Opinion
03 Civ. 2670 (RJH).
May 30, 2006
MEMORANDUM OPINION AND ORDER
On May 30, 2006, Magistrate Judge Henry B. Pitman issued a Report and Recommendation ("Report") recommending that this Court deny petitioner's writ for habeas corpus, and thereby dismiss the petition. To date, the Court has neither received any objections to the Report nor any other communication, such as a letter requesting an extension of time in which to file objections, from petitioner.
The district court adopts a Magistrate Judge's report and recommendation when no clear error appears on the face of the record. See Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985). However, the court is required to make a de novo determination of those portions of a report to which objection is made, 28 U.S.C. § 636(b)(1)(C), by reviewing "the Report, the record, applicable legal authorities, along with Plaintiff's and Defendant's objections and replies." Badhan v. Lab. Corp. of Am., 234 F. Supp. 2d 313, 316 (S.D.N.Y. 2002). The court may then accept, reject, or modify in whole or in part recommendations of the Magistrate Judge. See Nelson, 618 F. Supp. at 1189. If a party fails to object to a report within 10 days of being served with the report, that party waives their right to object and appellate review of the district court's decision adopting the report, absent unusual circumstances, is precluded. See United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).
The Court finds that no clear error appears on the face of the record and hereby adopts the Report, which is attached to this opinion for ease of reference. Therefore, the petition of Samuel Brown for a write of habeas corpus is dismissed with prejudice. The Clerk shall close this case.
SO ORDERED.
PITMAN, United States Magistrate Judge:
I. Introduction
Petitioner Samuel Brown seeks, by his second amended pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, an Order vacating a judgment of conviction entered on April 22, 1991 by the New York State Supreme Court, Bronx County (Wittner, J.), convicting him of attempted murder in the second degree, robbery in the first degree and assault in the second degree, in violation of New York Penal Law Sections 110.00, 125.25(1), 160.15 and 120.05(6), respectively. Petitioner was sentenced as a persistent violent felony offender to three concurrent, indeterminate terms of thirteen years to life on the attempted murder and robbery counts and six years to life on the assault count. Petitioner is currently incarcerated pursuant to the judgment.
For the reasons set forth below, I respectfully recommend that the petition be denied.
II. Facts
A. Facts Leading to Petitioner's Conviction
Petitioner's conviction arises out of a March 4, 1990 attack on his then-girlfriend, Yvonne Faulks (Tr. at 22). The brutal attack took place in her apartment and lasted approximately four hours. Over the course of the attack, petitioner stated that he was going to kill Faulks, punched her head repeatedly, threw a meat cleaver at her and hit her with a broom stick and a ceramic statue (Tr. at 28-29, 31-36, 38, 40-42). Additionally, petitioner took Faulks's automatic teller machine card from her purse and beat her until she gave him the personal identification number required to access her account. He also took all the money from her purse, approximately $150 (Tr. at 31-33). Faulks was eventually able to escape from petitioner by barricading herself in her bathroom (Tr. at 40-41). After staying there for approximately seventeen hours, Faulks summoned the police after she heard petitioner leave the apartment (Tr. at 42-43, 45).
"Tr." refers to the transcripts of petitioner's trial, provided to the court by respondent.
Petitioner has two prior felony convictions for robbery in the first degree and criminal possession of a weapon in the third degree and was on parole at the time of the attack (May 15, 1991 Pre-Sentence Report, annexed as Exhibit 10 to Affidavit of Assistant District Attorney Rafael A. Curbelo, Esq., sworn to May 19, 2004 ("Curbelo Aff.") (Docket Item 11)).
B. Procedural History
Petitioner never appealed his conviction. On May 25, 1991, petitioner filed a pro se motion seeking to set aside his sentence pursuant to New York Criminal Procedure Law Section 440.20. There, petitioner argued that his rights were violated because he was not given a pre-sentencing interview and no presentencing report was issued. He further argued that "due to the failure or refusal of the New York State Dept. of Correctional Services, to assume custody, [petitioner is] in imminent danger of being held in custody for a longer period of time than authorized" (Notice of Motion to Set Aside Sentence ("1st 440.20 Motion"), annexed as Exhibit 3 to Curbelo Aff.). Petitioner attached to the motion what appears to be a statement of facts supporting these claims. It could, however, also be construed as raising additional claims. Though difficult to decipher, petiappeared to argue in the attachment that (1) his attempted murder conviction was not supported by the facts, (2) he was never arrested or arraigned for attempted murder and thus he should not have been convicted for attempted murder (3) the complainant never signed the complaint and (4) inexplicably, he was convicted by a grand jury, not a trial jury, after which he pled guilty to the charges (1st 440.20 Motion). This motion is still pending (Curbelo Aff. ¶¶ 9-10; Second Amended Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody ("2d Amended Pet.") ¶ 14 (Docket Item 5)).
