Harnett v. Russel

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

KELLY HARNETT,

MEMORANDUM & ORDER

Petitioner, 22-CV-00589 (HG)

v.

EILEEN RUSSELL,

Respondent.

HECTOR GONZALEZ, United States District Judge:

Petitioner filed a petition for habeas corpus, pursuant to 28 U.S.C. § 2254, while she was

previously incarcerated in state prison. ECF No. 2. She filed at the same time a motion to

appoint counsel to represent her in connection with her petition. ECF No. 3. Respondent Eileen

Russell, the superintendent of Petitioner’s prison, opposed the petition by filing a motion to

dismiss based solely on a declaration by an Assistant District Attorney without citing any case

law or providing any documents from Petitioner’s state court record. ECF No. 6. Respondent

contends that Petitioner’s petition is moot because the judgment pursuant to which Petitioner was

in custody at the time that she filed her petition has since been vacated, and she has been

sentenced to a lesser crime. Id.

For the reasons set forth below, the Court denies Petitioner’s motion for appointment of

counsel because there is no right to counsel in a habeas corpus proceeding, and no extenuating

circumstances suggest that appointing counsel is warranted. The Court also denies Respondent’s

motion to dismiss without prejudice because—despite the Court’s prior order and the Rules

Governing Section 2254 Cases in the United States District Courts (the “Section 2254 Rules”)—

Respondent has not provided the state court record to substantiate the assertions made in her

motion.

Respondent shall file the portions of the state court record further specified in this order

on or before February 8, 2023, at which point the Court will sua sponte renew its consideration

of whether it may continue to exercise jurisdiction over this proceeding. Petitioner shall file on

or before February 15, 2023, a letter stating whether she is continuing to seek the relief sought in

her habeas petition or, alternatively, stating that she is withdrawing her petition in light of the

mootness concerns raised in Respondent’s motion.

PROCEDURAL HISTORY

Petitioner was convicted following a jury trial in Queens County Supreme Court of

murder in the second degree and criminal possession of a weapon in the fourth degree based on

events that occurred in July 2010. People v. Harnett, 134 N.Y.S.3d 273, 274 (N.Y. App. Div. 2d

Dep’t 2020). That conviction was affirmed by the Appellate Division, Second Department on

December 16, 2020. Id. The New York Court of Appeals denied leave to appeal on February

11, 2021. People v. Harnett, 165 N.E.3d 694 (N.Y. 2021). Petitioner filed a timely petition for

habeas corpus by placing it in her prison’s mail system on January 14, 2022. ECF No. 2.

Petitioner raises several grounds for habeas relief. First, she asserts that during her state

court trial, the judge improperly excused two jurors after the jury had been sworn, declared a

mistrial, and convened new jury selection proceedings, all in violation of her Double Jeopardy

rights under the Fifth Amendment. Id. at 5, 16–23.1 Second, she asserts that her right to a public

trial under the Sixth Amendment was violated because her brother was prohibited from attending

1 In the field labeled “Ground Two” of the standard form that Petitioner used to file her

petition, Petitioner argues that the New York courts failed properly to address the Double

Jeopardy issue both on direct appeal and during a motion for collateral review that Petitioner

filed pursuant to Section 440.10 of New York’s Criminal Procedure Law (“CPL”). ECF No. 2 at

7. The Court interprets this as an argument that the Double Jeopardy issue was not “adjudicated

on the merits” in state court and that the deferential standard of review under 28 U.S.C. §

2254(d) should not apply, rather than as a separate ground for granting habeas relief.

the voir dire proceedings during jury selection. Id. at 8. Finally, Petitioner claims that she was

entitled to immediate release from state prison because the prison’s COVID-19 restrictions

caused her repeatedly to lose access to the law library, in violation of her Due Process rights

under the Fourteenth Amendment, and because the prison did not provide her with adequate

medical care after she contracted COVID-19, in violation of the Eighth Amendment. Id. at 10.

Based on these same restrictions on Petitioner’s access to the law library, Petitioner filed a

motion seeking appointment of counsel to represent her in connection with her petition. ECF

No. 3.

