04 Civ. 8020 (LAP) (KNF).
March 11, 2008
REPORT AND RECOMMENDATION
Rafael Emilio Medrano Lara ("Medrano Lara"), proceeding pro se, brings this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. The petitioner challenges his future confinement by New York State as unlawful because: (1) his Due Process right was violated when he was tried and sentenced in absentia and without waiving the right to be present at trial and sentencing; (2) the trial court abused its discretion by denying his motion to suppress evidence; (3) the police searched and seized his vehicle illegally, in violation of his Fourth Amendment rights; (4) the police detained and arrested him illegally; (5) the police elicited statements from him, without appraising him of his constitutional rights; and (6) his counsel rendered ineffective assistance to him when he failed to perfect his appeal, after filing a notice of appeal. The respondent opposed the petition. On August 29, 2007, while the petition was pending, Medrano Lara was deported to the Dominican Republic, pursuant to an order of the Immigration Court in Miami, Florida. Subsequently, the respondent made an application to dismiss the petition, on the ground that the petitioner's deportation from the United States, on an unrelated conviction, rendered the petition moot.
On January 11, 1993, a New York County grand jury charged Medrano Lara with second-degree criminal possession of a weapon and third-degree criminal possession of a weapon. Medrano Lara engaged counsel. On September 29, 1993, after Medrano Lara failed to appear in court, the New York State Supreme Court, New York County, conducted a Parker hearing and determined that Medrano Lara was capable of attending his trial, but chose not to do so. Medrano Lara was represented by counsel at the jury trial, conducted in absentia, The jury convicted Medrano Lara for both charges in the indictment. On January 6, 1995, the court sentenced Medrano Lara, in absentia, to a term of four to eight years imprisonment, for the second-degree criminal possession of a weapon conviction and three and one-half to seven years imprisonment for the third-degree criminal possession of a weapon conviction.
A hearing, conducted pursuant to People v. Parker, 57 N.Y.2d 136, 140, 454 N.Y.S.2d 967, 969 (1982), is used to determine whether a criminal defendant knowingly and voluntarily waived his right to be present at his trial.
On August 23, 2001, Medrano Lara, using an alias, Alberto Delgado-Torres, pleaded guilty to conspiracy to possess with intent to distribute five kilograms or more of cocaine, under 21 U.S.C. § 846. He was sentenced by the United States District Court, Southern District of Florida, to a term of 87 months imprisonment and five years of supervised release. The district court also directed that Medrano Lara be delivered into the custody of the Immigration and Naturalization Service, for deportation proceedings consistent with the Immigration and Nationality Act, upon the completion of his term of imprisonment.
In July 2003, Medrano Lara made a motion, pursuant to New York Criminal Procedure Law ("CPL") § 440.10, to vacate the judgment of conviction entered in the New York State Supreme Court. In that motion, Medrano Lara claimed that: (a) his counsel rendered ineffective assistance to him; (b) the evidence adduced at his trial was insufficient to support his conviction, because it was procured in violation of his constitutional rights to due process and to confront the witnesses against him; (c) his arrest and ensuing search and seizure were illegal; (d) his right to be present at his trial and to due process were violated; and (e) the trial court lacked personal jurisdiction over him, because he did not waive expressly his right to counsel. On September 29, 2003, the court denied Medrano Lara's motion because he failed to perfect his appeal, unjustifiably, during the period prescribed and determined, alternatively, that his claims were meritless. In November 2003, Medrano Lara filed a motion for leave to appeal the denial of his CPL § 440.10 motion with the New York State Supreme Court, Appellate Division, First Department. Both the petitioner and the respondent concede that the Appellate Division denied him leave to appeal.
On September 16, 2004, Medrano Lara filed the instant petition. The respondent made an application to dismiss the petition, based on the court's lack of subject matter jurisdiction, because the petitioner failed to satisfy the "in custody" requirement, imposed by 28 U.S.C. § 2241. That application was denied.
