Shepherd v. Royce

• Court: District Court, E.D. New York
• Decided: March 19, 2020
• Docket: 1:20-cv-00602
• Status: Unknown

Opinion

EASTERN DISTRICT OF NEW YORK -------------------------------x EON SHEPHERD,

Petitioner, MEMORANDUM & ORDER 20-CV-0602 (EK) (LB) -against-

MARK ROYCE,

Respondent. --------------------------------x ERIC KOMITEE, United States District Judge:

On January 29, 2020, Eon Shepherd (“Petitioner”), currently incarcerated at Green Haven Correctional Facility, filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging a Kings County judgment of conviction for robbery in the second degree, upon his guilty plea, under Indictment No. 1985/86 entered on May 22, 1987. (Pet. for Writ of Habeas Corpus (“Pet.”), ECF Doc. 1 at 1.)1 Petitioner paid the filing fee to commence this action. The Court dismisses the petition for lack of jurisdiction. Section 2254 authorizes federal courts to “entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). “This provision ‘requir[es] that the habeas petitioner be ‘in custody’ under the conviction or sentence under attack at the time his petition is filed.’” Finkelstein v. Spitzer, 455 F.3d 131, 133 (2d Cir. 2006)

1 The petition was not signed by Petitioner and the Clerk of Court issued a notice of deficiency. (ECF Doc. 2.) On February 18, 2020, Petitioner filed Nowakowski v. New York, 835 F.3d 210, 215 (2d Cir. 2016). When a petitioner’s sentence for a conviction has fully expired, the conviction may not be challenged because the petitioner is no longer “in custody” pursuant to that conviction. See Lackawanna County Dist. Att’y v. Coss, 532 U.S. 394, 401-02 (2001); see also Maleng, 490 U.S. at 491. Here, Petitioner challenges a one-year sentence entered in 1987. It is clear that the one-year sentence had fully expired when Petitioner filed this petition on January 29, 2020, more than thirty years later. CONCLUSION Accordingly, the petition for a writ of habeas corpus is dismissed for lack of jurisdiction as Petitioner seeks to challenge a conviction that has fully expired. A certificate of appealability shall not issue as Petitioner has not made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Court certifies pursuant to 28 U.S.C. § 1915(a) that any appeal would not be taken in good faith and therefore in forma pauperis is denied for the purpose of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is directed to enter judgment and close this case. SO ORDERED.

/s/ Eric Komitee____________ ERIC KOMITEE United States District Judge

Dated: March 19, 2020 Brooklyn, New York