Robert NOWAKOWSKI, Petitioner-Appellant, v. The People of the State of NEW YORK, Respondent-Appellee.
Docket No. 14-1964
United States Court of Appeals, Second Circuit.
August 26, 2016
835 F.3d 210
WESLEY, Circuit Judge:
Argued: October 14, 2015
After the Supreme Court decided Torres v. Lynch, we permitted the parties to submit additional briefing. Abandoning his original argument, Weiland now claims that, unlike the arson statute at issue in Torres v. Lynch, which, he asserts, has no “innate link to interstate commerce,” the interstate commerce component of the federal child pornography statute is a requirement of the underlying substantive offense. See Pet‘r‘s Letter 2, June 7, 2016, ECF No. 90. This argument is unavailing for two reasons. First, Weiland ignores that, in addition to proscribing the transportation of child pornography using a means of interstate commerce,
CONCLUSION
For the foregoing reasons, we DENY the petition for review of the BIA‘s decision.
Judge LIVINGSTON dissents in a separate opinion.
WESLEY, Circuit Judge:
Petitioner-Appellant Robert Nowakowski was convicted of harassment in the second degree, an offense classified as a violation under state law, and sentenced to one year‘s conditional discharge, requiring one day of community service. Before completing this sentence, Nowakowski filed a petition for a writ of habeas corpus under
We granted a certificate of appealаbility with instructions to brief two questions of first impression we now answer: First, whether a sentence of conditional discharge and one day‘s community service, unfulfilled as of the time of filing the habeas petition, satisfies the “in custody” requirement of
ROBERT NOWAKOWSKI, pro se, Brooklyn, NY.
VICTOR BARALL, Assistant District Attorney (Leonard Joblove, Assistant District Attorney, on the brief), for Kenneth P. Thomson, District Attorney for Kings County, Brooklyn, NY, for Respondent-Appellee.
Robert Nowakowski was arrested on October 31, 2006, on charges of assault against another tenant in his building. He contends that these charges were fabricated by his landlord and his neighbors, including the now-deceased victim. After a bench trial, he was convicted of harassment in the second degree—which is classified as a violation under New York state law—in the Criminal Court of the City of New York on September 18, 2008, and ordered to pay a fine of $100. The sentence was stayed for over four years during post-conviction appeals and collateral proceedings. On May 14, 2013, the Criminal Court vacated the fine and sentenced Nowakowski to a one-year conditional discharge, requiring him to complete one day of community service within that time. This change in sentence occurred at Nowakowski‘s request because he could not afford the fine and administrative charges, which totaled $195.
Pursuant to the amended sentence, the Kings County District Attorney‘s Office sent Nowakowski a “Notice of C.S. Obligation,” dated June 6, 2013. This notice informed Nowakowski that he had been referred for community service on July 2, 2013, with the Parks Department. It informed him that he was required to appear on that date in a specific location, that the date would “NOT be rescheduled,” and that if he failed to appear or complete the required service, “a warrant may be issued for [his] arrest.” Appellant App. 18.3
On July 1, 2013, Nowakowski filed a petition under
On November 7, 2013, the District Court initially dismissed Nowakowski‘s petition without prejudice, because it contained an unexhausted claim of ineffective assistance of appellate counsel. Nowakowski both moved to vacate the dismissal, stating he wished to delete his unexhausted claim and proceed only on his exhausted claims, and filed a motion in our Court for a certificate of appealability. We construed the motion as one for remand to the District Court for consideration of his Rule 59(e) motion and
Following briefing, the District Court concluded that the expiration of Nowakowski‘s conditional discharge on May 14, 2014, rendered his petition moot, unless Nowakowski could demonstrate a continuing collateral consequence under Spencer, supra. Nowakowski argued that his conviction would preclude his
DISCUSSION
We review de novo a district court‘s denial of a
I.
The first question we must decide is whether Nowakowski was “in custody” and thus able to seek federal habeas relief.5 In order for a federal court to have jurisdiction over a habeas petition, the petitioner must be “in custody pursuant to the judgment of a State court” at the time the petition is filed.
Despite the “chief use of habeas” being “the release of persons held in actual, physical custody in prison or jail,” the Supreme Court has affirmed “that, besides physical imprisonment, there are other restraints on a man‘s liberty, restraints not shared by the public generally, which have been thought sufficient in the English-speaking world to support the issuance of habeas corpus.” Jones v. Cunningham, 371 U.S. 236, 240, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963); see also id. at 238. The Jones Court found jurisdiction where an individual was released from imprisonment on parole subject to explicit conditions—for example, regular reporting to his parole officer; remaining in a particular community, residence, and job; and refraining from certain activities. Id. at 242. The Supreme Court has likewise found jurisdiction where a petitioner was released on his own recognizance prior to trial but had to appear in criminal court when ordered and where failure to do so would result in issuance of an arrest warrant. See Hensley v. Mun. Court, San Jose-Milpitas Judicial Dist., 411 U.S. 345, 351, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973); see also Justices of Bos. Mun. Court v. Lydon, 466 U.S. 294, 300-01, 104 S.Ct. 1805, 80 L.Ed.2d 311 (1984) (finding juris-
The Courts of Appeals, including ours, have recognized that a variety of nonconfinement restraints on liberty satisfy the custodial requirement. See, e.g., Earley v. Murray, 451 F.3d 71, 75 (2d Cir. 2006) (post-release supervision); Barry v. Bergen Cty. Prob. Dep‘t, 128 F.3d 152, 160-62 (3d Cir. 1997) (500 hours of community service); Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 894-95 (2d Cir. 1996) (banishment from tribal land); Dow v. Circuit Court of First Circuit Through Huddy, 995 F.2d 922, 923 (9th Cir. 1993) (per curiam) (mandatory fourteen-hour alcohol rehabilitation program); Sammons v. Rodgers, 785 F.2d 1343, 1345 (5th Cir. 1986) (per curiam) (unexpired suspended sentence); United States ex rel. B. v. Shelly, 430 F.2d 215, 217 n.3 (2d Cir. 1970) (probation). Those cases where courts have declined to find the petitioners sufficiently “in custody” have typically involved the imposition of fines or civil disabilities, such as suspension of licenses. See, e.g., Barnickel v. United States, 113 F.3d 704, 706 (7th Cir. 1997) (restitution); United States v. Michaud, 901 F.2d 5, 7 (1st Cir. 1990) (per curiam) (monetary fine); Lefkowitz v. Fair, 816 F.2d 17, 20 (1st Cir. 1987) (suspension of medical license); Lillios v. New Hampshire, 788 F.2d 60, 61 (1st Cir. 1986) (per curiam) (fine and temporary suspension of driver‘s license); Ginsberg v. Abrams, 702 F.2d 48, 49 (2d Cir. 1983) (per curiam) (revocation of law, real estate, and insurance licenses); see also Maleng, 490 U.S. at 492 (collateral consequences of a completed sentence do not constitute custody).
