Opinion
96-CV-1865 (NAM/GLS).
March 24, 2000
ERWIN JACKSON, Petitioner, Pro Se, Fishkill Correctional Facility, Beacon, New York.
HON. ELIOT SPITZER, Attorney General, State of New York, Department of Law, The Capitol, OF COUNSEL, KEITH E. KAMMERER, ESQ., Asst. Attorney General, Albany, New York, FOR THE RESPONDENT.
REPORT-RECOMMENDATION
This matter has been referred to the undersigned by the Hon. Norman A. Mordue, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c).
Petitioner filed his habeas corpus petition on November 25, 1996. (Dkt. No. 1). Magistrate Judge Gustave J. DiBianco issued an Order pursuant to the rules governing Section 2254 cases in the United States District Courts, 28 U.S.C. foll. § 2254, ordering service of the petition on respondent and requiring service of an answer or other pleading by respondent. Respondent filed an answer, together with the pertinent state court records and a memorandum of law. (Dkt. Nos. 8 and 9). Petitioner filed an opposing affidavit and memorandum of law. (Dkt. No. 10).
This case was reassigned to the undersigned on November 24, 1997. (Dkt. No. 11).
The state court records submitted by respondent are listed in the first paragraph of the answer. (Dkt. No. 8).
Petitioner does not challenge the validity of his convictions in the habeas corpus petition. Petitioner challenges the lawfulness of his incarceration, alleging that respondent subjected him to double jeopardy by calculating the sentences imposed on April 18, 1985, and July 3, 1985, as running consecutive to each other.
1. Background
In March of 1979, petitioner was convicted of armed robbery and sentenced to five to fifteen years imprisonment. See Sentencing Mins. dated July 2, 1985, at 8 (attachment to Pet'r's pro se Appellate Br.). Petitioner was paroled in 1983.
On April 18, 1985, petitioner was sentenced as a second felony offender to two indeterminate concurrent terms of ten to twenty years imprisonment for convictions of robbery in the First Degree and criminal use of a firearm in the First Degree. The court ordered petitioner committed to the custody of the New York State Department of Correctional Services (DOCS). See Sentencing Mins. dated April 18, 1985 (Delin, J.) (Ex. 10). However, petitioner remained in the custody of the Nassau County Jail pending resolution of an indictment charging him with an unrelated robbery.
Following a jury trial in Nassau County Court, petitioner was convicted of an unrelated robbery in the First Degree. On July 3, 1985, petitioner was sentenced as a second violent felony offender to ten to twenty years imprisonment. The court mandated that the sentence "run consecutively to the sentence presently being served." See Sentencing Mins. dated July 3, 1985, at 15 [Delin, J.](Ex. 9).
Relying on New York Penal Law 70.30, petitioner claims that the Department of Corrections "increased his sentence without authority" by running the sentence imposed on July 3, 1985, consecutive to the sentence imposed on April 18, 1985. Since he had not been remanded to the custody of DOCS prior to being sentenced on July 3, 1985, petitioner claims that no sentence was "presently being served." As such, petitioner submits that the phrase mandating that the July 3 sentence run "consecutive to the sentence presently being served" was inoperative.
New York Penal Law § 70.30 defines the calculation of terms of commitment. Pursuant to N.Y. Penal Law § 70.30(1), "an indeterminate or determinate sentence of imprisonment commences when the prisoner is received in an institution under the jurisdiction of the State Department of Correctional Services."
In 1993, petitioner wrote to Inmate Records Coordinator Rodney Moody and informed him that the time computation was wrong. See Letters dated October 4 and 8, 1993 (at Pet'r's pro se Appellate Br., Ex. D F). Mr. Moody responded that the time computation was correct. See Letters dated October 7 and 21, 1993 (at Pet'r's pro se Appellate Br., Ex. E G).
Petitioner then brought a proceeding pursuant to CPLR Article 78 in Clinton County Supreme Court, in which he sought an Order prohibiting respondent from running the July 3rd sentence consecutive to the April 18th sentence. See Pet. for a Writ of Prohibition CPLR Article 78, dated June 16, 1994. That court dismissed the application finding that the sentencing court's intention was "clear" from the record that the two sentences were to run consecutively. See Decision and Order dated December 23, 1994 [Feldstein, J.](Ex. 2).
Petitioner appealed the Supreme Court's Order to the Appellate Division, Third Department. The Appellate Division affirmed the dismissal of the Article 78 petition. Jackson v. Moody, 220 A.D.2d 914, 632 N.Y.S.2d 325 (3rd Dep't 1995). Petitioner's motion for reconsideration was denied and the New York State Court of Appeals denied petitioner's application seeking leave to appeal on January 11, 1996. Jackson v. Moody, 87 N.Y.2d 806, 663 N.E.2d 920, 640 N.Y.S.2d 878 (1996).
