     18-3235-pr
     Janakievski v. Executive Director, Rochester Psychiatric Center

 1                       UNITED STATES COURT OF APPEALS
 2                           FOR THE SECOND CIRCUIT
 3
 4                                     August Term, 2019
 5
 6             (Submitted: January 27, 2020               Decided: April 10, 2020)
 7
 8                                     Docket No. 18-3235
 9
10
11                          _____________________________________
12
13                                  STEVEN JANAKIEVSKI,
14
15                                     Petitioner-Appellant,
16
17                                               v.
18
19          EXECUTIVE DIRECTOR, ROCHESTER PSYCHIATRIC CENTER,
20
21                                     Respondent-Appellee.
22                          _____________________________________
23
24   Before:
25
26                       LEVAL, CABRANES, and LOHIER, Circuit Judges.
27
28          Petitioner Steven Janakievski appeals from the judgment of the United
29   States District Court for the Western District of New York (Michael A.
30   Telesca, J.), dismissing his petition for a writ of habeas corpus. Janakievski’s
31   petition attacked his confinement in a state psychiatric institution as a person
32   with a “dangerous mental disorder.” The district court dismissed the petition
33   on the grounds that it became moot when Janakievski was conditionally
34   released from confinement. Held, because Janakievski remains subject to an
35   “order of conditions” that leaves him vulnerable to recommitment, and the
36   imposition of this order was a mandatory consequence of the confinement
37   orders that his petition challenges, his conditional release does not render the
38   petition moot. VACATED and REMANDED.
39
 1                                          JONATHAN I. EDELSTEIN, Edelstein &
 2                                          Grossman, New York, NY, for Petitioner-
 3                                          Appellant.
 4
 5                                          LISA ELLEN FLEISCHMANN (Barbara D.
 6                                          Underwood, Solicitor General, Andrew
 7                                          W. Amend, Assistant Deputy Solicitor
 8                                          General for Criminal Matters, on the
 9                                          brief), for Letitia James, Attorney General
10                                          of the State of New York, Albany, NY,
11                                          for Respondent-Appellee.
12
13   LEVAL, Circuit Judge:

14         Petitioner Steven Janakievski appeals from the judgment of the United

15   States District Court for the Western District of New York (Michael A.

16   Telesca, J.), dismissing as moot his petition for a writ of habeas corpus. In

17   2009, Janakievski was involuntarily committed to a New York State

18   psychiatric institution after being charged with first-degree assault and

19   pleading “not responsible by reason of mental disease or defect.” N.Y. Crim.

20   Proc. Law (“CPL”) § 330.20. While in the custody of the New York State

21   Office of Mental Health, Janakievski filed a pro se petition for a writ of habeas

22   corpus pursuant to 28 U.S.C. § 2254. His petition challenged the validity of

23   the original state-court order that found him to suffer from a “dangerous

24   mental disorder” and committed him for six months to the Rochester



                                             2
 1   Psychiatric Center, as well as three subsequent orders that extended the

 2   duration of the confinement.

 3         In 2018, several years subsequent to Janakievski’s filing of the federal

 4   habeas petition, the state court found his mental condition sufficiently

 5   improved and ordered him conditionally released from inpatient custody,

 6   subject, as required by state law, to an order of conditions of at least three

 7   years duration. State law mandates that during that order’s duration, he

 8   remain subject to the possibility of recommitment on the state’s showing by a

 9   preponderance of the evidence that he has a dangerous mental disorder. See

10   CPL § 330.20(14). The order of conditions further requires that he continue

11   outpatient mental health treatment, refrain from the use of drugs or alcohol,

12   and seek the state’s approval before changing his address or leaving New

13   York. That order remains in effect.

14         The district court dismissed Janakievski’s habeas petition on the

15   ground that it was moot. The court reasoned that the limited-duration orders

16   of confinement that the petition challenged had all expired and that

17   Janakievski had been released from inpatient custody, with the consequence

18   that he no longer suffered “an actual injury which is likely to be redressed by



                                             3
 1   a favorable decision.” Janakievski v. Exec. Dir., Rochester Psychiatric Ctr., No.

