Opinion
07 Civ. 6937 (BSJ) (FM).
June 5, 2009
MEMORANDUM ORDER
Before the Court are the objections of Habeas Petitioner Roland Jenkins to the Report and Recommendation ("R R") of Magistrate Judge Frank Maas recommending the denial of Jenkins' Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. For the following reasons, the Court adopts the R R, overrules Jenkins' objections and DENIES his Habeas Petition.
I. BACKGROUND AND PROCEDURAL HISTORY
Jenkins pleaded guilty to one count of Robbery in the First Degree on October 11, 2001. On November 19, 2001, Justice William A. Wetzel of the New York State Supreme Court, First Judicial District, New York County, sentenced Jenkins to a determinate eight and one-half year prison term. New York law requires that a five-year period of post-release supervision be imposed on all determinate sentences. N.Y. PENAL LAW § 70.45(1) (2008).
Jenkins did not appeal his conviction. However, on September 7, 2006, he filed a motion pursuant to § 440.20 of the New York Criminal Procedure Law ("CPL") to set aside his sentence. Jenkins alleged that his guily plea was not entered knowingly or voluntarily because he was never advised that a five-year period of post-release supervision would be a mandatory part of his sentence.
Both the minutes and the stenographic notes from Jenkins' plea and sentencing were lost and thus could not be used to determine whether or not Jenkins was informed of his mandatory post-release supervision period at his plea or sentencing. Jenkins acknowledges, however, that shortly after arriving at a Department of Corrections ("DOCS") Facility he received a form from DOCS, bearing the notation "PRS 05 00 00." Jenkins claimed that he did not understand this to indicate that his sentence was subject to five years of post-release supervision, and that he did not discover the meaning of this notation until he was informed by other inmates in June 2006. Jenkins argued that the addition of a post-release term by DOCS was unlawful and had to be vacated. On January 26, 2007, Justice Wetzel denied Jenkins' § 440.20 motion to set aside his sentence, finding that the DOCS form provided to Jenkins six days after his sentencing gave him adequate notice of the terms of his sentence.
On May 27, 2008, Magistrate Judge Maas issued a thorough R R recommending the denial of Jenkins' Petition. That R R describes the procedural history and additional facts in some detail, familiarity with which is presumed.
II. Discussion
a. Standard of Review
When a Magistrate Judge has issued findings or recommendations, the district court "may accept, reject, or modify [them] in whole or in part." 28 U.S.C. § 636(b)(1)(C). The Court reviews de novo any portions of the Report to which Jenkins has stated an objection. 28 U.S.C. § 636(b)(1)(C); see United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). "Where no objections are filed, or where the objections are `merely perfunctory responses, argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original petition,' the court reviews the report for clear error." Brown v. Ebert, No. 05 Civ. 5579, 2006 WL 3851152, at *2 (S.D.N.Y. Dec. 29, 2006) (quoting Gardine v. McGinnis, No. 04 Civ. 1819, 2006 WL 3775963, at *4 (S.D.N.Y. Dec. 20, 2006)).
b. Jenkins' Objections
Judge Maas' R R determined that, because the statute of limitations on Jenkins' habeas claim had expired, Jenkins' petition is time barred. Judge Maas further concluded that even if Jenkins' claim was granted, there would be no practical effect, because CPL § 440.40 provides the state an opportunity to resentence him. Jenkins objects to both conclusions, contending that (1) his petition is not barred by the statute of limitations because he never was informed of his post-release supervision; and (2) CPL § 440.40 precludes any correction of his sentence because a one-year period has elapsed.
Jenkins also raises four additional grievances. He argues that: (1) the imposition of the post-release period violates due process because the sentencing minutes were lost; (2) the five year post-release period cannot stand because it was not imposed by a court; (3) addition of the five year post-release supervision period would violate the double jeopardy clause of the Fifth Amendment; and (4) Justice Wetzel was wrong to deny his CPL § 440.20 motion in January of 2007.
i. Timeliness
Jenkins objects to Magistrate Judge Maas' determination that his petition is time-barred. Jenkins argues that the statute of limitations was improperly measured because he did not have actual knowledge of his post-release supervision term until June, 2006. (Petitioner's Objections ("Pet. Obj.") at 1.)