The custody inquiry therefore “requires a court to judge the ‘severity’ of an actual or potential restraint on liberty.” Poodry, 85 F.3d at 894. Though the language of habeas cases often refers to “severe restraints on individual liberty” or “cases of special urgency,” Hensley, 411 U.S. at 351, these terms describe the nature, rather than the duration, of the restraint. It is evident that a single day of incarceration would be sufficient custody for jurisdiction if the petitioner filed while subject to such a sentence. Similarly, courts have considered even restraints on liberty that might appear short in duration or less burdensome than probation or supervised release severe enough because they required petitioners to appear in certain places at certain times, thus preventing them from exercising the free movement and autonomy available to the unrestricted public, or exposed them to future adverse consequences on discretion of the supervising court. See id. (custody satisfied where petitioner was required to appear in court when ordered and subject to revocation of release); Barry, 128 F.3d at 161 (despite flexibility in scheduling, requirements “to be in a certain place—or in one of several places—to attend meetings or to perform services” are clearly “restraints on [petitioner‘s] liberty not shared by the public generally“); Dow, 995 F.2d at 923 (mandatory class attendance and “physical presence at a particular place” constituted custody, despite lasting only fourteen hours over three days); Sammons, 785 F.2d at 1345 (potential of revocation of suspended sentence or other adverse action during term sufficient for custody).
With these examples in mind, we turn to the facts before us, which are uncontested. Although the Criminal Court ini-
Nowakowski‘s sentence falls within the category of restraints that satisfy the statutory requirement of custody.6 These restrictions are “not shared by the public generally,” Jones, 371 U.S. at 240, require Nowakowski‘s physical presence at particular times and locations, both for community service and court appearances, see Barry, 128 F.3d at 161; Dow, 995 F.2d at 923, and carry with them the potential for future adverse consequences during the term of the sentence, including arrest for noncompliance and modification or revocation of the conditional discharge,7 see Hensley, 411 U.S. at 351; Sammons, 785 F.2d at 1345. They are wholly unlike the economic penalties suffered in fine-only or license-revocation sentences, where the punishments “implicate only property, not liberty.” Barry, 128 F.3d at 161. Consequently, we conclude that, at the time the petition was filed, Nowakowski was “in custody” within the meaning of
II.
The second question we must answer is whether Nowakowski‘s case is moot. Unlike the “in custody” requirement, mootness is not fixed at the time of filing but must be considered at every stage of the habeas proceeding. See Carafas v. LaVallee, 391 U.S. 234, 237, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968). Once, as here, a petitioner‘s sentence has expired, “some con-
A.
Spencer traced more than forty years of Supreme Court precedent to explain the development of the presumption of continuing collateral consequences after its first articulation in Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). The Court observed that it applied the presumption only to “criminal convictions” and expressly declined to extend it outside of that context to parole revocation. Spencer, 523 U.S. at 9-13; see also Lane v. Williams, 455 U.S. 624, 632-33, 102 S.Ct. 1322, 71 L.Ed.2d 508 (1982). In so doing, it candidly acknowledged that such a presumption “sits uncomfortably beside the long-settled principle” that Article III standing cannot be inferred and that the proponent of jurisdiction bears the burden of demonstrating it. Spencer, 523 U.S. at 10-11 (internal quotation marks omitted). It further considered “of particular relevance” that, with criminal convictions, “the presumption of significant collateral consequences is likely to comport with reality,”8 calling this observation “‘an obvious fact of life.‘” Id. at 12 (quoting Sibron, 392 U.S. at 55). The Court‘s clear reluctance to extend the Sibron presumption outside of this narrow category has guided our Court in declining to apply it when the defendant does not challenge a criminal conviction. See Mercurris, 192 F.3d at 293 (sentencing enhancement); United States v. Probber, 170 F.3d 345, 348 (2d Cir. 1999) (revocation of supervised release).
Spencer—as well as our opinions in Mercurris and Probber—may be fairly characterized as declining to apply the presumption to cases in which something ancillary to a conviction was challenged, even if of a criminal nature. Here, by contrast, it is evident that Nowakowski challenges a conviction. What is disputed is whether this conviction is criminal, for reasons that will shortly become clear. Our Circuit‘s precedent has never answered this question, nor has the Supreme Court spoken on the subject in the context of the Sibron presumption. Therefore, we proceed cautiously, examining the nature of the offense of which Nowakowski was convicted and drawing on principles in other areas of law where the Supreme Court has addressed similar considerations.
Before commencing our analysis, we think it necessary to explain briefly the New York scheme of penal offеnses. The New York Penal Law defines an “offense” as “conduct for which a sentence to a term of imprisonment or to a fine is provided” by a state or local law, ordinance, or regulation.