 2   6:14-cv-06168, 2018 WL 4681596, at *3 (W.D.N.Y. Sept. 28, 2018) (quoting

 3   United States v. Mercurris, 192 F.3d 290, 293 (2d Cir. 1999)).

 4         We conclude that Janakievski’s release from inpatient custody did not

 5   moot his habeas petition because the orders attacked in the petition continue

 6   to impose restrictions on his liberty. The 2018 order of conditions to which

 7   Janakievski remains subject — but which Janakievski did not directly

 8   challenge in his habeas petition — was, under state law, a mandated

 9   consequence of the confinement orders he challenges, and constitutes an

10   ongoing injury that can be redressed by a favorable decision. We accordingly

11   VACATE the district court’s judgment and REMAND for further

12   proceedings.

13                                   BACKGROUND

14         In December 2007, Janakievski attacked a co-worker with a knife,

15   causing life-threatening stab wounds to the victim’s head and neck. At the

16   time, Janakievski had been using controlled substances daily and experienced

17   psychotic delusions, including a belief that the stabbing victim was a Russian

18   spy. He was charged with first-degree assault and tried in the County Court



                                              4
 1   for Monroe County, New York. At trial, psychiatric experts for the

 2   prosecution and the defense agreed that, at the time of the knife attack,

 3   Janakievski was suffering from a psychotic disorder and did not appreciate

 4   the wrongfulness of his conduct. The court accordingly accepted Janakievski’s

 5   plea of not responsible by reason of mental disease or defect pursuant to CPL

 6   § 330.20.

 7          CPL § 330.20(2) provides that when a criminal defendant is found not

 8   responsible by reason of a mental disease or defect, he must undergo a

 9   psychiatric examination. On the basis of that examination, the state court is

10   directed to determine in which of three categories, or “tracks,” the defendant

11   belongs. 1 If he is found to have a “dangerous mental disorder,” defined as a

12   mental illness that renders him “a physical danger to himself or others,” CPL

13   § 330.20(1)(c), then he is classified as “track one” and the court must issue a

14   commitment order confining the defendant in a secure mental health facility

15   for six months. Id. § 330.20(6), (1)(f). If the court finds that the defendant is

16   mentally ill but not dangerous, he is classified as “track two” and the court



     1Although the statute itself does not use the term “tracks” to label its three-tiered
     system, New York courts and commentators frequently describe its classifications
     that way. See In re Norman D., 3 N.Y.3d 150, 153 n.1 (2004).


                                                5
 1   must issue an “order of conditions” 2 and an order committing him to a non-

 2   secure facility, which custody is governed not by the Criminal Procedure Law

 3   but by the civil Mental Hygiene Law. Id. § 330.20(7); see also Allen B. v. Sproat,

 4   23 N.Y.3d 364, 368–69 (2014). If the defendant is found to be neither

 5   dangerous nor mentally ill, he is classified as “track three” and must either be

 6   discharged unconditionally or released subject to an order of conditions. CPL

 7   § 330.20(7). The status of a “track one” defendant remains subject to ongoing

 8   review, and the state must apply for periodic “retention orders” to keep a

 9   defendant in inpatient custody. Id. § 330.20(8), (9). A defendant’s “track

10   status,” however, is permanent and “governs [his] level of supervision in

11   future proceedings.” In re Norman D., 3 N.Y.3d 150, 152 (2004).

12         In April 2009, having undergone the required examination, Janakievski

13   was found by the state court to suffer from a dangerous mental disorder (i.e.,

14   to be in “track one”) and was committed to the Rochester Psychiatric Center

15   (“RPC”). The state court issued subsequent retention orders continuing his

16   involuntary commitment in October 2009, October 2010, December 2010, and

     2An “order of conditions” is an order that, inter alia, requires a defendant to comply
     with a particular treatment plan or any other condition which the court determines
     to be reasonable, and is “valid for five years from the date of its issuance.” CPL
     § 330.20(1)(o).


                                               6
 1   August 2012, on the ground that Janakievski continued to suffer from mental

 2   illness. In the last of these orders, the court determined that Janakievski was

 3   no longer dangerous but remained mentally ill and in need of inpatient

 4   treatment. The August 2012 retention order expired in July 2013, but

 5   Janakievski continued to be confined in a non-secure wing of the RPC

 6   pursuant to a temporary retention order.

