     16-2364-cv
     Emily Vega v. Eric T. Schneiderman




1                                            In the
2                 United States Court of Appeals
3                              For the Second Circuit
4                                           ________

5                                     August Term, 2016

6                                         No. 16-2364-cv
7                                           ________

8                                         EMILY VEGA,
9                                     Petitioner-Appellant,

10                                              v.

11    ERIC T. SCHNEIDERMAN, Attorney General of the State of New York,
12                          Respondent-Appellee.

13                                          ________

14                   Appeal from the United States District Court
15                     for the Southern District of New York.
16                    No. 12-cv-6994 ¯ Paul G. Gardephe, Judge.
17                                          ________

18                                  Argued: April 5, 2017
19                                  Decided: June 23, 2017
20                                        ________

21            Before: JACOBS, PARKER, AND LIVINGSTON, Circuit Judges.
22                                  ________

23          Petitioner-Appellant Emily Vega was convicted in New York
24   state court of attempted criminal contempt in the second degree, a
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1    misdemeanor, and harassment in the second degree, a violation
2    under state law. She was sentenced to a one-year conditional
3    discharge, with the condition that she abide by a two-year order of
4    protection. After exhausting remedies in state court, Vega filed a
5    petition for writ of habeas corpus in the United States District Court
6    for the Southern District of New York. See 28 U.S.C. § 2254. The
7    magistrate judge (Fox, M.J.), to whom the case had been referred,
8    recommended the petition be dismissed for lack of jurisdiction,
9    concluding that § 2254(a)’s custody requirement had not been
10   satisfied because the one-year conditional discharge expired before
11   she filed her petition. On review of the magistrate’s
12   recommendation, the district judge (Gardephe, J.) dismissed the
13   petition on separate grounds, ruling that it was moot because Vega
14   failed to identify non-speculative collateral consequences flowing
15   from her conviction. Because we conclude that the order of
16   protection did not place Vega “in custody” for purposes of § 2254(a),
17   we affirm the district court’s dismissal of the petition.
18                                   ________

19                      JODY RATNER (Robert S. Dean, on the brief), Center
20                      for Appellate Litigation, New York, NY, for
21                      Petitioner-Appellant.

22                      CATHERINE M. RENO (Nancy D. Killian, on the
23                      brief), Assistant District Attorney for Darcel D.
24                      Clark, District Attorney for Bronx County, Bronx,
25                      NY, for Respondent-Appellee.
26                                  ________

27   BARRINGTON D. PARKER, Circuit Judge:
28          This appeal considers whether a state court order of protection
29   that prohibited Petitioner-Appellant Emily Vega from contacting the
30   victim of her harassment places her “in custody” within the meaning
31   of the habeas statute, 28 U.S.C. § 2254. We conclude that it does not.

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                                                          No. 16-2364-cv




1                            I. BACKGROUND
2           In July 2009, Vega confronted Magdalena Camacho in front of
3    an apartment building in the Bronx and an altercation ensued.
4    Because at the time of this confrontation there was an order of
5    protection in place against Vega directing her to stay away from
6    Camacho, Vega was arrested and charged with criminal contempt in
7    the second degree and harassment in the second degree. Before trial
8    in Bronx County Supreme Court, the criminal contempt charge was
9    reduced to attempted criminal contempt, a misdemeanor, which was
10   tried to the court along with the harassment charge. At the close of
11   the evidence, the court told the parties it would waive closing
12   arguments and that closing memoranda would not be accepted.
13          Vega was convicted on both charges and was sentenced to a
14   one-year conditional discharge, with the condition that she abide by
15   a two-year order of protection. The order of protection required
16   Vega to “stay away from [Camacho] and/or from” Camacho’s home,
17   school, business, and place of employment until September 20, 2012.
18   Appendix (“App.”) 109. While Camacho did not live at the Bronx
19   apartment where the confrontation occurred, she visited the
20   building every day so that her mother, who lived there, could look
21   after her children. Vega’s mother-in-law also lived in the building.
22          After exhausting state court remedies, Vega filed a petition
23   under § 2254 seeking habeas relief on the ground that the trial
24   court’s denial of an opportunity for defense counsel to make a
25   closing argument violated her Sixth Amendment right to assistance
26   of counsel under Herring v. New York, 422 U.S. 853 (1975). Vega
27   contended that although she was not incarcerated at the time she
28   filed her petition, she was still “in custody” within the meaning of
29   § 2254(a) because she was subject to an order of protection that
30   imposed a significant restraint on her liberty.
31          Magistrate Judge Fox recommended that the petition be
32   dismissed for lack of jurisdiction, concluding that, for a different
33   reason than we express here, § 2254(a)’s custody requirement had


