Opinion
Case No. 04-CV-166 (FB).
March 28, 2005
ERIC CASEY, pro se, Auburn Correctional Facility, Auburn, NY, for the Petitioner.
CHARLES J. HYNES, ESQ., District Attorney, SCOTT J. SPLITTGERBER, ESQ., Assistant District Attorney, Brooklyn, NY, for the Respondent.
MEMORANDUM AND ORDER
Eric Casey ("Casey"), proceeding pro se, petitions the Court for a writ of habeas corpus. For the reasons set forth below, Casey is directed to show cause why his petition should not be deemed a second habeas petition and transferred to the circuit court pursuant to 28 U.S.C. § 2244(b)(3).
I.
On July 17, 1990, Casey, who was then represented by counsel, pleaded guilty to one count of third-degree robbery. On March 25, 1991, the Supreme Court of the State of New York, Kings County ("Supreme Court"), entered a judgment of conviction on that plea and sentenced Casey to a term of one to three years in prison. Casey was placed into custody on April 5, 1991; following reincarceration for a parole violation, Casey was discharged from custody on March 16, 1994.
Casey appealed the 1991 judgment to the Supreme Court's Appellate Division, Second Judicial Department ("Appellate Division"). On December 6, 2002, the Kings County District Attorney moved to dismiss the appeal on the grounds that it had been abandoned; Casey, in turn, moved for leave to prosecute the appeal in forma pauperis and for the assignment of counsel.
On June 16, 2003, the Appellate Division granted Casey's motion, appointed appellate counsel, enlarged Casey's time to perfect the appeal, and directed assigned counsel to "prosecute the appeal expeditiously." Aff. in Opp.'n to Pet., Ex. A. The record before this Court gives no indication of the current status of this appeal.
Casey is currently incarcerated pursuant to an unrelated 1995 conviction; the sentence imposed for the 1995 conviction was enhanced based on his 1991 conviction. Casey first moved to vacate the 1995 conviction under N.Y. Crim. Proc. Law § 440.10 and then directly appealed to the Appellate Division. On June 18, 1998, Casey further challenged the 1995 conviction by petitioning this Court for a writ of habeas corpus; this petition was denied on July 18, 2000, on the grounds that it failed to make a substantial showing of the denial of a constitutional right. See Casey v. Greiner, Case No. 98-CV-04624 (E.D.N.Y) (Judgment of Jul. 18, 2000) (Sifton, J.). The docket in that case reflects that Casey appealed the denial of his federal habeas petition, and that the Second Circuit dismissed the appeal; according to respondent, the U.S. Supreme Court denied Casey's certiorari petition.
II.
Since Casey was convicted and sentenced by a State court, his petition is governed by 28 U.S.C. § 2254. "The first showing that a § 2254 petitioner must make is that he is `in custody pursuant to the judgment of a State court.'" Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394, 401 (2001) (quoting 28 U.S.C. § 2254(a)). A prisoner is not in such custody if the sentence imposed under the judgment fully expired before the prisoner filed the habeas petition. See id. (citing Maleng v. Cook, 490 U.S. 488 (1989)). Moreover, a prisoner is not in custody pursuant to a prior judgment of conviction "merely because that conviction had been used to enhance a subsequent sentence." Id. (citing Maleng, 490 U.S. at 492). However, a prisoner is in custody "when a pro se petition, liberally construed, `can be read as asserting a challenge to [a current] sentence, as enhanced by [an] allegedly invalid prior conviction.'" Williams v. Edwards, 195 F.3d 95, 96 (2d Cir. 1999) (quoting Maleng, 490 U.S. at 493-94); see also Lackawanna, 532 U.S. at 401-02.
Although a challenge to a current sentence on the grounds that it was enhanced by an allegedly invalid prior conviction satisfies the "in custody" requirement, habeas relief cannot be granted on that grounds unless "[the] petitioner can demonstrate that his current sentence was enhanced on the basis of a prior conviction that was obtained where there was a failure to appoint counsel in violation of the Sixth Amendment." Lackawanna, 532 U.S. at 402-04.