 7         In April 2014, Janakievski, proceeding pro se, filed the instant habeas

 8   petition in the United States District Court for the Western District of New

 9   York. The petition asserted a range of statutory and constitutional violations

10   with respect to the original April 2009 commitment order, the October and

11   December 2010 retention orders, and the August 2012 retention order. The

12   petition challenged the sufficiency of the evidence supporting the original

13   finding that he was dangerous and mentally ill, asserting that at the time of

14   his commitment to the RPC “the hospital records show that he was in full

15   remission,” and that he “should have been released.” Supp. App’x at 42. He

16   also alleged that the initial commitment order violated his right to due

17   process and the Eighth Amendment. With respect to the subsequent retention

18   orders, Janakievski asserted that they, too, were not supported by sufficient



                                             7
 1   evidence, that they violated due process (as well as the Federal Rules of Civil

 2   Procedure), and that he was deprived of the effective assistance of counsel. As

3    relief, Janakievski demanded that the commitment and retention orders be

4    vacated and that he be unconditionally discharged from state custody.

 5         In June 2018, while this petition to the federal court was pending, the

 6   state court released Janakievski from the RPC subject to an “order of

 7   conditions.” Supp. App’x at 245-52; see CPL § 330.20(12). The ruling was

 8   based on a finding that Janakievski’s clinical condition warranted

 9   “conditional release from inpatient treatment” because he did not “currently

10   suffer from a dangerous mental disorder and [was] not mentally ill.” Supp.

11   App’x at 247. The order of conditions mandated that for three years (until

12   June 2021) Janakievski continue outpatient mental health treatment, refrain

13   from the use of drugs or alcohol, and seek the state’s approval before

14   changing his address or leaving the state. The conditions may be extended for

15   an additional three years on a showing of good cause by the state.

16         In addition to these particular conditions — all of which were found by

17   the state court in June 2018 to be “reasonably necessary or appropriate” for

18   Janakievski’s treatment, CPL § 330.20(12) — Janakievski faces an overarching



                                            8
 1   restriction that is inherent to any “order of conditions” under CPL § 330.20.

 2   Any defendant subject to an order of conditions can, at any time, be

 3   recommitted upon application of the state, based on a showing by a

 4   preponderance of the evidence that the defendant suffers from a dangerous

 5   mental disorder. See CPL § 330.20(14); Ernst J. v. Stone, 452 F.3d 186, 187 (2d

 6   Cir. 2006). When the state makes such an application, the court must order the

 7   defendant to appear for a hearing, and if the defendant fails to appear he can

 8   be arrested, brought before the court, and confined. See CPL § 330.20(14). If

 9   the court finds that the defendant has a dangerous mental disorder, it must

10   issue a “recommitment order” mandating his confinement to a secure facility

11   for six months. Id.; see also id. § 330.20(1)(f).

12          In dismissing Janakievski’s petition in September 2018, the district

13   court reasoned that the petition became moot when Janakievski was

14   conditionally released from inpatient custody, as he was “no longer subject to

15   any of the orders” that he challenged in his petition and thus no longer had

16   any redressable injuries. 2018 WL 4681596, at *3. The district court declined to

17   issue a certificate of appealability, id., but a motions panel of our court




                                                 9
 1   granted one on the question “whether the district court erred in dismissing

 2   Appellant’s 28 U.S.C. § 2254 petition as moot,” Dkt. No. 30.

 3                                     DISCUSSION

 4           We review de novo the denial of a petition for a writ of habeas corpus,

 5   including whether the petition is moot. Nowakowski v. New York, 835 F.3d 210,

 6   215 (2d Cir. 2016). Although Janakievski is now represented by counsel, we

 7   construe his pro se “submissions liberally and interpret them to raise the

 8   strongest arguments they suggest.” Id. (citation and quotation marks

 9   omitted).

10      I.       Law Governing the Mootness of a Habeas Petition

11           To satisfy the Constitution’s case-or-controversy requirement, a party

12   must, at each stage of the litigation, have an actual injury which is likely to be

13   redressed by a favorable judicial decision. See Mercurris, 192 F.3d at 293. If, as

14   a result of changed circumstances, a case that presented an actual redressable

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

16   within a federal court’s Article III subject matter jurisdiction and must be

17   dismissed for mootness.




