Opinion
97-CV-0550 (NAM/GLS).
February 26, 1999
DONALD W. CALHOUN, Petitioner, Pro Se, Auburn Correctional Facility, Auburn, New York.
HON. ELIOT SPITZER, Attorney General of the State of New York, Department of Law, OF COUNSEL, DARREN O'CONNOR, Esq., Assistant Attorney General, Albany, New York, Counsel for Respondent.
REPORT-RECOMMENDATION
INTRODUCTION
This matter was referred to the undersigned for Report and Recommendation by the Honorable Norman A. Mordue, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c).
Petitioner, Donald W. Calhoun, presently incarcerated at Auburn Correctional Facility, brings this habeas corpus petition pursuant to 28 U.S.C. § 2254 to challenge a judgment rendered against him by the New York State County Court of Oswego. The county court found him guilty of third degree burglary, possession of burglar's tools and petit larceny, and sentenced him to an indeterminate term of fifteen years to life imprisonment as a persistent felony offender. The conviction was affirmed by the Appellate Division, Fourth Department and the Court of Appeals denied leave to appeal. Petitioner did not seek review by the United States Supreme Court, but did file a post-conviction motion to vacate his sentence with the Oswego County Court. This motion was denied in a Decision and Order dated March 4, 1997. Petitioner took no other action in state court, but now seeks habeas relief.
Through counsel, Petitioner raised eight claims on direct appeal: 1) the People were required to produce the radio dispatcher at the suppression hearing; 2) the trial court erred in not severing Petitioner's trial from his co-defendants; 3) the trial court erred in permitting the prosecutor to use Petitioner's co-defendant's post arrest silence against him in his direct case and in his summation; 4) the receipt of Exhibit #57 into evidence was erroneous; 5) the prosecutor's misconduct denied appellant a fair trial; 6) insufficient evidence as to the charge for possession of burglar's tools; 7) the errors committed by the trial court were not harmless; and, 8) the court erred in sentencing him as a persistent felony offender.
In his post-conviction motion, Petitioner asserted the following claims pro se: 1) the use of his May, 19, 1972, conviction which resulted in a sentence of one year and zero days, as a prior felony for purposes of his persistent felony adjudication was erroneous; 2) New York's persistent felony offender statute (N.Y. CRIM. PROC. LAW, § 400.20) is unconstitutional as it lacks due process guarantees and as applied to non-violent offenders; 3) the sentence imposed by the court was excessive and disproportionate so as to be cruel and unusual; and, 4) ineffective assistance of trial counsel.
In his habeas application, Petitioner asserts several constitutional bases for relief. He claims: (1) the prosecutor failed to produce a witness at the suppression hearing; (2) the trial court erred in denying a motion for severance; (3) the trial court erred in admitting an exhibit into evidence (#57 — a "Tops" supermarket receipt); (4) a co-defendant's post arrest silence was improperly used; (5) he was improperly tried as a persistent felony offender; (6) the prosecutor engaged in prosecutorial misconduct; (7) the errors committed by the trial court were not harmless; (8) a prior felony was improperly considered a conviction; 9) the sentence imposed by the trial court violated his rights under the New York State and United States Constitutions; 10) New York's persistent felony offender statute (N.Y. CRIM. PROC. LAW, § 400.20) is unconstitutional as it lacks due process guarantees; 11) the persistent felony offender statute as applied to non-violent offenders is unconstitutional; 12) the sentence imposed by the trial court was excessive, disproportionate, and therefore, cruel and unusual; and, 13) counsel provided ineffective assistance at trial.
Respondent filed his answer, together with the pertinent state records and a memorandum of law. In the memorandum of law, he sought dismissal of the petition arguing that Petitioner's claims were procedurally barred or lacked merit.
BACKGROUND
On August 19, 1991, New York State troopers arrested Petitioner and two others in connection with a burglary. The Oswego County Grand Jury issued an Indictment on September 16, 1991, charging Petitioner and his co-defendants with third degree burglary, possession of burglar's tools and petit larceny. Prior to trial, Petitioner filed a motion for severance that the trial court denied. Thereafter, during a suppression hearing, Petitioner challenged his arrest and sought to suppress certain items because of an illegal stop, and renewed his severance request. The trial court denied all Petitioner's requests.