Petitioner originally filed her petition in the U.S. District Court for the Southern District

of New York. ECF No. 2. That court transferred the proceeding to this District because

Petitioner was convicted and sentenced in Queens County. ECF No. 4. Following the transfer,

Judge Matsumoto, who previously presided over this case, granted Petitioner’s request to

proceed in forma pauperis, ordered Respondent to file the state court record and an answer to the

petition by June 7, 2022, and ordered Petitioner to file her reply by July 7, 2022. See ECF Order

dated Apr. 8, 2022. Respondent timely filed a motion to dismiss the petition as moot, see ECF

No. 6, and Petitioner did not file a reply.

The basis for Respondent’s mootness argument is that on January 7, 2022, around the

same time Petitioner filed her petition, she also filed a motion in state court for resentencing

under CPL Section 440.47 and Section 60.12 of New York’s Penal Law. ECF No. 6 ¶ 17.

Together, those provisions allow a survivor of domestic violence, who has been convicted of a

crime, to petition the New York courts for an alternative sentence if the domestic abuse that the

defendant suffered was “a significant contributing factor” to the actions giving rise to the

defendant’s conviction. N.Y. Pen. Law § 60.12(1); N.Y. C.P.L. § 440.47(1)(a).

In response to Petitioner’s motion for resentencing, Respondent says that the state

prosecutor agreed to vacate Petitioner’s conviction and to allow her to plead guilty to a first-

degree manslaughter charge. ECF No. 6 ¶ 18. Petitioner apparently accepted that offer, and she

was resentenced for the new charge. Id. ¶¶ 18–19. Her original sentence of an indeterminate

term of imprisonment of 17 years to life on the murder charge and a determinate sentence of one

year of imprisonment on the weapon possession charge was reduced to a determinate sentence

for the manslaughter charge of 13 years of imprisonment and five years of post-release

supervision. Id. ¶¶ 6, 18–19. Although not explained in Respondent’s motion, the Court’s

review of the database made available by the New York Department of Corrections and

Community Supervision suggests that Petitioner’s new sentence was equivalent to a sentence of

time served and that Petitioner has therefore been released from incarceration to post-release

supervision.2

LEGAL STANDARD

A habeas petition, like any other type of case, must satisfy the Constitution’s case-or-

controversy requirement. See Janakievski v. Exec. Dir., Rochester Psychiatric Ctr., 955 F.3d

314, 319 (2d Cir. 2020) (holding that habeas petition was not moot even though it challenged

state court order that had already expired). To satisfy that requirement, “a party must, at each

stage of the litigation, have an actual injury which is likely to be redressed by a favorable judicial

decision.” Id. “If, as a result of changed circumstances, a case that presented an actual

2 N.Y. DEP’T OF CORRECTIONS AND COMMUNITY SUPERVISION (last visited Jan. 25, 2023),

https://nysdoccslookup.doccs.ny.gov/ (indicating that Petitioner was released on parole on May

5, 2022, and that the “Maximum Expiration Date” for her period of post-release supervision is

September 5, 2026).

redressable injury at the time it was filed ceases to involve such an injury, it ceases to fall within

a federal court’s Article III subject matter jurisdiction and must be dismissed for mootness.” Id.

A habeas petitioner has suffered an injury “so long as the petitioner continues to be held

in the custody that he alleges is unlawful,” including non-custodial restrictions on liberty, such as

the restraints on liberty that accompany parole. Id. Even if the habeas petitioner is challenging

an order that has expired, the petition will not be moot, “so long as the petitioner suffers some

concrete and continuing injury or collateral consequence resulting from the challenged order.”

Id. (internal quotation marks omitted).

However, the existence of an injury is not enough to avoid mootness. As described

above, that injury “must be ‘likely to be redressed by a favorable judicial decision.’” Id.

(quoting Chafin v. Chafin, 568 U.S. 165, 172 (2013)). If “it is impossible for a court to grant any

effectual relief whatever to the prevailing party”—even a “partial remedy”—then a habeas

petition has become moot. Id.

DISCUSSION

As an initial matter, the Court denies Petitioner’s motion to have legal counsel appointed.

“There is no right to counsel in a habeas corpus proceeding.” Hunter v. Annucci, No. 19-cv-

1321, 2020 WL 9816004, at *8 (E.D.N.Y. Dec. 18, 2020) (citing Wright v. West, 505 U.S. 277,

293 (1992)); see also Bisram v. United States, 777 F. App’x 563, 567 (2d Cir. 2019) (explaining

when considering petition filed pursuant to 28 U.S.C. § 2241 that “[t]he Sixth Amendment

provides no right to counsel in the context of habeas corpus review of a criminal conviction”).