                                              10
 1         A habeas petition is generally not moot so long as the petitioner

 2   continues to be held in the custody that he alleges is unlawful. See Dhinsa v.

 3   Krueger, 917 F.3d 70, 77 n.5 (2d Cir. 2019). That is so whether the petitioner is

 4   experiencing direct physical custody (e.g., incarceration), or is subject to

 5   restraints on his liberty, such as parole. See Spencer v. Kemna, 523 U.S. 1, 7

 6   (1998) (“An incarcerated convict’s (or a parolee’s) challenge to the validity of

 7   his conviction always satisfies the case-or-controversy requirement, because the

 8   incarceration (or the restriction imposed by the terms of the parole)

 9   constitutes a concrete injury, caused by the conviction and redressable by

10   invalidation of the conviction.” (emphasis added)); Jones v. Cunningham, 371

11   U.S. 236, 243 (1963) (habeas petition was not mooted by petitioner’s release on

12   parole because “[w]hile petitioner’s parole releases him from immediate

13   physical imprisonment, it imposes conditions which significantly confine and

14   restrain his freedom”). Moreover, a habeas petition “does not necessarily

15   become moot” when the order it challenges is no longer in effect, so long as

16   the petitioner suffers “some concrete and continuing injury” or “collateral

17   consequence” resulting from the challenged order. Mercurris, 192 F.3d at 293

18   (citation omitted).



                                             11
 1            Finally, even if a habeas petitioner can show that he continues to suffer

 2   an injury, his injuries must be “likely to be redressed by a favorable judicial

 3   decision.” Chafin v. Chafin, 568 U.S. 165, 172 (2013) (citation and quotation

 4   marks omitted). A case is moot when the prospect of judicial redress is “so

 5   remote and speculative that any decision on the merits” could not “affect the

 6   matter in issue in the case.” United States v. Blackburn, 461 F.3d 259, 262 (2d

 7   Cir. 2006) (citation and quotation marks omitted). The availability of a “partial

 8   remedy,” however, is sufficient to render a case not moot. Church of

 9   Scientology of Cal. v. United States, 506 U.S. 9, 13 (1992). A case is “moot only

10   when it is impossible for a court to grant any effectual relief whatever to the

11   prevailing party.” Knox v. Serv. Emps. Int'l Union, Local 1000, 567 U.S. 298, 307

12   (2012) (citation and quotation marks omitted).

13      II.      Janakievski Continues to Suffer a Redressable Injury Resulting
14               From the Confinement Orders Challenged by the Petition
15
16            Notwithstanding that the 2009-2012 orders challenged in his habeas

17   petition are no longer in effect, Janakievski contends that he faces continuing

18   consequences from them such that a favorable decision vacating them would

19   provide him meaningful relief. One such continuing consequence, he asserts,

20   is the “order of conditions” to which he remains subject, which requires him

                                              12
 1   to receive outpatient treatment and also leaves him vulnerable to

 2   recommitment. The order of conditions is not set to expire until June 2021 at

 3   the earliest, and Janakievski argues that were a court to grant the relief sought

 4   in his habeas petition, he could be rid of these restrictions sooner.

 5         Respondent argues that the petition is moot because it attacks

 6   confinement orders that have expired and that do not themselves continue to

 7   impose a burden. Respondent concedes that the 2018 order of conditions

 8   constitutes an injury for Janakievski. But Respondent notes that the habeas

 9   petition does not challenge the 2018 order itself and argues that the

10   restrictions imposed by the 2018 order were not “lingering effect[s]” of the

11   expired 2009-2012 confinement orders challenged in the habeas petition, but

12   rather were conditions “implemented to further his mental fitness as assessed

13   in 2018.” Resp. Br. at 33. Accordingly, Respondent argues, even if Janakievski

14   were to prevail on the merits of his petition and the district court were to

15   nullify the challenged orders, he “would not be entitled to unconditional

16   discharge” from his 2018 order of conditions. Id. at 24.

