Burch v. Millas

663 F.Supp.2d 151

Lawrence W. BURCH, II, Petitioner, v. Christ T. MILLAS, Superintendent, Watertown Correctional Facility, Respondent.

No. 03-CV-0387 (VEB).

United States District Court, W.D. New York.

August 14, 2009.

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Charles Edward Fagan, Jamestown, NY, for Petitioner.

Tracey A. Brunecz, Mayville, NY, for Respondent.

DECISION AND ORDER

VICTOR E. BIANCHINI, United States Magistrate Judge.

I. Introduction

Lawrence W. Burch, II ("Burch" or "petitioner"), represented by attorney Charles Edward Fagan, Esq. ("Attorney Fagan" or "habeas counsel"), brought this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Chautauqua County Court on one charge of aggravated sexual abuse in the second degree. The parties have consented to final disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1).

II. Jurisdiction

A. "In Custody" Requirement

Under 28 U.S.C. § 2254, a habeas petitioner must establish that he is "in custody in violation of the Constitution or laws ... of the United States." See 28 U.S.C. § 2254(a). However, a petitioner need not actually be imprisoned to meet the "in custody" requirement, and may satisfy this requirement if he presently suffers from substantial restraints not shared by the public generally. See, e.g., Hensley v. Municipal Court, 411 U.S. 345, 351, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973) (release on own recognizance); Jones v. Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963) (parole). Moreover, once the petitioner has satisfied the "in custody" requirement, jurisdiction is not thereafter defeated by petitioner's subsequent release from custody. See Carafas v. LaVallee, 391 U.S. 234, 238, 88 S.Ct 1556, 20 L.Ed.2d 554 (1968). Burch was sentenced to an indeterminate term of four to eight years in prison. Burch served his sentence at Mt. McGregor Correctional Facility and was released during the pendency of the instant federal habeas corpus proceeding. Because he filed his petition while he was incarcerated, he has satisfied the "in custody" requirement of 28 U.S.C. § 2254(a). See Maleng v. Cook, 490 U.S. 488, 109 S.Ct. 1923, 1925-26, 104 L.Ed.2d 540 (1989).

B. Mootness

As with all litigants in federal court, a habeas petitioner must satisfy the case or controversy requirement of Article III, § 2, of the Constitution in order to be eligible for relief. A case becomes moot if, at any stage of the proceedings, it fails to satisfy the case-or-controversy requirement. Kamagate v. Ashcroft, 385 F.3d 144, 150 (2d Cir.2004) (citing Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998)); accord Marrero Pichardo v. Ashcroft, 374 F.3d 46, 51 (2d Cir.2004); Swaby v. Ashcroft, 357 F.3d 156, 159-60 (2d Cir.2004). Burch's petition was not rendered moot by his subsequent release from custody. However, in order for a habeas petitioner who is no longer in custody to demonstrate a live case or controversy, there must exist a concrete and continuing injury which is a collateral consequence of the detention and which can be remedied by granting the writ. See Spencer, 523 U.S. at 7, 118 S.Ct. 978; see also Perez v. Greiner, 296 F.3d 123, 125 (2d Cir.2002).

A prisoner's challenge to the validity of his conviction always satisfies the "case or controversy" requirement of Article III because the incarceration constitutes a concrete injury, caused by the conviction and redressable by invalidation of the conviction. Spencer v. Kemna, 523 U.S. at 7, 118 S.Ct. 978. However, when the prisoner's sentence has expired, some concrete and continuing injury other than the now-ended incarceration—that is, some "collateral consequence" of the conviction—must exist if petition is to remain justiciable. Id. (citing Carafas v. LaVallee, 391 U.S. 234, 237-38, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968)). The Supreme Court has held that collateral consequences are presumed to flow from a felony conviction such as the one at issue here, such that petitioner's release from custody does not moot the habeas petition. Sibron v. New York, 392 U.S. 40, 55-56, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Evitts v. Lucey, 469 U.S. 387, 391 n. 4, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985); accord Spencer, 523 U.S. at 8, 12, 118 S.Ct. 978 (not departing from Sibron's presumption that "a wrongful criminal conviction has continuing collateral consequences (or, what is effectively the same, to count collateral consequences that are remote and unlikely to occur)," but declining to extend the Sibron to the parole revocation context).

Here, Burch challenges the underlying felony conviction that led to his detention, and the Sibron presumption of collateral consequences exists. See Spencer, 523 U.S. at 7-8, 118 S.Ct. 978 (citing Sibron, 392 U.S. at 55-56, 88 S.Ct. 1889). Accordingly, Burch's habeas petition has not been mooted by his release from incarceration in state custody and presents a justiciable controversy amenable to review by this Court.