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1    not been satisfied. Judge Fox did not address the merits of Vega’s
2    claim. On review of Judge Fox’s recommendation, Judge Gardephe
3    dismissed the petition as moot, concluding that the potential
4    collateral consequences of Vega’s convictions were too speculative to
5    demonstrate the existence of a live case or controversy sufficient to
6    establish Article III standing. The district court granted Vega a
7    certificate of appealability on her Sixth Amendment claim.
8
9                                  II. DISCUSSION
10          We review de novo a district court’s dismissal of a §
11   2254 petition, including whether a petitioner was “in custody” at the
12   time of filing. See Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011). In
13   order for a federal court to have jurisdiction over a habeas petition,
14   the petitioner must be “in custody pursuant to the judgment of a
15   State court” at the time the petition is filed. 28 U.S.C. § 2254(a);
16   Maleng v. Cook, 490 U.S. 488, 490–91 (1989). The custody requirement
17   may be satisfied by restraints other than “actual, physical custody”
18   incarceration. Jones v. Cunningham, 371 U.S. 236, 239–40 (1963). A
19   petitioner may satisfy this requirement where she is subject to a
20   significant restraint upon her physical liberty “not shared by the
21   public generally.” Id. at 240. The focus is not so much on actual
22   physical custody, but “the ‘severity’ of an actual or potential
23   restraint on liberty.” Poodry v. Towanda Band of Seneca Indians, 85 F.3d
24   874, 894–95 (2d Cir. 1996).
25          It is well settled that the custody requirement is “designed to
26   preserve the writ of habeas corpus as a remedy for severe restraints
27   on individual liberty.” Hensley v. Mun. Ct., San Jose Milpitas Jud. Dist.,
28   411 U.S. 345, 351 (1973). Indeed, even before the Antiterrorism and
29   Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat.
30   1214, the use of habeas corpus was long “limited to cases of special
31   urgency, leaving more conventional remedies for cases in which the
32   restraints on liberty are neither severe not immediate.” See id.; see
33   also 28 U.S.C. § 2254(d), (e).


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1           Accordingly, we have held that penalties that do not impose a
2    severe restraint on individual liberty or the imminent threat of such
3    a restraint do not satisfy the “in custody” requirement. See, e.g.,
 4   Kaminski v. U.S., 339 F.3d 84, 87–88 (2d Cir. 2003) (holding a
5    restitution order could not be challenged through habeas petition
6    because a monetary fine was not a sufficient restraint on liberty to
7    meet the ‘in custody’ requirement); Ginsberg v. Abrams, 702 F.2d 48,
8    49 (2d Cir. 1983) (petitioner’s removal from the bench, revocation of
9    his license to practice law, and disqualification as a real estate broker
10   and insurance agent did not satisfy the custody requirement). We
11   believe that the “restriction” on Vega’s liberty is an analogue to ones
12   we have held to be insufficient.
13          Vega, pointing to our recent decision in Nowakowski v. New
14   York, 835 F.3d 210 (2d Cir. 2016), argues that her sentence of a one-
15   year conditional discharge in which she was to abide by a two-year
16   order of protection was a sufficiently severe restraint on her liberty
17   for habeas purposes. In that case, we held that a sentence of one
18   year’s conditional discharge, which required the performance of one
19   day of community service within that time, sufficiently restrained
20   Nowakowski’s liberty to satisfy the “in custody” statutory
21   requirement. Id. at 217.
22          We found it significant that Nowakowski’s sentence required
23   his physical presence at particular times and locations both for
24   community service and court appearances. Id. We pointed to cases in
25   which the Supreme Court and other Courts of Appeals “considered
26   even restraints on liberty that might appear short in duration or less
27   burdensome than probation or supervised release severe enough
28   because they required petitioners to appear in certain places at
29   certain times . . . or exposed them to future adverse consequences on
30   discretion of the supervising court.” Id. at 216 (collecting cases).
31          Here, Vega’s sentence does not rise to the same level of
32   restraint as did the sentence in Nowakowski. First, Vega concedes
33   that, unlike in Nowakowski, her sentence never required her physical