17         We conclude that at least one of the ongoing restrictions on

18   Janakievski’s liberty embodied in the June 2018 order of conditions — in



                                             13
 1   particular, the fact that under state law he remains more vulnerable to

 2   recommitment — constitutes “an actual injury traceable to the [orders

 3   challenged by his petition] and likely to be redressed by a favorable judicial

 4   decision.” Spencer, 523 U.S. at 7. A decision by the habeas court to grant

 5   Janakievski’s petition and vacate the challenged orders would give him the

6    chance to be immediately rid of the burdens imposed by the order of

7    conditions, rather than having to wait until its expiration.

 8         As an initial matter, although it is true that Janakievski’s habeas

 9   petition does not challenge the 2018 order of conditions itself, the district

10   court should have, before dismissing the petition as moot, given Janakievski

11   the opportunity to amend his habeas petition to raise such a claim. A

12   pro se plaintiff should be granted leave to amend if “a liberal reading of the

13   complaint gives any indication that a valid claim might be stated.” Cuoco v.

14   Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation and quotation marks

15   omitted). We have said that this rule applies with special force to habeas

16   corpus petitions, since pro se habeas petitioners “ordinarily lack legal

17   knowledge and resources.” Garcia v. Superintendent of Great Meadow Corr.

18   Facility, 841 F.3d 581, 583 (2d Cir. 2016). Here, the district court should have



                                             14
 1   taken note of the restrictions imposed on Janakievski’s liberty by the 2018

 2   order of conditions and afforded him the opportunity to amend his petition to

 3   challenge them directly, instead of dismissing the petition as moot for having

 4   challenged only the expired orders. On remand, Janakievski must be given

 5   such a chance. 3

 6          The district court also erred in concluding that Janakievski no longer

 7   suffers, as a continuing consequence of the challenged 2009 to 2012 orders, an

 8   actual injury redressable by a favorable decision. The 2018 order of conditions

 9   to which Janakievski remains subject today constitutes a “concrete and

10   continuing injury” traceable to the challenged orders. Mercurris, 192 F.3d at

11   294. Although Respondent is correct that the 2018 order of conditions is a

12   separate order from the expired commitment and retention orders challenged

13   by Janakievski, its imposition was a direct and necessary consequence of the

14   expired orders. The April 2009 commitment order found Janakievski to be



     3 In the event that Janakievski chooses to challenge on remand the 2018 order of
     conditions directly, whether such a claim would be procedurally viable or
     meritorious is a question for the district court to address in the first instance, and on
     which we express no view. See Dorsey v. Irvin, 56 F.3d 425, 427 (2d Cir. 1995)
     (remanding the denial of a pro se habeas petition to give petitioner the opportunity
     to amend to include new claims, but expressing no views as to the merits or
     procedural viability of those claims).


                                                15
 1   dangerously mentally ill and accordingly assigned him to “track one,” a

 2   finding that not only required his commitment but also determined the

 3   procedures that would govern any future “retention, conditional release or

 4   discharge.” Jamie R. v. Consilvio, 6 N.Y.3d 138, 143 (2006). Of relevance here,

 5   CPL § 330.20 provides that a track one defendant can be released from

 6   confinement in a secure facility either (1) by an order transferring the

 7   defendant to a non-secure facility upon a finding that the defendant no longer

 8   has a “dangerous mental disorder,” CPL § 330.20(11), or (2) through an order

 9   releasing the defendant from state custody upon a finding that the defendant

10   is no longer mentally ill, see id. § 330.20(12). Under either option, the court

11   must issue an order of conditions along with the transfer or release order. See

12   id. § 330.20(11) (providing that the court “must also issue an order of

13   conditions” along with the transfer order); id. § 330.20(12) (providing that “[i]f

14   the court finds that [a track one defendant] does not have a dangerous mental

15   disorder and is not mentally ill,” it must nonetheless issue an order of

16   conditions along with a release order); In re Oswald N., 87 N.Y.2d 98, 102

17   (1995) (“Whenever a court issues either a release order or a transfer order

18   . . . it must also issue an order of conditions.”); see also Jamie R., 6 N.Y.3d at



                                              16
 1   143 (“[E]ven a track one patient who improves sufficiently to be transferred to

 2   a nonsecure facility continues to be subject to the procedural restrictions

3    in CPL [§] 330.20.” (citation omitted)). Put another way, once the state court

