
Children’s Servs. Agency, 468 U.S. 502, 510–12 (1982)). Triestman takes pains to point out that
this is not his argument. Objs. at 1–2. Instead, Triestman claims that he is in custody because of
the restraints on his liberty caused by the order of protection forbidding him from seeing his
daughter. Id. Triestman argues that the two cases cited by Judge Peebles to support the
conclusion that he is not in custody are inapposite because the petitioners there were arguing only
that their children were in custody. Objs. at 6. Triestman is wrong about this. In Moore-Beidl v.
Beaudoin, 553 F. Supp. 404, 406 (N.D.N.Y. 1981), one of the cases cited by Judge Peebles, the
court noted that “[p]laintiff’s habeas petition seeks to release both the plaintiff, Mary Carol[,] and
her son from the ‘custody’ of the County Department of Social Services.” Judge Peebles also
cited Gilmore v. Greene Cty. Dep’t of Soc. Servs., No. 06-CV-318, 2006 WL 1064181, at *1
(N.D.N.Y. Apr. 20, 2006), in which the court held that the petitioner, who sought to challenge
the termination of his parental rights, was “not being held in custody pursuant to any . . .
determination by the Family Court.” These two cases involve petitioners who appear to have
argued that they were in custody. However, because these cases do not clearly explain why the
restraints imposed on persons such as Triestman do not constitute custody for purposes of federal
habeas relief, the Court will do so now.
A federal court lacks jurisdiction over a habeas petition unless the petitioner is “in
custody pursuant to the judgment of a State court” when she files her petition. 28 U.S.C.
§ 2254(a); see also 28 U.S.C. § 2241(c). “[B]esides physical imprisonment, there are other
restraints on a man’s liberty, restraints not shared by the public generally, which have been
thought sufficient in the English-speaking world to support the issuance of habeas corpus.” Jones
v. Cunningham, 371 U.S. 236, 240 (1963). “The Jones Court found jurisdiction where an
individual was released from imprisonment on parole subject to explicit conditions—for
example, regular reporting to his parole officer; remaining in a particular community, residence,
and job; and refraining from certain activities.” Nowakowski v. New York, No. 14-1964, 2016
WL 4487985, at *3 (2d Cir. Aug. 26, 2016) (citing 371 U.S. at 242). Courts faced with the
question whether a petitioner is in custody must “judge the ‘severity’ of an actual or potential
restraint on liberty.” Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 894 (2d Cir.
1996). “[C]ourts have considered even restraints on liberty that might appear . . . less
burdensome than probation or supervised release severe enough because they required petitioners
to appear in certain places at certain times . . . or exposed them to future adverse consequences
on discretion of the supervising court.” Nowakowski, 2016 WL 4487985, at *4.
Triestman appears to argue that because the general public does not share the restraints
imposed on him as a result of the order of protection, he is in custody for purposes of §§ 2241
and 2254. The Court finds it plausible that Triestman does suffer some limitation on his freedom
of movement because of the order of protection. This restriction is not experienced by people not
subject to orders of protection. Further, Jones does speak of “restraints not shared by the public
generally.” 371 U.S. at 240. But it is misleading to suggest that this language alone defines the
contours of the custody requirement. Nowakowski collects cases from several circuits in which
courts have “recognized that a variety of nonconfinement restraints on liberty satisfy the
custodial requirement.” 2016 WL 4487985, at *3. What these cases have in common is that, like
Nowakowski itself, they involve restrictions that “require [the petitioner’s] physical presence at
particular times and locations . . . and carry with them the potential for future adverse
consequences during the term of the sentence.” Id. at *4. For example, in Barry v. Bergen Cty.
Prob. Dep’t, 128 F.3d 152, 161 (3d Cir. 1997), the court held that the petitioner was in custody
because he was “ordered to perform 500 hours of community service under the direction of the
Morris County Community Service Program.”
In this case, Triestman is not required to be at a “particular place” at any time.
Nowakowski, 2016 WL 4487985, at *4. He must stay away from his daughter, so in a sense he
always has to be where she is not. But the requirement that he avoid his daughter is far less
intrusive than the requirement that someone appear at a particular location at a particular time.
For example, someone who must appear in court is required to be there at a specified time. She
has only one real choice as to how she spends the time allotted for her court appearance, because
if she fails to show up, she may face serious consequences. But Triestman can go anywhere he
likes at any time so long as he avoids his daughter. The range of options available to him on a
given day is therefore much greater than that open to someone who must appear in court that day.
Moreover, Triestman can significantly reduce the “constraint of being forced to avoid a moving
target” by coordinating with the mother of his child to ensure that their daughter’s schedule does
not overlap with his. Objs. at 14.2
“The custody requirement is simply designed to limit the availability of habeas review ‘to
cases of special urgency, leaving more conventional remedies for cases in which the restraints on
liberty are neither severe nor immediate.’” Poodry, 85 F.3d at 894 (quoting Hensley v. Mun.
Court, 411 U.S. 345, 351 (1973)). The reason for caution in this area of the law is that “habeas
corpus is an extraordinary remedy whose operation is to a large extent uninhibited by traditional
rules of finality and federalism.” Hensley, 411 U.S. at 351. If the Court were to find that
Triestman is in custody simply because of the order of protection, then anyone who is subject to
such an order, and who lives near the person from whom she must stay away, could seek habeas
relief in federal court. That would represent a significant expansion in the scope of federal habeas
review. See Meyer v. Drell, 10 F. App’x 741, 743 (10th Cir. 2001) (“Petitioner alleges that the
state-court decisions regarding the custody of [his child], supervised visitation, and petitioner’s
parental status, violate his constitutional rights. . . . [P]rinciples of comity . . . prevent us from
entertaining petitioner’s habeas petition . . . .”). The Court is reluctant to undertake such an
expansion absent a compelling showing that Triestman’s condition involves restraints significant
The Court does not hold that an order of protection can never place someone subject to
it in custody. Instead, the Court rests its decision in this case on the facts alleged in Triestman’s
Petition and Objections, which fail to rise to the level of severity required to state a cognizable
enough to constitute custody. Since Triestman has failed to make this showing, the Court agrees
with Judge Peebles’s conclusion that Triestman is not in custody for purposes of §§ 2241 and
The Court has reviewed the remainder of the Report-Recommendation for clear error and
has found none.
Accordingly, it is hereby:
ORDERED, that the Report-Recommendation (Dkt. No. 2) is APPROVED and
ADOPTED in its entirety; and it is further
ORDERED, that Petitioner’s Petition for a Writ of Habeas Corpus (Dkt. No. 1) is
DISMISSED without leave to amend; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Decision and Order on all
parties in accordance with the Local Rules.
IT IS SO ORDERED.
October 19, 2016
Albany, New York
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