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") has a one year period of limitation for a person in custody pursuant to the judgment of a State court to bring a writ of habeas corpus. See 28 U.S.C. §§ 2244(d)(1)(A)-(D). The limitation period shall begin to run from the latest of several possible dates. In this case, the only two possible triggering dates are subsections (A) and (D) of the statute. Jenkins' petition is time barred under both of these sections.
Under § 28 U.S.C. 2244(d)(1)(A), the one-year limitations period begins on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Because Jenkins never filed a direct appeal after he was sentenced, the limitations period began to run thirty days after his sentencing, when his time to file a notice of appeal expired. Jenkins' Petition is dated May 29, 2007, which is approximately four and one half years after the limitations period under § 2244(d)(1)(A) expired.
Jenkins' argument addresses tolling under § 2244(d)(1)(D) — he seems to contend that the limitations period should not have commenced until he was actually made aware of the imposition of his post-release supervision period, in June 2006. (See Pet.Obj. at 1.) But § 2244(d)(1)(D) provides that the statute of limitations shall begin to run on "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2244(d)(1)(D) (emphasis added). This is true regardless of whether a petitioner actually discovers the relevant facts at a later date. See Wims v. United States, 225 F.3d 186, 190 (2nd Cir. 2000); Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000) (holding that "the trigger in § 2244(d)(1)(D) is (actual or imputed) discovery of the claim's `factual predicate', not recognition of the facts' legal significance"). Jenkins' proposed interpretation of the statute imposes a subjective rather than an objective standard, and would render the limitations period ineffective. See Owens, 235 F.3d at 359.
A petitioner bears the burden of demonstrating why he was unable to discover the factual predicate of his claim before the date asserted. Yekimoff v. N.Y. State Div. of Parole, No. 02 Civ 8710 (BSJ), 2004 WL 1542256 at *5 (S.D.N.Y. July 8, 2004); (see also Sorce v. Artuz, 73 F. Supp. 2d 292, 298 (S.D.N.Y. 1999)). Jenkins admits that he received the DOCS form, with the notation "PRS 05 00 00", shortly after December 26, 2001. (See R R at 4). Nonetheless, Jenkins did not file his motion to set aside Justice Wetzel's sentence until four years after the expiration of the one-year AEDPA limitations period, and he presents no justification for that delay. Therefore, Jenkins falls short of his burden, and his claim is dismissed as barred by the statute of limitations.
ii. Lawfulness of the Post-release Supervision Term.
Jenkins argues that his post-release supervision term could not be reinstated because the one year period to correct his sentence pursuant to CPL § 440.40 has elapsed. The R R accepts the truth of Jenkins' representation that he was not informed of the post-release supervision term at his sentencing, and the Court does the same. However, CPL § 440.40(5) allows the state to correct an improper sentence even after the initial one year period. See, e.g. People v. Wright, 56 N.Y. 2d 613, 615 (N.Y. 1982) (holding that the one-year limitation in CPL § 440.40 is "designed to restrict the People's ability to move to set aside an illegal sentence" and "should not be read to place a similar restriction on the court's inherent ability to correct its own errors"). This applies even where the corrected sentence is more severe than the sentence as initially and incorrectly given. See People v. DeValle, 94 N.Y.2d 870 (2000).