4    declared Janakievski to be dangerously mentally ill in 2009 — a finding he

5    directly challenges in his petition — it was inevitable that, once released from

 6   confinement, he would be subject to an order of conditions. 4

 7         It is true, as Respondent asserts, that even if an order of conditions was

 8   a necessary consequence of the expired orders, specific conditions contained

 9   in Janakievski’s 2018 order of conditions — such as mandatory outpatient

10   treatment, drug screenings, and limits on his mobility — were not the

11   inevitable result of Janakievski’s earlier confinement orders. These restrictions

12   were imposed on the basis of a new assessment of Janakievski’s mental fitness

13   in 2018. Resp. Br. at 33; see also CPL § 330.20(12) (authorizing the state court to




     4
       Such an order of conditions would remain in effect until the issuance of a
     “discharge order” terminating the order of conditions, see CPL § 330.20(1)(n); Matter
     of Ramon M., 294 A.D.2d 59, 64 (1st Dep’t 2002), which the court may issue only after
     finding that the defendant has been continuously on outpatient status for three
     years or more, that the defendant is not mentally ill, and that the discharge order is
     “consistent with the public safety and welfare of the community and the
     defendant,” CPL § 330.20(13); see also Resp. Br. at 9, 29–30.


                                               17
 1   include in an order of conditions “any conditions that the court determines to

 2   be reasonably necessary or appropriate”).

 3          Crucially, however, as to two aspects of the order of conditions, the

 4   state court had no discretion. First, under the governing law, Janakievski

 5   could not be eligible for a discharge order terminating the order of conditions

 6   until he had spent three years as an outpatient following his conditional

 7   release from confinement. See CPL § 330.20(13). 5 Second, under CPL

 8   § 330.20(14), at any time while an order of conditions remains in effect, the

 9   person affected remains subject to recommitment if, upon the application of

10   the state, a court finds by a preponderance of the evidence that the defendant

11   has a “dangerous mental disorder.” See CPL § 330.20(14) (“At any time during

12   the period covered by an order of conditions an application may be made by

13   the commissioner or the district attorney . . . for a recommitment order when

14   the applicant is of the view that the defendant has a dangerous mental

     5Although CPL § 330.20(13) does not explicitly state that the subject is ineligible for
     a discharge order terminating the order of conditions until the passage of three
     years, that is implicit in its provision that “[t]he commissioner may apply for a
     discharge order . . . when a defendant has been continuously on an out-patient
     status for three years or more pursuant to a release order.” Indeed, Respondent
     relies on CPL § 330.20(13) for the proposition that Janakievski is ineligible for a
     discharge order until June 2021 — three years after the issuance of his order of
     conditions — in support of its argument that his injury is not redressable. Resp. Br.
     at 41–42.


                                                18
 1   disorder.”); Ernst J., 452 F.3d at 187 (2d Cir. 2006) (“Those defendants who are

 2   [] released subject to an ‘order of conditions’ may, if their condition

 3   deteriorates, be ‘recommitted’ involuntarily to a secure psychiatric facility

 4   upon a finding — by a preponderance of the evidence — that they have

 5   developed a ‘dangerous mental disorder.’”). Merely upon the application of

 6   the state, Janakievski would be ordered to appear for a hearing, and if he

 7   failed to appear, he could be subject to a warrant to be taken into custody and

 8   confined pending the hearing. See CPL § 330.20(14).

 9         Because Janakievski is subject to an order of conditions, the burden on

10   the state to cause his recommitment would be less than the burden to cause

11   his commitment by reason of mental disease if he had previously been

12   unconditionally discharged. “New York statutes . . . distinguish between the

13   procedures to be followed for the involuntary civil commitment of persons

14   suffering from mental illness and the procedures that apply to persons

15   charged with a crime and determined, by a plea or a verdict, to be ‘not

16   responsible by reason of mental disease or defect.’” Francis S. v. Stone, 221

17   F.3d 100, 101 (2d Cir. 2000) (quoting CPL § 220.15). Whereas involuntarily

18   committing an individual for mental illness normally requires a showing by



                                             19
 1   “clear and convincing evidence” that the person is mentally ill and poses a

