Opposition — Bell v. New York

In THE } MAR B 1980

Supreme Court of the United! States

| Ml einer RODAK, JR., CLERK

OCTOBER TERM, 1979

No. 79-975

Davip BELL,

Petitioner,

agamst

State or New York,

Respondent.

On PETITION FOR A WRIT oF CERTIORARI TO THE

Unttep States Court or APPEALS

FOR THE SEconpD Circuit

BRIEF FOR RESPONDENT IN OPPOSITION

TO CERTIORARI

Rosert ABRAMS

Attorney General of the

State of New York

Attorney for Respondent

Office & P.O. Address

Two World Trade Center

New York, New York 10047

Tel. No. (212) 488-4178

Surmmiey ADELSON SIEGEL

Solicitor General

Crement H. Berne

Assistant Attorney General

of Counsel

i TABLE OF CONTENTS

PN Or eS i Fab ok. 44. o lk © ce hae CGA Kw ee

eB ES TEES gall a

SUR Ne eR lk Lace i scawidiee e bord

Reasons FOR DENYING CERTIORARI ............-0000-

A.—The District Court Correctly Denied Habeas

Corpus Relief as the State Sentence Con-

tained No Restrictions Constituting Custody

and the District Court, Therefore, Was With-

out Jurisdiction to Entertain the Petition ..

B.—Assuming, Arguendo, That the Sentence Im-

posed Constituted Custody, the Petition Was

Nevertheless Properly Denied as the Sen-

tence was Fully Satisfied Prior to the Com-

mencement of This Proceeding ............

(EAS SAIS IONE TS SEARED 6 ie a a

li TABLE OF AUTHORITIES

PAGE

Cases: ;

Carajfis v. LaVallee, 301 U.S. 234 (1968) ............ 3, 5

Edmonds v. Won Bae Chang, 509 F. 2d 39 (9th Cir.),

cert. denied 423 U.S. 825 (1975) .............. 4

Furey v. Hyland, 395 F. Supp. 1356 (D.N.J. 1975),

aff’d 535 F. 2d 746 (3d Cir. 1976) .............. 5

Hanson v. Circuit Court, 591 F. 2d 404 (7th Cir.

SRC ke ie onak bower ede bie v erties SAM bie Ti 4

Hensley v. Municipal Court, 411 U.S. 345 (1973) .... 4

Jones v. Cuningham, 371 U.S. 236 (1963) .......... 3, 4,5

Pueschel v. Leuba, 383 F. Supp. 576 (D. Conn.

cae ore So Se be 3, 4,5

Russell v. City of Pierre, 530 F. 2d 791 (8th Cir.)

cert. dented 429 U.S. 855 (1976) .............. 3, 4

Schifter v. United States, 428 F. Supp. 611 (EDNY

BREE ch oe RG Aa Clk ks SOLO LERER AS PBA Siecle dee 4

United States ex rel. Myers v. Smith, 444 F. 2d 75 (2d

AS MOTE TS G5 16S VER ON OWS EME DU Eee WAS Cans oc 5

United States ex rel. Wojtycha v. Hopkins, 517 F. 2d

SE Cee Sais SOND aS hi sos vs RNS Hoos oS ook ces 5

Westberry v. Keith, 434 F. 2d 623 (5th Cir. 1970) ... 5

Statutes:

28 U.S.C.A.,

NE on Bae Ga CA > We inks wkd O58 hae od Rea SCs 2

UNAM i Chen BNC cu wup sinus eu teae neta « uck 2,3

SRT Bei ees C8 ercsbe dei or Derk SOS Cag Ea OES 2,3

New York Penal Law,

RE e+ SERIE GREL Sah aS Aa are RD One es 4

6 6 LO ORISA BEG SIDES Sa ei pan Pee a eta 6

MG She See CES CER R MA Pio Se Tea hek: 2

I 605 SOs calc k AER das Dada be ba eh eS 2

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

ra

No. 79-975

Davin BELL,

Petitioner,

agaimst

Strate oF New York,

Respondent.

