14

‐ 1964

Nowakowski v. New York

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

______________

August Term 2015

(Argued: October 14, 2015 Decided: August 26, 2016)

Docket No. 14

‐ 1964

ROBERT NOWAKOWSKI,

Petitioner

‐ Appellant

,

–v.–

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent

‐ Appellee.

______________

Before:

S TRAUB

, W ESLEY

, and L IVINGSTON

, Circuit Judges

.

Appeal from a May 30, 2014, order of the United States District Court for

the Eastern District of New York (Vitaliano, J. ). Petitioner

‐ Appellant Robert

Nowakowski filed a petition for habeas relief under 28 U.S.C. § 2254 from a2 conviction for second

‐ degree harassment

. Because Nowakowski completed his

sentence of conditional discharge, the District Court dismissed the petition as

moot, concluding there was no continuing collateral consequence sufficient to

confer standing. We granted a certificate of appealability to address two

questions of first impression in our Circuit: (1) whether Nowakowski was “in

custody” for the purposes of habeas review when he filed his petition during a

period of conditional discharge requiring one day of community service; and (2)

whether, despite the completion of that sentence, there are collateral

consequences to his conviction. We conclude that Nowakowski was both “in

custody” at the time his petition was filed and that, because the presumption of

continuing collateral consequences applies to his conviction and is not rebutted,

his petition presents a live case or controversy. We therefore VACATE the

district court’s dismissal of Nowakowski’s habeas petition and REMAND for

further proceedings.

Judge L IVINGSTON dissents in a separate opinion.

_________________

R OBERT N OWAKOWSKI

, pro se

, Brooklyn, NY.

V ICTOR B ARALL

, 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.

_________________

W ESLEY

, 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 28 U.S.C. § 2254 in the United States District Court for3 the Eastern District of New York (Vitaliano, J. ). Because Nowakowski fulfilled

the requirements of his sentence during the pendency of the habeas proceeding,

the District Court concluded that Nowakowski’s case presented no live case or

controversy sufficient to establish Article III standing under Spencer v. Kemna

, 523

U.S. 1 (1998).

We granted a certificate of appealability 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 § 2254.

And second

, whether a presumption of continuing collateral consequences

applies to Nowakowski’s conviction, thus presenting a live case or controversy

under Article III despite the expiration of his sentence. Because we answer both

questions in the affirmative, we VACATE the District Court’s dismissal of

Nowakowski’s petition and REMAND for further proceedings consistent with

this opinion. 1

1 We reject Nowakowski’s arguments that his case should be reassigned to a different

judge. The principal basis upon which Nowakowski challenges Judge Vitaliano’s

impartiality is his judicial rulings, which “alone almost never constitute a valid basis for

a bias or partiality motion.” Liteky v. United States

, 510 U.S. 540, 555 (1994). Political

contributions received by Judge Vitaliano when he served in elected office—more than

five years prior to his confirmation as a federal judge and more than twelve years prior4 BACKGROUND 2

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.

to Nowakowski’s petition—are not the “unusual circumstances where

. . . an

assignment to a different judge is salutary and in the public interest.” United States v.

Robin

, 553 F.2d 8, 10 (2d Cir. 1977) (en banc) (per curiam) (internal quotation marks

omitted).

2 Unless otherwise noted, the following facts are taken from the parties’ briefing and are

undisputed.5 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 28 U.S.C. § 2254 for

habeas relief. He then appeared and completed his community service before

appearing in the Criminal Court on July 9, 2015, with proof of completion. 4 Prior

to filing his federal habeas petition, Nowakowski had filed a pro se civil

complaint in the United States District Court for the Eastern District of New

York, alleging violations of 42 U.S.C. § 1983 by arrest and imprisonment without

probable cause, assault and excessive force, and the state tort of malicious abuse

of process. See Second Am. Compl., Nowakowski v. City of New York et al.

, No.

3 As Nowakowski’s appendix lacks global pagination, our citations use the PDF

pagination as available on this Court’s electronic docket (ECF No. 34).

4 Nowakowski states he completed the service as ordered on July 2. See Appellant Br. 6.

The People disclaim knowledge of the specific date but agree that, in any event, the

community service was completed after July 1 and before July 9. See Appellee Br. 6.6 1:08

‐ cv

‐ 00399

‐ RJD

‐ LB (E.D.N.Y. filed May 19, 2008), ECF No. 17. His civil action

remains stayed pending resolution of his federal habeas proceeding.

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 granted it. On April 2, 2014, the

District Court reopened Nowakowski’s case and granted Nowakowski’s motion

for reconsideration, allowing his exhausted claims to proceed.

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 § 1983 action from proceeding under Heck v. Humphrey

, 512

U.S. 477 (1994); the District Court held that Spencer rejected this argument against

mootness as an insufficient collateral consequence. Thus, the District Court7 entered a Memorandum and Order on May 30, 2014, dismissing the petition as

moot and denying a certificate of appealability. Nowakowski moved for a

certificate of appealability in this Court, which we granted. See Order,

Nowakowski v. New York

, No. 14

‐ 1964 (2d Cir. Dec. 8, 2014), ECF No. 21.

DISCUSSION

We review de novo a district court’s denial of a § 2254 petition, including

whether a petitioner was in custody at the time of filing, see Carvajal v. Artus

, 633

F.3d 95, 104 (2d Cir. 2011), and whether his petition is moot, Marrero Pichardo v.

Ashcroft

, 374 F.3d 46, 50–51 (2d Cir. 2004). As Nowakowski briefed and argued

this case pro se

, we construe his “appellate briefs and submissions liberally and

interpret them to raise the strongest arguments they suggest.” Wright v. Comm’r

,

381 F.3d 41, 44 (2d Cir. 2004).

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

5 Though the question of custody was not argued by the People below nor decided by

the District Court, the requirement of custody is jurisdictional, see Ogunwomoju v. United

States

, 512 F.3d 69, 75 (2d Cir. 2008), and thus, we have an obligation to consider it nostra

sponte

, see Soto v. United States

, 185 F.3d 48, 51 (2d Cir. 1999).8 pursuant to the judgment of a State court” at the time the petition is filed. 28

U.S.C. § 2254(a); Maleng v. Cook

, 490 U.S. 488, 490–91 (1989).

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 (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 (1973); see also Justices of Bos. Mun. Court v.

Lydon

, 466 U.S. 294, 300–01 (1984) (finding jurisdiction over petitioner released on

his own recognizance prior to trial “subject to the conditions that he would9 appear when ordered by the court, that he would waive extradition if he was

apprehended outside the State, and that a court could revoke the order of release

and require that he be returned to confinement or post bail”).

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 of10 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 court11 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 initially imposed a fine of $100, it

vacated this sentence and replaced it with a one

‐ year conditional discharge and

an order that Nowakowski perform one day of community service. At the time

of the petition’s filing, therefore, the Criminal Court required Nowakowski (1) to

complete a day of community service (2) by a particular date and (3) to report to

the Criminal Court upon completion of that service. Pursuant to these

requirements, Nowakowski received a “Notice of C.S. Obligation” from the

Kings County District Attorney. The Notice commanded that Nowakowski

appear at a particular location at a particular time on a particular day, and12 informed him that he had no opportunity to reschedule the date and that failure

to appear could result in the issuance of a bench warrant. In addition, during the

one

‐ year term of his sentence—which lasted for nine months after his petition

was filed—the Criminal Court retained jurisdiction to modify or enlarge the

conditions of, or to revoke entirely, the conditional discharge. See N.Y. P ENAL

L AW § 65.05[2].

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,

6 The People contend that Nowakowski should be estopped from claiming federal

habeas relief since his sentence was converted from a fine to conditional discharge at his

request. They base this argument on two propositions: that Nowakowski viewed

conditional discharge and community service as less onerous than the fine, and that his

request was a strategic attempt to qualify himself for federal habeas relief. We find no

support for these conclusions in the record. Nowakowski has put forth the reason for

his request—indigence, a rationale the Criminal Court accepted by entering a new

sentence. Further, it stretches credulity that a convicted defendant would voluntarily

seek a sentence that subjects him to objectively increased restraint solely to gain mere

access to—not relief in—federal habeas proceedings. The People have also presented

no law supporting a theory of estoppel applied to access to federal habeas, and we

decline to create any now.13 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 § 2254.

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 (1968). Once, as here, a petitioner’s sentence has

expired, “some concrete and continuing injury other than the now

‐ ended

incarceration or parole—some ‘collateral consequence’ of the conviction—must

exist if the suit is to be maintained.” Spencer

, 523 U.S. at 7. In Spencer

, the Court

conducted a two

‐ step analysis: First

, the Court determined whether a

7 That the Criminal Court could have revoked the conditional discharge if Nowakowski

committed “an additional offense,” N.Y. P ENAL L AW § 65.05[2], was a particularly broad

vulnerability. An “offense” under New York law, as we discuss more extensively infra

at Part II.A, is “conduct for which a sentence to a term of imprisonment or to a fine is

provided” by state or local law, ordinance, or regulation—everything from a traffic

infraction to a felony. N.Y. P ENAL L AW § 10.00[1]–[5].14 presumption of “continuing collateral consequences” should apply. Id. at 8.

And second

, the Court determined whether, applying the presumption or not,

there was sufficient evidence that such consequences in fact existed. Id. at 14;

accord United States v. Mercurris

, 192 F.3d 290, 293 (2d Cir. 1999). We conduct

each inquiry in turn.

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 (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

(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 with15 reality,” 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. 8 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.