Petitioner also submitted with his amended petition an additional pro se Section 440.20 motion and a pro se order to show cause pursuant to Article 78 of the New York Civil Practice Law and Rules (Notice of Motion to Set Aside Sentence ("2d 440.20 Motion"), annexed as Exhibit E to Amended Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody ("1st Amended Pet.") (Docket Item 3); Order to Show Cause ("Order to Show Cause"), annexed as Exhibit F to 1st Amended Pet.). Although respondent contests whether these two motions were ever filed, petitioner attached as exhibits photocopies of certified mail return receipts that appear to relate to the motions. Nevertheless, respondent claims that there is no record of the motions being filed in records maintained by the New York Supreme Court, Bronx County and, furthermore, that the motions were never served upon respondent (Curbelo Aff. ¶¶ 11-12).
The additional Section 440.20 motion claimed that "under 'no due process,' and in accordance with section 440.20 subdivision 1," the sentence imposed by the Trial Court should be vacated for "lack of compliance with provisions of law" (2d 440.20 Motion). The Article 78 motion sought dismissal of all charges against petitioner and claimed that petitioner was illegally incarcerated due to the prosecution's use of "forgery, fraud, deceit, [and] trickery" (Order to Show Cause).
C. Petitioner's Claims
After filing his original petition, petitioner was twice directed to amend his petition by the Honorable Michael B. Mukasey, Chief United States District Judge for the Southern District of New York. Specifically, Chief Judge Mukasey directed petitioner to, inter alia, set forth clearly the constitutional grounds he seeks to raise and state the underlying facts and legal theory supporting each ground (Docket Item 2; Docket Item 4). In his subsequent filings pursuant to the orders, petitioner did not file a unified petition but merely submitted amended portions to the original petition that Chief Judge Mukasey found to be deficient. Determining what claims petitioner is asserting thus requires reading all three petitions together.
Petitioner's claims are difficult to discern. Reading the petition leniently, see Haines v. Kerner, 404 U.S. 519, 520 (1972); Iwachiw v. New York State Dep't of Motor Vehicles, 396 F.3d 525, 529 n. 1 (2d Cir. 2005), petitioner appears to claim that his due process rights were violated because (1) New York Supreme Court Justice Bonnie Wittner overruled Administrative Law Judge Nathan J. Siegel's decision "sustain[ing]" the assault charge (2d Amended Pet. ¶ 13; Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody ("Pet.") ¶ 12(A) (Docket Item 1)); (2) petitioner was "found guilty by a quorum of grand jurors" and there was "no trial [or] plea bargaining" (2d Amended Pet. ¶ 13; Pet. ¶ 12(B)); (3) he was only arrested and "booked" on an assault charge, not attempted murder, and, thus, he should not have been convicted of attempted murder, and (4) he was "illegally" sentenced (2d Amended Pet. ¶ 13; 1st Amended Pet. ¶ 14; Pet. ¶ 12(A)-(B)).
Petitioner appears to believe that Judge Siegel dismissed his assault charge, despite petitioner's writing that Judge Siegel "sustained" the charge.
Petitioner did not file his original habeas petition until May 20, 2003, almost twelve years after his conviction. It appears the petition is timely, however, because the one-year limitations period is tolled by petitioner's pending and seemingly proper May 25, 1991 filing for collateral relief in the State court. 28 U.S.C. § 2244(d)(2); Evans v. Chavis, ___ U.S. ___, ___, 126 S.Ct. 846, 849 (2006); Geraci v. Senkowski, 211 F.3d 6, 9 (2d Cir. 2000). Respondent also expressly waived any limitations defense (Curbelo Aff. ¶ 10).