On PETITION FoR A WRit OF CERTIORARI TO THE

Unrrep States Court or APPEALS

FOR THE SECOND CIRCUIT

&

v

BRIEF FOR RESPONDENT IN OPPOSITION

TO CERTIORARI

Opinion Below

Copies of the opinion of the District Court, unreported

to date, and the order of the Court of Appeals for the

Second Circuit, affirming on the opinion below, are annexed

to the petition. |

2

Jurisdiction

Petitioner seeks to invoke the jurisdiction of this Court

under 28 U.S.C.A. § 1254(1).

Questions Presented

1. Whether the district court was correct in denying

the petition for a writ of habeas corpus on the grounds

that the sentence imposed, a $1500 fine and a one year

conditional discharge, contained no restrictions harsh

enough to constitute custody and that consequently the

jurisdictional requirement of 28 U.S.C. $§ 2241(e)(a),

2254(a) was not satisfied?

2. Whether the present proceeding should have been

dismissed for lack of subject matter jurisdiction because

the fine imposed had been paid and the term of the con-

ditional discharge had expired long before the filing of

the petition for a writ of habeas corpus?

Facts

Petitioner was convicted on April 20, 1976 after a jury

trial in the County Court of Sullivan County on the

crimes of reckless endangerment in the second degree

(Penal Law $120.20) and resisting arrest (Penal Law

§ 205.30). The sentence imposed was a fine of $750 on

each count and two one-year conditional discharges to run

concurrently. In explaining the terms of the conditional

discharge, the trial court stated:

“. . . you are to avoid any injurious or vicious

habits, you are to refrain from frequenting unlawful

places and consorting with disreputable persons; you

are to refrain from any further violations of the

law.

a

3

Now, these conditions I know you can comply with

because I am sure that based upon your past back-

ground you are not criminally inclined to do any

of these things. However, those are the conditions

that must be complied with.’’ [trial minutes at 973]

Petitioner paid the $1500 fine on April 21, 1976, and the

period of conditional discharge expired on April 19, 1977.

The judgment of conviction was affirmed by the Appel-

late Division, Third Department, on January 9, 1978.

The New York Court of Appeals denied leave to appeal

on February 21, 1978. Applications for reconsideration

of the denial of leave to appeal were denied by the Court

of Appeals on March 10, 1978 and April 11, 1978.

Some two years after paying the fine and one year

after completing the conditional discharge petitioner com-

menced the present proceeding.

REASONS FOR DENYING CERTIORARI

A.

The District Court Correctly Denied Habeas

Corpus Relief as the State Sentence Contained

No Restrictions Constituting Custody and the Dis-

trict Court, Therefore, Was Without Jurisdiction

to Entertain the Petition.

The federal courts will entertain applications for habeas

corpus relief only on behalf of persons “in custody” pur-

suant to state court judgments of conviction. 28 U.S.C.A.

§§ 2241(c) (3), 2254(a). Carafis v. LaVallee, 391 U.S. 234,

238 (1968); Russell v. City of Pierre, 530 F. 2d 791, 792

(8th Cir.), cert. denied 429 U.S. 855 (1976); Pueschel v.

Leuba, 383 F. Supp. 576, 579 (D. Conn. 1974). The “in

custody” jurisdictional requirement has been relaxed some-

what to include more than the imposition of a term of

imprisonment. See Jones v. Cumningham, 371 U.S. 236

4

(1963) (persons under parole supervision); Hensley v.

Municipal Court, 411 U.S. 345 (1973) (persons released on

their own recognizance but facing future incarceration

should habeas relief be denied). This Court, however, has

continued to emphasize that the extraordinary remedy of

habeas corpus is limited to cases of special urgency where

“severe restraints on individual liberty” are imposed

and that only the more conventional remedies are available

in other cases. Id. at 351. As the state court imposed no

severe restraints in the present case, the district court

correctly ruled that the federal courts are without subject

matter jurisdiction to review petitioner’s claims.