The respondent filed an answer opposing the petition. In that answer, the respondent contends: (i) the petition is timely because, after a notice of appeal was filed, the petitioner's appeal was never perfected or dismissed; thus his conviction is not final; and (ii) the petitioner's claims are not exhausted and, because the petitioner "still has an available state remedy," they should be dismissed without prejudice or denied as meritless, or not cognizable on federal habeas review. The respondent submitted documents demonstrating that the state trial court was not in possession of the transcript from Medrano Lara's trial and that the state trial transcript was not available from any other source.
The Court assumes, without deciding, that the respondent deliberately waived a statute of limitations defense. The Court is bound by that waiver because it would be "an abuse of discretion to override a State's deliberate waiver of a limitations defense." See Day v. McDonough, 547 U.S. 198, 202, 126 S. Ct. 1675, 1679 (2006). However, the Court notes that the petition is untimely because an appeal that is filed, but not perfected within the time prescribed, is subject to dismissal, pursuant to CPL § 460.70 and the Local Rules, Part 600, of the New York State Supreme Court, Appellate Division, First Department. That the respondent was unable to obtain evidence of such a dismissal is irrelevant for the purposes of the habeas corpus statute of limitations. Where the respondent's waiver is not an inadvertent error in calculating the elapsed time, the Court will not second-guess the respondent's waiver determination.
The United States Constitution restricts federal judicial power to "cases" and "controversies." See U.S. Const. art. III, § 2. As a result, "a case is moot when the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome." Powell v. McCormack, 395 U.S. 486, 496, 89 S. Ct. 1944, 1951 (1969). "An incarcerated convict's challenge to the validity of his conviction always satisfies the case-or-controversy requirement, because the incarceration constitutes a concrete injury caused by the conviction and redressable by invalidation of the conviction." Spencer v. Kemna, 523 U.S. 1, 7, 118 S. Ct. 978, 983 (1998). "A criminal case does not necessarily become moot when the convict finishes serving the sentence. Instead, the case will remain a live case or controversy if there exists `some concrete and continuing injury' or `collateral consequence' resulting from the conviction." United States v. Mercurris, 192 F.3d 290, 293 (2d Cir. 1999) (quoting Spencer, 523 U.S. at 7, 118 S. Ct. at 983).
The respondent contends the petitioner's narcotics conviction serves as an independent ground which bars his reentry to the United States. According to the respondent, this bar renders the petition moot because "it no longer satisfies the case-or-controversy requirement of the United States Constitution." The respondent maintains, the petitioner will not suffer any collateral consequences from his challenged conviction, because even if habeas corpus relief is warranted, his prior narcotics conviction still prohibits his reentry to the United States. The respondent relies on Perez v. Greiner, 296 F.3d 123, (2d Cir. 2002), contending that "like the petitioner inPerez, petitioner here is banned from re-entering this country because he has a prior federal narcotics conviction. That conviction is not under attack, so even if this Court found that habeas relief is warranted with respect to the conviction he challenges in this petition, the prior narcotics conviction still prohibits petitioner's re-entry into the United States."
