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-

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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 -2- 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 -3- 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 -4- 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. -5- 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. -6-

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