III. Factual Background and Procedural History

A. Indictment and Trial Proceedings (First and Second Trials)

On June 11, 1997, Burch was indicted by a Chautauqua County Grand Jury on one count of aggravated sexual abuse in the second degree (N.Y. Penal Law § 130.67(1)(a)), a class C felony. The indictment alleged that "on or about February, 1997,"¹ Burch "did insert a finger in the vagina of another person causing physical injury to such person by forcible compulsion." The alleged victim was the eleven-year-old daughter ("the complainant") of Burch's girlfriend, A.B., with whom he was living at the time.

At the trial-court level, Burch was assigned an attorney from the Chautauqua County Public Defender's Office, Donald V. Nihoul, Esq. ("Attorney Nihoul" or "trial counsel"). Burch's first jury trial in Chautauqua County Court (Ward, J.) ended in a mistrial because the jury was unable to reach a unanimous verdict. See Affidavit of Charles Edward Fagan, Esq., Submitted In Support of Habeas Petition ("Fagan Habeas Aff.") ¶ 6 (stating that in certain state court pleadings, the prosecutor noted that, upon information and belief, the vote was eight to four in favor of acquittal.); see also Petitioner's Memorandum of Law in Support of Habeas Petition ("Pet'r Habeas Mem.") at 1; People's Brief on Direct Appeal ("Peo. App. Br.").²

Jury selection for petitioner's second trial was scheduled for early April of 1998. Another mistrial was declared, this time because counsel ran out of prospective jurors before a full jury could be seated. Id.

B. Trial Proceedings—Petitioner's Third Trial

Burch's third jury trial commenced on April 28, 1998, in Chautauqua County Court before Acting County Court Judge Robert C. Noonan. Burch again was represented by Attorney Nihoul. In his opening statement on April 29, 1998, trial counsel set forth the defense theory of the case—namely, that the victim was upset about her mother's new relationship with Burch and wanted "unfettered access to her mom and her mom's attention[.]" T.196.³ Trial counsel told the jury that "for about six months prior to this alleged incident [the victim] had become increasingly rebellious, defiant, and had just got to the point where she could hardly tell the truth about anything." T.195. According to the defense, the victim "threatened her parents at least on two occasions with being reported to Child Protection." T.195-96. The victim was portrayed as having "a grudge against Mr. Burch and . . . wanted him out of the house;" id.; hence, the victim concocted the story about Burch sexually abusing her in order to oust him from the household and her mother's life. As the trial judge would later observe, the "issue of credibility" was "critical to the case . . . ." T.332.

1. The Prosecution's Case

a. The Complainant

The complainant testified that Burch had lived with her and her mother, along with her half-brother and half-sister for "[m]aybe three or four years" prior to the incident in 1997, and that she called Burch her "dad." Id. She left her mother's home in March 1997, after reporting the sexual abuse to her guidance counselor at school. The complainant testified that Burch was touching her "[i]n [her] private areas[,]" meaning her "breasts and . . . vagina area." T.209-10. According to the complainant's recollection, the incident at issue had occurred after "a couple of days" after Valentine's Day in 1997. B.B. remembered that it was near Valentine's Day because she had "heard a thing on the radio about like a—competition kissing [sic] . . . and [she] asked [Burch] about it." T.210, 218. In response to her question about the kissing contest, Burch then "started kissing [her]." Id. The complainant recalled that when Burch kissed her, it was "almost . . . like [she] couldn't breath [sic]." T.210 She testified that Burch also rubbed her breasts. T.211. (This alleged instance of Burch kissing her and touching her breasts was not part of the indictment.)

When asked by the assistant district attorney whether there was "another day when something else happened," T.211, the victim replied affirmatively, but could not pinpoint a date:

Q: When did that [second incident] occur?

A: Um, I'm not quite sure.

Q: Did it occur sometime before you left the house?

A: Yes.

Q: Did it occur sometime before you told your guidance counselor?

A: Yes.

Q: Can you give us an idea of when that would have happened?

A: Like I can't remember quite when, but—

Q: Is there an occasion that comes to mind.

A: Not really.

Q: Is it fair to say it was after Valentine's Day and before you left in March?

A: Yes.

T.211-12. Defense counsel did not object to that line of questioning by the prosecutor. The complainant then testified that on the second occasion, Burch "forced her on [his] bed and he started kissing [her]," and "touched the inside of [her] vagina." T.212. She "hardly could move."...