In the case before us, Nowakowski was convicted of harassment in the second degree, which New York classifies as a violation. See
We start from first principles. The Sibron presumption is a judicial doctrine concerning mootness under Article III. See Liner v. Jafco, Inc., 375 U.S. 301, 304, 84 S.Ct. 391, 11 L.Ed.2d 347 (1964). Whether a case is moot is a question of federal, not state, law. See id. As a result, we must determine whether Nowakowski‘s conviction is civil or criminal in nature by reference to federal principles—state law provides the necessary facts underlying the question, but federal law provides the rule of decision. See, e.g., United States v. Juvenile Male, 564 U.S. 932, 131 S.Ct. 2860, 2864, 180 L.Ed.2d 811 (2011) (per curiam) (analyzing a certified question of Montana law to determine whether the doctrine of continuing collateral consequences was satisfied). For several reasons, we think the Supreme Court‘s cases determining the applicability of federal constitutional protections are the most relevant precedents upon which to draw. See, e.g., Kennedy v. Mendoza-Martinez, 372 U.S. 144, 165-68, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963) (concluding constitutional criminal protections apply where Congress applies a punitive sanction); see also, e.g., Allen v. Illinois, 478 U.S. 364, 368, 106 S.Ct. 2988, 92 L.Ed.2d 296 (1986) (conducting same analysis with respect to sanctions imposed by state law).
First, the inquiries are identical in the question presented: whether a particular proceeding is civil or criminal in nature under federal law. See Hicks ex rel. Feiock v. Feiock, 485 U.S. 624, 630, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988) (endorsing “the characterization of this proceeding and the relief given as civil or criminal in nature, for рurposes of determining the proper applicability of federal constitutional protections” as raising “a question of federal law rather than state law“). And second, both the civil-criminal analysis and the Sibron presumption are judicially created doctrines that give effect to constitutional requirements. See Kennedy, 372 U.S. at 167-68; Sibron, 392 U.S. at 50. Consequently, we see no reason why, if Nowakowski‘s conviction is “criminal” for purposes of federal constitutional protections, it should not be criminal for purposes of the Sibron presumption,9 and so we apply the former analysis here.
The Supreme Court has observed that “[t]he categorization of a particular proceeding as civil or criminal is first of all
The reasons for applying a functional approach are clear. States have widely varying designations of offenses under their penal codes, and these designations subject defendants to different ranges of punishment. For example, elsewhere in our Circuit, Connecticut declines to designate “violations” as crimes,11 while Vermont has no violations and instead labels all offenses in its penal code as felonies or misdemeanors. Compare
Adopting the approach of the Smith Court, we examine New York‘s penal code and laws regarding Nowakowski‘s conviction as a whole, giving due weight to the State‘s legislative judgments. We conclude that New York punishes violations such as Nowakowski‘s under its criminal, not civil, authority. An action to prosecute a violation is designated a “criminal action” under New York law and may be commenced by filing an information or prosecutor‘s information, see
Our understanding that Nowakowski‘s conviction was secured pursuant to New York‘s criminal authority accords with traditional conceptions of the distinction between criminal and civil jurisdiction:
The distinction of public wrongs from private, of crimes and misdemeanors from civil injuries, seems principally to consist in this: that private wrongs, or civil injuries, are an infringement or privation of the civil rights which belong to individuals, considered merely as individuals; public wrongs, or crimes and misdemeanors, are a breach and violation of the public rights and duties, due to the whole community, considered as community, in its social aggregate capacity.
2
In the context of federal constitutional protections, a conclusion that the state legislature intended a criminal punishment ordinarily “ends the inquiry.” Smith, 538 U.S. at 92. However, the Supreme Court has also developed a set of factors that are “neither exhaustive nor dispositive, but are useful guideposts” for determining whether a statutory penalty is criminal or civil in nature, even where a legislature‘s intent is to impose civil penalties. Id. at 97 (citations and internal quotation marks omitted).12 These factors, first announced in Kennedy v. Mendoza-Martinez, supra, are as follows:
- [1] Whether the sanction involves an affirmative disability or restraint,
- [2] whether it has historically been regarded as a punishment,
- [3] whether it comes into play only on a finding of scienter,
- [4] whether its operation will promote the traditional aims of punishment—retribution and deterrence,
- [5] whether the behavior to which it applies is already a crime,
- [6] whether an alternative purpose to which it may rationally be connected is assignable for it, and
- [7] whether it appears excessive in relation to the alternative purpose assigned.
372 U.S. at 168-69 (footnotes omitted). The Supreme Court has instructed that “[a]bsent conclusive evidence of [legislative] intent as to the penal nature of a statute, these factors must be considered in relation to the statute on its face.” Id. at 169.
However, here, as in Kennedy, “the objective manifestations of [legislative] purpose indicate conclusively that the provi-
The first three factors easily weigh in favor of finding this violation criminal in nature. As discussed above, a conviction exposes a defendant to an incarceratory sentence of up to fifteen days. Of course, imprisonment is “the paradigmatic affirmative disability or restraint,” Smith, 538 U.S. at 100, and thus incontrovertibly considered punishment. In addition, conviction requires proof of scienter beyond a reasonable doubt—namely, “intent to harass, annoy or alarm another person.”
The final two factors—the existence of a rational alternative purpose and whether the sanction is excessive in relation to it—do not appear to weigh in favor of finding the sanction civil. As the analysis of factors one, three, and four show, the principal effect of the sanctions here is punitive—imprisonment, monetary fines, or both—and do not appear to have an alternate purpose that contributes to a regulatory or civil interest of the state. For examplе, the Supreme Court concluded in Smith that sex offender registration served a nonpunitive civil purpose: “public safety, which is advanced by alerting the public to the risk of sex offenders in their community.” 538 U.S. at 103 (alteration and internal quotation marks omitted). No analogous civil interest immediately rises to mind on the law before us, but we need not conclusively decide the question in light of the weight of the other factors.
In summary, we conclude that Nowakowski‘s conviction is criminal in nature for the purposes of invoking the Sibron presumption.14 We do so primarily because New York has evinced a legislative intent to treat such convictions as criminal, and such intent is supported by our consideration of the Kennedy factors.
B.