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1    presence at a particular time or location. Nor was she affirmatively
2    required to do anything such as perform community service.
3    Although she contends that this is a “distinction without a
4    difference,” Appellant’s Br. at 28–29, we disagree. The only restraint
5    on Vega’s freedom was that she stay away from Camacho. This
6    narrow and pinpointed restriction is neither severe nor significant.
7    In fact, at Vega’s trial in 2010, she testified that she had not seen
8    Camacho since 2006, and Camacho testified that she had only
9    encountered Vega “a couple of times” in the previous five years.
10   App. 47. In any event, the restriction is far less intrusive than the
11   restrictions imposed on Nowakowski which required him to be in a
12   particular place at a particular time and perform a specific act under
13   the threat of further penal sanction. See Triestman v. Schneiderman,
14   1:16-CV-01079 (LEK/DEP), 2016 WL 6106467, at *3 (N.D.N.Y. Oct. 19,
15   2016), appeal filed (Nov. 14, 2016) (No. 16-3831) (“[S]omeone who
16   must appear in court is required to be there at a specified time. She
17   has only one real choice as to how she spends the time allotted for
18   her court appearance, because if she fails to show up, she may face
19   serious consequences. But Triestman can go anywhere he likes at
20   any time so long as he avoids his daughter. The range of options
21   available to him on a given day is therefore much greater than that
22   open to someone who must appear in court that day.”) By contrast,
23   Vega can go anywhere at any time and do anything she wants as
24   long as she avoids an intentional confrontation with Camacho. We
25   view this “restriction” as modest, not severe.
26          Moreover, the order of protection did not expose Vega to
27   future adverse consequences at the discretion of a supervising court
28   as did the order in Nowakowski. Although Vega faced the possibility
29   of some new charge and future sanction if she were to violate the
30   order of protection, we are not convinced that the entirely
31   speculative possibility of a future charge for a future violation is
32   sufficiently severe to place Vega “in custody” for purposes of the



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1    habeas statute. If this were enough, every state order of protection
2    could become the subject of federal habeas litigation.
3           Vega argues that because Camacho visited the apartment
4    building where Vega’s mother-in-law lived every day to drop off
5    and pick up her children, “it was possible” that Vega would
6    encounter Camacho. Appellant’s Br. at 29. Again, we are not
7    convinced. It is clear to us that an inadvertent encounter with
8    Camacho would not violate the order of protection unless Vega
9    engaged with her or drew attention to Vega’s presence. Under N.Y.
10   Penal Law § 215.50, violation of the order of protection would
11   require the state to establish “intentional disobedience” of the order.
12   Thus, the chance or inadvertent encounter that concerns Vega would
13   not suffice. To place herself in jeopardy, Vega must intentionally
14   confront Camacho. In Holmes v. Satterberg, 508 Fed. App’x 660 (9th
15   Cir. 2013), the Ninth Circuit held that the district court lacked
16   jurisdiction over a habeas petition because “[t]he state court’s order
17   that Holmes ‘shall have no contact with’ the victims of his
18   harassment did not place a ‘severe’ and ‘immediate’ restraint on
19   Holmes’ individual liberty, and thus does not render him ‘in
20   custody’ for habeas purposes.” Id. at 661 (citations omitted). The
21   court rejected the same argument that Vega makes here, holding that
22   the possibility of accidental contact would violate the order was
23   “highly speculative.” Id.; see also Dremann v. Frances, 828 F.2d 6, 7
24   (9th Cir. 1987) (concluding petitioner was not “in custody” where a
25   significant restraint was merely speculative); Triestman, 2016 WL
26   6106467, at *3 (holding that because the petitioner, who was ordered
27   to stay away from his daughter, could coordinate with the mother of
28   his child to ensure that their daughter’s schedule did not overlap
29   with his, he was not sufficiently constrained to rise to the level of
30   being “in custody”). We agree. For these reasons, we conclude that
31   the order of protection does not constitute a significantly severe
32   restraint to satisfy the “in custody” requirement of § 2254(a).
33                                 CONCLUSION
34         The judgment of the district court is affirmed.


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