On January 27, 1992, the court commenced a joint trial in which Petitioner was found guilty of third degree burglary, possession of burglar's tools and petit larceny. On April 20, 1992, and June 19, 1992, the trial court conducted a persistent felony hearing. Petitioner was sentenced as a persistent felony offender to an indeterminate term of fifteen years to life for the burglary conviction, and to one year terms for possession of burglar's tools and petit larceny.
Discussion
I. Procedural Default
Petitioner has alleged error in the prosecutor's failure to produce the radio dispatcher at the suppression hearing, prosecutorial misconduct, and the trial court's improper use of a May 19, 1972, conviction to establish Petitioner's status as a persistent felony offender.
Where a state court has dismissed a claim based upon a procedural default by the Petitioner, federal habeas review is foreclosed "unless [Petitioner] can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991). The element of cause requires Petitioner to show some external, objective factor that interfered with defense counsel's efforts to raise the claim in the state court. See Levine v. Comm. of Correctional Servs., 44 F.3d 121, 126 (2d Cir. 1995).
Petitioner has failed to meet this burden. Petitioner's claims regarding the radio dispatcher and prosecutorial misconduct were raised before the Appellate Division. Finding that Petitioner had failed to preserve either issue for review, the Appellate Division dismissed both claims without reaching the merits. See People v. Treadwell, 206 A.D.2d 861, 862, 616 N.Y.S.2d 127. Petitioner raised his claim concerning the use of a prior conviction in the trial court's persistent felony offender determination in his post-conviction motion. See N.Y. CRIM. PROC. LAW § 440.20. The County Court declined to address this issue since the Appellate Division had already determined that Petitioner "was properly adjudicated a persistent felony offender." See County Court Decision and Order dated March 4, 1997, p. 3 (quoting Treadwell, 206 A.D.2d at 862, 616 N.Y.S. 2d at 127). Petitioner has not alleged any cause for this failure to preserve these claims, nor actual prejudice. Moreover, there is no indication in the record of a fundamental miscarriage of justice. As such, Petitioner's claims should be dismissed.
The Respondent argues that the Appellate Division also rejected on procedural grounds Petitioner's claim that the trial court erred in permitting the prosecutor to use his co-defendant's post arrest silence. See Respondent's Memorandum of Law (Dkt. No. 10), p. 6-9. However, after carefully reviewing the Appellate Division's decision, it is unclear whether this claim was dismissed on procedural grounds. In fact, the decision fails to discuss this claim. This Court is "unwilling to presume that, through its silence, the Appellate Division rested its affirmance in this case on a procedural default," Hawkins v. LeFevre, 758 F.2d 866, 872 (2d Cir. 1985) and, therefore, will consider Petitioner's claim.
Petitioner maintains that his May 19, 1972, conviction was not raised in his direct appeal. See Petitioner's Memorandum of Law in Opposition to Respondent's Motion to Dismiss (Dkt. No. 15), p. 4. A review of Petitioner's brief to the Appellate Division reveals that Petitioner's contention is correct. Moreover, this particular facet of Petitioner's contention that he was improperly sentenced as a persistent felony offender was not raised in his application to the Court of Appeals for leave to appeal. Assuming arguendo that the County Court improperly rejected Petitioner's claim as barred procedurally because it was not raised before the Appellate Division, Petitioner's claim is not exhausted. See Daye v. Attorney General, 696 F.2d 186, 190-91 (2d Cir. 1982) (citing Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971)) (as a state prisoner seeking federal habeas review of his conviction, Petitioner must have exhausted all of his available state remedies, such that the sate courts had a full and fair opportunity to consider his claims).
Despite Petitioner's failure to exhaust his state court remedies, his claim is deemed exhausted due to a state procedural bar that prevents him from presenting this claim to the state courts. See N.Y. COURT RULES § 500.10(a). Petitioner's forfeiture of this claim will deny him federal relief unless he can demonstrate cause for his default and resulting prejudice. See Coleman, 501 U.S. at 750, 111 S.Ct. at 2565; Grey v. Hoke, 933 F.2d 117, 121 (2d Cir. 1991). As Petitioner has failed to make such a showing or demonstrate that the failure to consider his claim will result in a fundamental miscarriage of justice, this claim also should be dismissed under this scenario.