Having concluded the presumption of continuing collateral consequences should apply, we now turn to whether sufficient collateral consequences to Nowakowski‘s conviction have been demonstrated. Because Nowakowski‘s conviction was based on one of the lowest level offenses under state law, we think it is likely that he will suffer fewer collateral consequences than if convicted of a felony or even a misde-
First, Spencer defined the Supreme Court‘s application of the principle as being “willing to presume 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).” 523 U.S. at 8. This approach has led the Court “to accept the most generalized and hypothetical of consequences as sufficient to avoid mootness in challenges to conviction.” Id. at 10. Spencer used two hypothetical possibilities that a previous decision had deemed sufficient to avoid mootness: “the possibility that the conviction would be used to impeach testimony [a defendant] might give in a future proceeding and the possibility that it would be used to subject him to persistent felony offender prosecution if he should go to trial on any other felony charges in the future.” Id. (quoting Evitts v. Lucey, 469 U.S. 387, 391 n.4, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985)). These two
Next, we turn to how the presumption affects the parties’ obligations to present and prove the existence of collateral consequences. Although Spencer marked the Supreme Court‘s most complete discussion of the presumption, the Court never explicitly identified the nature or operation of the presumption.17 Lower federal courts have nonetheless overwhelmingly treated the Sibron presumption as rebuttable and placed the burden on the state to prove that no collateral consequences will result. See United States v. Quezada-Enriquez, 567 F.3d 1228, 1232 n.2 (10th Cir. 2009); D.S.A. v. Circuit Court Branch 1, 942 F.2d 1143, 1146 n.3 (7th Cir. 1991); Malloy v. Purvis, 681 F.2d 736, 739 (11th Cir. 1982); Felton v. Mazzuca, No. 98 Civ. 4567 (RJS), 2012 WL 4462009, at *6 n.4 (S.D.N.Y. Sept. 27, 2012); United States v. Hill, 171 F.Supp.2d 1032, 1037-38 (D.S.D. 2001). But see Chaker v. Crogan, 428 F.3d 1215, 1219 (9th Cir. 2005) (recognizing conclusive presumption).
We think the majority approach is correct. Sibron held “that a criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction.” 392 U.S. at 57. This language suggests that the presumption may be rebutted and provides a standard of proof for that rebuttal—“no possibility” of collateral consequences. Further, Spencer‘s observation that the presumption is an anomaly in Article III standing weighs against making its application conclusive even where the proof shows no collateral consequences. See 523 U.S. at 12.
Where the burden of proof rests is a more difficult question. The burden of proof is commonly understood to encompass both the obligation to produce some evidence on an issue—i.e., the burden of production—and the obligation to persuade the decision maker that the standard of proof has been met in one‘s favor—i.e., the burden of persuasion. See Burden of Proof, BLACK‘S LAW DICTIONARY (10th ed. 2014). Were we to conclude that the Sibron presumption imposes both obligations on the state, we would be requiring the state both to present potential collateral consequences to the reviewing court and then disprove them. There are numerous problems with such an approach, not the least of which is the difficulty inherent in
By contrast, requiring habeas petitioners to identify at least some collateral consequence that threatens them balances practical considerations and operation of the presumption. In the ordinary case, petitioners—and the court—may look to the consequences regularly appearing in this context: e.g., future sentence enhancement, impeachment, or civil disabilities. Where those readily identifiable consequences are not present, however, the state should not bear the burden of both identifying and refuting every possible alleged consequence in its laws. Mindful of the Supreme Court‘s caution in this area, we conclude that a petitioner seeking habeas review must identify some continuing collateral consequences that may flow from his criminal conviction—including those that, as discussed above, are merely hypothetical and speculative.19 Once a petitioner does so, however, the state bears the burden to prove by sufficient evidence that there is “no possibility” such consequences will attach to his conviction. See Sibron, 392 U.S. at 57.
With our framework established, we apply the Sibron presumption to the facts of this case. Nowakowski has identified a sufficient collateral consequence to avoid mootness in this case—namely, the potential for impeachment in a future proceeding.20 Under New York law, the trial court in its discretion may permit cross-examination into a criminal defendant‘s prior bad acts or crimes upon balancing the probative value of the evidence with the risk of unfair prejudice. See generally People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 (1974). In these instances, the defendant bears the burden “of demonstrating that the prejudicial effect of the admission of evidence thereof for impeachment purposes would so far outweigh the probative worth of such evidence on the issue of credibility as to warrant its exclusion.” Id. at 378. Additionally, where a criminal defendant presents evidence of his good character,
III.
We conclude by addressing our colleague‘s thoughtful dissenting opinion. As we read it, the dissent‘s principal thesis is that the Sibron presumption was designed to apply—and therefore only applies—to convictions from which significant collateral consequences are likely to result.23 See, e.g., Dissenting Op., post, at 229, 236. We think the dissent‘s approach is incompati-
The Spencer Court described its precedents as being “willing to presume 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).” Spencer, 523 U.S. at 8 (emphasis added); see also id. at 10 (“[After Sibron], and in summary fashion, we proceeded to accept the most generalized and hypothetical of consequences as sufficient to avoid mootness in challenges to conviction.” (emphasis added)). It also characterized its past practice as “presuming collateral consequences (or of accepting the remote possibility of collateral consequences as adequate to satisfy Article III).” Id. at 10 (emphasis added); see also
The dissent‘s approach is also in significant tension with Minnesota v. Dickerson, supra. As we note above, see
In short, we think the dissent‘s approach begs the question by demanding evidence of collateral consequences to invoke a rebuttable presumption that assumes those consequences exist. Accepting the dissent‘s propositions would also require us to conclude that what the Supreme Court has called a “presumption,” Spencer, 523 U.S. at 8, is not really a presumption at all; that when the Court said the presumption “is applied to criminal convictions,” id., it meant to say, but did not, that it is applied only to serious criminal convictions; and that when the Court said “a criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction,” Sibron, 392 U.S. at 57, it did not really mean the words only, no, or any. While the Supreme Court may choose to cabin the presumption to specific offenses of a certain order of magnitude in the future, the Court has not done so yet. We therefore “leav[e] to [the Supreme Court] the prerogative of overruling its own decisions,” Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989), and take the Court at its word.25 Because Nowakowski has identified the possibility of a collateral consequence stemming from a criminal conviction—a consequence significant enough to have been accepted by the Supreme Court in the past—his case is not moot.