A. Exhaustion
It is fundamental that a state prisoner who claims that he is incarcerated in violation of his federally protected rights must first exhaust all available state remedies. 28 U.S.C. § 2254(b) (1); Baldwin v. Reese, 541 U.S. 27, 29 (2004); Picard v. Connor, 404 U.S. 270, 275 (1971); Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 808 (2d Cir. 2000). Respondent contends that petitioner has failed to exhaust his state remedies with respect to all claims and that the petition could be denied on that ground alone (Respondent's Memorandum of Law ("Resp. Memo.") at 4, annexed to Curbelo Aff.). At the very least, there are extremely serious questions in this case as to whether petitioner has exhausted all of his state remedies; it does not appear that he asserted all of his claims in constitutional terms, nor does it appear that he utilized all avenues of appellate review potentially available to him in the state court. Daye v. Attorney Gen., 696 F.2d 186, 191 (2d Cir. 1982). Nevertheless, since petitioner's claims are so patently devoid of merit, I conclude that the course that best serves the interests of justice is to address the substance of the claims and to deny them on the merits. See 28 U.S.C. § 2254(b)(2) (permitting federal courts to deny unexhausted habeas claims on the merits); Rhines v. Weber, 544 U.S. 269, 277 (2005); Padilla v. Keane, 331 F.Supp.2d 209, 216 (S.D.N.Y. 2004).
B. Petitioner's Claims
For the purposes of this report and recommendation, I assume without deciding that petitioner's claims are cognizable on federal review. 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("[F]ederal habeas corpus relief does not lie for errors of state law. Today, we reemphasize that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." (internal quotations and citations omitted)); Howard v. Walker, 406 F.3d 114, 121 (2d Cir. 2005) (noting that a conviction obtained in violation of state law is not cognizable in federal court). Nevertheless, the claims fail because they are meritless.
Petitioner's first claim, that Justice Wittner wrongfully overturned Judge Siegel's decision "sustain[ing]" petitioner's assault charge, suggests, as noted above, that petitioner believed that Judge Siegel dismissed the assault charge and that Justice Wittner wrongfully reinstated it. Petitioner's claim is meritless.
Judge Siegel presided over a parole revocation hearing that took place after petitioner's arrest to make a determination concerning whether petitioner had violated the conditions of his parole and, if so, to make a recommendation to the Board of Parole concerning whether and for how long petitioner should be returned to jail (Final Parole Hearing Transcript ("Parole Tr.") at 4, annexed as Exhibit 13 to Curbelo Aff.; Resp. Memo. at 7). The only evidence of Judge Siegel's recommendation is a decision by the Board of Parole approving Judge Siegel's recommendation that certain charges against petitioner should either be "sustained" or "not sustained" (Parole Board Decision Notice — Violation of Release, annexed as Exhibit B to 1st Amended Pet.). However, that decision only refers to charges against petitioner by number and provides no corresponding description of the charges that were sustained. Thus, on the record before me, it is impossible to determine whether Judge Siegel recommended that petitioner be found to have violated his parole based on the assault charge.
Petitioner also attaches two documents to his amended petition purporting to either "sustain" or "not sustain" certain parole violation charges, including a charge for assaulting Faulks and another for assaulting a Wanda Moore in October of 1988 (1st Amended Pet. Exhibit B). There are several handwritten addendums to the documents, including the notations that the charges were either "sustain[ed]" or "not sustain[ed]." Petitioner does not explain who made these notations, but their source is immaterial. The decisions are not final decisions of the Board of Parole and, as explained in the text, only relate to petitioner's parole violation proceedings which are not at issue here.
Regardless of Judge Siegel's recommendation, however, petitioner's claim still fails. As respondent correctly points out, Judge Siegel could not have dismissed any of petitioner's criminal charges (Resp. Memo. at 8). An adjudication on a parole violation only determines whether a parolee will have to be incarcerated or otherwise penalized as a result of a violation of his parole terms; it is not, in any way, an adjudication of new criminal charges. See N.Y. Exec. Law § 259-i(3) (f) (viii) — (x); People v. Fagan, 66 N.Y.2d 815, 816, 489 N.E.2d 222, 222, 498 N.Y.S.2d 335, 335 (1985) ("[D]ismissal at the conclusion of a final parole revocation hearing of charges lodged against the defendant did not bar a later prosecution of criminal charges based on the same acts."); see also People v. Hilton, 266 A.D.2d 233, 234-45, 697 N.Y.S.2d 660, 661 (2d Dep't 1999) (same); People v. Polimeni, 128 Misc.2d 814, 815, 491 N.Y.S.2d 260, 261 (Rochester City Ct. 1985) (parole revocation hearing is not a stage of a criminal prosecution, it is an administrative hearing (citations omitted)). Thus, even if Judge Siegel recommended dismissing petitioner's parole violation assault charge, it could not have had any impact on petitioner's pending criminal charges.