8 But see infra note 15 (discussing a situation in which the Supreme Court arguably

applied the presumption outside of the context of a formal conviction).16 Before commencing our analysis, we think it necessary to explain briefly

the New York scheme of penal offenses. 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. N.Y. P ENAL L AW

§ 10.00[1]. The Penal Law categorizes each offense as one of four types, listed

here in descending order of seriousness: a felony, a misdemeanor, a violation,

and a traffic infraction. Id. § 10.00[2]–[5]. Of these four, only a felony and a

misdemeanor are labeled “[c]rime[s].” Id. § 10.00[6]. Violations are offenses,

other than traffic infractions, “for which a sentence to a term of imprisonment in

excess of fifteen days cannot be imposed.” Id. § 10.00[3]. Misdemeanors permit

incarceratory sentences of up to one year, while felonies permit incarceratory

sentences over one year. Id. § 10.00[4]–[5]. Traffic infractions are violations of

the Vehicle and Traffic Law, “which [are] not declared by this chapter or other

law of this state to be a misdemeanor or a felony.” N.Y. V EH

. & T RAF

. L AW § 155.

In the case before us, Nowakowski was convicted of harassment in the

second degree, which New York classifies as a violation. See N.Y. P ENAL L AW

§ 240.26. Thus, the critical question is whether, taking into account New York’s17 decision not to label violations as crimes, Nowakowski’s conviction is

nonetheless “criminal” for purposes of the Sibron presumption.

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 (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

, 131 S. Ct. 2860, 2864 (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 (1963)

(concluding constitutional criminal protections apply where Congress applies a

punitive sanction); see also, e.g.

, Allen v. Illinois

, 478 U.S. 364, 368 (1986)

(conducting same analysis with respect to sanctions imposed by state law).18 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 (1988) (endorsing “the characterization of

this proceeding and the relief given as civil or criminal in nature, for purposes 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 a question of statutory construction.”

Kansas v. Hendricks

, 521 U.S. 346, 361 (1997) (internal quotation marks omitted).

In construing statutes, we endeavor to “determine the legislative objective”— i.e.

,

to establish either a civil regulatory penalty or a criminal punishment. Smith v.

9 In fact, application of a different test would create serious potential for absurd results,

such that a federal court applying federal doctrine could conclude that the same

conviction is simultaneously criminal and not.19 Doe

, 538 U.S. 84, 92 (2003). We start with the fact that New York does not

formally classify violations as “crimes.” See N.Y. P ENAL L AW § 10.00[6]. Where a

legislature has expressly designated a sanction as “civil,” that may in some cases

suffice to demonstrate evidence of intent. See Allen

, 478 U.S. at 368 (describing an

express label of a proceeding as “civil” as indicating the state’s intent “to proceed

in a nonpunitive, noncriminal manner”); United States v. Ward

, 448 U.S. 242, 249

(1980) (observing Congress labeled a particular sanction as a “civil penalty”).

Here, rather than identifying violations or their attendant sanctions as civil in

nature, New York has merely excluded them from the classification of “crime.” 10

In a case concerning the Ex Post Facto Clause, where Alaska’s sex offender

registration statute was neither explicitly denoted as civil nor criminal, the

Supreme Court looked to the purposes of the law as articulated in its text, as well

as “[o]ther formal attributes of a legislative enactment, such as the manner of its

codification or the enforcement procedures it establishes.” Smith

, 538 U.S. at 93–

94.

The reasons for applying a functional approach are clear. States have

widely varying designations of offenses under their penal codes, and these

10 Although New York expressly states that punishment for a traffic infraction “shall not

be deemed for any purpose a penal or criminal punishment,” N.Y. V EH

. & T RAF

. § 155, it

makes no such declaration with respect to violations.20 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 C ONN

. G EN

. S TAT

. § 53a

‐ 24(a),

with V T

. S TAT

. A NN

. tit. 13, § 1. While New York violations can result in fifteen

‐

day imprisonment, Connecticut violations result only in fines. Compare N.Y.

P ENAL L AW § 10.00[3], with C ONN

. G EN

. S TAT

. § 53a

‐ 27(a). The maximum

incarceratory sentence for misdemeanors is one year in New York and

Connecticut but two years in Vermont. Compare N.Y. P ENAL L AW § 10.00[4], and

C ONN

. G EN

. S TAT

. § 53a

‐ 26(a), with V T

. S TAT

. A NN

. tit. 13, § 1. Such variances

counsel against adopting a purely labels

‐ dependent approach to our analysis. If

we were to do otherwise, federal jurisdiction over habeas petitions arising from

similar or identical conduct and punishment would be controlled by vagaries of

nomenclature, not substance.

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

11 However, Connecticut excludes traffic infractions from its definition of “offense.” See

C ONN

. G EN

. S TAT

. § 53a

‐ 24(a).21 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 N.Y. C RIM

. P ROC

. L AW § 1.20[4], [6], [16], which are

instruments that “constitute[] an accusation on behalf of the state as plaintiff,” id.

§ 1.20[1]. Such actions are governed by the New York Criminal Procedure Law,

see id. § 1.10[1](a), which requires the State to prove guilt beyond a reasonable

doubt, see id. § 70.20. These are all customary indicia of the State’s exercise of

criminal jurisdiction.

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.22 2 W ILLIAM B LACKSTONE

, C OMMENTARIES ON THE L AWS OF E NGLAND

, bk. 4, ch. 1,

at 5 (1st ed. 1769). Harassment in the second degree is conduct that New York

seems to view as a public wrong and wishes to punish in its social aggregate

capacity. See N.Y P ENAL L AW

, art. 240 (designated “Offenses Against Public

Order” and including harassment in the second degree); cf. Smith

, 538 U.S. at 94

(observing that codification in the criminal code may constitute some evidence of

punitive intent). Thus, the New York statutory scheme evinces an intent to treat

a violation as criminally sanctionable conduct, notwithstanding the formal

designation of only misdemeanors and felonies as “crimes.”

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:

12 Where statutory intent to designate a sanction as civil is clear, “‘only the clearest

proof’ will suffice to override legislative intent and transform what has been23 [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 provisions in question can only be

interpreted as punitive,” and therefore, “a detailed examination along such lines

is unnecessary.” Id. ; see also Smith

, 538 U.S. at 92–93. Nonetheless, for the sake of

denominated a civil remedy into a criminal penalty.” Hudson v. United States

, 522 U.S.

93, 100 (1997) (quoting Ward

, 448 U.S. at 249).24 thoroughness and to assure ourselves of the soundness of our ultimate

conclusion, we briefly address these factors in the context before us. 13

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.” N.Y. P ENAL L AW § 240.26; see also N.Y. C RIM

. P ROC

. L AW

§ 70.20. The fourth factor similarly weighs in favor of considering the conviction

criminal: the statute clearly operates to deter bad conduct, and the possible

punishments serve retribution on offenders. The fifth factor is not particularly

appropriate to this context—the criminality, or not, of Nowakowski’s conduct is

established by this statute in its own right.

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

13 In so doing, we are mindful of the Hudson Court’s admonition that consideration of

these factors should evaluate “the statute on its face” rather than “assess the character

of the actual sanctions imposed.” 522 U.S. at 101 (internal quotation marks omitted).25 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 example, 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.

14 As our analysis here relies upon cases involving federal constitutional criminal

protections, such as the Double Jeopardy Clause or the Ex Post Facto Clause, a contrary

conclusion as to the criminal nature of violations in this case would call into question

the availability of those protections for such offenses. Our conclusion avoids that result,

but we raise the issue to illustrate that Nowakowski’s conviction is best understood as a

criminal sanction as a matter of federal law.26 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 misdemeanor. Thus, as his case may end up being on the

margins, we think it useful to examine how the presumption will functionally

affect our inquiry.

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 proceeding27 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 (1985)). These two

possibilities span the progression of the Sibron presumption. The Court has

consistently repeated the idea that a conviction subjects a criminal defendant to

the potential for an increased sentence for a subsequent conviction resulting from

a not

‐ yet

‐ extant criminal prosecution. See, e.g.

, Minnesota v. Dickerson

, 508 U.S.

366, 371 n.2 (1993) 15 ; Pennsylvania v. Mimms

, 434 U.S. 106, 108 n.3 (1977); Benton v.

Maryland

, 395 U.S. 784, 790–91 (1969); Sibron

, 392 U.S. at 55–56. In these cases, the

Court has also referred to the potential impeachment to which a defendant may

15 Though lacking express analysis of whether the presumption should apply, Dickerson

supports our earlier conclusion that the presumption applies to Nowakowski’s

conviction. There, the Supreme Court dealt with a diversionary sentencing scheme for

possession of a controlled substance, pursuant to which “no judgment of conviction”

was entered and, following probation, “the original charges were dismissed.”

Dickerson

, 508 U.S. at 371 n.2. Minnesota law further specified that the proceeding in

which Dickerson was found guilty “shall not be deemed a conviction for purposes of

disqualifications or disabilities imposed by law upon conviction of a crime or for any

other purpose.” Id. (quoting M INN

. S TAT

. § 152.18). Nonetheless, the Court held that “a

nonpublic record of the charges dismissed,” which state law required the state

department of public safety to retain, “would carry collateral legal consequences”

because of hypothetical future sentencing. Id

. Since Spencer cites Dickerson as an

example of the presumption, we see no evidence the Supreme Court has walked away

from this application. See Spencer

, 523 U.S. at 10. If Dickerson qualified for the

presumption (1) without a judgment of conviction, (2) with eventual dismissal of the

original charges, and (3) with an express statement in law prohibiting treating him as a

criminal convict, we have difficulty concluding that Nowakowski’s formal conviction

and sentence falls outside of its scope.28 be subject in future proceedings. See, e.g.

, Benton

, 395 U.S. at 791; Sibron

, 392 U.S.

at 55–56; see also Spencer

, 523 U.S. at 10; Evitts

, 469 U.S. at 391 n.4. Notably, these

two consequences both require uncertain future proceedings, the first of which

would occur, if at all, by virtue of the defendant’s subsequent criminal conduct—

i.e.

, circumstances of his own making. 16 Thus, the first effect of the presumption

is to accept a broader category of consequences as sufficient for purposes of

avoiding mootness.

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

16 It goes almost without saying that such speculative, partially self

‐ inflicted results

would not satisfy Article III outside of the context of the Sibron presumption. E.g.