 2   danger to himself or others, recommitment pursuant to CPL § 330.20(14)

 3   requires a lesser showing by a preponderance of the evidence. Ernst J., 452

 4   F.3d at 188–90.

 5         Accordingly, even though other conditions imposed by the 2018 order

 6   did not flow from the earlier orders challenged in Janakievski’s petition, but

 7   were instead newly justified at the time based on a current assessment of

 8   Janakievski’s treatment needs, the earlier orders did have the inevitable

 9   consequence of requiring that he eventually be subject to an order of

10   conditions, and thus of making him vulnerable for a minimum of three years

11   to recommitment in a state psychiatric facility without the same protections

12   that he would enjoy if he had previously been released from custody

13   unconditionally. The district court thus erred in concluding that Janakievski’s

14   release from inpatient treatment meant that he was no longer suffering a

15   continuing injury from the expired orders.

16         The only remaining question, then, is whether the burden imposed on

17   Janakievski by the order of conditions might be redressed by a favorable

18   judicial decision vacating either the 2009 commitment order or the



                                            20
 1   subsequent retention orders issued in 2010 and 2012. Respondent argues that

 2   any injuries Janakievski suffers are not redressable, asserting that a favorable

 3   decision by the habeas court nullifying the challenged orders would not

 4   relieve Janakievski of his order of conditions. Respondent argues that under

 5   CPL § 330.20(1)(n) and (13), a discharge order is necessary to unconditionally

 6   release a defendant and terminate his order of conditions, and a discharge

 7   order may issue only “if the court finds that the defendant has been

 8   continuously on an out-patient status for three years or more, that he does not

 9   have a dangerous mental disorder and is not mentally ill, and that the

10   issuance of the discharge order is consistent with the public safety and

11   welfare of the community and the defendant.” Id. § 330.20(13). According to

12   Respondent, no matter the outcome of Janakievski’s habeas proceedings, he

13   would still need to wait three years and demonstrate that his release would

14   comport with public safety before being eligible for an order terminating his

15   order of conditions.

16         We reject this argument. As noted above, the state court’s imposition of

17   an order of conditions was a direct and mandated consequence of the prior

18   confinement orders that Janakievski challenges in his habeas petition. A



                                            21
 1   “track one” defendant such as Janakievski cannot achieve unconditional

 2   release without first being subjected to an order of conditions, and cannot

 3   obtain a discharge order terminating that order of conditions without having

 4   been on outpatient status for at least three years. See CPL § 330.20(13). By

 5   contrast, had the state court never found Janakievski to be dangerous or

 6   mentally ill — that is, had he been placed in “track three” instead of “track

 7   one” — then Janakievski could have been discharged unconditionally in 2009

 8   and the court would not have been compelled to impose an order of

 9   conditions. See CPL § 330.20(7); see also Richard S. v. Carpinello, 589 F.3d 75, 77

10   (2d Cir. 2009). Today, if Janakievski were to prevail on the merits of his

11   habeas petition by demonstrating that he should have been unconditionally

12   discharged in 2009, that showing would negate Respondent’s argument that

13   Janakievski is subject to CPL § 330.20(13)’s three-year outpatient requirement

14   for terminating an order of conditions, because no order of conditions should

15   have issued in the first place. If, for example, a federal court were to

16   determine on a habeas petition that a petitioner’s initial confinement, based

17   on a state judge’s finding of dangerous mental illness, should be voided

18   because it was procured by hostile relatives through bribery, the state could



                                              22
 1   not, consistent with federal law, continue to subject the petitioner to an order

 2   of conditions for three years merely because such a waiting period is

 3   mandated by state law for one who, in the initial instance, was properly

4    confined on the basis of a dangerous mental illness. Just as a term of parole

5    stemming from a criminal conviction is an injury redressable by the vacatur

6    of that conviction, see Spencer, 523 U.S. at 7, the parole-like order of conditions

7    here could, at least in some circumstances, be invalidated on a showing that

8    Janakievski’s initial commitment to the psychiatric institution violated federal

 9   law. 6

10            Vacatur of the 2010 and 2012 retention orders that extended the

11   duration of Janakievski’s confinement could also serve to partially redress

12   Janakievski’s injuries. Janakievski contends that, even if he failed to show that

13   he was entitled to an unconditional discharge in April 2009, but nonetheless

14   showed entitlement to an earlier conditional release at the time of one of the

15   court’s prior retention orders — e.g., in August 2012 — “then the three-year



     6Cf. Carty v. Nelson, 426 F.3d 1064, 1072 (9th Cir. 2005) (sex offender’s release from
     civil confinement did not moot his habeas petition because a finding that his initial
     confinement had been invalid would allow the court to vacate his post-release
     reporting requirements, where the habeas petition challenged only the initial
     confinement).