Because the parole revocation hearing was an entirely separate proceeding from the pending criminal charges against petitioner, Judge Siegel could not have dismissed petitioner's assault charge, and, thus, Justice Wittner could not have "overturned" Judge Siegel's decision and re-instated the charge. Furthermore, there is no other evidence that the assault charge was ever dismissed or that Justice Wittner had to re-instate the charge. In fact, it appears petitioner's only attempt to have the charge dismissed was by a pre-trial motion which was denied by Justice Wittner (see September 13, 1990 Order of Justice Wittner, annexed as Exhibit 17 to Curbelo Aff.).
Thus, I conclude that petitioner's claim that Justice Wittner wrongfully re-instated the assault charge by overturning Judge Siegel's decision is meritless and should be denied because it is devoid of any basis in law or fact.
Petitioner's second claim, that he was "found guilty by a quorum of grand jurors" and there was "no trial [or] plea bargaining," is frivolous on its face. Petitioner could not have been convicted by a grand jury. In New York, a grand jury's powers are limited to indicting a person, directing the district attorney to file an information or to seek removal to family court, dismissing the charges before it or submitting a grand jury report. N.Y.C.P.L. § 190.60. In this case, the grand jury indicted petitioner (Bronx County Supreme Court Indictment, Grand Jury Number 42153/90 ("Indictment"), annexed as Exhibit 9 to Curbelo Aff.).
Petitioner also incorrectly states that he did not receive a trial. Respondent has submitted a certified document dated May 11, 2004 that notes petitioner was convicted after a trial before Justice Wittner on all counts of the indictment (Certificate of Disposition Indictment, annexed as Exhibit 1 to Curbelo Aff.). Furthermore, respondent also provided the Court with a transcript of the trial which began on April 18, 1991. The notion that all these documents are complete fabrications is facially implausible.
Although the transcript provided is incomplete, the missing parts, namely voir dire, closing statements, jury instructions, verdict and sentencing, do not require review to resolve this habeas petition.
Lastly, petitioner's claim that there was no plea bargaining is meritless. In the unlikely event that the district attorney did not attempt to plea bargain with petitioner, it is of no consequence because a criminal defendant has no constitutional right to bargain concerning his plea. Weatherford v. Bursey, 429 U.S. 545, 561 (1977); Lombard v. Mazzuca, 00 CV 74622 (JG), 2003 WL 22900918 at *6 (E.D.N.Y. Dec. 8, 2003); Rodriguez v. Williams, 94 CV 2639 (EHN), 1995 WL 62689 at *2 (E.D.N.Y. Feb. 8, 1995); accord Brown v. United States, 95 Civ. 4368 (AGS), 93 Cr. 291 (AGS), 1996 WL 479248 at *6 (S.D.N.Y. Aug. 23, 1996).
Petitioner next claims that because he was never arrested or "booked" on an attempted murder charge, he should not have been convicted of that charge (1st Amended Pet. ¶ 14). In this claim, petitioner appears to be complaining of deficiencies in his arrest and other proceedings prior to his indictment, namely the filing and his arraignment upon a criminal complaint.
After he was arrested on March 5, 1990 and a criminal complaint was signed by Faulks, petitioner was arraigned upon the complaint on March 6, 1990. The complaint charged petitioner with, inter alia, two robbery and three assault counts but not with attempted murder (see Criminal Complaint, annexed as Exhibit 8 to Curbelo Aff.; Bronx County District Attorney Database Inquiry, annexed as Exhibit 11 to Curbelo Aff.). Petitioner was subsequently indicted by a grand jury on several counts including attempted murder in the second degree on March 9, 1990 (Indictment) and was arraigned upon the indictment.