, Lane

,

455 U.S. at 633 n.13 (“The parole violations that remain a part of respondents’ records

cannot affect a subsequent parole determination unless respondents again violate state

law, are returned to prison, and become eligible for parole. Respondents themselves

are able—and indeed required by law—to prevent such a possibility from occurring.”);

accord Probber

, 170 F.3d at 349.

17 Traditionally, presumptions have been divided into two categories: conclusive

presumptions ( presumptio juris et de jure ), which are essentially rules of law and cannot

be overcome no matter the strength of the contrary proof, and rebuttable presumptions

( presumptio juris tantum ), which merely act as evidence which can be contradicted by

sufficient contrary evidence or determine the case when the evidence is in equipoise.

See W ILLIAM C ALLYHAN R OBINSON

, E LEMENTS OF A MERICAN J URISPRUDENCE § 375 (1900);

B EST ON P RESUMPTIONS § 17 (1845). More recently, however, the Supreme Court has

loosely identified four categories of presumptions in the context of the burden of proof:29 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

(1) permissive inferences, which allow but do not require a conclusion, (2) shifting the

burden of production, such that a conclusion must be drawn only if no evidence has

been produced to the contrary, (3) shifting the burden of persuasion, such that the

adversely affected party bears the burden of overcoming the presumption with

sufficient evidence, or (4) conclusive presumptions, such that the result is determined

regardless of the evidence. See Sandstrom v. Montana

, 442 U.S. 510, 514–18 (1979).30 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

, B LACK ’ S L AW

D ICTIONARY (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 proving a universal statement 18 —that

no collateral consequences exist. Further, it creates a situation in which—

through human error or otherwise—a state may fail to present an extant

collateral consequence to the court, which would have established that the

habeas petition was not moot. Finally, forcing a state to argue against itself

would go even further afield from the traditional application of standing, in

18 See generally Kevin W. Saunders, The Mythic Difficulty in Proving a Negative

, 15 S ETON

H ALL L. R EV

. 276 (1985) (noting that the proverbial difficulty in proving a negative is, in

reality, difficulty in proving a universal statement).31 which the proponent of jurisdiction bears the burden of “alleg[ing] facts

demonstrating that he is a proper party to invoke judicial resolution of the

dispute.” Spencer

, 523 U.S. at 11 (internal quotation marks omitted).

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

19 Additionally, we note that even where a criminal conviction is the subject of the

inquiry, if the identified collateral consequences arise from separate and independent

grounds from that conviction, the conviction “can have no meaningful effect

. . . and

hence cannot serve as a possible collateral consequence.” Perez v. Greiner

, 296 F.3d 123,

126 (2d Cir. 2002). This principle does not mean, however, that all convictions after the

first (or most severe) do not have collateral consequences, if each marginally increases

some risk or consequence. See Sibron

, 392 U.S. at 56.32 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 (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, the prosecution may prove a conviction tending to negate such trait;

similarly, where conviction of an offense “constitutes an element of the offense

20 Nowakowski’s brief focuses on the threat of impeachment in his § 1983 suit.

However, because of the prevalence of impeachment as a collateral consequence and

our obligation to construe pro se submissions liberally, we interpret Nowakowski’s

briefs and oral arguments to challenge the threat of impeachment through use of his

conviction generally.33 charged, or proof thereof is otherwise essential to the establishment of a legally

sufficient case,” the previous conviction may be proved. N.Y. C RIM

. P ROC

. L AW

§ 60.40[2]–[3]. 21 In least one decision, the Appellate Division has held that a

conviction for harassment in the second degree can be the subject of proper

cross

‐ examination. See People v. Hogencamp

, 295 A.D.2d 643, 643–44 (N.Y. 3d

Dep’t 2002); see also N.Y. C RIM

. P ROC

. L AW § 60.40[1] (permitting independent

proof of conviction where it is a proper subject of cross

‐ examination and the

defendant denies or answers equivocally). Consequently, we conclude that

Nowakowski’s conviction subjects him to the possibility of impeachment in a

future criminal proceeding and thus presents a sufficient continuing collateral

consequence to satisfy the requirements of a live case or controversy. See Evitts

,

469 U.S. at 391 n.4; Sibron

, 392 U.S. at 55–56. 22

21 In fact, the Sibron Court cited the predecessor statute to § 60.40 as the basis for its

conclusion that the defendant could be subject to impeachment in a subsequent criminal

proceeding. See 392 U.S. at 55–56.

22 Nowakowski has also argued that his conviction bars his § 1983 action under the

doctrine of Heck v. Humphrey

, supra

, and that bar constitutes an additional collateral

consequence. Though the People urge us to hold that Spencer squarely forecloses this

argument, we decline to do so for two reasons. First, Spencer ultimately concluded no

presumption should apply to parole revocations and thus held that the Heck bar was

insufficient under the traditional rules of Article III standing, rather than the relaxed

standard applicable to convictions. See 523 U.S. at 17. Second, we think the discussion

in Spencer is less clear

‐ cut than the People maintain. Although seven Justices joined

Justice Scalia in concluding that the Heck argument was “a great non sequitur,” id.

, half34 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 2–3, 19. We think the dissent’s approach is incompatible with the

Supreme Court’s practice and statements. As an analytical matter, the dissent

conflates the separate steps undertaken in Sibron and Spencer into a single inquiry

the majority wrote in concurrence that if Heck did in fact bar the action, it “would

provide a reason, whether or not dispositive, to recognize continuing standing to

litigate his habeas claim,” id. at 19 (Souter, J., joined by O’Connor, Ginsburg, and Breyer,

JJ., concurring). The concurring Justices concluded, however, that “Spencer is free to

bring a § 1983 action, and his corresponding argument for continuing habeas standing

falls accordingly.” Id. We find unclear, therefore, Spencer ’s discussion of the Heck bar as

a continuing collateral consequence where (1) a conviction, rather than a parole

revocation, is challenged and (2) where Heck would in fact bar the claim. However,

because the possibility of impeachment constitutes a sufficient collateral consequence,

we need not decide Nowakowski’s Heck bar argument.

23 The dissent insists that its approach cabining the Sibron presumption to certain

“categories” of criminal convictions “is not [its] own.” Post at 6–7 n.6. Spencer

, the

dissent claims, did the same by refusing to apply Sibron to a parole revocation. Id.

(citing Spencer

, 523 U.S. at 12). The dissent misreads Spencer ’s categorization of types of

adjudication as an invitation to subcategorize further. Rather than debating whether

we should apply Sibron to a new “category of adjudication”— e.g.

, a criminal conviction,

a parole revocation, or a designation as an enemy combatant—the dissent proposes that

we split the category of criminal convictions into subcategories: criminal convictions

significant enough to warrant Sibron and those too insignificant to warrant Sibron

. That

new process of subcategorizing is novel and may someday be the law. But today, it is

not.35 about whether collateral consequences do in fact flow from the defendant’s

conviction. In other words, the dissent’s approach would require a court to find

that collateral consequences generally flow from the conviction before it applies a

presumption that assumes, as a first step subject to rebuttal, that collateral

consequences generally flow from the conviction. Such an approach is, of course,

no presumption at all—and if it were the approach the Supreme Court intended,

Spencer could have been a great deal shorter and far less concerned with the

presumption’s anomalous place in Article III standing analysis.

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 id. at 12 (describing it as “our presumption of collateral36 consequences (or our willingness to accept hypothetical consequences)”). The

dissent appeals to the single instance in Spencer that uses the terms “significant”

and “likely”: “In the context of criminal conviction, the presumption of

significant collateral consequences is likely to comport with reality. As we said

in Sibron

, it is ‘an obvious fact of life that most criminal convictions do in fact

entail adverse collateral legal consequences.’” Id. at 12 (quoting Sibron

, 382 U.S.

at 55). But here is the language immediately following that line in Sibron : “The

mere ‘possibility’ that this will be the case is enough to preserve a criminal case

from ending ‘ignominiously in the limbo of mootness.’” 392 U.S. at 55 (quoting

Pollard v. United States

, 352 U.S. 354, 358 (1957), and Parker v. Ellis

, 362 U.S. 574,

577 (1960) (Warren, C.J., dissenting)). The dissent’s attempt to convert the

presumption’s operation into an examination of the likelihood of collateral

consequences for the conviction at issue, see post

, at 25, is inconsistent with the

Court’s actual practice, as well as Spencer ’s description of that practice. 24

24 We also note that the dissent’s reliance on a degree of “likelihood” will result in

practical chaos. Automatic statutory disabilities—like disenfranchisement or

employment disqualification, see Dissenting Op., post

, at 6–7, 7 n.7—do not require

operation of a presumption; they are actual, extant consequences from which the

defendant currently suffers. Thus, the only function of the presumption is with respect

to hypothetical, future consequences. But a court applying a “likelihood” approach

would have to determine whether hypothetical collateral consequences, e.g.

, denials of

handgun permits in New York City—authorized when an individual has been37 The dissent’s approach is also in significant tension with Minnesota v.

Dickerson

, 508 U.S. 366 (1993). As we note above, see supra note 15, Dickerson

involved a case in which “no judgment of conviction was entered and, upon

respondent’s successful completion of probation, the original charges were

dismissed,” and in which a Minnesota law specifically prohibited the proceeding

from being “deemed a conviction for purposes of disqualifications or disabilities

imposed by law upon conviction of a crime or for any other purpose.” 508 U.S.

at 371 n.2 (quoting M INN

. S TAT

. § 152.18). It is hard to imagine a case—including

this one—that would meet the dissent’s proposed standard less than Dickerson

—

and yet the Spencer Court cited it as an example of the presumption without a

hint of disavowal, see 523 U.S. at 10.

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

convicted of a violation, see Rules of the City of New York, tit. 38, § 5

‐ 10(a), are more or

less likely than those the Supreme Court has identified, e.g.

, the potential for future

criminal prosecution. Asking a court to make that determination seems to invite

judicial speculation or, worse, attempts at a Minority Report

‐ like predictive criminology.38 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 (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.