The respondent's reliance on the collateral consequences doctrine to establish mootness of the instant petition is misplaced. Unlike in the line of cases, of which Perez is a progeny, where the collateral consequences doctrine applied because the petitioners in those cases served, partially or fully, the sentences giving rise to their challenges, the petitioner here never served a day of the sentence he challenges.See St. Pierre v. United States, 319 U.S. 41, 42, 63 S. Ct. 910, 911 (1943) (the petitioner had served entirely the sentence he challenged before certiorari was granted); Fiswick v. United States, 329 U.S. 211, 221, 67 S. Ct. 224, 230 (1946) (the petitioner served fully his sentence); United States v. Morgan, 346 U.S. 502, 74 S. Ct. 247 (1954) (although the petitioner served the federal sentence he was challenging, the results of the conviction persisted because he was subsequently sentenced on a state conviction to a longer term as a second offender due to the federal conviction challenged); Pollard v. United States, 352 U.S. 354, 77 S. Ct. 481 (1957) (the petitioner was released from federal prison, after his petition for certiorari was granted);Carafas v. LaVallee, 391 U.S. 234, 88 S. Ct. 1556 (1968) (the petitioner's sentence expired, and he was discharged from parole before his appeal was finally adjudicated); Lane v. Williams, 455 U.S. 624, 102 S. Ct. 1322 (1982) (the petitioners' sentences and parole supervision periods expired before their respective petitions were adjudicated); Sibron v. New York, 392 U.S. 40, 88 S. Ct. 1889 (1968) (the petitioner served fully his sentence);Spencer, 523 U.S. 1, 118 S. Ct. 978 (the petitioner was released from prison and challenged the termination of his parole);Mercurris, 192 F.3d 290 (during the pendency of his appeal, the petitioner completed his term of imprisonment and was deported);Perez, 296 F.3d at 124 (the petitioner was deported after serving his sentence).
The respondent does not make citation to any authority, and the Court finds none, for the propositions that: (a) the collateral consequences doctrine applies in a case in which the petitioner, whose period of federal supervised release has not expired, has never begun to serve his state sentence; or (b) a deportation moots a habeas corpus petition challenging an unserved state sentence, where the petitioner's period of federal supervised release has not expired. That Medrano Lara was deported does not, by itself, moot his petition. Although not incarcerated, Medrano Lara is "in custody" for the purposes of habeas corpus review and his pending incarceration constitutes a concrete injury caused by his conviction that is redressable by a favorable decision on habeas corpus review. Apart from a possibility of a deported convict re-entering the United States being far from speculative, see e.g., Perez, 296 F.3d at 125, Medrano Lara's legal capacity to re-enter the United States is not a determinative factor that can moot his petition. Although he was deported, his challenged sentence remains outstanding. See United States v. Campos-Serrano, 404 U.S. 293, 295 n. 2, 92 S. Ct. 471, 473 n. 2 (1971) ("the fact that respondent is now out of the country does not render this case moot"); United States v. Villamonte-Marquez, 462 U.S. 579, 581 n. 2, 103 S. Ct. 2573, 2575 n. 2 (1983) ("That respondents have been deported likewise does not remove the controversy involved."). Deportation alone does not moot a case, even when the collateral consequences doctrine applies, if it is possible for the court to grant "any effectual relief." United States v. Suleiman, 208 F.3d 32, 38 (2d Cir. 2000).
Medrano Lara does not challenge the federal sentence, the immurement portion of which he has served. Since Medrano Lara: (i) did not start to serve; (ii) was not released from; and (iii) never completed serving the sentence he challenges here, the collateral consequences doctrine does not apply to him. The Court finds that Medrano Lara satisfies the case-or-controversy requirement, because his unserved sentence constitutes a concrete injury caused by the conviction that is directly redressable by invalidating the conviction.
Exhaustion of State Remedies
Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies. See 28 U.S.C. § 2254(b) and (c). To satisfy the exhaustion requirement, a habeas corpus petitioner must first "fairly present" his or her claim to the highest state court from which a decision can be rendered. See Daye v. Attorney General of New York, 696 F.2d 186, 191 (2d Cir. 1982) (en banc). A claim is fairly presented if the state court was informed of the factual and legal premises of the claim being asserted in federal court. See id. If material factual allegations or legal doctrine are presented in a federal habeas corpus petition that were not presented to the state court, the state court has not had a fair opportunity to rule on the claim. See id. at 191-92. Once a claim is fairly presented, "and having been denied relief, the petitioner must have utilized all available mechanisms to secure appellate review of the denial of that claim." Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981) (citations omitted).