The Court sees no need to deviate from the presumption against appointing counsel in this case

because Petitioner’s stated reason for needing counsel was that her prison’s COVID-19

restrictions resulted in her frequent denial of access to the law library, particularly when she had

tested positive for COVID-19 around the time she filed her habeas petition. See ECF No. 3 at 1,

3. Petitioner’s positive COVID-19 status was merely a temporary circumstance restricting her

ability to perform legal research. See Steele v. United States, No. 20-cv-1151, 2021 WL 465360,

at *3 (S.D.N.Y. Feb. 9, 2021) (denying motion to appoint counsel in proceeding brought

pursuant to 28 U.S.C. § 2255 despite petitioner’s “lack [of] an ability to conduct research due to

COVID-related lockdowns at his facility”). Furthermore, as explained above, publicly available

information suggests that Petitioner is no longer incarcerated and therefore not dependent on a

prison law library.

Turning to Respondent’s mootness challenge, if the assertions made in Respondent’s

motion are accurate, then Petitioner’s petition is likely moot. Multiple courts within the Second

Circuit have found that a habeas petition was rendered moot when the judgment that the habeas

petition challenged was subsequently vacated and a new judgment was entered. Wright v.

Rivera, No. 06-cv-1725, 2007 WL 4264547, at *1 (E.D.N.Y. Nov. 30, 2007) (holding that

petitioner’s challenge to his sentence was moot because he had been resentenced); Trapp v.

Poole, No. 07-cv-893, 2010 WL 3724879, at *2–3 (N.D.N.Y. Sept. 17, 2010) (holding that due

process challenge to term of supervised release was mooted after petitioner was resentenced

without a term of supervised release). Consistent with these decisions, the Seventh Circuit has

recently held that a “state court’s vacatur of [the petitioner’s] conviction ended federal

jurisdiction over [the petitioner’s] habeas corpus petition under the terms of § 2254.” Brown v.

Vanihel, 7 F.4th 666, 670 (7th Cir. 2021) (further holding that the petition had become moot

according to Article III criteria).

The Court cannot, however, definitively rule on the mootness assertions made in

Respondent’s motion because Respondent has not provided any portion of Petitioner’s state court

record. Although the decisions of the Appellate Division and New York Court of Appeals in

Petitioner’s direct appeal are publicly available, Respondent’s motion turns on documents that

are not publicly available—such as Petitioner’s original judgment of conviction, the order

vacating that judgment, and her new judgment of conviction. See ECF No. 6 ¶¶ 17–21. When a

district judge orders a respondent to answer a habeas petition, as Judge Matsumoto did in this

case, then Rule 5 of the Section 2254 Rules requires the respondent to file various portions of the

state court record, including “parts of the transcript that the respondent considers relevant” to his

or her answer. When a respondent fails to do so, the district court may deny the respondent’s

request for relief and require the respondent first to file the state court record. See Vaughn v.

Ward, No. 19-cv-6596, 2020 WL 5441357, at *2 (S.D.N.Y. Sept. 9, 2020) (denying motion to

dismiss habeas petition and ordering respondent to file state court record).

The Court therefore orders Respondent to file portions of the state court record on or

before February 8, 2023. At minimum, Respondent shall file: (i) Petitioner’s original judgment

of conviction for her murder and weapon possession charges; (ii) Petitioner’s and the state

prosecutor’s motion papers regarding Petitioner’s state court motion filed in January 2022 to

vacate that conviction; (iii) the state court order vacating that conviction; (iv) any plea agreement

related to Petitioner’s plea of guilty to her manslaughter charge; and (v) the judgment of

conviction for Petitioner’s manslaughter charge. If a transcript of the proceedings during which

Petitioner was sentenced for the manslaughter charge exists, then Respondent shall file that

transcript by the same date.

CONCLUSION

For the reasons set forth above, the Court DENIES Respondent’s motion to dismiss, see

ECF No. 6, without prejudice to renew the motion after filing the portions of the state court

record described herein. The Court also DENIES Petitioner’s motion to appoint counsel to

represent her in this proceeding. See ECF No. 3. Respondent is directed to serve a copy of this

order on Petitioner at her last known address and to file a declaration confirming that Respondent

has done so on or before January 30, 2023.

SO ORDERED.

/s/ Hector Gonzalez .

HECTOR GONZALEZ

United States District Judge

Dated: Brooklyn, New York

January 25, 2023