25 We express no opinion about how we would approach this question from a “blank

slate.” Dissenting Op., post

, at 28. When confronted with Supreme Court precedent, it

is not the job of this Court to ruminate on what it might do without that guidance. Our

refusal to engage the dissent’s “blank slate” should not be confused for implicit

approval of the dissent’s novel approach.39 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.1 L IVINGSTON

, 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

traceable to the defendant and likely to be redressed by a favorable judicial

decision.” Spencer v. Kemna

, 523 U.S. 1, 7 (1998) (quoting Lewis v. Cont’l Bank

Corp.

, 494 U.S. 472, 478 (1990)). Absent a concrete, non

‐ speculative, and

redressable injury, a case ceases to present “a case or controversy under Article

III

. . . of the Constitution.” Id. As we have long observed, “[f]ederal courts are

courts of limited jurisdiction. They possess only that power authorized by

Constitution and statute, which is not to be expanded by judicial decree.”

Kokkonen v. Guardian Life Ins. Co. of Am.

, 511 U.S. 375, 377 (1994) (citations

omitted).

Robert Nowakowski cited a single collateral consequence in his initial

habeas petition

— the potential that a subsequent suit for damages under 42

U.S.C. § 1983 might not be successful absent habeas relief

— a consequence that

the Supreme Court has previously determined to be insufficient to confer

jurisdiction over a petition for habeas corpus on a federal court. 1 See Spencer

, 523

1 Before the district court, Nowakowski did not raise the possibility that his

conviction might be used to impeach him in a future court proceeding until his second2 U.S. at 17 (discussing Heck v. Humphrey

, 512 U.S. 477 (1994)). The majority does

not suggest that, under traditional Article III principles, Robert Nowakowski’s

petition for habeas corpus would be justiciable. See Maj. Op. at 28 n.16. Instead,

the majority concludes that this case is not moot for two interlocking reasons.

First, in the majority’s view, Sibron v. New York

, 392 U.S. 40 (1968), requires that

we apply a presumption of collateral consequences to Nowakowski’s conviction

for committing a violation

‐ level offense, notwithstanding the Supreme Court’s

suggestion in Spencer that such a presumption accords with Article III principles

only when it is a “presumption of significant collateral consequences” that

“comport[s] with reality.” 523 U.S. at 12 (emphasis added). Next, having

extended this presumption further than the Supreme Court has ever extended it,

the majority applies the presumption in a way that makes it all but irrebuttable,

concluding that a single unlikely consequence

— the remotest risk of

impeachment (more remote than the risks rejected as insufficient to create

jurisdiction in Spencer

, 523 U.S. at 14

‐ 17 )

— suffices to defeat mootness here.

reply letter to the Government’s motion to dismiss his petition as moot. See Second

Letter from Robert Nowakowski in Opp. to Gov’t’s Mot. to Dism. on Mootness Grounds

at 1, Nowakowski v. New York

, No. 13

‐ cv

‐ 3709(ENV)(LB) (E.D.N.Y. May 30, 2014), ECF

No. 22 (“Second Nowakowski Letter”).3 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 punishment is fifteen days’

incarceration and/or a $250 fine. See N.Y. Penal Law § 10.00 (defining four

categories of “offenses,” including “[t]raffic infraction[s],” “[v]iolation[s],”

“[m]isdemeanor[s],” and “[f]elon[ies],” the latter two of which are formally

labeled “[c]rime[s]”); id. § 240.26 (defining harassment in the second degree as a

“violation”); N.Y. Crim Proc. L. § 1.20(39) (defining “[p]etty offense” to mean “a

violation or traffic infraction”); N.Y. Penal Law § 80.05(4) (articulating the4 maximum fine). 2 Nowakowski was originally sentenced to pay a $100 fine.

Several years after his initial sentencing, however, and just prior to his filing suit

pursuant to 42 U.S.C § 1983 seeking money damages for alleged violations of his

constitutional rights in connection with his conviction, he successfully moved the

New York court to resentence him to a year of conditional discharge with the

sole condition of mandatory attendance at a day of community service. 3

2 A defendant may be convicted of harassment in the second degree for, inter alia

, “follow[ing] a person in or about a public place” and “engag[ing] in a course of

conduct

. . . which

. . . seriously annoy[s] [an]other person.” N.Y. Penal Law § 240.26.

Other violation

‐ level offenses in New York include disorderly conduct, see id. § 240.20

(defining the offense to include, inter alia

, “obstruct[ing] vehicular or pedestrian

traffic”); loitering, see id. § 240.35 (including when a person “remains in any

transportation facility [without authorization]

. . . for the purpose of entertaining

persons by singing, dancing or playing any musical instrument”); and “[u]nlawfully

posting advertisements,” see id. § 145.30 (including when a person, “having no right to

do so nor any reasonable ground to believe that he has such right,

. . . posts, paints or

otherwise affixes to the property of another person any advertisement, poster, notice or

other matter designed to benefit a person other than the owner of the property”). New

York is not alone in distinguishing “crimes” from more petty violations. See, e.g.

, 18 Pa.

C.S.A. § 106 (listing felony, misdemeanor, and “summary offenses,” the latter including

offenses expressly designated as such as well as offenses for which “the maximum

[term of incarceration that may be imposed] is not more than 90 days”); see also id.

§ 6708 (designating “[r]et[aining] library property after notice to return” a summary

offense).

3 The majority observes that the “Notice of C.S. Obligation” Nowakowski

received indicated that the date for performance could not be rescheduled. Maj. Op. at

12. This is so, but it is also the case that the sentencing court explicitly solicited

Nowakowski’s input in selecting the day, asking whether “[a]ny particular day

work[ed] for [him]” and indicating that the individuals who would schedule the day

would “ask [Nowakowski]” what he would prefer. Gov’t App’x at 6.5 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 (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 (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 (dismissing

this argument as “a great non sequitur”). 4 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

conviction, an offense sufficiently low

‐ level as not to be labeled criminal by New

York State. 5

4 In his second reply letter to the Government’s motion to dismiss on mootness

grounds, Nowakowski briefly noted that the conviction might be used to impeach him

in a future court proceeding. See Second Nowakowski Letter, supra

, at 1.

5 Where a petitioner

— even a pro se petitioner

— fails to make a particular

argument before our Court

— let alone fails to make the argument before our Court and

the district court

— we generally deem the argument waived. Cf. Fleming v. United

States

, 146 F.3d 88, 90 (2d Cir. 1998) (noting, in a case where the petitioner failed to

allege in the district court any continuing legal consequences sufficient to permit his

petition for coram nobis relief to survive, but did cite such consequences on appeal, that,

though “a district court must review a pro se petition for collateral relief ‘with a lenient6 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

eye, allowing borderline cases to proceed,’ [w]here

. . . a petition fails even vaguely to

suggest an essential element of a claim for relief, the district court is not required to

overlook the deficiency” (quoting Williams v. Kullman, 722 F.2d 1048, 1050 (2d Cir.

1983)); LoSacco v. City of Middletown

, 71 F.3d 88, 93 (2d Cir. 1995) (“[W]e need not

manufacture claims of error for an appellant proceeding pro se, especially when he has

raised an issue below and elected not to pursue it on appeal.”). Though a party cannot

waive a challenge to the court’s jurisdiction, that does not mean that a party cannot

waive a particular argument as to why the court would have jurisdiction. See, e.g.

, Diaz v.

State of Florida Fourth Jud. Circ. ex rel. Duval Cty.

, 683 F.3d 1261, 1264 n.5 (11th Cir. 2012);

see also Wenegieme v. Wells Fargo Home Mortg.

,

__ F. App’x

__ 2016 WL 1039578, at *1 (2d

Cir. Mar. 16, 2016) (summary order) (finding that a pro se litigant’s failure to challenge

on appeal a district court’s findings in regard to its jurisdiction waived that challenge).

The majority nevertheless decides the case on a ground not suggested by Nowakowski,

either before the district court, or on appeal. As the majority addresses the argument,

so do I.

6 In suggesting that certain consequences are likely or unlikely to exist as a

“categorical matter,” I mean to distinguish the general likelihood that collateral

consequences will flow from a particular category of adjudication from the specific

likelihood that a given petitioner may be facing a concrete harm. Though the latter

question is always relevant to whether a petition is moot (whether or not one applies a

presumption), the former is germane to whether application of a presumption of

significant collateral consequences serves the purposes of Article III, or amounts to

mere expansion of jurisdiction by “judicial decree.” Kokkonen

, 511 U.S. at 377. This

distinction between asking whether a category of adjudication is likely, in the ordinary

case, to entail significant collateral consequences, and whether a specific petitioner has

sufficiently alleged harm is not my own. In Spencer

, the Court held that parole

revocations, as a category of adjudication, were insufficiently likely to entail significant7 violation

‐ level offense in New York does not disqualify a defendant from voting,

see N.Y. Elec. Law § 5

‐ 106, or from serving on a jury, see N.Y. Jud. Law § 510.

Nor does it appear generally to disqualify a person from engaging in any type of

employment. 7 In general, the records of any arrest and prosecution that ends in

conviction of a violation are sealed upon termination of the action, or destroyed

or returned to the defendant. See N.Y. Crim. Proc. Law § 160.55. Such a

conviction does not automatically enhance a future sentence under New York

law, see N.Y. Penal Law § 70.06 (enhancing a sentence on the basis of a prior

collateral consequences in the ordinary case to merit a presumption of such

consequences, see Spencer

, 523 U.S. at 12, before asking whether the specific petitioner

had presented sufficient consequences to defeat mootness, see id. at 14. Post

‐ Spencer

, we

have consistently approached the question whether to apply a presumption to a new

category of adjudication by asking whether, as a categorical matter, such a presumption

would be warranted. See, e.g.

, United States v. Mercurris

, 192 F.3d 290, 293

‐ 94 (2d Cir.

1999).