II. Severance Motion
Next, Petitioner maintains that his trial should have been severed from that of his two co-defendants due to "serious identification problems." Petitioner alleges that he was prejudiced in the joint trial by the prosecutor's use of a non-testifying co-defendant's post-arrest silence and the prosecutor's presentation of the cumulative amount of cash found on all three defendants.
In federal proceedings, a trial judge has sound discretion in deciding whether to grant a severance. See Grant v. Hoke, 921 F.2d 28, 31 (2d Cir. 1990). A defendant who challenges the denial of a severance motion must establish that "he was so severely prejudiced by the joinder as to have been denied a fair trial . . ." Id. Proof that the defendant would have had a better chance for an acquittal is insufficient. Id. Where co-defendants present mutually antagonistic defenses, a joint trial may rise to the level of fundamental unfairness. Id. However, a defendant must show more than some antagonism with his co-defendants. Id. A defendant must establish that "the jury, in order to believe the core of testimony offered on [his] behalf . . ., must necessarily disbelieve the testimony offered on behalf of his co-defendant." Id. (citations internal quotation marks omitted). In a habeas proceeding, the Petitioner must demonstrate at least this much.
Here, Petitioner and his co-defendants were charged with the same criminal conduct which stemmed from the same incident. Petitioner does not allege that he and his co-defendant's presented mutually antagonistic defenses. Rather, Petitioner alleges that the serious identification problems, improper use of his co-defendant's post-arrest silence, the introduction of the cumulative monies found on Petitioner and his co-defendants prejudiced his defense.
First, Petitioner's claim of serious misidentification problems is conclusory. Petitioner has failed to identify the "problems" to this Court or even how such "problems" would have required the jury to disbelieve one co-defendant in order to accept Petitioner's version of events. Second, the use of Petitioner's co-defendant's post-arrest silence did not deprive Petitioner of a fair trial. The three statements Petitioner challenges concern his co-defendant's refusal to identify himself as the owner of the suspect vehicle to the police. Petitioner has not established that his co-defendant's refusal would lead the jury to infer his guilt; there is no evidence in the record to suggest such an inference in light of the limited nature of the challenged testimony. Third, Petitioner's submissions to this Court fail to allege any specific prejudice stemming from the cumulative monies evidence. Presumably, Petitioner alleges prejudice by the prosecutor's comparison of the cumulative monies to the amount stolen from the convenience store. See Appellant's Reply Brief to the Appellate Division. Initially, it is unclear that a separate trial would have precluded the prosecutor from introducing the same evidence against Petitioner. Moreover, even absent the evidence of the money found on Petitioner's co-defendants, sufficient evidence was adduced at trial to establish Petitioner's guilt. For example, Petitioner was apprehended by state troopers while he was driving the car identified by the store's owner as the get away vehicle. While Petitioner may have been "prejudiced" by the introduction of this evidence as anything the government adduces at trial would prejudice a defendant, an improved chance for an acquittal is insufficient to establish a constitutional violation for failure to grant a severance motion. See Grant, 921 F.2d at 31. Petitioner was not denied a fair trial and therefore, his asserted prejudice does not rise to a constitutional violation. Petitioner's claim should be dismissed.
Petitioner does not specify which statements he challenges in this action. However, in his brief to the Appellate Division, Petitioner references three statements: two by Trooper Foster (one on direct examination by the prosecutor and one on cross-examination by a co-defendant's attorney) and one by Trooper Scull (during direct examination by the prosecutor). See Appellant's Brief, p. 46.
The testimony in question comprised less that 3 full pages of testimony out of a trial transcript of over 1,200 pages.
III. Evidentiary Ruling
Petitioner contends that the trial court improperly admitted a Tops Supermarket receipt (Ex. #57) into evidence. Petitioner asserts that the prosecutor's late disclosure of the receipt violated, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and that the receipt was seized in violation of the Fourth Amendment.
