Horton v. Recktenwald

Filing 21

DECISION AND ORDER denying 5 Motion for Extension of Time to File; denying 5 Motion to Appoint Counsel ; denying 8 Motion to Appoint Counsel ; finding as moot 19 Motion and dismissing the petition with prejudice. Because Petitioner has fa iled to make a substantial showing of a denial of a constitutional right, see 28 U.S.C. § 2253(c)(2), no certificate of appealability shall issue. (The Clerk of Court is directed to close this case.) Copy of Decision and Order sent by first class mail to Petitioner.. Signed by Hon. Michael A. Telesca on 10/30/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

CHARLES HORTON,
Petitioner,
-vs-

No. 1:15-CV-01023(MAT)
DECISION AND ORDER

MONICA RECKTENWALD,
Respondent.

I.

Introduction
Proceeding pro se, Charles Horton (“Petitioner”) has filed a

Petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254. At
the time he filed the instant Petition, Petitioner was incarcerated
pursuant to a Federal criminal conviction at Federal Correctional
Institution (“FCI”) McKean, in Bradford, Pennsylvania. Accordingly,
he named Warden Monica Recktenwald as the Respondent in this
action. However, the Petition challenges a judgment entered against
him in New York State Supreme Court, Erie County (Tills, A.J.),
more than 17 years ago, after he pled guilty to sexual abuse and
weapons-possession charges. The Erie County District Attorney’s
Office therefore answered the Petition.
For the reasons discussed herein, the Petition is dismissed.
II.

Factual Background and Procedural History
On July 31, 2000, under Erie County File No. 99-1628-001,

Petitioner entered a counseled guilty plea to Sexual Abuse in the
First Degree (N.Y. Penal Law § 130.65(1)). Also on that date,
Petitioner pleaded guilty to Criminal Possession of a Weapon in the

Third Degree (N.Y. Penal Law § 265.02(4)), under Erie County File
No. 99-2081-011. On September 8, 2000, Petitioner was sentenced to
concurrent terms of two years’ imprisonment on each conviction,
plus

a

mandatory

period

of

post-release

supervision

(“PRS”).

Petitioner did not take appeals from either conviction.
Between the time of his conviction and the filing of the
Petition, Petitioner filed several pro se motions to vacate the
judgment

pursuant

to

N.Y.

Criminal

Procedure

Law

(“C.P.L.”)

§ 440.10 in Erie County Supreme Court, the most recent of which was
filed on October 31, 2014. Petitioner argued that his plea was
involuntary because he was not advised of the mandatory PRS term,
that trial counsel was ineffective in failing to advise him about
the PRS term, and that he was entitled to DNA testing to prove that
he could not have committed the sexual abuse offense to which he
pled guilty.

On

February

4,

2015, Erie County

Supreme Court

(Boller, A.J.) denied the motion without a hearing. On March 6,
2015, Petitioner filed a timely notice of appeal in the Appellate
Division, Fourth Department, of New York State Supreme Court (“the
Fourth Department”). On May 27, 2015, the Fourth Department denied
Petitioner’s leave application.
On November 11, 2015, Petitioner filed the instant request for
habeas relief, asserting the same grounds raised in the 2014 C.P.L.
§ 440.10 motion. Petitioner also filed a motion for appointment of
counsel. In its answer to the Petition, the Erie County District

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Attorney’s

Office

that

the

Petition

is

untimely,

and

that

Petitioner has failed to fulfill the “in custody” requirement of
the Federal habeas statute. Petitioner did not file a traverse.
III. Discussion
A.

Timeliness

Respondent argues that the Petition is untimely because it was
filed well past the expiration date of the one-year statute of
limitations set forth in 28 U.S.C. § 2244(d)(1), and Petitioner is
not

entitled

to

statutory

timeliness argument

or

equitable

tolling.

Respondent’s

is incomplete inasmuch as Respondent has

ignored the existence of more than one C.P.L. § 440.10 motions
filed by Petitioner between 2000 and 2014. This information is
apparent from the face of the Petition and the attached order
issued by Acting Justice Boller denying Petitioner’s 2014 C.P.L.
§ 440.10 motion. These motions would have given rise to periods of
statutory

tolling

under

28

U.S.C.

§

2244(d)(2).