7 See, e.g.

, N.Y. Jud. Law § 90 (observing that conviction of a felony results in

immediate disbarment of an attorney and that conviction of a “serious crime” results in

suspension

— with the latter defined either as a crime that is a felony “under the laws

of any state, district or territory or of the United States” though not in New York, or

which has, as “a necessary element

. . . interference with the administration of justice,

false swearing, misrepresentation, fraud, willful failure to file income tax returns,

deceit, bribery, extortion, misappropriation, theft, or an attempt or conspiracy or

solicitation of another to commit a serious crime”); N.Y. Gen. Bus. Law § 89

‐ ggg

(empowering the state to take adverse action against an individual licensed to provide

armored car services if that individual has, inter alia

, been “convicted of a serious

offense or misdemeanor which, in the discretion of the secretary, bears such a

relationship to the provision of armored car services

. . . as to constitute a bar to

licensure or renewal”).8 felony conviction), or under federal law, see U.S.S.G. § 4A1.2(c) (excluding prior

non

‐ felony offenses for purposes of calculating a Guidelines level if they appear

on a list of petty offenses or are “similar to [those offenses appearing on the list]”

unless “(A) the sentence was a term of probation of more than one year or a term

of imprisonment of at least thirty days, or (B) the prior offense was similar to an

instant offense”).

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

— and9 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. 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. “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

(1946) (in which a conviction rendered a petitioner “liable to deportation and10 denial of naturalization, and ineligible to serve on a jury, vote, or hold office,”

Spencer

, 523 U.S. at 9)).

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

question whether an appellant’s completion of his sentence

— six months in jail

for conviction of unlawful possession of heroin

— rendered his appeal moot. 8

See 392 U.S. at 40. Relying primarily on three cases, Fiswick

, United States v.

Morgan

, 346 U.S. 502 (1954)

, and Pollard v. United States

, 352 U.S. 354 (1957), each

of which specifically addressed the collateral consequences of felony convictions,

see, e.g.

, Fiswick

, 329 U.S. at 222 (“[U]nless pardoned, [the defendant will] carry

through life the disability of a felon[,] and by reason of that fact he might lose

certain civil rights.”); Pollard

, 352 U.S. at 358 (relying on Morgan and Fiswick ’s

discussion of the civil disabilities associated with felony convictions to observe

that “[t]he possibility of consequences collateral to the imposition of sentence is

sufficiently substantial to justify our dealing with the merits”), Sibron determined

that it did not.

8 Sibron was initially charged with a felony but ultimately convicted of a

misdemeanor. See Sibron

, 392 U.S. at 45 n.1.11 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. 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 [the conviction] must be

submitted to a trial judge for his consideration in sentencing should Sibron again

be convicted of a crime.” Id. at 55

‐ 56. The Court noted, however, that “[t]here

are doubtless other collateral consequences”

— a proposition likely true in the

context of a serious misdemeanor conviction and certainly true in the context of

the felonies at issue in the precedent on which Sibron built its holding. Id. ; see also

Perez v. Greiner

, 296 F.3d 123, 125 (2d Cir. 2002) (observing that, “in Sibron []

, the

Court, citing various collateral consequences such as deportation, inability to

become a citizen, impeachment evidence in future criminal trials, and increased

future sentences, asserted a presumption that collateral consequences attach to

criminal convictions post

‐ release”).12 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 (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 (quoting

Carafas

, 391 U.S. at 237). The Court then concluded that the “doctrine of Carafas

9 See Minnesota v. Dickerson

, 508 U.S. 366, 371 n.2 (1993); Ball v. United States

, 470 U.S.

856, 864

‐ 65 (1985); Evitts v. Lucey

, 469 U.S. 387, 391 n.4 (1985); Pennsylvania v. Mimms

,

434 U.S. 106, 109 n.3 (1977); Benton v. Maryland, 395 U.S. 784, 790

‐ 91 (1969).

10 The respondents did not attack the convictions pursuant to which they had been

sentenced, though they did seek effectively to expunge findings that they had violated

their parole. See id. at 631.13 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. 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 sequence of events “[r]espondents themselves [would be] able—and indeed

required by law—to prevent.” Id. at 632 n.13 (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 be14 taken lightly. It is not warranted absent a showing that the complainant suffers

actual harm from the judgment that he seeks to avoid.” Id.

In Spencer

, the Supreme Court addressed whether a petitioner’s challenge

to an order revoking his parole

— an order based, inter alia

, on a finding that he

had committed forcible rape

— was rendered moot when the petitioner’s

sentence expired. Unlike Lane (which found the petition moot but did not

expressly analyze whether a presumption applied), the Court began by explicitly

concluding that a presumption of collateral consequences is not appropriately

applied to a parole revocation. See 523 U.S. at 8. In so concluding, the Supreme

Court criticized the presumption as applied even to criminal convictions, but it

did not overturn it. It did, however, explain why the Sibron Court had applied a

presumption in that case. First, Spencer noted that the Sibron Court’s

understanding of standing and mootness was based on a then

‐ dominant view of

such Article III doctrines as simply ensuring the sharpening of issues, a

“parsimonious view” that “ha[d] since yielded to the acknowledgment that”

such doctrines constitute a vital “means of defin[ing] the role assigned to the

judiciary in a tripartite allocation of power.” Id. (quoting Valley Forge Christian

Coll. v. Am. United for Separation of Church & State, Inc.

, 454 U.S. 464, 474 (1982)).15 Second, the Court explained that “it is an ‘obvious fact of life that most criminal

convictions do in fact entail adverse collateral legal consequences,’” id. at 12

(quoting Sibron

, 392 U.S. at 55), a proposition which meant that, in the context of

such convictions, “the presumption of significant collateral consequences is likely

to comport with reality.” Id

. The Court then explained why such a presumption

should not apply to Spencer’s parole revocation: unlike “most criminal

convictions,” such adjudications were not categorically likely to entail significant

collateral consequences. 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. 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. Third and16 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 (quoting Lane

, 455 U.S. at 632); 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 42 U.S.C. § 1983. The Court concluded that such an

argument was “a great non sequitur, unless one believes (as we do not) that a

§ 1983 action for damages must always and everywhere be available.” Id. at 17.

Having determined that the consequences on which Spencer relied

(consequences of substantially greater severity than the consequences at issue

here) were insufficient to create a case or controversy, the Court dismissed the

petition as moot.17 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 previously applied such a presumption, is not likely to entail

significant collateral consequences, such extension is not warranted. I reach this

conclusion for two interrelated reasons.

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

11 Our constitutional jurisprudence has long distinguished “petty offenses” from

“crimes” within the meaning of the Sixth Amendment, and on the basis that the former

are less likely to entail sufficiently serious consequences to justify application of certain

constitutional protections. See infra pp. 31

‐ 32. The distinction arises in numerous

contexts material to whether a judgment will entail collateral consequences. See, e.g.

, U.S.S.G. § 4A1.2(c) (generally excluding such offenses from criminal history calculations

for Guidelines purposes). The Court, moreover, has expressly acknowledged the

necessity of determining whether rules announced broadly as applicable to criminal

cases necessarily apply as well to petty offenses. See Scott v. Illinois

, 440 U.S. 367, 372

(1979).18 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. 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

12 Several lower courts have held that various lower

‐ level misdemeanor

convictions carried insufficient collateral consequences to support jurisdiction, though

they have not always clarified whether they have applied a presumption of collateral

consequences to such convictions. See e.g.

, Wickstron v. Schardt

, 798 F.2d 268, 270 (7th

Cir. 1986) (per curiam) (though resolving the case on other grounds, expressing doubt

that the petition was not moot, and observing that “[i]n Carafas

, the felony conviction at

issue resulted in disenfranchisement, disqualification for certain jobs and businesses,

and many other serious legal consequences

. . . . [, but the petitioner] does not allege

that his misdemeanor convictions produce similar effects”); Broughton v. North Carolina

,

717 F.2d 147, 148

‐ 49 (4th Cir. 1983) (per curiam) (concluding that the habeas petition

was moot because petitioner’s conviction for criminal contempt, a misdemeanor

pursuant to which petitioner had served a 30

‐ day sentence, did not carry sufficient

cognizable collateral consequences); cf, Mongeluzzo v. Henicks

, 2014 WL 5685551, at *4

(W.D. Pa. Nov. 4, 2014) (collecting cases for the proposition that “[c]ourts have reached

different conclusions regarding whether collateral consequences are presumed with

respect to misdemeanor convictions”). The Ninth Circuit, in contrast, has explicitly

held that a “presumption that collateral consequences flow [is applicable to] any

criminal conviction,” Chacon v. Wood

, 36 F.3d 1459, 1463 (9th Cir. 1994) (quoting

Hirabayashi v. United States

, 828 F.2d 591, 605

‐ 06 (9th Cir. 1987)), though this holding has

been criticized within the circuit, see Larche v. Simons

, 53 F.3d 1068, 1070 (9th Cir. 1995),

and at least one subsequent panel has assessed the mootness of a “petty misdemeanor”

without, seemingly, applying a presumption, see United States v. Roblero

‐ Solis

, 588 F.3d

692, 698 (9th Cir. 2009) (though finding an appeal from a “petty misdemeanor[]” not

moot, citing to Spencer for the proposition that “the prospect of a higher sentence” was

insufficient, by itself, to render the case justiciable, and engaging in a discussion that

would seem unnecessary were the panel to have applied Chacon ’s irrebuttable

presumption).19 observe that the “presumption of significant collateral consequences [was] likely

to comport with reality.” Spencer

, 523 U.S. at 12. 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

13 The majority argues that the Court’s analysis in Dickerson undermines my

conclusion in this case, and is inconsistent with my description of the Court’s practice as

only applying the presumption to more serious adjudications. See Maj. Op. at 37; see

also Dickerson

, 508 U.S. at 371 n.2. In Dickerson

, the defendant was convicted of fifth

‐ degree possession of a controlled substance, crack cocaine, a felony in Minnesota. See