CONCLUSION
In sum, Nowakowski was in custody for the purposes of habeas review while under a sentence of conditional discharge that obligated him to appear in specific places at specific times and subjected him to the discretion of the court to modify or revoke his discharge. In addition, Nowakowski‘s conviction is criminal for the purposes of the Sibron presumption, and he has identified a continuing collateral consequence under its application. His petition thus presents a live case or controversy sufficient to sustain federal jurisdiction. Accordingly, the District Court‘s order of May 30, 2014, is hereby VACATED, and the case is REMANDED to the District Court for further proceedings consistent with this opinion.
LIVINGSTON, Circuit Judge, dissenting:
A petitioner must, at “all stages of federal judicial proceedings,” be able to demonstrate that he has “suffered[] or [is] threatened with[] an actual injury tracea-
Robert Nowakowski cited a single collateral consequence in his initial habeas petition—the potential that a subsequent suit for damages under
I would hold that, because application of a “presumption of significant collateral consequences” to a conviction for a violation-level offense in New York “is [not] likely to comport with reality,” Supreme Court precedent neither requires nor permits us to extend that presumption to the category of judgment at issue here. Id. at 12. Assuming, arguendo, that such a presumption does apply, I would further find that the Government has clearly rebutted it. Accordingly, I would dismiss Nowakowski‘s petition as moot.
I.
Robert Nowakowski was convicted of harassment in the second degree, a violation-level offense in New York (specifically denominated a “petty offense,” rather than a “crime“) for which the maximum
Days before he was to perform his community service, Nowakowski filed a petition for habeas relief. Likely aware that he would complete his sentence prior to adjudication of his habeas motion, cf. Spencer, 523 U.S. at 7; 118 S.Ct. 978 (noting that, once a sentence expires, a petitioner must point to “some concrete and continuing injury ... if the suit is to be maintained” (citing Carafas v. LaVallee, 391 U.S. 234, 237-38, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968))), Nowakowski asserted a single collateral consequence to defeat mootness: that, absent favorable termination in his habeas proceeding, he might be unable successfully to pursue his damages suit, cf. id. at 17, 118 S.Ct. 978 (dismissing this argument as “a great non sequitur“). At no point—either before the district court or before this Court on appeal—did Nowakowski argue that a presumption of collateral consequences did or should apply to his violation-level cоnviction, an offense sufficiently low-level as not to be labeled criminal by New York State.456
The Government, in addition to arguing that a Heck bar (whether or not it would exist here) is not a sufficient collateral consequence to keep Nowakowski‘s petition alive, argued that a violation-level conviction, which is not denominated a crime, does not, as a categorical matter, entail sufficient collateral consequences to support federal jurisdiction.6 A conviction for a violation-level offense in New York does not disqualify a defendant from voting, see
The district court, having no argument before it that a presumption of collateral consequences should apply, and having been presented with no reference to impeachment in any of Nowakowski‘s initial briefs, dismissed his petition as moot on the simple basis that Nowakowski‘s single alleged consequence—a potential Heck bar—had “no effect on” the mootness analysis. App‘x at 3. The majority revives Nowakowski‘s petition, concluding that a presumption of collateral consequences (which Nowakowski himself did not argue should apply) applies, and that Nowakowski‘s petition is thus not moot. The majority holds that Supreme Court precedent mandates such a result. Analysis of this precedent suggests, instead, that the majority, far from applying the presumption as the Court has previously applied it, has extended it—and that this extension is unwarranted on the basis of the holdings and reasoning of Sibron and Spencer.
II.
A.
The genesis of this case can be tied to two Supreme Court cases, both decided in 1968. In Carafas v. LaVallee, the Supreme Court held that the fact that a habeas petitioner‘s sentence had expired would not render his petition for habeas relief moot as, though his incarceration itself could no longer be remedied, he nevertheless faced collateral consequences as a result of his convictions for two felonies—burglary and grand larceny. 391 U.S. at 236-37, 88 S.Ct. 1556. As support for its conclusion, the Court cited numerous consequences that flowed from these convictions, observing that “[the petitioner could not] engage in certain businesses[,] ... serve as an official of a labor union for a specified period of time[,] ... vote in any election held in New York State[,] ... [or] serve as a juror.” Id. at 237, 88 S.Ct. 1556. “Because of these [consequences, the petitioner had] ‘a substantial stake in the judgment of conviction which survive[d] the satisfaction of the sentence imposed on him.‘” Id. (quoting Fiswick v. United States, 329 U.S. 211, 222, 67 S.Ct. 224, 91 L.Ed. 196 (1946) (in which a conviction rendered a petitioner “liable to deportation and denial of naturalization, and ineligible to serve on a jury, vote, or hold office,” Spencer, 523 U.S. at 9, 118 S.Ct. 978)).
One month later, the Court decided Sibron, which, though in the context of a direct appeal, extended the reasoning in Carafas and Fiswick and articulated the presumption that the majority applies here. In Sibron, the Court faced the ques-
The Sibron Court began by suggesting that Pollard “acknowledged the obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences.” Sibron, 392 U.S. at 55, 88 S.Ct. 1889. It then, “without pausing to canvass the possibilities in detail,” proceeded to describe specific potential consequences that could flow from the conviction at issue in Sibron itself. Id. These included the two consequences that the majority highlights—that the conviction could “be used to impeach [Sibron‘s] character should he choose to put it in issue at any future criminal trial [and] ... that
In the decades that followed, the Court applied the presumption articulated in Sibron in the context of felony convictions, at no point applying it to an offense as categorically low-level as Nowakowski‘s, nor to any offense even arguably not designated a “crime.”9 Even as the Court continued to apply the presumption to felony convictions, moreover, it issued two decisions limiting the presumption‘s scope and even questioning its application in any circumstances.