Petitioner's claim regarding his arrest and pre-indictment proceedings is meritless because the grand jury indictment superceded any prior accusatory actions, rendering any alleged pre-indictment deficiencies irrelevant. See People v. Hart, 25 A.D.3d 815, 816, 807 N.Y.S.2d 681, 682 (3d Dep't 2006) ("The indictment by the grand jury superceded the criminal court information and the proceedings before the local criminal court; the grand jury had the authority to indict regardless of any alleged defects in the earlier accusatory instrument or proceedings." (citations omitted)); People v. Smith, 304 A.D.2d 677, 678, 757 N.Y.S.2d 491, 491 (2d Dep't 2003) ("[E]ven if the felony complaint was defective, it was superseded by a valid indictment, rendering any claim regarding a purported defect in the felony complaint academic."); People v. Wilkens, 176 A.D.2d 978, 978, 575 N.Y.S.2d 582, 582 (2d Dep't 1991) (same); People v. Winch, 50 A.D.2d 948, 948, 376 N.Y.S.2d 21, 23 (3d Dep't 1975) ("It is well-settled that the finding of an indictment supersedes any prior proceedings in a local criminal court."). Furthermore, as respondent correctly notes, under New York law a criminal defendant may be indicted for a crime regardless of whether the crime was originally contained in a prior accusatory instrument. See N.Y.C.P.L. § 190.65(2) ("The offense or offenses for which a grand jury may indict a person in any particular case are not limited to that or those which may have been designated, at the commencement of the grand jury proceeding, to be the subject of the inquiry. . . ."); People v. Wilkins, 194 A.D.2d 638, 639, 599 N.Y.S.2d 49, 50 (2d Dep't 1993) ("The Grand Jury is not limited to consideration of only those charges which may have been contained in a prior felony complaint."). Therefore, I conclude this claim should also be denied because it is meritless.
Lastly, petitioner appears to claim that the Trial Judge imposed an excessive sentence (Petition ¶ 12(B) ("Justice Wittner sentence [sic] the petitioner to 13 years to life illegally.")). Reading petitioner's claim as asserting a violation of the Eighth Amendment's prohibition against cruel and unusual punishment, see Herrera v. Artuz, 171 F. Supp.2d 146, 151 n. 2 (S.D.N.Y. 2001), this claim also fails because it is meritless.
A sentence may violate the Eighth Amendment when the sentence is "grossly disproportionate" to the crime committed or when the sentence imposed "shocks the collective conscience of society."United States v. Gonzalez, 922 F.2d 1044, 1053 (2d Cir. 1991);see also Lockyer v. Andrade, 538 U.S. 63, 73 (2003);Harmelin v. Michigan, 501 U.S. 957, 1001 (1991); United States v. Snype, 441 F.3d 119, 152 (2d Cir. 2006); United States v. Romano, 825 F.2d 725, 731 (2d Cir. 1987); Pressley v. Bennett, 235 F. Supp.2d 349, 368-69 (S.D.N.Y. 2003); Calderon v. Keane, 97 Civ. 2116 (RCC) (JCF), 2002 WL 1205745 at *14 (S.D.N.Y. Feb. 21, 2002) (Report Recommendation), adopted, 2003 WL 22097504 (S.D.N.Y. Sept. 9, 2003); Sutton v. Herbert, 39 F. Supp.2d 335, 337 (S.D.N.Y. 1999); see generally Ewing v. California, 538 U.S. 11 (2003).
If petitioner is challenging the sentence imposed as an abuse of the Trial Court's discretion, he has failed to state a cognizable constitutional claim. A sentence within the range established by state law, as the sentence here clearly was, is ordinarily not subject to an Eighth Amendment challenge. See White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (per curiam); Diaz v. Herbert, 317 F. Supp.2d 462, 479-80 (S.D.N.Y. 2004); Brown v. Goord, 02 Civ. 2122 (NRB), 2002 WL 31093611 at *5 (S.D.N.Y. Sept. 13, 2002); Espinal v. Barkely, 95 Civ. 1214 (HB), 1996 WL 673833 at *1 (S.D.N.Y. Nov. 20, 1996); Rodriguez v. O'Keefe, 96 Civ. 2094 (LLS), 1996 WL 428164 at *7 (S.D.N.Y. July 31, 1996), aff'd mem., 122 F.3d 1057 (2d Cir. 1997).
New York classifies attempted murder in the second degree and robbery in the first degree as Class B felonies, and assault in the second degree as a Class D felony. N.Y. Penal L. § 70.02(1)(a), (c). Because petitioner was a persistent violent felony offender (Curbelo Aff. ¶ 6), at the time of petitioner's sentencing the permissible sentencing range was an indeterminate term of, at a minimum, ten to twenty-five years for a Class B felony and six to twenty-five years for a Class D felony, and a mandatory maximum of life. N.Y. Penal L. § 70.08(3)(a), (c).