Erroneous evidentiary rulings of a state trial court do not rise to the level of a constitutional deprivation unless the Petitioner can show that the improperly admitted evidence "was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it." Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985); see also Johnson v. Ross, 955 F.2d 178, 181 (2d Cir. 1992).
The receipt in question proved that on the date of the burglary, someone purchased beer at a supermarket in Oswego, New York, at 1:45 a.m. It was recovered from the vehicle in which Petitioner was arrested, but not until several months after his arrest. The prosecution introduced the receipt to rebut defense testimony that Petitioner and his co-defendants were in another city until 2:45 a.m., on the date in question. During voir dire and cross-examination, defense counsel informed the jury of the questionable circumstances concerning the retrieval of the receipt and that it did not indicate the individual who made the purchase.
In light of the overwhelming evidence of guilt, Petitioner cannot establish that the receipt removed a reasonable doubt that would have existed on the record without it. In fact, Petitioner admits that the receipt was a collateral matter. See Petitioner's Memorandum of Law in Opposition to Respondent's Motion to Dismiss (Dkt. No. 15), p. 5. Instead, he maintains that the prosecutor's late disclosure of the receipt denied him a fair trial in violation of the Due Process Clause of the Fourteenth Amendment. Petitioner bases his claim on Brady v. Maryland, supra.
To establish a Brady violation, Petitioner must show that the undisclosed evidence was material, i.e., "had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3376, 87 L.Ed. 2d 481 (1985). Petitioner cannot show that the challenged evidence was material. Moreover, the "alleged" Brady violation is not cognizable in this proceeding since constitutional error during the course of a trial warrants habeas relief only if that error had a substantial and injurious effect or influence on the jury's verdict. See Brecht v. Abrahamson, 507 U.S. 619, 631, 113 S.Ct. 1710, 1718, 123 L.Ed.2d 353 (1993). As such, Petitioner's claim under Brady should be dismissed.
Petitioner also asserts a Fourth Amendment basis for his claim that the introduction of the grocery receipt into evidence violated his rights. Federal habeas review of a state court's Fourth Amendment determination is very limited. See Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). In Stone, the Supreme Court held that "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that the evidence obtained in an unconstitutional search or seizure was introduced at his trial." Id. at 481-82, 96 S.Ct. at 3046; see also Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992). The Second Circuit has determined this to mean that consideration of a Fourth Amendment claim on habeas review is proper only if: (1) the state has provided no corrective procedures at all to redress the alleged fourth amendment violations; or (2) the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an unconscionable breakdown in that process. See Capellan, 975 F.2d at 70; Gates v. Henderson, 568 F.2d 830, 839-40 (2d Cir. 1977).
New York has procedures, such as direct appeal, to redress fourth amendment violations. Moreover, Petitioner has not alleged, nor does any evidence exist, to suggest an unconscionable breakdown in that process. In the instant case, Petitioner was provided a full and fair opportunity to litigate this issue in the state courts. Petitioner raised this issue before the Appellate Division which held that the evidence was inadmissible on other grounds. See Treadwell, supra (citing People v. Alvino, 71 N.Y.2d 233, 247, 519 N.E.2d 808, 816, 525 N.Y.S.2d 7, 15 (1987)) (a party may not introduce extrinsic evidence on a collateral matter solely to impeach credibility). Petitioner further raised this claim in his application for leave to appeal to the Court of Appeals. In sum, the state courts provided Petitioner with a full and fair opportunity to litigate his Fourth Amendment claim. His claims, therefore, should be dismissed.
IV. Co-Defendant's Post Arrest Silence
Petitioner argues that the trial court erred in permitting the prosecutor to admit evidence pertaining to his co-defendant's post-arrest silence and that such error caused him prejudice before the jury.
Petitioner has failed to identify the constitutional provision that he alleges was violated. See Estelle v. McGuire, 502 U.S. 62, 68, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991) (federal habeas relief is limited to deciding whether a conviction violated the Constitution, laws or treaties of the United States). Assuming arguendo an error of constitutional magnitude, any such error was harmless for the reasons set forth in section II, supra. See Brecht 507 U.S. at 631, 113 S.Ct. at 1718. Specifically, Petitioner failed to allege how he was prejudiced by the use of this testimony such that it had a substantial and injurious effect or influence on his trial. As such, this claim should be dismissed.