First, in Lane v. Williams, 455 U.S. 624, 102 S.Ct. 1322, 71 L.Ed.2d 508 (1982), the Court assessed whether respondents’ attack on their sentences to parole terms was rendered moot when these terms expired.10 The Lane Court did not explicitly discuss the applicability or non-applicability of a “presumption of collateral consequences.” It did, however, find the case moot. The Court began by observing that, in Carafas, numerous collateral consequences associated with the felony conviction there (including, in that case, disenfranchisement) “were sufficient to ensure that the litigant had” a constitutionally sufficient personalized stake. Id. at 632, 102 S.Ct. 1322 (quoting Carafas, 391 U.S. at 237, 88 S.Ct. 1556). The Court then concluded that the “doctrine of Carafas and Sibron [was] not applicable in this case” because “[n]o civil disabilities such as those present in Carafas result from a finding that an individual has violated parole.” Id. In contrast to the “statutory consequences” Carafas discussed, “a finding that an individual has violated parole,” the Court observed, at most leads to “non-statutory consequences“—including adverse employment prospects or the potential that “the sentence imposed in a future criminal proceeding, could be affected.” Id. Such consequences would depend on “discretionary decisions” of an employer or sentencing judge. Id. at 632-33, 102 S.Ct. 1322. The Court further noted that the potential that parole violations might be “considered in a subsequent parole determination” was also insufficient to defeat mootness: Carafas “concerned existing civil disabilities,” but the finding that the respondents violated their parole could not “affect a subsequent parole determination unless [they] again violate[d] state law, [were] returned to prison, and bec[a]me eligible for parole,” a sequencе of events “[r]espondents themselves [would be] able—and indeed required by law—to prevent.” Id. at 632 n.13, 102 S.Ct. 1322 (emphasis added). Further, such a finding did not in and of itself render someone ineligible for future parole, but was “simply one factor, among many” that might be considered. Id. Finally, the Court observed: “Collateral review of a final judgment is not an endeavor to be taken lightly. It is not warranted absent a showing that the complainant suffers actual harm from the judgment that he seeks to avoid.” Id.
Having determined that a presumption of collateral consequences would not apply, the Court proceeded to examine, inter alia, five alleged consequences claimed by the petitioner, finding each inadequate to create a case or controversy. First, the Court held that the possibility that the revocation could be used to the petitioner‘s detriment in some future parole proceeding was a mere “possibility rather than a certainty or even a probability.” Id. at 14, 118 S.Ct. 978. Second, while agreeing that “the Order of Revocation could be used to increase [the petitioner‘s] sentence in a future sentencing proceeding,” the Court observed that such a possibility was too remote as “it was contingent upon respondents’ violating the law, getting caught, and being convicted.” Id. at 15, 118 S.Ct. 978. Third and fourth, though the Court did not disagree that the order might “be used to impeach [the petitioner] should he appear as a witness or litigant in a future criminal or civil proceeding,” id. (emphasis added); or “used against him directly, pursuant to [the federal rules of evidence],” it held that, because such impeachment would turn on various “‘discretionary decision[s]‘” of the prosecutor or adverse counsel, id. at 16, 118 S.Ct. 978 (quoting Lane, 455 U.S. at 632, 102 S.Ct. 1322); as well as the similarly discretionary decision of the “presiding judge” to admit such evidence, the possibility was overly remote. id. Finally, the Court addressed the petitioner‘s argument that, absent habeas relief, he would be unable to pursue a claim for damages under
B.
As framed by the majority, this case requires us to determine whether the presumption of collateral consequences applied in cases like Sibron should be extended as well to a conviction for a violation-level offense in New York. I would hold that because such an offense, unlike the judgments to which the Court has
First, as is evident from the above description of the Sibron line, the Supreme Court has never before applied a presumption of collateral consequences to a judgment as low-level as Nowakowski‘s (whether or not denominated “criminal“)—nor, for that matter, to a conviction properly labeled a “petty offense” as that term is understood in constitutional parlance.11 The lowest-level offense to which the Court has previously applied the presumption was the offense in Sibron itself—unlawful possession of heroin, a misdemeanor for which Sibron received a six months’ sentence.12 392 U.S. at 45 n.1, 88 S.Ct. 1889. In the years since, the Court has consistently applied the presumption only to felony convictions—a consistency that made it possible for Spencer convincingly to observe that the “presumption of significant collateral consequences [was] likely to comport with reality.” Spencer, 523 U.S. at 12, 118 S.Ct. 978. This factual consistency is relevant to whether such a presumption should—and certainly need—apply here. Cf. Powers v. Hamilton Cty. Pub. Def. Comm‘n, 501 F.3d 592, 602 (6th Cir. 2007) (distinguishing “the ordinary rule refinement that appellate courts necessarily engage in [from] an improper departure from binding Supreme Court precedent,” in the context of distinguishing a prior Supreme Court case that did not address the same “factual scenario“).13
Second, the reasoning of Sibron and Spencer confirms that this is a factual distinction with a difference—that while such a presumption might be appropriate in the context of a more serious conviction, it is not appropriate as applied to the category of judgment here. In Sibron, the Court “acknowledged the obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences.” 392 U.S. at 55, 88 S.Ct. 1889. In justifying its approach to mootness, the Court then briefly analyzed the consequences that might flow from the defendant‘s conviction. In the Court‘s view, it was not just that the conviction could be used to impeach the defendant and for purposes of sentencing enhancement—the Court plausibly observed that “[t]here [were] doubtless other collateral consequences.” Id. at 56, 88 S.Ct. 1889. In contrast, Spencer, in declining to apply a presumption of collateral consequences to a parole revocation, concluded that application of a presumption to such revocations, unlike application of a presumption to the convictions at issue in Sibron and its progeny, would not be “likely to comport with reality.” Spencer, 523 U.S. at 12, 118 S.Ct. 978; see also Lane, 455 U.S. at 632-33, 102 S.Ct. 1322 (distinguishing the parole revocation from the convictions in Sibron and Carafas not because the former was not “criminal” or a “conviction,” but because “[n]o civil disabilities such as those present in Carafas result from a finding that an individual has violated parole“). The reasoning in Spencer—which in turn characterized the cases that came before it—was thus as follows: first, the Sibron presumption was justified because collateral consequences were categorically likely to flow from convictions; and second, such consequences were less likely to flow from parole revocations, rendering a parallel presumption fundamentally inconsistent with our obligations under Article III. This Court, morеover, in deciding whether to extend the presumption to a new category of judgment, has described the reasoning of Sibron, Spencer, and Lane in precisely this way. See United States v. Mercurris, 192 F.3d 290, 293 (2d Cir. 1999).14
In 192 F.3d at 293-94. In declining to do so, the court, first, described the reasoning of Sibron as follows:
This presumption of collateral consequences has been justified on the theory that “most criminal convictions do in fact entail adverse collateral legal consequences,” Sibron[, 392 U.S. at 55, 88 S.Ct. 1889], in that convicted criminals often face certain “civil disabilities” as a result of their conviction[,] Lane[, 455 U.S. at 632 n.13, 102 S.Ct. 1322;] such [as] being “barred from holding certain offices, voting in state elections, and serving as a juror.” Id.