If petitioner is claiming that his sentence is so disproportionately long that it constitutes an Eighth Amendment violation, his claim fails. As stated by the Supreme Court, a habeas court will find that a state-law sentence is "grossly disproportionate" and violates the Eighth Amendment only "in the 'exceedingly rare' and 'extreme' case." Lockyer v. Andrade, supra, 538 U.S. at 73, quoting Harmelin v. Michigan, supra, 501 U.S. at 1001; accord Ewing v. California, supra, 538 U.S. at 21; United States v. Snype, supra, 441 F.3d at 152; Whitlatch v. Senkowski, 344 F. Supp.2d 898, 905-07 (W.D.N.Y. 2004); Vasquez v. Walker, 01 Civ. 8032 (AKH), 2004 WL 594646 at *5 (S.D.N.Y. Mar. 25, 2004); Ayala v. People, 03 Civ. 2762 (AKH), 2004 WL 527035 at *5 (S.D.N.Y. Mar. 16, 2004); Williams v. Philips, 02 Civ. 5811 (DC), 2003 WL 21961127 at *8 (S.D.N.Y. Aug. 18, 2003).
Petitioner's sentence here is entirely ordinary. Other courts have reviewed sentences of the range imposed upon petitioner for comparable offenses and have uniformly upheld such sentences as not violating the Eighth Amendment. E. g., Velez v. Duncan, 00 Civ. 6163 (BSJ) (RLE), 2005 WL 1221836 at *5-*6 (S.D.N.Y. May 13, 2005) (Report Recommendation) (sentence of sixteen years to life for persistent violent felony offender convicted of burglary in the second degree did not violate Eighth Amendment) (Report Recommendation); McKenzie v. Poole, 03-CV-4253 (JG), 2004 WL 2671630 at *10 (E.D.N.Y. Nov. 23, 2004) (concurrent sentences of twenty-five years to life for persistent violent felony offender convicted of assault in the first degree and criminal possession of a weapon in the second degree did not violate Eighth Amendment); Parks v. Perlman, 03 CV 805 (JG), 2004 WL 848177 at *4 (E.D.N.Y. Apr. 19, 2004) (sentence of four years to life for persistent violent felony offender convicted of Class E felony did not violate Eighth Amendment); Marsh v. Duncan, 01 CV 1314 (JG), 2004 WL 86412 at *9 (E.D.N.Y. Jan. 7, 2004) (sentence of twenty years to life for persistent violent felony offender convicted of burglary in the second degree not excessive under Eighth Amendment); Serrano v. Greiner, 00 Civ. 9103 (HB), 2002 WL 1997896 at *2 (S.D.N.Y. Aug. 29, 2002) (sentence of twenty years to life for persistent violent felony offender convicted of robbery in the first degree did not violate Eighth Amendment). In light of these decisions, petitioner's sentence cannot be characterized as "grossly disproportionate" to the crimes for which he was convicted. Thus, petitioner's claim fails because he has not shown that the state court's sentence determination was contrary to federal law or an unreasonable application of the facts. See 28 U.S.C. § 2254(d)(1)-(2).
In some of the cases cited in the text, the petitioner was sentenced after a 1995 amendment to New York Penal Law Section 70.08. That amendment doubled the length of the mandatory minimum sentences for persistent violent felony offenders. See 1995 N.Y. Laws 3. Thus, even with the mandatory minimum sentences doubled, sentences pursuant to Section 70.08 were still found to not violate the Eighth Amendment.
IV. Conclusion
Accordingly, for all the foregoing reasons, I respectfully recommend that the petition be denied.
In addition, since petitioner has not made a substantial showing of the denial of a constitutional right, I also recommend that a certificate of appealability not be issued. 28 U.S.C. § 2253. To warrant the issuance of a certificate of appealability, "petitioner must show that reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Middleton v. Attorneys Gen., 396 F.3d 207, 209 (2d Cir. 2005) (per curiam) (internal quotation marks omitted); see also Love v. McCray, 413 F.3d 192, 195 (2d Cir. 2005) (per curiam). For the reasons set forth above, I conclude that there would be no difference of opinion among reasonable jurists that petitioner's federal rights were not violated.
I further recommend that certification pursuant to 28 U.S.C. § 1915(a)(3) not be issued because any appeal from this Report and Recommendation, or any Order entered thereon, would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 445 (1962).
V. Objections
Pursuant to 28 U.S.C. § 636(b) (1) (C) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from the date of this Report and Recommendation to file written objections. See also Fed.R.Civ.P. 6(a) and 6(e). Such objections (and responses thereto) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Richard J. Holwell, United States District Judge, 500 Pearl Street, Room 1950, New York, New York 10007, and to the chambers of the undersigned, 500 Pearl Street, Room 750, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Holwell. FAILURE TO OBJECT WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).