V. Persistent Felony Offender
A. 1986 Conviction
Petitioner contends that the trial court improperly adjudicated him a persistent felony offender. Specifically, Petitioner challenges the trial court's use of a 1986 conviction for burglary which he alleges was obtained in violation of his constitutional rights. He further asserts that the use of this conviction violated his rights under the New York State and United States Constitutions.
Petitioner's claim relies on both the New York State and United States Constitution. However, federal habeas relief is "limited to deciding whether a conviction violated the Constitution, laws or treaties of the United States." Estelle, 502 U.S. at 68, 112 S.Ct. at 480 (citations omitted). This Court may review the claim only as it relates to federal constitutional principles. Id.
As a state prisoner seeking federal habeas review of his conviction, Petitioner must have exhausted all of his available state remedies, such that the sate courts had a full and fair opportunity to consider his claims. See Daye v. Attorney General, 696 F.2d 186, 190-91 (2d Cir. 1982). Petitioner must have "fairly presented" his claims to the state courts. Id. at 191 (citing Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971)).
Petitioner raised this claim before the Appellate Division which rejected it on the merits, see Treadwell, 206 A.D.2d at 862, 616 N.Y.S. 2d at 127-128, but did not raise it in his application for leave to appeal to the Court of Appeals. Rather, Petitioner claimed only that he was unfairly found a persistent felony offender when he asserted his right to trial by rejecting a plea bargain which included a sentence of 3 1/2 to 7 years. As such, Petitioner's claim is not exhausted. See 28 U.S.C. § 2254(b).
Despite Petitioner's failure to exhaust his state court remedies, his claim is deemed exhausted due to a state procedural bar that prevents him from presenting this claim to the state courts. See N.Y. COURT RULES § 500.10(a). Petitioner's forfeiture of this claim will deny him federal relief unless he can demonstrate cause for his default and resulting prejudice. See Coleman, 501 U.S. at 750, 111 S.Ct. at 2565; Grey, 933 F.2d at 121. The only assertion Petitioner makes to overcome his procedural bar is that the use of an unconstitutionally obtained conviction to enhance his sentence resulted in a fundamental miscarriage of justice. However, even if the 1986 conviction were to be an inappropriate predicate for the court's persistent felony offender determination, at least two remaining felonies existed (October 9, 1976, and July 26, 1982, sentences) to sustain the trial court's decision. See Statement Pursuant to CPL § 440.20(3) (attached to People's Affidavit in response to Petitioner's motion to set aside sentence). As Petitioner has failed to assert cause or actual prejudice or demonstrate that the failure to consider his claim will result in a fundamental miscarriage of justice, this claim should be dismissed.
"A persistent felony offender is a person, other than a persistent violent felony offender as defined in section 70.08, who stands convicted of a felony after having previously been convicted of two or more felonies[.]" N.Y. PENAL LAW § 70.10(a) (emphasis added).
B. Constitutionality
Petitioner alleges that his adjudication as a persistent felony offender violated the Due Process Clause of the Fourteenth Amendment. Liberally construing Petitioner's constitutional challenge, he claims that he did not receive the proper notice as required by N.Y. CRIM. PROC. LAW § 400.20 such that he was not given an opportunity to challenge the constitutionality of a prior felony. See Petitioner's Memorandum of Law in Opposition to Respondent's Motion to Dismiss (Dkt. No. 15), p 12-13.
Petitioner's claim is difficult to ascertain. Initially, Petitioner maintains that the "statute does not provide for due process of law." See Petition for Writ of Habeas Corpus (Dkt. No. 1), p. 9.Then, in his response to Respondent's motion to dismiss, Petitioner alleges that "the procedure [sic] sets forth by Criminal Procedure Law section 400.20 [sic] Because the courts do NOT follow the . . . procedure." See Petitioner's Memorandum of Law in Opposition to Respondent's Motion to Dismiss (Dkt No. 15), p. 13. Despite Petitioner's claim to the contrary, it does not appear as if he intends to challenge the statute on its face. Rather, he claims that the trial court's failure to follow the procedure as outlined in the statute denied him due process of law.