The Appellate Division made the following factual findings:
The sentencing minutes reveal that the court clearly intended the July 3, 1985, sentence to run consecutive to the sentence imposed three months earlier on April 18, 1985. The fact that petitioner had not been physically delivered to the custody of the Department of Correctional Services as of July 3, 1985, is not dispositive. Petitioner was serving time in a local jail for which he was entitled to credit toward his April 18, 1985, sentence (see, Penal Law § 70.30[3]) and, in essence, had begun to serve his time on this sentence when the July 3, 1985, sentence was imposed. Accordingly, we find that the Supreme Court properly dismissed the petition.
Jackson, 220 A.D.2d at 914-915, 632 N.Y.S.2d at 326.
In petitioner's application for habeas corpus relief, he claims that respondents violated his federal and state constitutional rights against double jeopardy by illegally increasing his prison term after he commenced service of that term. Respondent seeks dismissal of the petition on the grounds that it is barred by the applicable statute of limitations. Alternatively, respondent argues that petitioner has failed to state a claim upon which federal habeas corpus relief can be granted.
Petitioner also claims that respondents are barred from contesting the constitutional double jeopardy claims in this proceeding because they failed to do so in the state court proceedings, and that he was not afforded a full and fair hearing in the state courts on his federal constitutional double jeopardy claim. Petitioner's claims lack merit. Respondent briefly addressed petitioner's constitutional issues in their state court Appellate Br. upon which they relied in their opposing papers to the New York Court of Appeals. See Resp't Appellate Br., at 10. In any event, respondent would not be barred from addressing petitioner's federal constitutional claims in the instant proceeding.
This court finds that petitioner's application is not barred by the applicable statute of limitations but for the following reasons, agrees with respondent and recommends that the petition be denied and dismissed.
2. Statute of Limitations
On April 24, 1996, the President signed into law the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132. The AEDPA provides that an application for a writ of habeas corpus from a person in custody pursuant to a state court judgment must be filed within one year from the latest of "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review. . . ." AEDPA § 101, 28 U.S.C. § 2244(d)(1)(A) ("Subsection (A)").
However, in Ross v. Artuz, 150 F.3d 97, 101 (2d Cir. 1998), the Second Circuit set forth a bright line rule providing prisoners whose convictions became final prior to the enactment of the AEDPA, a one-year period after the effective date of AEDPA in which to file a first § 2254 petition or a first § 2255 motion. Petitioner's conviction became final on January 11, 1996, when he was denied permission to appeal to the New York Court of Appeals, or certainly no later than April 11, 1996, which marks the conclusion of the ninety days during which he could have sought certiorari in the United States Supreme Court. See Hughes v. Irvin, 967 F. Supp. 775, 778 (E.D.N.Y. 1997) (citing Rule 13 of the Rules of the Supreme Court of the United States). Since petitioner's conviction became final before the effective date of the AEDPA, he was statutorily accorded until April 24, 1997, to file his habeas corpus petition. Ross, 150 F.3d at 101. Petitioner's application was filed with the court on November 25, 1996, and was thus timely filed.
3. Imposition of Consecutive Sentences
Pursuant to New York Penal Law § 70.25(1)(a), the sentencing court indisputably had authority to run petitioner's July 3, 1985, sentence for robbery in the First Degree consecutive to any undischarged term of imprisonment imposed at a previous time by a New York State court. The ten to twenty year sentence imposed by Judge Delin on July 3, 1985, was within the statutory range for a conviction of robbery in the First Degree. "When a sentence is within the statutory range, review of that sentence is beyond the reach of a habeas court unless it somehow otherwise implicates a fundamental constitutional right." Mabery v. Mann, 1992 WL 333629, *4 (E.D.N.Y. Oct. 29, 1992) (citations omitted).
New York Penal Law § 70.25(1)(a) provides as follows: when a person who is subject to an undischarged term of imprisonment imposed at a previous time by a court of this state is sentenced to an additional term of imprisonment, the sentence or sentences imposed by the court shall run either concurrently or consecutively with respect to each other and the undischarged term or terms in such a manner as the court directs at the time of sentencing.
As a second felony offender, petitioner could have been sentenced to twelve and one-half to twenty-five years imprisonment. See New York Penal Law §§ 70.06, 160.15.
