Opinion
Civil Action No. 9:11-CV-1482 (BKS/DEP)
03-11-2015
DAVID A. JENKINS, Petitioner, v. E. STALLONE, Respondent.
APPEARANCES: FOR PETITIONER: David A. Jenkins, Pro Se 348 Memorial Drive Buffalo, NY 14212 FOR RESPONDENT: HON. ERIC T. SCHNEIDERMAN New York State Attorney General 120 Broadway New York, NY 10271 OF COUNSEL: THOMAS B. LITSKY, ESQ. Assistant Attorney General
APPEARANCES: FOR PETITIONER: David A. Jenkins, Pro Se
348 Memorial Drive
Buffalo, NY 14212
FOR RESPONDENT: HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
120 Broadway
New York, NY 10271
OF COUNSEL: THOMAS B. LITSKY, ESQ.
Assistant Attorney General
DAVID E. PEEBLES U.S. MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
Petitioner David A. Jenkins, a former New York State inmate, has commenced this proceeding pursuant to 28 U.S.C. § 2254, requesting this court's habeas intervention in connection with a state court criminal conviction. This is the second such proceeding brought by the petitioner. In his first petition, which was denied, Jenkins challenged his underlying conviction, which was entered following a non-jury trial. In this petition, he contends that the court's inclusion of a period of post-release supervision, after one of his two concurrent sentences was served and shortly before the expiration of his second, violated his right to due process and subjected him to double jeopardy. In response to the petition, respondent argues that the two habeas claims both are unexhausted but not yet procedurally forfeited and lack merit.
See Jenkins v. Unger, No. 03-CV-1172, 2007 WL 911889 (N.D.N.Y. March 22, 2007) (Kahn, J., adopting report and recommendation by Homer, M.J.). Although that petition was denied in its entirety, the instant proceeding, also brought pursuant to section 2254, is not barred as a successive petition in light of the fact that it challenges a new judgment entered subsequent to the denial of the first petition. Magwood v. Patterson, 561 U.S. 320, 323-34 (2010); accord, Mills v. Lempke, No. 11-CV-0440, 2012 WL 1574749, at *8 (W.D.N.Y. May 3, 2012).
For the reasons set forth below, I conclude that the petition is now moot and the two claims raised lack palpable merit. Accordingly, I recommend that the instant petition be denied.
I. BACKGROUND
On or about August 31, 2000, petitioner was found guilty of first degree sexual abuse and attempted sodomy in the first degree following a non-jury trial held in St. Lawrence County before the Hon. Eugene L. Nicandri. Dkt. No. 7 at 1; People v. Jenkins, 300 A.D.2d 751, 751 (3d Dep't 2002). As a result of the conviction, Jenkins was sentenced on September 25, 2000, as a second felony offender, to concurrent determinate prison sentences on the attempted sodomy and sexual abuse counts of nine years and seven years, respectively. Dkt. No. 12-1 at p. 7. The sentence originally imposed by the trial court did not include a period of post-release supervision. Id.
Petitioner's conviction was upheld on appeal by the New York State Supreme Court Appellate Division, Third Department, on December 12, 2002. Jenkins, 300 A.D.2d at 752-53. The Appellate Division, however, vacated petitioner's sentence and remitted the matter to the trial court in light of a discrepancy appearing between the sentencing minutes, which evidenced the court's intention to impose determinate sentences for the convictions, and the commitment form used by the trial court, which reflected the imposition of indeterminate sentences. Id. at 753-54.
There is no reference in the record now before the court to any resentencing proceeding following the Appellate Division's decision in 2012. It appears that there may not have been an actual resentencing and that instead, in 2002, the trial court clerk merely prepared an amended commitment form clearly setting forth the trial court's intent to sentence Jenkins to concurrent determinate periods of incarceration of seven years on the sexual abuse count and nine years for attempted sodomy. Dkt. No. 12-10 at 3.