State v. Dickerson

, 481 N.W.2d 840, 842 (Minn. 1992). He was then sentenced pursuant to

Minn. Stat. § 152.18, a diversionary scheme which permits a court not to enter a public

judgment of conviction, and generally mitigates many of the collateral consequences

that would otherwise flow from such a conviction. See Dickerson

, 508 U.S. at 371 n.2. In

assessing whether the State’s appeal was moot, the Court cited to Sibron and observed

that the reinstated judgment, though still subject to the diversionary sentence, could be

used not only for various purposes in Minnesota, see id. (citing Minn. Stat. § 152.18(c)

(noting, inter alia

, that the record of the proceedings could be used “for purposes of a

criminal investigation, prosecution, or sentencing”)), but also that the Eighth Circuit

had concluded that it could “be included in calculating a defendant’s criminal history

category in the event of a subsequent federal conviction,” id

. The majority suggests that a presumption must apply in this case, as the specific

consequences cited in Dickerson are arguably commensurate with those generally

associated with a violation. But in comparing the specific consequences Dickerson faced

as a result of committing a felony with the categorically likely consequences of a

violation

‐ level conviction, the majority conflates two inquiries: the ex ante20 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. 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. In contrast, Spencer

, in

declining to apply a presumption of collateral consequences to a parole

determination whether to apply a presumption to a category of adjudication; and the

specific question whether such a presumption has been rebutted in a particular case. To

reiterate, Dickerson was charged with and convicted of a felony. See id

. Though the

sentence in Dickerson might have been relevant to whether the presumption was

rebutted, it did not change the answer to the ex ante question, long resolved by the

Court: whether the presumption is merited as applied to a felony conviction. The

majority thus tries to stack the deck, comparing the rare felony case, where conviction

may entail few collateral consequences, with the usual violation. Finally, to the degree

that we were to compare the specific consequences Dickerson faced upon reinstatement

of the judgment against him with the specific consequences Nowakowski faces, it is

hardly obvious, as the majority suggests, that the consequences in Dickerson were less

severe. For various state purposes, and for federal sentencing enhancement purposes,

Dickerson’s criminal conviction remained a felony conviction, which could lead to

mandated sentencing enhancements.21 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;

see also Lane

, 455 U.S. at 632

‐ 33 (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, moreover, 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

14 In Mercurris

, we declined to presume the existence of collateral consequences

flowing from an erroneous sentencing enhancement. 192 F.3d at 293

‐ 94. In declining to

do so, the court, first, described the reasoning of Sibron as follows:22 In light of the Court’s prior holdings, and the reasoning of Sibron and

Spencer

, it is perfectly evident that a presumption of collateral consequences

cannot logically be extended to a violation

‐ level offense in New York. This is

because the general consequences of such an offense are not only categorically

less severe than the consequences logically associated with the convictions to

which a presumption was applied in Sibron and its progeny, but also than those

associated with parole revocations. 15 Parole revocations, after all, can result in a

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], in that convicted criminals

often face certain “civil disabilities” as a result of their conviction[,] Lane [,

455 U.S. at 632 n.13;]

. . . 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 collateral 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]”).

15 I do not read the majority to disagree with this factual premise, see, e.g.

, Maj.

Op. at 26 (observing that “[b]ecause Nowakowski’s conviction was based on one of the23 mandated federal sentencing enhancement. See U.S.S.G. § 4A1.2(k). In contrast,

even assuming that the mere risk of a sentencing enhancement is sufficient to

justify application of a presumption after Lane and Spencer

, cf. United States v.

Dominguez

‐ Carmona

, 166 F.3d 1052, 1059–60 (10th Cir. 1999) (Lucero, J.

,

concurring) (“[T]he Supreme Court in Spencer []

. . . . cast into doubt the practice

of using highly speculative collateral consequences to stave off mootness

. . . .”);

Mercurris

, 192 F.3d at 294 (declining to apply a presumption to a determination

that a conviction is an aggravated felony, as, 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

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 misdemeanor”), which

case law also reflects, see Meister v. N.Y. State Att’y Gen.

, No. 06

‐ CV

‐ 0090(RJA)(VEB),

2007 U.S. Dist. LEXIS 98605, at *15 (W.D.N.Y. M.J. Sept. 6, 2007), adopted by Meister v.

N.Y. State Atty’ Gen.

, 2007 U.S. Dist. LEXIS 98037 (W.D.N.Y. Sept. 26, 2007) (“In this

Court’s view, [the petitioner’s] conviction for a ‘violation’ [in New York]

— a less

serious offense than a ‘misdemeanor’

—

. . . cannot cause him the kind of civil

disabilities identified in Spencer .”); cf. Gentry v. Deuth, 456 F.3d 687, 694–95 (6th Cir.

2006) (“[T]he law does not require a habeas petitioner to prove

. . . that she may face

collateral consequences of her

. . . felony conviction, for the disabilities consequent to a

felony conviction are legion, and patently obvious in many cases” (citing Spencer, 523

U.S. at 8)); Broughton

, 717 F.2d at 149 (finding that a petition challenging a misdemeanor

conviction was moot upon completion of sentence because the conviction would not,

inter alia

, “prevent [the petitioner] from voting, serving on a jury, obtaining a license to

practice law, becoming an official of a labor union, or qualifying for state elective office,

. . . [n]or

. . . expose her to the possibility of an enhanced sentence if she commits a later

criminal act” (citations omitted)).24 crime he has not yet committed”), there is minimal risk of such enhancement

with prior violations, see N.Y. Penal Law § 70.06; U.S.S.G. § 4A1.2(c). 16 As the

majority observes, there may be some risk of impeachment associated with

conviction of a violation

‐ level offense

— though only, it seems, in state

criminal court. See Maj. Op. at 32

‐ 33. Even if evidence rules permit

introduction of a violation

‐ level conviction just as they would permit

introduction of a more serious offense, however, the risk of impeachment

actually occurring is not logically commensurate. 17 And Spencer makes clear

16 I do not mean to suggest that there is no possibility that a petitioner could face

a federal sentencing enhancement on the basis of a violation

‐ level offense generally, or

Nowakowski’s violation, specifically. But in assessing whether a presumption is

appropriate, it bears pointing out that under the federal Sentencing Guidelines, certain

petty offenses are generally excluded from calculating a criminal history. See

U.S.S.G. § 4A1.2(c)(1) (“Sentences for the following prior offenses and offenses similar

to them, by whatever name they are known, are counted only if (A) the sentence was a

term of probation of more than one year or a term of imprisonment of at least thirty

days, or (B) the prior offense was similar to an instant offense[.]”); see also United States

v. Morales

, 239 F.3d 113, 118

‐ 20 (2d Cir. 2000) (discussing second

‐ degree harassment

specifically). There is thus little question that the risk of a statutory sentencing

enhancement for the vast majority of such offenses is nonexistent.

17 Thus, it seems unlikely a prosecutor would attempt to impeach a future

defendant for unlawfully putting up posters on private property, s ee N.Y. Penal Law

§ 145.30, or that a court would generally permit impeachment even with an

adjudication of second

‐ degree harassment. The New York Court of Appeals has made

clear that evidence of an offense must in fact bear “logically and reasonably on the issue

of credibility,” and that some convictions are far more likely to bear on that issue than

others

— of which harassment in the second degree (and most violation

‐ level offenses)

would appear logically to be in the latter category. People v. Sandoval

, 34 N.Y.2d 371,25 that some small risk of impeachment is simply not enough to render a

presumption appropriate. 18

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 presumption should apply. 19 Indeed, the basic logic of applying

376

‐ 77 (1974) (noting that “[t]he commission of an act of impulsive violence

. . . will

seldom have any logical bearing on the defendant’s credibility, veracity, or honesty

. . . [in contrast to] crimes or acts of individual dishonesty, or untrustworthiness”). The

majority is correct that there is some risk that numerous prior bad acts could be used to

impeach a defendant in New York

— indeed, whether or not he is convicted of a crime

as a result of that act. See id. at 376 (referring to admission of “[e]vidence of prior

specific criminal, vicious, or immoral conduct”). By the majority’s reasoning, however

(which deems this possibility alone sufficient to raise a presumption), Spencer itself

should likely have come out the other way.

18 Though Spencer analyzed the risk of impeachment in the context of assessing

the specific harms cited by the petitioner therein (rather than in the context of a

categorical assessment of whether a presumption should apply), its analysis makes

evident that parole revocations generally do entail some risk of impeachment

— certainly no less than a violation

— and that this is not enough to satisfy Article III’s

case or controversy requirement, generally, or to support a presumption that such

requirement has been met in the context of a specific category of judgment. See Spencer

,

523 U.S. at 15

‐ 16.

19 The majority is able to downplay the significance of New York’s own

designation of its offense as something other than a “crime” by resolving this case

through invocation of doctrine formulated in a largely inapposite context. See Maj. Op.

at 15

‐ 25. New York’s classification of such violations as non

‐ criminal, however

— a

classification that New York reflects in numerous ways throughout its statutory regime,26 a presumption of collateral consequences to a serious conviction clearly

forecloses application of such a presumption here. To the degree that the Court

has “presum[e]d” significant consequences, it has done so because they are

likely; and to the degree that the Court has “count[ed] collateral consequences

that are remote and unlikely to occur,” it has done so both because such

consequences invariably sit beside other unstated, and unacknowledged likely

consequences, and because the seriousness of the convictions at issue suggests

that even consequences that may appear remote are more likely to occur than

might be apparent. Spencer

, 523 U.S. at 8. 20 This is not to say that application of a

see, e.g.

, N.Y. Crim. Proc. Law § 160.55 (sealing various records of such convictions as

well as arrests that may have initially been for offenses actually designated “crimes”),

and that is reflected in how various court decisions discuss such violations, see, e.g.

, Ligon v. City of New York

, 2012 WL 2125989, at *1 (S.D.N.Y. June 12, 2012) (referring to a

violation as a “non

‐ criminal offense”)

— while not dispositive whether violations are

criminal for purposes of certain enumerated constitutional protections, is plainly

relevant to whether such convictions are likely to entail significant collateral

consequences as a categorical matter, cf. A.M. v. Butler

, 360 F.3d 787, 802

‐ 03 (7th Cir.