In People v. Sparber, the New York Court of Appeals confirmed that "the sole remedy for a procedural error such as this is to vacate the sentence and remit for a resentencing hearing so that the trial judge can make the required pronouncement." People v. Sparber, 10 N.Y.3d 457, 471 (2008). Were the court to grant Jenkins' instant petition, therefore, it could grant the writ but stay its execution to allow the prosecutor to seek a nunc pro tunc order correcting the sentence to include the term of post-release supervision. See Earley v. Murray, No. 03 Civ. 3104, 2007 WL 1288031, at *3 (E.D.N.Y. May 1, 2007). This remedy is consistent with the court's discretionary power to deal with habeas petitions as justice requires. Id. at *3 (citing Stone v. Powell, 428 U.S. 465, 478 (1976)). Accordingly, even if Jenkins' petition were not time-barred, the expiration of the one year period set forth in CPL § 440.40 would not preclude correction of Jenkins' sentence and the granting of Jenkins' petition would have no practical effect.
iii. Jenkins' Supplemental Grievances
In his objections, Jenkins raises four issues that the R R does not address. The Court addresses them briefly nonetheless.
First, Jenkins objects to the imposition of the post-release supervision term because the minutes and stenographic record from his plea and sentencing cannot be located. Jenkins claims that, without any record, this imposition violates his right to due process. (Pet. Obj. at 1). This contention seems to overlook the fact that the absence of his sentencing minutes is not being used to Jenkins' detriment. On the contrary, as noted above, the Court has proceeded on the assumption that Jenkins was not informed, at his sentencing, of the mandatory five year post-release supervision period. The state's inability to locate or produce Jenkins' sentencing minutes does not affect the resolution of this petition.
Second, Jenkins claims that the imposition of his five year post-release period is invalid because it was not imposed by a judge; he bases this contention on Earley v. Murray, where the Second Circuit held that the only proper components of a sentence are those imposed by a judge. Earley v. Murray, 462 F.3d 147, 149 (2d. Cir. 2006). As discussed above, however, even if Jenkins' habeas petition was granted, the remedy provided by CPL § 440.40 entails a resentencing to correct the procedural error. See Earley, 2007 WL 1288031 at *3. Because the proper sentence under N.Y. Penal Law § 70.45 includes the five year post-release sentence, Jenkins' post-release supervision period would not be excised. N.Y. PENAL LAW § 70.45(1).
Similarly, Jenkins argues that, if he were resentenced, the imposition of a five year post-release supervision term would violate the double jeopardy clause of the Fifth Amendment. This claim must also fail. Jenkins cites Ex Parte Lange, 85 U.S. 163 (1874) for the proposition that no person shall be punished twice for the same offense. Though a defendant may not be tried twice for the same crime, a resentencing hearing to correct a sentencing error does not constitute double jeopardy. See U.S. v. Rosario, 386 F.3d 166, 170 (2d. Cir., 2004) (allowing a sentencing court that has omitted a mandatory component of a sentence to increase that sentence without running afoul of the double jeopardy clause).
Finally, Jenkins contests Justice Wetzel's January 26, 2007 denial of his CPL § 440.20 motion. CPL § 440.20(4) provides that "an order setting aside a sentence pursuant to this section does not affect the validity or status of the underlying conviction, and after entering such an order the court must resentence the defendant in accordance with the law." Again, had Jenkins' CPL § 440.20 motion succeeded, Justice Wetzel would have merely reinstated the five year post-release supervision term, as required by N.Y. Penal Law § 70.45.
c. Jenkins' Other Habeas Claims
As to Jenkins' remaining claims, the Court finds Magistrate Judge Maas' R R thorough, well-reasoned and not clearly erroneous. Accordingly, the Court adopts Magistrate Judge Maas' recommendation not to issue a writ of habeas corpus on the bases of those claims.
III. Conclusion
For the foregoing reasons, the Court adopts the Report and Recommendation of Magistrate Judge Maas in its entirety and DENIES Jenkins' Petition for a Writ of Habeas Corpus because it is time barred. Because Jenkins has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253; see United States v. Perez, 129 F.3d 255, 260 (2d Cir. 1997). Pursuant to 28 U.S.C. § 1915(a)(3), any appeal taken from this order would not be taken in good faith.
The Clerk of the Court is directed to close this case.