Id. at 293. The court then observed that Spencer declined to apply the presumption because “parole revocations do not ordinarily result in the sort of civil disabilities that justify the presumption when dealing with a criminal conviction.” Id. Finally, the court, analogizing to the case before it, declined to apply a presumption of such consequences in the context of sentencing enhancements. Other circuit courts have understood the methodology of Spencer similarly, and have engaged in the precise ex ante determination I outline herein to determine whether to extend the presumption to other categories of judgment. See Gul v. Obama, 652 F.3d 12, 17 (D.C. Cir. 2011) (declining to presume that collateral consequences flow from detention at Guantanamo Bay and designation as an enemy combatant, as there is “no basis for inferring [such designations] routinely have collatеral consequences“); Beachem v. Schriro, 141 F.3d 1292, 1294 (8th Cir. 1998) (declining to presume collateral consequences both because Spencer‘s criticism of such a presumption cautioned against extending it, and because “it is improbable that the [challenged] parole will adversely affect [the petitioner]“).
post-Spencer, “a finding of collateral consequences cannot be based on the speculation that an individual will receive an enhanced sentence in a future sentencing proceeding in connection with a crime he has not yet committed“), there is minimal risk of such enhancement with prior violations, see
In short, it is not simply that a violation-level offense is factually distinct in severity from the offenses to which the Court has previously applied a presumption. It is that the way that such an offense, not denominated a crime in New York State, is distinct distinguishes it from those convictions and makes evident that no presump-
C.
The majority does not necessarily dispute that, were we to assess the question on a blank slate, we might plausibly hold that extension of a presumption of collateral consequences to violation-level convictions contravenes our obligations under Article III and is inconsistent with the reasoning and outcome in Spencer. Instead, the majority‘s primary argument is that precedent requires application of a presumption here, because the Supreme Court used the term “criminal conviction” in cases like Sibron and Spencer without qualification, and because Nowakowski‘s conviction is arguably penal in character for purposes of ascertaining whether certain constitutional protections attach. See Maj. Op. at 218-22, 228. At the start, to the degree that there is even doubt that the judgment in this case was the sort contemplated by Sibron and Spencer, Spencer‘s admonition against extending the presumption should resolve the inquiry here. Nevertheless, the majority‘s reading of the Court‘s precedent—as well its approach to explicating those holdings—is flawed on its own terms.
First, the majority‘s invocation of the words “criminal conviction” in precedent like Sibron and Spencer divorces these words from their factual context and thus exaggerates the scope of the Court‘s prior holdings. As already noted, the Court has never applied the presumption to a judgment as categorically unlikely to entail collateral consequences as Nowakowski‘s petty offense, nor indeed even to any misdemeanor conviction apart from the one in Sibron itself. Even if this factual consistency did not strongly indicate that a presumption should not be applied in this case, it certainly belies any suggestion that the Court, in using the term “criminal conviction” without qualification, has already effectively resolved the inquiry before us. See Kokkonen, 511 U.S. at 379, 114 S.Ct. 1673 (noting that the “holding [of a prior case] was not remotely as permissive as its language,” and that “[i]t is to the holdings of our cases, rather than their dicta, that we must attend“); Powers, 501 F.3d at 602.
Second, even if we were to treat the words “criminal conviction” as talismanic, notwithstanding the actual holdings in which such words appear, there is still no reason to believe that the sсope of this phrase includes the judgment here. The meaning of these words must be ascertained in context. Cf. United States v. Balsys, 524 U.S. 666, 673, 118 S.Ct. 2218, 141 L.Ed.2d 575 (1998) (holding that the text “any criminal case” under the Fifth Amendment‘s Self-Incrimination Clause does not generally include criminal cases in foreign jurisdictions, and noting that the textual argument to the contrary “overlooks the cardinal rule to construe provisions in context“). The Supreme Court has
Further, in interpreting the ambit of constitutional rights, the words “criminal conviction,” “crime,” or “criminal prosecution” have frequently been used without qualification to announce the scope of a given right; notwithstanding such pro-
Yet the majority‘s approach to this inquiry fails this test. The majority concludes that the Court‘s references to “criminal conviction” in Sibron and Spencer necessarily require that a presumption apply whenever a conviction is functionally criminal “for purposes of determining the proper applicability of [certain] federal constitutional protections,” Hicks on Behalf of Feiock v. Feiock, 485 U.S. 624, 630, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988), regardless whether collateral consequences are likely to flow from the judgment in question. But beyond the word “criminal,” this approach derives no obvious support from either case. Moreover, it is an illogical—and thus extremely unlikely—approach to explicating the term “criminal conviction” as used in the context of this Article III precedent for at least two reasons.
First, the determination that a given matter should be treated as criminal for the purpose of a particular constitutional protection does not suddenly transform that adjudication into a criminal conviction for purposes of a state‘s collateral consequences regime: it does not, in other
Second, the doctrine on which the majority relies is not only irrelevant to the assessment of mootness: it is, in fact, counterproductive. The analyses in cases like Feiock address principally the necessity of ensuring, through careful doctrinal elaboration, that states cannot evade specific constitutional criminal protections afforded to the accused through mere nomenclature—that they cannot, by denominating a proceeding or penalty as civil, for instance, evade specific criminal procedural protections that would otherwise attach. In contrast, however, a state‘s designation of an offense as noncriminal may often be relevant to mootness (and indeed is relevant here), and mootness serves not as a protection afforded to individuals in the crimi-
In short, I believe that the question whether a presumption of collateral consequences applies to a violation-level offense is an unresolved one in our jurisprudence that does not logically turn on whether or not certain constitutional protections unrelated to mootness apply. As the question before us is thus whether to extend the presumption to a new category of adjudication, I would conclude that the presumption may not be applied to a violation for the simple reason that it does not “comport with reality” to presume that “significant collateral consequences” will necessarily flow from such an offense across the range of cases. Spencer, 523 U.S. at 12, 118 S.Ct. 978.