2004) (Easterbrook, J., dissenting) (suggesting that a juvenile adjudication is not a

“crime” for purposes of the Sibron presumption, and in particular noting that “Illinois

calls it an ‘adjudication’ precisely so that later in life persons who violated the law can

say ‘no’ to the question ‘have you ever been convicted of a crime?’”).

20 The majority derides my focus on the likelihood of collateral consequences

flowing from a category of judgment as “ Minority Report

‐ like,” Maj. Op. at 37 n.24, but

of course such an approach is routine in the context of standing and mootness inquiries,

as delineation between likely and unlikely injuries, however difficult, is essential to

maintaining the limitations on the jurisdiction of federal courts, see, e.g.

, Spencer

, 52327 presumption of collateral consequences even to relatively serious adjudications

does not sit “uncomfortably” beside traditional principles of Article III, as the

Spencer majority understood. Id. at 10

‐ 11. But there is only limited discomfort, as

long as the presumption is confined to such a context. In contrast, to apply a

presumption to an adjudication like the one here is to require courts to presume

the existence of an injury when such injury is not likely to exist

. Applied in such a

manne r, the presumption becomes an arbitrary mechanism for the manufacture

of cases and controversies that will inevitably require federal courts to hear cases

on the merits in contravention of their obligations under Article III. That is the

reasoning and sense of the cases from Sibron to Spencer

— reasoning and sense

from which the majority today departs. 21

U.S. at 14 (referring to the use of a parole revocation in a future parole proceeding as “a

possibility rather than a certainty or even a probability”).

21 The majority criticizes my approach to this inquiry, in particular suggesting

that the presumption would be meaningless if we required every petitioner to

demonstrate that “collateral consequences generally flow from [his] conviction before”

affording him the benefit of “a presumption that assumes, as a first step subject to

rebuttal, that collateral consequences generally flow from [his] conviction.” Maj. Op. at

35. This criticism misstates the nature of my approach. I am not proposing a new step

in mootness analysis, whereby every petitioner, including those challenging a category

of judgment to which the Court has previously held a presumption to be justified, must

individually prove a presumption applies. I am simply engaging in the ex ante inquiry

that the majority elides: determining whether extension of the presumption to a new

category of judgment would be consistent with our obligations under Article III. This28 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 14

‐ 25, 38. 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

approach, far from novel, is the very process for determining whether a presumption

should apply to a new category of judgment that the Supreme Court itself employs. See

Spencer

, 523 U.S. at 12 (declining to extend the presumption to parole revocations

because they are not likely to entail significant collateral consequences); see also

Mercurris

, 192 F.3d at 293

‐ 94 (using the same methodology in declining to apply the

presumption to sentencing enhancements); Gul

, 652 F.3d at 17 (using the same

reasoning to not apply a presumption to designations as an enemy combatant). Indeed,

in skipping this step altogether, it is the majority who is begging the question: the

majority would require federal courts to presume a violation

‐ level offense entails

significant collateral consequences without once asking whether such a presumption in

any sense comports with reality.29 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 (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,30 there is still no reason to believe that the scope of this phrase includes the

judgment here. The meaning of these words must be ascertained in context. Cf.

United States v. Bialsys

, 524 U.S. 666, 673 (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 often used the short

‐ hand

“criminal conviction,” moreover, when context makes perfectly clear that it can

only have meant felony conviction or, in some cases, a serious misdemeanor. For

instance, in North Carolina v. Rice

, the Court observed, without citing Sibron

, that

“[a] number of disabilities may attach to a convicted defendant even after he has

left prison, and the Court has recognized the standing of such persons to

challenge the legality of their convictions even when their sentences have been

served.” 404 U.S. 244, 247 (1971). In a footnote, the Court then supported this

statement by citing numerous consequences that would generally apply only to

felonies, including disenfranchisement. See id. at 247 n.1 (citing, inter alia

,

Comment, Civil Disabilities of Felons, 53 Va.L.Rev. 403 (1967)). The Court31 nowhere qualified the term conviction with the words “felony” or “serious,” but

no matter

— the meaning was clear enough from context.

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 pronouncements, the Court has subsequently held that

these rights do not apply to all criminal convictions as that term might be used in

other contexts

— in particular distinguishing more serious convictions from

petty offenses. See Lewis v. United States

, 518 U.S. 322, 325 (1996) (observing that,

though the Sixth Amendment is clear that “[i]n all criminal prosecutions, the

accused shall enjoy the right to

. . . trial, by an impartial jury,” “there is

[nevertheless] a category of petty crimes or offenses which is not subject to the

Sixth Amendment jury trial provision” (first quoting U.S. Const. Am. VI; then

quoting Duncan v. Louisana

, 391 U.S. 145, 159 (1968)); see also Duncan

, 391 U.S. at

160 (“So

‐ called petty offenses

. . . have always been held to be exempt from the

otherwise comprehensive language of the Sixth Amendment ʹ s jury trial

provisions[, in part because]

. . . . [t]he possible consequences to defendants from

convictions for petty offenses have been thought insufficient to outweigh the32 benefits to efficient law enforcement and simplified judicial administration

resulting from the availability of speedy and inexpensive nonjury

adjudications”). 22 The majority’s determination that “criminal conviction”

includes a low

‐ level judgment like Nowakowski’s (denominated a petty offense,

and not criminal, by the State of New York) thus does not obviously flow from

22 The Sixth Amendment further provides that “[i]n all criminal prosecutions, the

accused shall enjoy the right

. . . to have the Assistance of Counsel for his defence.” The

evolution of this right, too, is instructive. In Gideon v. Wainwright

, announcing the right

to state

‐ provided counsel for indigent defendants in the context of an appeal from a

state felony conviction, the Court observed without qualification that “[t]his noble ideal

[of a system of fair trials] cannot be realized if the poor man charged with crime has to

face his accusers without a lawyer to assist him.” 372 U.S. 335, 344 (1963); see also id. at

348 (Clark, J.

, concurring) (“That the Sixth Amendment requires appointment of counsel

in ‘all criminal prosecutions’ is clear, both from the language of the Amendment and

from this Court ʹ s interpretation.”). Nevertheless, the Court subsequently qualified that

right, ultimately concluding that it did not apply in the context of all state criminal

prosecutions. See Scott

, 440 U.S. at 373

‐ 74 (“We

. . . hold that the Sixth and Fourteenth

Amendments to the United States Constitution require only that no indigent criminal

defendant be sentenced to a term of imprisonment unless the State has afforded him the

right to assistance of appointed counsel in his defense.”). Indeed, in Scott

, the Court

specifically noted that the project of extending its precedent was challenging, in part

because of the difficulty of determining how and whether seemingly broad holdings

might apply to petty offenses

. See id. at 372 (observing that locating a “constitutional

line” was challenging, in part because “[t]he range of human conduct regulated by state

criminal laws is much broader than that of the federal criminal laws, particularly on the

‘petty’ offense part of the spectrum”). In light of this “range of human conduct,” the

Court hesitated to simply “extrapolate” from prior decisions: “[A]lthough the general

nature of the principle sought to be applied [in such decisions may be] clear, its precise

limits and their ramifications become less so.” Id. After noting that the Sixth

Amendment’s text was not instructive, see id. (“We have now in our decided cases

departed from the literal meaning of the Sixth Amendment.”), the Court held that a line

between “actual imprisonment

. . . [and] fines or the mere threat of imprisonment

. . . is

eminently sound and warrants adoption.” Id. at 373.33 the Supreme Court’s references to “criminal conviction” in cases like Sibron and

Spencer

, absent some ability to square this outcome with the context, logic, and

reasoning of these decisions.

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 (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 words, change the status of34 the proceeding for purposes of enhancement provisions, impeachment laws,

felony impairments, or the other collateral legal consequences animating cases

like Sibron and Carafas. Indeed, it is not clear how the majority’s analysis in any

way illuminates the actual collateral consequences flowing from an adjudication. It

is perhaps for this reason that the Fifth Circuit recognized in Port v. Heard

, 764

F.2d 423 (5th Cir. 1985), in the context of discussing civil and criminal contempt,

that the “mootness of contempt judgments turns, not on the formalistic

enterprise of labeling the contempt judgment, but on the presence vel non of a

live controversy.” Compare id. at 427, with Feiock

, 485 U.S. at 627 (assessing

whether a contempt proceeding was functionally civil or criminal).

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 relevant35 to mootness (and indeed is relevant here), and mootness serves not as a

protection afforded to individuals in the criminal process, but as a limitation on

courts

, confining the judiciary to its constitutionally defined role. See Spencer

, 523

U.S. at 11. For these reasons, I am hard

‐ pressed to agree with the majority that

the Supreme Court intended, in using the words “criminal conviction” in the

context of serious convictions, to require courts faced with difficult questions at

the edge of mootness to resolve such questions not through appeal to the

existence of a controversy, but through application of precedent created in an

unrelated context for unrelated reasons, and that is not grounded in the

animating limitations of Article III.

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 “significant36 collateral consequences” will necessarily flow from such an offense across the

range of cases. Spencer

, 523 U.S. at 12.

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 (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

23 As the majority observes, the overwhelming majority of courts have held that

the presumption is rebuttable. See Maj. Op. at 29. Such courts have also held on

numerous occasions that the Government successfully rebutted the presumption in the

context of low

‐ level judgments that entailed similar

— if not always identical

—

consequences to the judgment in this case. See e.g.