Therefore,

Respondent’s argument, as presented to the Court, cannot serve as
a basis for dismissing the Petition.
B.

The “In Custody” Requirement

The law is clearly settled that a writ of habeas corpus may
only be issued where a petitioner is “in custody” at the time the
petition is filed. See Maleng v. Cook, 490

U.S. 488, 490-91 (1989)

(“The federal habeas statute gives the United States district
courts jurisdiction to entertain petitions for habeas relief only
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from persons who are ‘in custody in violation of the Constitution
or laws or treaties of the United States.’”) (quoting 28 U.S.C.
§ 2241(c)(3); citing 28 U.S.C. § 2254(a)) (emphasis in original).
Thus, “[t]he first showing a §2254 petitioner must make is that he
is ‘in custody pursuant to the judgment of a State court.’”
Lackawanna Cnty. Dist. Att’y v. Coss, 532 U.S. 394, 401 (2001)
(quoting 28 U.S.C. §2254(a)). The petitioner must “be ‘in custody’
under the conviction or sentence under attack at the time his
petition is filed.” Finkelstein v. Spitzer, 455 F.3d 131, 133
(2d Cir. 2006) (quoting Maleng, 490 U.S. at 490-91). Once the
petitioner

is

no

longer

serving

a

sentence

on

a

particular

conviction, he cannot bring a federal habeas petition directed
solely at that conviction. Coss, 532 U.S. at 401.
Petitioner was convicted in Erie County Supreme Court in 2000,
and sentenced to a maximum term of two years’ imprisonment plus a
mandatory term of PRS, which, by statute, could not exceed five
years. Petitioner, however, did not file the instant Petition until
2015, well after his sentence on the Erie County Supreme Court
convictions had fully expired. Although Petitioner is currently
incarcerated, it is pursuant to a wholly separate Federal criminal
conviction. Because Petitioner was not “in custody” pursuant to the
2000 Erie County Supreme Court convictions that the Petition
challenges, at at the time he filed the Petition in 2015, he is not
“in custody” for purposes of obtaining habeas review of his Erie

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County Supreme Court convictions. See Coss, 532 U.S. at 403-04
(“Coss is no longer serving the sentences imposed pursuant to his
1986 convictions, and therefore cannot bring a federal habeas
petition directed solely at those convictions.”) (citing Maleng,
490 U.S. at 493-94)). Following the reasoning of Coss, because
Petitioner is no longer serving the sentence imposed pursuant to
his Erie County Supreme Court convictions, he cannot bring a
federal habeas petition directed solely at those convictions.
Accord, e.g., Ellis v. Dretke, 456 F. Supp.2d 421, 423-24 (W.D.N.Y.
2006) (citing Coss, 532 U.S. at 401).
Moreover,

unlike

the

petitions

in

Maleng

and

Coss,

the

Petition here cannot be construed as asserting a challenge to the
current Federal sentence Petitioner is serving. Contrast with Coss,
532 U.S. at 401 (holding that defendant Coss satisfied the “in
custody” requirement of 28 U.S.C. § 2254 because his petition could
be construed as asserting a challenge to his current sentence, as
enhanced by the allegedly invalid prior expired conviction) (citing
Maleng, 490 U.S. at 493-94) (internal citations omitted). The
Petition only raises claims relating to the Erie County Supreme
Court convictions for criminal possession of a weapon and sexual
abuse, and to the Erie County Supreme Court’s alleged mishandling
of his 2014 C.P.L. § 440.10 motion. Thus, the Court concludes that
it does not have jurisdiction to hear the claims asserted in the
pending Petition. See Ellis, 456 F. Supp.2d at 424.
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IV.

Conclusion
For the foregoing reasons, the Petition is dismissed with

prejudice. Petitioner’s Motion for Appointment of Counsel is denied
with prejudice because he has failed to make the required threshold
showing of potentially meritorious claims. Petitioner’s Motion for
an Extension of Time to File a Motion for Appointment of Counsel is
denied as moot.
Because Petitioner has failed to make a substantial showing of
a denial of a constitutional right, see 28 U.S.C. § 2253(c)(2), no
certificate of appealability shall issue. The Clerk of Court is
directed to close this case.
IT IS SO ORDERED.
S/Michael A. Telesca
_______________________________
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

October 30, 2017
Rochester, New York.

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