III.
The preceding conclusion is sufficient to resolve this matter since, absent a presumption, the risk of impeachment in a future proceeding to which the majority alludes is clearly inadequate, under Spencer, to deem this a live case. See id. at 16, 118 S.Ct. 978 (deeming analogous risk of impeachment “purely a matter of speculation“). Even if I agreed with the majority that a presumption of collateral consequences applies, however, I believe it is also clear that the Government has rebutted it here.23
As an initial matter, I disagree with the majority‘s understanding of the standard of proof that the Government must meet to rebut the presumption. The majority observes that a petitioner may present any consequence that is “merely hypothetical and speculative,” Maj. Op. at 225, and then cites language from Sibron that a petition is moot only if the government can show that “there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction.” Sibron, 392 U.S. at 57, 88 S.Ct. 1889. But if one were to take this statement—and thus this “standard of proof,” Maj. Op. at 224—
The majority expressly disclaims that its presumption is irrebuttable, a conclusion it reaches, sensibly, on its reading of Spencer. See Maj. Op. at 224-25; see also Meister, 2007 U.S. Dist. LEXIS 98605, at *12 (observing that the “presumption [of collateral consequences] ... should be viewed in light of the Spencer Court‘s plainly stated reluctance to find collateral consequences absent a showing of some concrete statutory disability flowing from the conviction being attacked“). Yet once one concedes, as the majority does, that this standard cannot be taken literally and that Spencer necessarily had an effect on the strength of the presumption, one is left wondering why the majority invokes the Sibron language at all. I believe a better view is that the Government, to rebut the presumption, need show only that there is no reasonable possibility of any significant collateral consequences. Such a standard comports both with Spencer‘s express construction of the presumption, see 523 U.S. at 12, 118 S.Ct. 978 (referring to Sibron as creating a “presumption of significant collateral consequences” (emphasis added)), as well as with the reasoning in Spencer itself. And such a standard would surely require us to find this case moot.
Yet even if one adopts the majority‘s articulation of the standard, it follows that, in affirming that this presumption is rebuttable, the majority too is not taking the text literally. In other words, even as the majority cites this standard as support for its holding, it necessarily has implicitly drawn—and other courts will have to explicitly draw—some line. To the degree then that the majority agrees that a line must be drawn—that it is not actually the case that the Government must show “no possibility [of] any collateral legal consequences“—I see no justification for the majority‘s conclusion that the risk of impeachment in this case should fall above that line for two reasons.
First, that risk should not be viewed in a vacuum, but in the context of the Government‘s broader analysis of the consequences of a violation-level offense. The majority observes that the “effect of the presumption is to accept a broader category of consequences as sufficient for purposes of avoiding mootness.” Maj. Op. at 223. Yet to the degree that the Court has accepted speculative consequences before, it has done so in the context of more serious convictions, and in the context of a presumption whose central premise is that many consequences flow from a given conviction, even if only one or two are specifically named by the Court. See Sibron, 392 U.S. at 56, 88 S.Ct. 1889. Even if the Government‘s categorical analysis of a violation-level offense is not enough to avoid application of the presumption, it cannot
Second, even assuming a risk of impeachment in a vacuum is sufficient to create a justiciable controversy, the risk of such impeachment—though not nonexistent—is substantially lower in this case than in Spencer or any other Supreme Court case in which the Court has cited impeachment as the material consequence.25 Indeed, the very fact that New York does not label violations as crimes, while not dispositive of whether such offenses are “criminal” for purposes of certain constitutional protections, is surely relevant to the likelihood that the series of discretionary decisions necessary to result in use of that conviction to impeach Nowakowski would occur. See Spencer, 523 U.S. at 13, 118 S.Ct. 978. Even if the Court has accepted speculative or hypothetical consequences when assessing the consequences of convictions, that does not mean that any consequence, no matter how speculative or hypothetical, is sufficient to make a case justiciable. If that is so, the presumption is not rebuttable.
In short, even assuming a presumption to apply, it would seem the Government has rebutted it here. In holding otherwise, I fear that the majority—even as it claims the mantle of reasonableness in suggesting that this presumption is rebuttable—erects a wall so high that it is only in the rarest case that the Government will ever be able to leap it. Taken by itself, such an approach to rebuttal is problematic. Viewed in concert with the majority‘s initial determination that a presumption may apply to an offense even when that offense is unlikely to entail significant consequences, this approach guarantees that the presumption will be applied, as it has been in this very case, in a way that invents, out of thin air, federal jurisdiction. See Kokkonen, 511 U.S. at 377, 114 S.Ct. 1673; Larche v. Simons, 53 F.3d 1068, 1069-70 (9th Cir. 1995).26
IV.
In light of my analysis of mootness, I would not reach the question whether Nowakowski was in custody at the time he filed his habeas petition. I note, however, that to the degree that the majority is correct that a penalty of a day of community service—and presumably commensurate penalties—may confer upon a federal district court jurisdiction to overturn a state conviction, it follows that most petitioners in Nowakowski‘s position will be seeking the writ primarily, or even exclusively, to remedy collateral consequences.27 It is not obvious to me that this result is consistent with the Supreme Court‘s recognition that “[t]he custody requirement of the habeas corpus statute is designed to preserve the writ of habeas corpus as a remedy for severe restraints on individual liberty,” Hensley v. Mun. Court, San Jose Milpitas Judicial Dist., 411 U.S. 345, 351, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973), and neither the Supreme Court, nor our Court, has previously found a restraint of commensurate severity to constitute custody.28 But
I respectfully dissent.
Hassan EL-NAHAL, individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. David YASSKY, Commissioner Matthew Daus, Michael Bloomberg, The City of New York, Defendants-Appellees.
No. 14-405-cv.
August Term 2014
United States Court of Appeals, Second Circuit.
Argued: December 11, 2014
Decided: August 26, 2016