, Puchner v. Kruziki

, 111 F.3d 541, 543

(7th Cir. 1997) (“We need not finally resolve whether a judgment of civil contempt is the

kind of ‘conviction’ contemplated by the collateral consequences rule, however, because

it is clear that Puchner’s contempt order did not carry the kind of collateral

consequences that allow him to escape mootness now that he is released.”); Meister,

2007 U.S. Dist. LEXIS 98605, at *16 (recommending, after assessing the consequences

that could flow from a violation

‐ level conviction, that the court hold that “any

presumption in favor of collateral consequences” that might apply to a violation

‐ level

conviction in New York “has been overcome” by the Government); United States v. Hill,

171 F.Supp.2d 1032, 1038, (D.S.D. 2001) (noting that a conviction for a “misdemeanor

offense[] does not cause

. . . the kinds of concrete disadvantages or disabilities that have

been recognized as being sufficiently adverse collateral consequences to make [a] case37 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 31, 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. But if one were to take this

statement

— and thus this “standard of proof,” Maj. Op. at 29

— literally

, the

necessary result would almost certainly be that the presumption is functionally

irrebuttable. 24

justiciable,” and thus that “the presumption in favor of finding collateral consequences

has been overcome”).

24 Scholars analyzing Sibron in its immediate aftermath made precisely this point

— that, taken literally

, this single sentence the majority lifts for its standard of proof

would suggest that the presumption is indeed irrebuttable

— even as other statements in

Sibron imply that this is not so. See Mootness in Criminal Cases

, The Supreme Court, 1967

Term, 82 Harv.L.Rev. 63, 297

‐ 98 (1968) (“Given the existence of legal disabilities for

convicted criminals in at least some states, a defendant ʹ s conviction would always seem

to entail the possibility that he will sometime in the future suffer such disabilities.”).

Only one circuit has held that the presumption is irrebuttable, see Chacon

, 36 F.3d at

1463, and that decision has garnered criticism within the Ninth Circuit that is

instructive in this case, see Larche

, 53 F.3d at 1069

‐ 70 (arguing that the Chacon panel’s

determinations that the presumption applied to misdemeanors, and was irrebuttable,

together “completely eliminat[ed] the mootness doctrine from habeas cases,” and

thereby “ignored the constitutional underpinnings of the mootness doctrine, and the

traditional role of the Great Writ”).38 The majority expressly disclaims that its presumption is irrebuttable, a

conclusion it reaches, sensibly, on its reading of Spencer

. See Maj. Op. at 29

‐ 30;

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 (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 taking39 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 28. 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. Even if the

Government’s categorical analysis of a violation

‐ level offense is not enough to

avoid application of the presumption, it cannot be irrelevant as well at the40 rebuttal stage, and it has not been irrelevant to other courts. See, e.g.

, Meister

,

2007 U.S. Dist. LEXIS 98605, at *12.

Second, even assuming a risk of impeachment in a vacuum is sufficient to

create a justiciable controversy, the risk of such impeachment

— though not non

‐

existent

— 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.

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.

25 Though it is true that the risk of impeachment, generally, may have been cited

in some of the Sibron

‐ line cases, the actual risk in this case

— understood in light of the

nature of Nowakowski’s conviction

— is simply not “a consequence significant enough

to have been accepted by the Supreme Court in the past.” Maj. Op. at 38.41 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;

Larche v. Simons

, 53 F.3d 1068, 1069

‐ 70 (9th Cir. 1995). 26

26 I note, finally, that the majority declines to decide whether the actual

consequence Nowakowski cited

— the effect of his extant conviction on his pursuit of

damages via 42 U.S.C. § 1983

— is sufficient to make this case justiciable. See Maj. Op at

33 n.22. My disposition of the case necessitates reaching this question, and I would

hold that it does not. Justice Scalia, writing for eight justices in Spencer

, referred to this

consequence as “a great non sequitur, unless one believes (as we do not) that a § 1983

action for damages must always and everywhere be available.” 523 U.S. at 17. It is

true that Justice Souter, writing for four justices, made clear his belief that Heck would

pose no bar in any subsequent § 1983 suit. See id. at 21 (Souter, J., concurring); see also id.

at 19 (noting that if Heck did pose a bar, that “would provide a reason, whether or not

dispositive, to recognize continuing standing to litigate his habeas claim”). Yet, Justice

Souter also observed that he “join[ed] the Court’s opinion as well as the judgment,” and

specified that he joined that opinion for “an added reason that the Court does not reach”

— that the Heck bar would not be present. See id. at 18 (emphasis added). Thus, even if

there was a division on the Court as to whether a Heck bar would limit relief in a42 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

subsequent § 1983 action, a firm majority agreed that the question did not impact the

justiciability of Spencer’s petition. The alternative view would suggest that Justice

Souter and three other justices joined two incompatible opinions

— a majority opinion

that expressly did not decide whether a Heck bar existed (or assumed that it did), and

thus grounded its reasoning on the irrelevance of that bar

— and a concurrence that

decided no Heck bar existed and then grounded its conclusion on the non

‐ existence of

that bar. Other courts have reached a similar conclusion. See United States v. Duclos, 382

F.3d 62, 67 (1st Cir. 2004); United States v. Clark

, 193 F.3d 845, 848 (5th Cir. 1999); see also

McClendon v. Trigg

, 79 F.3d 557, 559 (7th Cir. 1996) (finding that the potential of a Heck

bar was insufficient to prevent mootness after the petitioner passed away

— though the

family argued that it would be barred from pursuing a § 1983 claim absent habeas); cf.

Diamond v. Charles

, 476 U.S. 54, 70 (1986) (holding that “the mere fact that continued

adjudication would provide a remedy for an injury that is only a byproduct of the suit

itself does not mean that the injury is cognizable under Art. III”).

27 I do not read the majority as holding that conditional discharge itself

— irrespective of the specific condition attached to it

— adds any material severity to a

restraint on liberty for purposes of our analysis. See N.Y. Penal Law § 65.05(2) (“[W]hen

the court imposes a sentence of conditional discharge the defendant shall be released

with respect to the conviction for which the sentence is imposed without imprisonment or

probation supervision but subject, during the period of conditional discharge, to such43 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 (1973), and neither the Supreme Court, nor our Court, has previously

found a restraint of commensurate severity to constitute custody. 28 But be that as

conditions as the court may determine.” (emphases added)). Nor would such a

conclusion make sense. First, though a sentencing court “ may modify or enlarge the

conditions [of conditional discharge],” id. (emphasis added), no such modification

occurred here, and there is no reason to believe that in the ordinary case the risk of

modification (coupled with the risk that the modification will result in greater restraints,

rather than equal or even lesser ones) is a significant one, see, e.g.

, People v. Stefanello

, 195

Misc. 2d 262, 264 (N.Y. Cty. Ct. Ontario Cty. 2003) (observing that “[d]epending on the

circumstances, particularly the offender’s conduct

, the sentence may be modified or

revoked entirely and a new sentence imposed” (emphasis added)). Second, the

restriction that Nowakowski not commit an additional offense (or risk revocation of his

conditional discharge) does not constitute a “restraint[] not shared by the public

generally.” Jones v. Cunningham

, 371 U.S. 236, 240 (1963). And finally, a contrary

determination might have the effect of elevating conditions courts have held insufficient

to constitute custody above their stature. Compare, e.g.

, People v. Pabon

, 119 A.D.2d 446,

446 (N.Y. App. Div. 1st Dep’t 1986) (assessing a sentence in which the sole condition

was that the defendant could not reapply for a driver’s license); with Lillios v. New

Hampshire, 788 F.2d 60, 61 (1st Cir. 1986) (per curiam) (holding that suspension of a

driver’s license was not a sufficient deprivation of liberty to render a defendant in

custody).

28 See Jones

, 371 U.S. at 242 (holding parole supervision to be custody); Hensley

,

411 U.S. at 351 (finding custody where petitioner’s “freedom of movement rest[ed] in

the hands of state judicial officers, who [could] demand his presence at any time and

without a moment’s notice”; where he was free from “incarceration” only by virtue of a

stay; and where he faced the imminent threat of future incarceration); Justices of Boston

Mun. Court v. Lydon, 466 U.S. 294, 301 (1984) (finding custody, in the context of a Double44 it may, if habeas, an “extraordinary remedy whose operation is to a large extent

uninhibited by traditional rules of finality and federalism,” id.

, has transformed, for

some petitioners, from a remedy of severe deprivations of liberty to a mere tool

through which a petitioner may challenge the collateral consequences of a

conviction or adjudication, then it is all the more important that we ensure that the

petition presents a live case or controversy when analyzing those collateral

consequences.

I respectfully dissent.

Jeopardy case, where the petitioner faced “[the] obligation to appear for trial in the jury

session on the scheduled day and also ‘at any subsequent time to which the case may be

continued’” (quoting Mass.Gen.Laws Ann., ch. 278, § 18 (West 1981)); the requirement

to “not depart without leave” (quoting id. ); and the imminent threat of two years’

incarceration should he fail to appear at the trial); Poodry v. Tonawanda Band of Seneca

Indians

, 85 F.3d 874, 895 (2d Cir. 1996) (finding the threat of permanent banishment

from a reservation sufficient to render the petitioners in custody); compare Shenandoah v.

U.S. Dep’t of Interior

, 159 F.3d 708, 714 (2d Cir. 1998) (finding the petitioners not in

custody where they alleged, inter alia

, that they had been “denied admittance into the

Nation’s health center,

. . . [and] banned from various businesses and recreational

facilities”); see also Poodry

, 85 F.3d at 895 (suggesting that the placement of a penalty in

the hierarchy of a state’s penalty

‐ scheme is relevant to its severity). Further, the

majority’s conclusion that duration is in all cases irrelevant to the level of severity

imposed by a penalty, see Maj. Op. at 10, does not seem obvious. Indeed, it may be that

at times one must recognize duration to fully understand the severity of a restriction on

liberty. See, e.g.

, Poodry

, 85 F.3d at 895 (discussing permanent banishment); see also Lydon

,

466 U.S. at 301 (noting that the petitioner was “under an obligation to appear for trial in the

jury session on the scheduled day and also ‘at any subsequent time to which the case may

be continued’” (quoting Mass.Gen.Laws Ann., ch. 278, § 18 (West 1981))(emphasis added)).