Petitioner's constitutional claim is that he was subjected to double jeopardy as a result of the Department of Correctional Services running the July 3, 1985, sentence consecutive to the sentence imposed on April 18, 1985. Petitioner argues that since he was not yet "serving" the April 18th sentence when he was sentenced on July 3rd, that part of the court's order running the sentence consecutive to "the one presently being served" was inoperable. See Pet'r's Opposing Aff., at 11.
The protection of the double jeopardy clause reaches beyond the area of multiple prosecutions to place limits upon multiple punishments. Stewart v. Scully, 925 F.2d 58, 62 (2d Cir. 1991) (citing Ex Parte Lange, 85 U.S. 163, 173, 21 L.Ed. 872, 18 Wall. 163 (1873)). It is a "well settled general rule that increasing a sentence after the defendant has commenced to serve it is a violation of the constitutional guaranty against double jeopardy." United States v. Sacco, 367 F.2d 368 (2d Cir. 1966) (citing Ex Parte Lange, 85 U.S. at 173).
Petitioner concedes that the court's intent was "without any doubt or dispute" to impose the July 3rd sentence consecutive to the one it had imposed on April 18th. See Id. at 12. Petitioner also acknowledges that consecutive terms could have been imposed had the court stated that the July 3rd sentence was to run consecutive to petitioner's "undischarged term of imprisonment" rather than the sentence "presently being served." See Id. at 13. Petitioner argues that the court's intent is irrelevant and the consecutive terms it imposed are voided because the court was under the "mistaken impression" that petitioner had commenced the sentence imposed on April 18th. Id. at 18-20.
Petitioner argues that he should not be penalized for the state's failure to timely transfer him to a state facility as required by C.P.L. § 430.20(1). This section provides that "[w]hen a sentence of imprisonment is pronounced, or when the sentence consists of a fine and the court has directed that the defendant be imprisoned until it is satisfied, the defendant must forthwith be committed to the custody of the appropriate public servant and detained until the sentence is complied with."
After being sentenced on April 18, 1985, petitioner was held in local custody until late May, while he awaited trial on an unrelated robbery. Petitioner was sentenced on July 3, 1985, and transferred to state custody on August 9, 1985. "While the legislature made clear its intention that commitment to the custody of the appropriate public servant should take place without delay, its choice of "forthwith" rather than specification of a hard-and-fast number of days left certain limited flexibility in implementing its mandate." Ayers v. Coughlin, 72 N.Y.2d 346, 353, 530 N.E.2d 373, 533 N.Y.S.2d 849 (1988). This court agrees with respondent that it would have been an inefficient use of resources to have transported petitioner to a state facility for this period of time. See Resp't Mem., at 14.
The issue before this court is essentially an interpretation of state law; i.e., whether a sentence that has not "formally commenced" for purposes of Penal Law § 70.30 can still be considered an undischarged term that is "presently being served" for purposes of sentencing pursuant to New York Penal Law § 70.25(1). The Appellate Division held that whether or not petitioner had been physically delivered to the custody of a Department of Correctional Facility was not dispositive on the issue of whether he was "serving time" on an undischarged term. In finding that petitioner had, in essence, begun his sentence, the Court considered that petitioner was accruing jail time credit toward his April 18, 1985, sentence. Jackson, 220 at 914, 632 N.Y.S.2d at 325. "A state court interpretation of its penal law is binding on the federal courts `except in extreme circumstances.'" Champelle v. Coombe, 567 F. Supp. 345, 352 (S.D.N Y 1983) (quoting Mullaney v. Wilbur, 421 U.S. 684, 691, 95 S.Ct. 1881, 1886, 44 L.Ed.2d 508 (1975)).
Furthermore, this case is not comparable to the cases cited by petitioner wherein there was ambiguity in a court's oral sentence or the court was intentionally silent as to whether a sentence ran concurrently or consecutively. First, although an oral sentence controls over a commitment order when the two conflict, there is no variance between the two in this case. Second, the sentencing court in this case was neither ambiguous nor silent. A review of the record in its entirety, rather than extracting the phrase "presently being served," confirms that the court was referring to the sentence it had imposed earlier that year:
See Pet'r's Opposing Aff., at 13 (citing U.S. v. Werber, 51 F.3d 342, 347 (2d Cir. 1995); U.S. v. Marquez, 506 F.2d 620, 622 (2d Cir. 1974); U.S. v. Villano, 816 F.2d 1448, 1451 (10 Cir. 1987)).
THE COURT: Does the District Attorney wish to be heard in the matter of sentence?
MR. O'BRIEN: Yes, Your Honor. The People would recommend that this defendant be incarcerated for the maximum period allowed by law, and would also recommend, Your Honor, that such a sentence run consecutively to the sentence he is presently serving.