Petitioner’s sentence was a $1500 fine and a conditional

discharge. It is well settled that the imposition of a fine

does not constitute a restraint sufficient to confer jurisdic-

tion upon the federal habeas court. Hanson v. Circuit

Court, 591 F. 2d 404 (7th Cir. 1979); Russell v. City of

Pierre, swpra; Edmonds v. Won Bae Chang, 509 F. 2d 39

(9th Cir.), cert. demed 423 U.S. 825 (1975); Schifter v.

United States, 428 F. Supp. 611 (EDNY 1977); Peuschel

v. Leuba, swpra.

Moreover, as the district court correctly ruled, the terms

of the conditional discharge included “no restrictions

harsh enough to constitute custody” (A. 6).* New York

Penal Law §§65.01(1), (2) provide that where ap-

propriate the sentencing court shall release the defendant

without imprisonment or supervision, but subject during

a set period to such conditions as the court specifies. In

the present case the sentencing court instructed petitioner,

“to avoid any injurious or vicious habits . . . to

refrain from frequenting unlawful places and con-

sorting with disruptable persons . . . to refrain from

any further violations of the law.” [trial minutes at

973].

* Page references preceded by ‘‘A’’ are to the Appendix annexed

to the petition.

5

Thus, petitioner was subject to-neither the close personal

supervision concerning the details of his private life, nor

the imminent threat of imprisonment without a court hear-

ing, which are imposed upon persons on probation or

parole. See Jones v. Cunningham, supra, 371 U.S. at 241-

242. Like revocation of the driving privilege, which cer-

tainly would be a more serious and disruptive restriction

of liberty, the conditions of ‘petitioner’s discharge do not

constitute the sort of severe restraint which has been held

to be the equivalent of physical custody for purposes of

establishing federal habeas jurisdiction. Cf. Westberry v.

Keith, 434 F. 2d 623 (5th Cir. 1970). Accordingly, the Dis-

trict Court correctly denied the petition.

Assuming, Arguendo, That the Sentence Imposed

Constituted Custody, the Petition Was Neverthe-

less Properly Denied as the Sentence Was Fully

Satisfied Prior to the Commencement of This

Proceeding.

In defining the jurisdiction of the federal courts the

habeas corpus statute ‘‘requires that the applicant must

be ‘in custody’ when the application for habeas corpus is

filed’’. Carafis v. LaVallee, supra, 391 U.S. at 238; accord,

United States ex rel. Myers v. Smith, 444 F. 2d 75 (2d Cir.

1971); United States ex rel. Wojtycha v. Hopkins, 517 F.

2d 420, 423 n. 6 (3d Cir. 1975). While the collateral con-

sequences of conviction may prevent the timely commenced

proceeding from becoming moot subsequent to the satis-

faction of the sentence imposed, such disabilities are by

themselves insufficient to establish subject matter jurisdic-

tion. Carafis v. LaVallee, supra; United States ex rel.

Myers v. Smith, supra, 444 F. 2d at 77; Pueschel v. Leuba,

supra, 383 F. Supp. at 80. As the district court observed,

to hold otherwise would be to ‘‘render the custody prerequi-

site entirely meaningless’”’ (A. 6); accord Furey v. Hyland,

395 F. Supp. 1356, 1360 (D.N.J. 1975), aff’d 532 F. 2d 746

(3d Cir. 1976).

6

In the present case petitioner fully paid the fine on April

21, 1976. The one year period of conditional discharge

commenced on the day it was imposed, New York Penal

Law §65.15(1), and expired on April 19, 1977. The peti-

tion, dated May 25, 1978, was filed on June 28, 1978, more

than a year after the sentence was fully satisfied. Thus,

even assuming, arguendo, that the sentence imposed con-

stituted custody within the meaning of the federal habeas

corpus statute, petitioner was nevertheless not in custody

at the time this proceeding was commenced. Accordingly,

federal jurisdiction did not attach, and for this additional

reason the petition for certiorari should be denied.

CONCLUSION

For the foregoing reasons the petition for a writ

of certiorari should be denied.

Dated: New York, New York

March 3, 1980

Respectfully submitted,

Rosert ABRAMS

Attorney General of the

State of New York

Aitorney for Respondent

SHIRLEY ADELSON SIEGEL

Solicitor General

Cirement H. Berne

Assistant Attorney General

of Counsel