At some point while Jenkins was serving his prison sentence, the New York State Department of Corrections and Community Supervision ("DOCCS") or its predecessor agency, the Department of Correctional Services ("DOCS"), administratively amended petitioner's commitment by adding a five-year period of post-release supervision. Dkt. No. 12-5 at 5. Jenkins challenged the DOCCS administrative imposition of a post-release supervision term by petition filed in Livingston County Supreme Court in or about March 2008, pursuant to New York Civil Procedure Law and Rules ("CPLR") Article 78. See generally Dkt. No. 12-3. Acting Supreme Court Justice Dennis S. Cohen granted petitioner's Article 78 petition on May 5, 2008, based upon a decision by the New York Court of Appeals issued on April 29, 2008, holding that only a judge, and not the DOCCS, may lawfully impose a period of supervised release as part of a sentence. Dkt. No. 12-5 at 4-5; see Matter of Garner v. N.Y. State Dep't of Corr. Servs., 10 N.Y.3d 358 (2008). While granting the petition, Justice Cohen noted that his decision did not preclude the sentencing court from correcting its failure to impose the statutorily mandated period of post-release supervision. Dkt. No. 12-5 at 5.
The five-year period of post-release supervision was required by law and should have been imposed by the sentencing court. See N.Y. Penal Law § 70.45.
On September 8, 2008, after completion of petitioner's seven-year period of incarceration for the sexual abuse conviction, but prior to completion of his sentence for the attempted sodomy conviction, petitioner was resentenced by the trial court. Dkt. No. 12-10. Although the transcript of the sentencing does not explicitly reflect whether the post-release supervision attached to one or both of petitioner's convictions, id., Acting County Court Judge Kathleen Rogers based her decision to resentence petitioner, in part, on the fact that he had not yet completed his sentence for the attempted sodomy conviction. Id. at 6. In addition, in her decision denying petitioner's motion, filed in 2010, to set aside his sentence pursuant to New York Criminal Procedure Law ("CPL") § 440.20, Judge Rogers stated that the five-year post-release supervision applied only to the attempted sodomy conviction, which petitioner was still serving at the time of his resentencing in 2008. Dkt. No. 12-16 at 5.
The trial court's amended commitment form dated September 2, 2010, also reflects that the post-release supervision applies to the attempted sodomy sentence. Dkt. No. 7-1 at 23-24.
Petitioner appealed his 2008 resentencing to the Appellate Division, arguing that he was subjected to double jeopardy as a result of the court's addition of the five-year period of supervised release. Dkt. No. 12-11. On November 4, 2010, the Appellate Division issued a decision unanimously affirming the amended judgment entered by the trial court following resentencing in September 2008. People v. Jenkins, 78 A.D.3d 1212 (3d Dep't 2010). In its decision, the Appellate Division rejected petitioner's double jeopardy claim, noting that, because he had not yet completed serving his prison sentence for the attempted sodomy conviction, his sentence remained subject to correction without subjecting him to double jeopardy. Jenkins, 78 A.D.3d at 1213.
In his appeal, Jenkins also argued that his original appellate counsel was ineffective for failing to raise the illegality of his sentence and the trial court erred in denying his motion, raised for the first time at the resentencing in 2008, to set aside the verdict pursuant to CPL § 330.30. See Dkt. No. 12-11 at 7-8, 12-14.
On June 24, 2010, while his direct appeal from the 2008 resentencing remained pending before the Appellate Division, Jenkins filed a motion to vacate the sentence pursuant to CPL § 440.20. Dkt. No. 12-14. Judge Rogers denied petitioner's motion on August 13, 2010, concluding that, because petitioner had not completed serving the sentence to which the post-release supervision applied, the prohibition against double jeopardy was not violated by the resentencing. Dkt. No. 12-16 at 4 (citing People v. Williams, 14 N.Y.3d 198 (2010) and People v. Becker, 72 A.D.3d 1290 (3d Dep't 2010)). Petitioner's application for leave to appeal Judge Rogers' decision to the Appellate Division was denied on November 30, 2010. Dkt. Nos. 12-17, 12-18.