According to New York law, when a trial court is put on notice that the defendant is a persistent felony offender and the trial court is of the opinion that such an adjudication may be warranted, the court may order a hearing to determine if the defendant is a persistent felony offender and if so, what sentence to impose. See N.Y. CRIM. PROC. LAW § 400.20(2). The trial court must attach to this order a statement which sets forth the following:
(a) The dates and places of the previous convictions which render the defendant a persistent felony offender as defined in subdivision one of section 70.10 of the penal law; and
(b) The factors in the defendant's background and prior criminal conduct which the court deems relevant for the purpose of sentencing the defendant as a persistent felony offender.
See N.Y. CRIM. PROC. LAW § 400.20(3).
Then a notice of hearing accompanied by the court's statement must be sent to the defendant, his attorney, and the prosecutor. See N.Y. CRIM. PROC. LAW § 400.20(4). This notice must indicate the time and place of the hearing as well as that the hearing's purpose is to determine whether the defendant should be sentenced as a persistent felony offender. See Id.
In the instant case, the trial court issued an order for a persistent felony hearing on March 20, 1992, along with a statement pursuant to N.Y. CRIM. PROC. LAW § 440.20(3). This statement referenced three prior felonies (including Petitioner's 1986 conviction for which is the basis for this claim), along with the date and places of the convictions, that the trial court intended to consider as to the first prong of analysis, see N.Y. CRIM. PROC. LAW § 400.20(1)(a) (requisite two prior felonies). Further, the trial court indicated that in addition to those three prior convictions, there were many other factors it deemed relevant for the persistent felony offender determination. In fact, the trial court attached the relevant portion of the Probation Report that clearly indicated the criminal history the court intended to consider as to the second prong of the analysis. See N.Y. CRIM. PROC. LAW § 400.20(1)(a)
In view of the above, the trial court clearly indicated the nature of the evidence to be adduced at the persistent felony hearing and amply put Petitioner on notice. Petitioner, therefore, was not denied due process of law and his claim should be dismissed. Moreover, as Petitioner's alleged due process deprivation centers on the consideration of his 1986 conviction, for the reasons discussed above, any error did not have "`a substantial and injurious effect or influence' on the outcome of [his] persistent felon hearing." Fletcher v. Mann, 956 F. Supp. 168, 172 (N.D.N.Y. 1997) (citations and internal quotation marks omitted).
Petitioner also challenges the constitutionality of New York's persistent felony offender statute as applied to non-violent offenders. Specifically, he maintains an equal protection violation. Petitioner apparently takes issue with the persistent felony offender statute's only authorized sentencing range — a minimum of between fifteen and twenty-five years, and a maximum of life imprisonment. See N.Y. PENAL LAW § 70.10. This same sentence applies regardless of the felony's classification. See Id. By contrasting this with the persistent violent felony offender statute's authorized sentences depending on classification, Petitioner alleges that one convicted of a Class D non-violent felony would be sentenced to at least 15 years to life imprisonment, while a conviction for a Class D violent felony would invoke at least 6 years to life imprisonment.
Once again, Petitioner's constitutional challenge is unclear. In his petition, Petitioner asserts a due process violation. However, in his response to Respondent's motion to dismiss, Petitioner maintains an equal protection violation. Specifically, he argues that "[t]he persistent felony offender statute for a Nonviolent Class D-felony is unconstitutional because of the far harsher sentence than that of a Class D-Violent felony persistent felony offender[.]" See Petitioner's Memorandum of Law in Opposition to Respondent's Motion to Dismiss (Dkt. No. 15), p. 13.