                                               23
 1   post-release period specified in [] CPL § 330.20(13) would be backdated” and

 2   he would not necessarily have to wait until July 2021 to become eligible for a

 3   discharge order terminating his order of conditions. Supp. Br. of Petitioner at

 4   19. Respondent argues that no such “back-dating” would occur, because the

 5   requirement that a defendant spend at least three years in outpatient

 6   treatment before final discharge serves the important goal of protecting the

 7   public from the release of potentially dangerous patients. Resp. Br. at 42

 8   (citing Matter of Ramon M., 294 A.D.2d 59, 65 (1st Dep’t 2002)). Accordingly,

 9   Respondent asserts that “a habeas determination that Janakievski should

10   have been released in 2010 or 2012 would not in itself entitle him to a

11   discharge order today,” because “[h]e would still have to show that the

12   issuance of such an order was ‘consistent with the public safety and welfare

13   of the community and [himself].’” Resp. Br. at 42–43 (quoting CPL

14   § 330.20(13) (emphasis added)).

15          However, even if Janakievski would need to affirmatively demonstrate

16   that he was fit for immediate release, the opportunity to do so would still

17   constitute a “partial remedy” sufficient to support a finding of redressability.

18   Church of Scientology, 506 U.S. at 13. The chance to make that showing now



                                            24
 1   versus in 2021 would provide Janakievski with “some form of meaningful

 2   relief,” id. at 12 (emphasis in original), as it would give Janakievski the

 3   possibility of obtaining a discharge order releasing him from the restrictions

 4   mandated by his order of conditions without having to live under them for

 5   another year or more. See Mantena v. Johnson, 809 F.3d 721, 731 (2d Cir. 2015)

 6   (“[I]n the context of multi-part proceedings,” redressability should be based

 7   on the “availability of relief at a given step, rather than the likelihood of

 8   achieving the ultimate goal.” (citation omitted)). Given that the state court

 9   found in 2018 that Janakievski “does not currently suffer from a dangerous

10   mental disorder and is not mentally ill,” Supp. App’x at 247, it is not too

11   remote or speculative to think that Janakievski might be able to demonstrate

12   that his release would be consistent with public safety.

13         We accordingly conclude that Janakievski’s habeas petition is not moot

14   because the restrictions on his liberty mandated by the June 2018 order of

15   conditions constitute a concrete and continuing injury, traceable to the 2009–

16   2012 confinement orders he attacks, which can be redressed by a favorable

17   decision.

18



                                             25
 1      III.   Alternate Grounds for Affirmance

 2         Respondent asserts that, even if we reject the district court’s mootness

 3   finding, we can nonetheless affirm on independent grounds, at least as to

 4   several of Janakievski’s claims. Respondent argues that Janakievski’s

 5   challenges to the 2009 and 2010 orders “are untimely and were not exhausted

 6   in state court,” and, because they “cannot be exhausted at this juncture,” are

 7   ”procedurally barred from habeas review.” Resp. Br. at 24.

 8         In habeas cases, we generally do not address a claim outside the scope

 9   of the certificate of appealability. See Valverde v. Stinson, 224 F.3d 129, 136 (2d

10   Cir. 2000). Here, as the certificate of appealability is limited to the question of

11   mootness, and as the district court did not address the state’s timeliness,

12   exhaustion, and procedural default arguments, we decline to address those

13   arguments and express no view as to whether they are meritorious.

14                                    CONCLUSION

15         For the foregoing reasons, we VACATE the district court’s judgment

16   dismissing Janakievski’s habeas petition as moot and REMAND for further

17   proceedings.




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