Atwood v. Williams

Filing 9

ORDER ADOPTING REPORT AND RECOMMENDATION: Accordingly, the Court adopts the Report in its entirety, and for the reasons set forth therein, dismisses the Petition for a writ of habeas corpus. The Clerk of the Court is respectfully directed to mark this case closed. (Signed by Judge Richard J. Sullivan on 5/18/2011) Copies Mailed By Chambers. (jfe)

Case 1:10-cv-02557-RJS-HBP Document 8

Filed 04/20/11 Page 1 of 8

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------X
BERNELL ATWOOD,

:
Petitioner,

:
10 Civ. 2557 (RJS)(HBP)

-against-

:

JOSEPH WILLIAMS, Superintendent,
Lincoln Correctional Facility,

:

REPORT AND
RECOMMENDATION

:
Respondent.
:
-----------------------------------X

PITMAN, United States Magistrate Judge:

TO THE HONORABLE RICHARD J. SULLIVAN, United States
District Judge,

I.

Introduction

By notice of motion dated October 4, 2010 (Docket Item
5), respondent moves to dismiss the petition on the ground that
it is moot and unexhausted.
motion.

Petitioner has not responded to the

For the reasons set forth below, I respectfully recom-

mend that the motion be granted and that the petition be dismissed.

Case 1:10-cv-02557-RJS-HBP Document 8

II.

Filed 04/20/11 Page 2 of 8

Facts

On January 24, 2008, petitioner was convicted upon his
plea of guilty in the Supreme Court of the State of New York, New
York County, to one count of criminal sale of a controlled
substance in the third degree, in violation of New York Penal Law
Section 220.39(1).

Pursuant to that judgment, petitioner was

sentenced to a determinate term of imprisonment of three-and-onehalf years to be followed a three-year term of post-release
supervision.

Petitioner was incarcerated pursuant to that

judgment from January 31, 2008 through April 30, 2010.
Petitioner does not challenge either his conviction or
his sentence.
sentence.

Rather, he challenges only the execution of his

Specifically, he claims that his eligibility for early

release was improperly delayed.

On March 17, 2009, petitioner

was issued "merit time"1 because he had earned a High School
Equivalency Diploma and completed certain educational goals.

1

"Merit time" may be awarded to inmates in the custody of
the New York State Department of Correctional Services who have
not been convicted of certain specified felonies and have
completed certain programs intended to facilitate their re-entry
to society. Merit time can reduce the sentence of an inmate
serving a determinate sentence by one-seventh. See generally
N.Y. Corr. L. § 803(d); New York State Department of Correctional
Services Directive No. 4790, annexed as Ex. D to the Declaration
of Assistant Attorney General Priscilla Steward (Docket Item 7)
("DOCS Directive 4790").
2

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After receiving this merit time, petitioner was eligible for
release on October 31, 2009.
On April 20, 2009, petitioner was transferred to a work
release program.

One month later, however, petitioner admitted

to having used drugs and was transferred to a relapse program,
which he successfully completed in July 2009.

As a result of his

having relapsed and participating in a relapse program, petitioner was denied his merit time.
(D)(2)(c).

DOCS Directive 4790 §

Even if petitioner had not participated in the

relapse program, his admitted drug use would have rendered him
ineligible for merit time.

DOCS Directive 4790 § (B)(2)(r).

Petitioner challenges the delay of his release eligibility date beyond October 31, 2009.
released on April 30, 2010.

Petitioner was actually

Petitioner has never challenged the

delay of his release eligibility date in any court of the State
of New York.

III.

Analysis

The petition suffers from a number of facial defects
including the failure to exhaust state remedies and the resulting
procedural bar and the failure to allege the deprivation of a

3

Case 1:10-cv-02557-RJS-HBP Document 8

federally protected right.2

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Although either of these grounds are

sufficient to warrant the dismissal of the petition, I shall
limit my analysis to the petition's most fundamental defect -lack of subject matter jurisdiction due to mootness.
The subject matter jurisdiction of the federal courts
is limited to live controversies.
In order for there to be a valid exercise of
subject matter jurisdiction, a federal court must have
before it an actual controversy at all stages of review, not simply at the time the complaint was filed.
Steffel v. Thompson, 415 U.S. 452, 459 n.10, 94 S.Ct.
1209, 39 L.Ed.2d 505 (1974). In general, if an event
occurs while an [action] is pending that renders it
impossible for the court to grant any form of effectual
relief to plaintiff, the matter becomes moot and subject matter jurisdiction is lost. Altman v. Bedford
Cent. Sch. Dist., 245 F.3d 49, 69 (2d Cir. 2001); see
also Church of Scientology of Cal. v. United States,
506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992).
In re Flanagan, 503 F.3d 171, 178 (2d Cir. 2007); see also Khalil
v. Laird, 353 F. App'x 620, 621 (2d Cir. 2009) (action challenging prison conditions and seeking only injunctive and declaratory
relief is moot after plaintiff is released); Altman v. Bedford
Cent. Sch. Dist., 245 F.3d 49, 70 (2d Cir. 2001) ("If a claim has
become moot prior to the entry of final judgment, the district

2

The petition does not claim that any of petitioner's
federal rights were violated, and petitioner appears to be
arguing that the New York State Department of Correctional
Services misapplied New York law and the applicable regulations
(see Petition ¶ 12 (Docket Item 2)).
4

Case 1:10-cv-02557-RJS-HBP Document 8

Filed 04/20/11 Page 5 of 8

court generally should dismiss the claim for lack of jurisdiction.").
Where a state prisoner challenges his conviction
through a habeas corpus petition, his release from custody does
not ordinarily moot the petition.