Medrano Lara's claims that: (a) the trial court abused its discretion by denying his motion to suppress evidence; and (b) the police elicited statements from him without appraising him of his constitutional rights, have not been presented to the state courts for adjudication. All other claims in this petition, although presented for adjudication to a state court in Medrano Lara's CPL § 440.10 motion, were not presented to the highest court of the state from which a decision can be rendered, because Medrano Lara failed to seek leave to appeal to the New York Court of Appeals. See CPL § 460.20. Therefore, all Medrano Lara's claims are unexhausted.
Typically, a habeas corpus petitioner may not obtain relief from a federal court on an unexhausted claim. See 28 U.S.C. § 2254(b)(1). However, when a claim has not been presented to a state court for adjudication, a federal court reviewing a habeas corpus petition may deem the claim exhausted "if it is clear that the unexhausted claim is procedurally barred by state law and, as such, its presentation in the state forum would be futile."Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001).
Medrano Lara failed to perfect his appeal from the judgment of conviction within the time prescribed, as required by the Appellate Division, Local Rules, Part 600. A state court already determined that Medrano Lara's failure to perfect his appeal was unjustified when it denied his CPL § 440.10 motion. This failure forecloses any future attempt to bring his unexhausted claims for adjudication to a state court because CPL § 440.10 mandates denial of a motion to vacate a judgment where the claimant unjustifiably failed to take or perfect an appeal during the prescribed period. See CPL § 440.10(2)(c). Therefore, Medrano Lara's claims can be deemed exhausted for the purpose of habeas corpus review, because they are procedurally barred by state law and their presentation to a state court would be futile. See Harris v. Reed, 489 U.S. 255, 263 n. 9, 109 S. Ct. 1038, 1043 n. 9 (1989); Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991).
A procedural default may be excused by the court if a habeas corpus petitioner can show cause for the default and prejudice resulting from it, or that the court's failure to consider the federal claim will result in a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S. Ct. 2546, 2565 (1991). To establish cause, a petitioner must demonstrate that "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct. 2639, 2645 (1986). Objective factors that constitute cause include,inter alia, "some interference by officials" that made compliance with the applicable state procedural rule impracticable or "a showing that the factual or legal basis for a claim was not reasonably available to counsel." Id. Additionally, ineffective assistance rendered to a petitioner by counsel constitutes cause for a procedural default. However, generally, such a claim must "be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default." Id. at 489, 106 S. Ct. at 2646.
Medrano Lara contends his counsel rendered ineffective assistance to him when he failed to "perfect appeal after filing a notice of appeal." However, in his reply to the respondent's opposition to the instant petition, Medrano Lara asserts that he and "his counsel had both sought to exhaust direct appeal and collateral remedies available in Courts of the State." Medrano Lara's assertion that his counsel rendered ineffective assistance to him because he failed to perfect his appeal is contradicted by his assertion that his counsel sought to exhaust his direct appeal. Moreover, Medrano Lara's absence from the state-court proceedings, determined to be voluntary by the state court, is not an objective factor external to his defense that can satisfy the burden imposed on him in establishing cause for a procedural default. Accordingly, the Court finds that the petitioner failed to present evidence that would establish some objective factor external to the defense impeded his counsel's efforts to comply with the state's procedural rules.
A procedurally defaulted claim may also be entertained by a federal court when a petitioner can show that the court's failure to review his claim will result in a fundamental miscarriage of justice, because he is actually innocent. See Bousley v. United States, 523 U.S. 614, 623, 118 S. Ct. 1604, 1611 (1998). Medrano Lara does not allege any facts to demonstrate that he is actually innocent of the charges for which he has been convicted. Therefore, the Court finds that the petitioner's unexhausted claims are procedurally barred. As such, they cannot be reviewed in connection with the instant application for a writ of habeas corpus.
For the foregoing reasons, I recommend that the respondent's motion to dismiss the petition, (Docket Entry No. 34), and the petition, (Docket Entry No. 1), be denied.