THE COURT: Mr. Kirkland?
MR. KIRKLAND: Yes, Your Honor. The defendant would request that any sentence imposed upon him today run concurrently with the sentence previously imposed upon him by this Court this year. Mr. Jackson is, I believe, 25 years old. He has the bulk of his life ahead of him. And I think that he can mend his ways. I think that an unduly long sentence would not be in the interests of justice.
THE COURT: Mr. Jackson?
THE DEFENDANT: [. . .] (whereupon the defendant complained that he had not been informed by the court that he had the right to challenge the constitutionality of his 1979 conviction of robbery in the Second Degree).
THE COURT: [. . .] I have before me a defendant who has been involved in the criminal process for a number of years. He appears to be a career criminal.
The report indicated that they are of a violent nature, that you have a capability of killing somebody someday. It is just a terrible report, just terrible.
The District Attorney and the Probation Department have recommended maximum periods of incarceration. I feel that the sentence I am about to impose is necessary for the type of crimes you have been involved with, the conviction for this crime and the facts underlying this crime.
It is hereby ordered and adjudged by this Court that you, Erwin Jackson, have been convicted after trial of robbery in the First Degree, a Class B armed violent felony, under Indictment #52590, be committed to the custody of the State Department of Corrections at the Downstate Correctional Center at Fishkill, New York, for an indeterminate term, the maximum of which shall be twenty years and the minimum of which shall be ten years.
This sentence imposed today shall run consecutively with the sentence presently being served.
See Sentencing Mins. dated July 3, 1985 (Ex. 9) (emphasis added).
Significantly, after the District Attorney recommended that the sentence run consecutive "to the sentence he is presently serving," defense counsel requested that the court impose the sentence "concurrently with the sentence previously imposed upon him by the Court this year." See Id. at 11 (emphasis added). Moreover, there was no need for the parties to discuss whether the sentence should be imposed consecutive to petitioner's 1979 sentence; consecutive sentences were mandated pursuant to New York Penal Law § 70.25(2-a). Finally, the court clearly expressed its intent to punish petitioner harshly. The only sensible construction is that the July 3rd sentence was to be consecutive to that imposed on April 18, 1985. Otherwise, petitioner would not have served any additional time for the commission of the additional robbery. See, e.g., Mabery, 1992 WL 333629.
Pursuant to this section, consecutive sentences must be imposed when a defendant is sentenced as a second or persistent felony offender and the undischarged indeterminate sentence was imposed prior to the date on which the later crime was committed. In another proceeding, petitioner challenged his 1985 sentences being run consecutively to the undischarged portion of his 1979 sentence on the grounds that the court had been silent on the issue. The Appellate Division did not agree, finding that consecutive sentences were mandated by statute not-withstanding the sentencing court's silence. Jackson v. Wolford, 232 A.D.2d 795, 649 N.Y.S.2d 59 (1996).
"The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner." United States v. DiFrancesco, 449 U.S. 117, 135, 101 S.Ct. 426, 436, 66 L.Ed.2d 328 (1980) (quoting Bozza v. United States, 330 U.S. 160, 166-167, 67 S.Ct. 645, 649, 91 L.Ed.2d 818 (1947)). Moreover, the courts have "generally concluded that "the key to double jeopardy analysis of a sentence increase is whether the defendant had a legitimate expectation in the finality of his original sentence." Stewart v. Scully, 925 F.2d 58, 62 (2d Cir. 1991) (citation omitted). There is no doubt upon this record that petitioner was aware of his sentence when he left the courtroom. Cf. United States v. Earley, 816 F.2d 1428, 1430 (10th Cir. 1987) (A sentence that is internally ambiguous or self-contradictory to the point that a reasonable person cannot determine what the sentence is may be found to be illegal").
This court finds that petitioner has failed to demonstrate that the Department of Correctional Services illegally increased the minimum and maximum terms of the sentence imposed by the court. Petitioner's consecutive sentences are within the statutory range and in compliance with New York Penal Law § 70.25. Since petitioner has not been sentenced twice for the same offense, this court finds that there has been no violation of his right against double jeopardy.
Based upon the foregoing, this court recommends that the petition be dismissed.
WHEREFORE, based on the findings in the above Report-Recommendation, it is
RECOMMENDED that the petition be DENIED and DISMISSED. Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have TEN DAYS (10) within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72, 6(a), 6(e), and it is
ORDERED that the state court records herein be returned directly to the office of the Assistant Attorney General at the conclusion of these proceedings. He has agreed to make them available for any appellate review. It is further
ORDERED that the Clerk of the Court issue copies of the foregoing Report-Recommendation to the parties by regular mail.