The collateral consequences of

the conviction -- such as the inability to hold certain jobs, the
inability to obtain certain licenses, the ineligibility for
certain public benefits and the possibility of an enhanced
sentence with respect to any subsequent convictions -- usually
prevent a challenge to the conviction from becoming moot, notwithstanding the petitioner's release from actual custody.
Spencer v. Kemna, 523 U.S. 1, 7-8 (1998).

However, where as

here, petitoner challenges only his eligibility for some form of
early release program, no such presumption exists and the actual
release of the petitioner ordinarily moots the petition.

United

States v. Probber, 170 F.3d 345, 348-49 (2d Cir. 1999) (habeas
challenge to revocation of term of supervised release is moot
after petitioner is released); Adams v. New York, 07 CV 1101
(NG)(LB), 2007 WL 4565033 at *2-*3 (E.D.N.Y. Dec. 21, 2007) ;
Fells v. Breslin, 04-CV-03849 (ADS)(JO), 2007 WL 675081 at *3
(E.D.N.Y. Feb. 26, 2007) (habeas challenge to adverse decision of
Parole Board is moot after petitioner is released); Hunter v.
Hollins, 9:03-CV-0176 (LEK/GJD), 2007 WL 475410 at *3-*4
5

Case 1:10-cv-02557-RJS-HBP Document 8

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(N.D.N.Y. Feb. 9, 2007) (habeas challenge to denial of merit time
is moot after petitioner is released).
Petitioner here challenges only the delay from October
2009 to April 2010 of the date on which he was found to be
eligible.

Because petitioner has now been released, there is no

longer any meaningful relief this Court can grant, and the
petition should be dismissed for lack of subject matter jurisdiction because the claim asserted is now moot.

IV.

Conclusion

Accordingly, for all the foregoing reasons, I respectfully recommend that respondent's motion (Docket Item 5) be
granted and that the petition be dismissed for lack of subject
matter jurisdiction because it is moot.
I also recommend that a certificate of appealability
not be issued because petitioner has not made a substantial
showing of the denial of a constitutional right.
2253.

28 U.S.C. §

To warrant the issuance of a certificate of appealability,

"petitioner must show that reasonable jurists could debate
whether . . . the petition should have been resolved in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further."

Middleton v. Attorneys Gen.,

396 F.3d 207, 209 (2d Cir. 2005) (per curiam) (internal quotation
6

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marks omitted); see also Love v. McCray, 413 F.3d 192, 195 (2d
Cir. 2005) (per curiam).

For the reasons set forth above, I

conclude that there would be no difference of opinion among
reasonable jurists that the petition is moot.
I further recommend that the court certify pursuant to
28 U.S.C. § 1915(a)(3) that any appeal from this Report and
Recommendation, or any Order entered thereon, would not be taken
in good faith.

See Coppedge v. United States, 369 U.S. 438, 444-

45 (1962).

V.

Objections

Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of
the Federal Rules of Civil Procedure, the parties shall have
fourteen (14) days from receipt of this Report to file written
objections.

See also Fed.R.Civ.P. 6(a).

Such objections (and

responses thereto) shall be filed with the Clerk of the Court,
with courtesy copies delivered to the Chambers of the Honorable
Richard J. Sullivan, United States District Judge, 500 Pearl
Street, Room 640, and to the Chambers of the undersigned, 500
Pearl Street, Room 750, New York, New York 10007.

Any requests

for an extension of time for filing objections must be directed
to Judge Sullivan.

FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS

WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE
7

Case 1:10-cv-02557-RJS-HBP Document 8

REVIEW.

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Thomas v. Arn, 474 U.S. 140, 155 (1985) i United States

v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997) i IUE AFL-CIO
Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993) i Frank
v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992) i Wesolek v. Canadair
Ltd., 838 F.2d 55, 57 59 (2d Cir. 1988)
F.2d 234, 237-38 (2d Cir. 1983)
Dated:

i

McCarthy v. Manson, 714

(per curiam).

New York, New York
April 20, 2011
Respectfully submitted,

H~~MAN/~
United States Magistrate Judge
Copies mailed to:
Mr. Bernell Atwood
Apt. 23
2043 Creston Avenue
Bronx, New York 10453
Ashlyn Dannelly, Esq.
Priscilla Steward, Esq.
Assistant Attorneys General
State of New York
120 Broadway
New York, New York 10271

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