Westerfield v. U.S.A.

Filing 2

MEMORANDUM AND ORDER. For the reasons in this memorandum and order, the petition is dismissed for lack of jurisdiction. (Signed by Judge Lawrence M. McKenna on 2/1/2012). Relates to 95 cr 219. (rjm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------x
TED H. WESTERFIELD,

:
:
:

Petitioner,
- v UNITED STATES OF AMERICA,

02 Civ. 1853 (LMM))
(95 Cr. 219 (LMM))
MEMORANDUM AND ORDER

:

Respondent.

:

-----------------------------------x
McKENNA, D.J.
1.
The above petitioner was convicted after a jury trial of
a number of counts of fraud, and sentenced, on November 15, 1996,
to 15 months of imprisonment, three years of supervised release, a
fine, and restitution. (See Judgment, Dec. 31, 1996, at 1-3.) The
Second Circuit Court of Appeals affirmed in a Summary Order on
July 17, 1997.
Cir. 1997).
2001.

See United States v. Westerfield, 116 F.3d 466 (2d

Defendant’s supervised release terminated on April 5,

(See Def. Letter to Court, Aug. 28, 2002, at 2; Gov’t Letter

to Court, June 14, 2002, at 3.)
Petitioner seeks in a motion under 28 U.S.C. § 2255 to
vacate his sentence.

The motion was delivered to the Clerk’s Pro

Se Office on February 21, 2002 (see Motion at 1, Clerk’s Pro Se

Office stamp), and was docketed as filed on March 7, 2002.

(See

Docket, 02 Civ. 1853, No. 1.)
After the case was filed, the Court, at the request of
petitioner, who had advised the Court of difficulties in filing a
28 U.S.C. § 2255 motion in a timely fashion, directed that the
petition would be deemed filed as of October 15, 1998. (See Order,
March 4, 2002.)1
2.
The Government argues, among other things, that the Court
lacks jurisdiction of petitioner’s motion because petitioner was
not in custody when the petition was filed.
Court, June 14, 2002, at 7-9.)

(See Gov’t Letter to

The Government is correct.

“A district court is without jurisdiction to entertain a
writ of habeas corpus or a § 2255 motion if the relator or movant
is not in custody.”

United States v. Brilliant, 274 F.2d 618, 620

(2d Cir. 1960) (footnote omitted).

“In order to invoke habeas

corpus review by a federal court, the petitioner must satisfy the
jurisdictional ‘in custody’ requirement of 28 U.S.C. § 2255.”
Scanio v. United States, 37 F.3d 858, 860 (2d Cir. 1994) (citing
and quoting Brilliant, 274 F.2d at 620.)

Further, “once the

sentence imposed for a conviction has completely expired, the
1

The Government contends that this tolling order was improper.
(See Gov’t Letter to Court, June 14, 2002, at 5-7.) The Court does not
reach this issue.

2

collateral
suffic
a

consequences

that

conviction

r an individual '

to

habeas

of

attack upon

it."

are

not

themselves

custody' for the purposes of

Malena

v.

Cook,

490

U.S.

488,

492

(1989) .
ioner's supervis

Since
2001,

release expired on April 5,

ling of the petition on February 21,

prior to the

this Court has been without jurisdiction of
§

2002,

itioner's 28 U.S.C.

2255 action from the outset.
The Court's March 4, 2002 order, deeming the petition to

have been filed as of October 15, 1998, was thus a nUllity.
Court

of

Appeals

pointed

out

in

"[t]he

'in

As the
custody'

requirement of § 2255 is more than a filing period; it is a status
or condition that cannot be altered by a procedural rule.
Scanio was

Eit

'in custody' on November 29, 1993, or he was not."

F.3d at 860.
For the foregoing reasons, the pet

ion is di

ssed

lack of jurisdiction.

Dated:

February

I,

SO ORDERED.
2012

Lawrence M. McKenna
U.S.D.J.

3

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