Legislation that does not employ suspect classifications or impinge upon fundamental rights must be upheld under the Equal Protection Clause of the Fourteenth Amendment if there is "some `rational basis' for the statutory distinctions made . . . or . . . they `have some relevance to the purpose for which the classification is made.'" Marshall v. United States, 414 U.S. 417, 422, 94 S.Ct. 700, 704, 38 L.Ed.2d 618 (1974) (quoting McGinnis v. Royster, 410 U.S. 263, 270, 93 S.Ct. 1055, 1060, 35 L.Ed.2d 282 (1973), and Baxstrom v. Herold, 383 U.S. 107, 111, 86 S.Ct. 760, 763, 15 L.Ed.2d 620 (1966)). Under this standard, statutes are traditionally granted a strong presumption of constitutionality if a rational relationship exists between the disparate treatment and a legitimate governmental purpose. See Benjamin v. Jacobson, 124 F.3d 162, 175 (2d Cir. 1997) (citing Heller v. Doe, 509 U.S. 312, 319-20, 113 S.Ct. 2637, 2642, 125 L.Ed.2d 257 (1993)). Here, the statutory scheme does not involve a suspect classification, such as race or gender, or impinge on a fundamental right. Thus, it need survive only rational basis scrutiny. See Griffin v. Mann, 156 F.3d 288, 291 (2d Cir. 1998) (citing Haag v. Ward, 632 F.2d 206, 208 (2d Cir. 1980)).
Despite Petitioner's disparate impact scenario between a defendant convicted of a non-violent Class D-felony and one convicted of a violent Class D-felony, he has failed to sufficiently allege any disparate impact as to similarly situated individuals. In theory, Petitioner may be right. However, a sentence of at least six years to life is mandatory for a persistent violent felony offender convicted of a Class D-felony. See N.Y. PENAL LAW § 70.08(2) ("the court must impose an indeterminate sentence of imprisonment, the maximum term of which shall be life imprisonment"). In contrast, a sentence of fifteen years to life is discretionary for a persistent violent offender convicted of a non-violent Class D-felony. See N.Y. PENAL LAW § 70.10(2) (the court, in lieu of imposing the sentence of imprisonment authorized by section 70.00, 70.02, 70.04 or 70.06 for the crime of which such person presently stands convicted, may impose the sentence of imprisonment authorized by that section for a class A-I felony). One convicted of a non-violent Class D-felony may be sentenced to an indeterminate term of 3 1/2 to 7 years imprisonment. Therefore, there is no evidence before this court that non-violent offenders are treated more harshly than their violent counterparts.
In light of the above, Petitioner has failed to establish that New York's statutory scheme for sentencing persistent felony offenders offends due process. His claim, therefore, should be dismissed.
VI. Proportionality of Sentence
Petitioner next maintains that the state court imposed an unduly harsh and excessive sentence which violated his right against cruel and unusual punishment under the Eighth Amendment.
To the extent Petitioner rests his claim on the pre-trial plea offer which had a 3 1/2 to 7 year recommended sentence, his claim also should be dismissed. See Matarese v. LeFevre, 514 F. Supp. 128, 133 (E.D.N.Y. 1981). "Rather than support an inference of `vindictiveness' not otherwise indicated, the mere fact that the sentence `offered' was less than that ultimately imposed after a full hearing reveals no more than the `difficult choices' with which the State could constitutionally confront petitioner." Id. (citing Chaffin v. Stynchcombe, 412 U.S. 17, 31, 93 S.Ct. 1977, 1985, 36 L.Ed.2d 714 (1973)); see also Bordenkircher v. Hayes, 434 U.S. 357, 364-65, 98 S.Ct. 663, 669, 54 L.Ed.2d 604 (1978).
A sentence with the range prescribed by state law does not present a constitutional issue. See White v. Keane, 969 F.2d 1381, 1383 (2nd Cir. 1992); Defio v. Henderson, 935 F. Supp. 180, 184 (N.D.N.Y. 1996). Here, the state court sentenced Petitioner to concurrent sentences of fifteen years to life imprisonment for the burglary conviction, and one year terms for the possession of burglar's tools and petit larceny convictions. Such a sentence is authorized by New York law. See N.Y. PENAL LAW §§ 70.08, 70.10. Petitioner's claim, therefore, is not cognizable in a federal habeas action and should be dismissed.