Here, it appears that the sentence imposed under the Supreme Court's 1991 judgment had fully expired long before January 14, 2004, when Casey filed his habeas petition. If that is the case, Casey is no longer in custody pursuant to that judgment and "therefore cannot bring a federal habeas petition directed solely at [the 1991 conviction]." Lackawanna, 532 U.S. at 401.
Casey is, however, in custody pursuant to the 1995 conviction; the Court would therefore normally attempt to construe Casey's petition as a challenge to his current sentence as enhanced by his prior conviction. See id. (construing habeas petition as challenging 1990 sentence, as enhanced by 1986 convictions); Williams, 195 F.3d at 96 (directing courts to liberally construe pro se habeas petitions to satisfy "in custody" requirement). Such a construction is problematic here, however, because Casey previously filed a habeas petition challenging the sentence imposed by his 1995 conviction; that petition was denied in July 2000. See Casey v. Greiner, Case No. 98-CV-04624 (E.D.N.Y) (Judgment of Jul. 18, 2000) (Sifton, J.). Thus, if construed as a challenge to the sentence imposed by his 1995 conviction, as enhanced by his 1991 conviction, Casey's current petition would be a second habeas petition. The Court has no authority to entertain a second habeas petition absent authorization from the circuit court. See 28 U.S.C. § 2244(b)(3).
III.
If Casey can demonstrate that, on January 14, 2004, he was in custody pursuant to the Supreme Court's 1991 judgment of conviction, the Court will construe his petition as a challenge to that conviction. If Casey cannot make that showing, the Court will construe his petition as a challenge to his 1995 conviction and transfer it to the circuit court as a second habeas petition, unless Casey informs the Court that would prefer to withdraw the petition.
The Court expresses no opinion on any other issue (including exhaustion, timeliness and the merits) related to the petition.
The Court gives Casey the option to withdraw his petition because of the strict requirements for a second habeas petition. A second petition must show, inter alia, specific grounds why the claims presented were not raised in the first petition. See 28 U.S.C. § 2244(b)(2). Moreover, the petition should contain all grounds available to the petitioner at the time it is filed. See id.; Gitten v. United States, 311 F.3d 529, 530 (2d Cir. 2002) (noting that successive habeas petitions may be summarily denied if the court finds that the petitioner is "abus[ing] the writ"). Since Casey's current petition was not prepared as a second petition, Casey may prefer to withdraw the petition and redraft it before it is submitted to the circuit court; Casey should, in that case, submit the petition directly to the circuit court with a motion to authorize this Court to consider the petition. See 28 U.S.C. § 2244(b)(3)(A).
Casey is, therefore, directed to show cause why his petition should not be deemed a second habeas petition and transferred to the circuit court pursuant to 28 U.S.C. § 2244(b)(3). Specifically, Casey shall inform the Court of any aspects of the sentence imposed by the Supreme Court's 1991 judgment that had not fully expired when he filed the petition on January 14, 2004; if all aspects of the sentence had fully expired by that date, Casey shall so state. In addition, Casey may present any other grounds for not deeming his petition a second habeas petition. Finally, Casey shall inform the Court whether he wishes to withdraw his petition if it is deemed a second habeas petition.
Casey shall respond by completing and filing, within thirty (30) days, the written affirmation form attached to this Memorandum and Order. Failure to comply with these directives will result in denial of the petition.
SO ORDERED.
PETITIONER'S AFFIRMATION
I, ERIC CASEY, make the following affirmation under penalty of perjury:1. I am the petitioner in the above-captioned action and I respectfully submit this affirmation in response to the Court's Memorandum and Order dated March 28, 2005.
2. I was in custody pursuant to the March 25, 1991, judgment of the Supreme Court of the State of New York, Kings County, when I filed the petition for a writ of habeas corpus in the above-captioned action on January 14, 2004, because on that date, the following aspects of the sentence imposed by the March 25, 1991, judgment had not fully expired:
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3. My petition for a writ of habeas corpus should not be deemed a second habeas petition because:
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4. If the petition is deemed a second habeas petition, I (circle one) DO/DO NOT wish to withdraw the petition.
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