Petitioner argues that certain sentences, although within the statutory ranges, are cruel and unusual in the context of a particular case. See Petitioner's Memorandum of Law in Opposition to Respondent's Motion to Dismiss (Dkt. No. 15), p. 13-15. In support thereof, Petitioner cites People v. Easton, 216 A.D.2d 220, 629 N.Y.S.2d 15, as well as other state court decisions, which found a statutorily authorized sentence to be cruel and unusual as applied to the facts of that case. However, the cases Petitioner relies on are distinguishable. Specifically, none of the cases Petitioner cites concern New York's persistent felony offender statute. Instead, they dealt with mandatory minimum sentences for drug offenses. Therefore, although Petitioner's sentence may seem unduly harsh in light of the instant crime, it is not cruel and unusual in light of Petitioner's status as a persistent felony offender.
VI. Assistance of Counsel
In his final ground for relief, Petitioner contends that he was denied the effective assistance of counsel at trial. Petitioner maintains that his attorney failed to: 1) object to the court's consideration of a May 19, 1972, conviction as a predicate for Petitioner's persistent felony offender status; and, 2) request a continuance of Petitioner's persistent felony offender hearing so that he could determine the constitutionality of the May 19, 1972 conviction
To succeed, Petitioner must demonstrate that counsel's representation fell below an objective standard of reasonableness and that, but for the alleged deficiency, the likely outcome of the proceeding would have been different. See Hill v. Lockhart, 474 U.S. 52, 57-59, 106 S.Ct. 366, 369-370, 88 L.Ed.2d 203 (1985) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)); DeLuca v. Lord, 77 F.3d 578, 584 (2d Cir. 1996). A strong presumption exists that counsel's conduct was reasonable and that any challenged action is the result of sound trial strategy. See United States of America ex rel. Simmons v. Gramley, 915 F.2d 1128 (7th Cir. 1990).
Viewing the entire record as a whole, it is clear that Petitioner received effective assistance of counsel. Despite Petitioner's contentions, his attorney did object to the use of the 1972 conviction to establish Petitioner's status as a persistent felony offender. See Persistent Felony Offender Hearing transcript (Tr.) at 10-12, 18, 21. Petitioner admits the same in his post-conviction motion. See Petitioner's Motion Pursuant to C.P.L. 440.20(1)(f)(h), Statement of Facts, ¶¶ 2, 5. Moreover, the record reveals that the County Court did not use Petitioner's May 19, 1972, conviction improperly. Rather, the court properly considered it only in the context of Petitioner's history and character. See N.Y. CRIM. PROC. LAW § 400.20(1)(b); Tr. at 11, 20. Finally, Petitioner has failed to show that but for these alleged errors, he would not have been sentenced as a persistent felony offender. Petitioner asserts that a review of the records concerning the May 1972 conviction would reveal the lack of a factual basis for Petitioner's guilty plea, false arrest, and use of illegally obtained evidence. These allegations are conclusory at best. Petitioner fails to point this Court to any evidence that the May 1972 conviction was obtained unconstitutionally such that the conviction would be overturned.
In these Statement of Facts, Petitioner states that his attorney "made a strenuous objection to the court on the use of that particular document (certified copy of a record of conviction dated May 19, 1972) and its' subsequent relevancy to those proceedings (persistent felony offender hearing)" and "made an objection to the May 19, 1972, conviction based on lack of notice of the intent to utilize that particular conviction[.]"
N.Y. Crim. Proc. Law § 400.20(1) provides:
[A persistent felony offender] sentence may not be imposed unless, based upon evidence in the record of a hearing held pursuant to this section, the court (a) has found that the defendant is a persistent felony offender as defined in subsection one of section 70.10 of the penal law, and (b) is of the opinion that the history and character of the defendant and the nature and circumstances of his criminal conduct are such that extended incarceration and lifetime supervision of the defendant are warranted to best serve the public interest.
Therefore, Petitioner's allegation of ineffective assistance of counsel which rests on two allegations, one that is contradicted by the record and his submissions to the state court, and the other, where it is unclear how Petitioner was prejudiced, should be dismissed.
Conclusion
WHEREFORE, based on the above, it is hereby
RECOMMENDED, that Petitioner's habeas corpus petition be DISMISSED.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have ten days 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 of 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).