Petitioner was initially released to supervision on March 27, 2009. Dkt. No. 7-1 at 9. Although the record does not clearly so reflect, it appears that he was thereafter resentenced to an additional period of incarceration for violating the conditions of his post-release supervision. Based on change-of-address forms received by the court on February 22, 2013, and April 25, 2013, it appears that petitioner has since been released from custody once again. Dkt. Nos. 16, 17. Publicly available information reflects that petitioner's term of post-release supervision expired no later than April 7, 2014. See NYS DOCCS Inmate Information, http://nysdoccslookup.doccs.ny.gov/GCA00P00/WIQ2/WINQ120 (last visited March 5, 2015).
II. PROCEDURAL HISTORY
Petitioner commenced this proceeding in the Western District of New York on November 10, 2011. Dkt. No. 1. The matter was subsequently transferred to this district by order issued by Senior District Judge Michael A. Telesca on November 29, 2011. Dkt. No. 4.
Following the issuance of an initial review order from this court, Jenkins submitted an amended petition. Dkt. Nos. 6, 7. In the amended petition, he raises two grounds for habeas relief, arguing that his resentencing in 2008 violated the constitutional protections against double jeopardy and guarantying due process. Dkt. No. 7 at 3. Respondent, represented by the Office of the New York State Attorney General, submitted an answer in opposition to the petition on July 31, 2012, additionally providing a memorandum of law and a compilation of the relevant state court records which, the court appreciates, were indexed by respondent's counsel for ease of reference. Dkt. Nos. 10-12. Petitioner has since submitted a reply and affidavits in further support of his petition. Dkt. Nos. 13-15. Jenkins' petition, which is now ripe for determination, has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed. R. Civ. P. 72(b).
III. DISCUSSION
A. Mootness
This court's subject matter jurisdiction is limited by Article III, Section 2 of the United States Constitution to matters that present a "case or controversy." Spencer v. Kemna, 523 U.S. 1, 7 (1998); Baur v. Veneman, 352 F.3d 625, 631-32 (2d Cir. 2003). A case becomes moot if, at any stage of the proceedings, it fails to satisfy the case-or-controversy requirement. Kamagate v. Ashcroft, 385 F.3d 144, 150 (2d Cir. 2004) (citing Spencer, 523 U.S. at 7).
As was noted above, petitioner is no longer incarcerated, and his post-release supervision was set to expire, at the latest, on April 7, 2014. See Dkt. Nos. 16, 17; NYS DOCCS Inmate Information, http://nysdoccslookup. doccs.ny.gov/GCA00P00/WIQ2/WINQ120 (last visited Mar. 5, 2015). Habeas petitioners no longer in custody must demonstrate the existence of a "concrete and continuing injury" or some "'collateral consequence' of the conviction" in order for a petition to be granted. Spencer, 523 U.S. at 7; Jackson v. Schult, No. 07-CV-1146, 2008 WL 5056851, at *1 (N.D.N.Y. Nov. 21, 2008) (Hurd, J., adopting report and recommendation by Bianchini, M.J.). A challenge to an underlying conviction itself carries the presumption that collateral, adverse consequences exists. See Spencer, 523 U.S. at 12 ("[I]t is an 'obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences.'") (quoting Sibron v. N.Y., 392 U.S. 40, 55 (1968)). In this case, however, petitioner challenges the imposition of the five-year post-release supervision during his resentencing in 2008. Accordingly, because petitioner does not challenge his underlying conviction, no presumption of collateral consequences exists in this case, and he must prove the existence of a concrete and continuing injury resulting from the post-release supervision. Spencer, 523 U.S. at 7-8; Jackson, 2008 WL 5056851, at *1. Based on the record now before the court, there is no basis to conclude that petitioner suffers any continuing injury arising from the imposition of the post-release supervision because he is no longer on supervision and has completed his sentence. For this reason, I recommend the petition be dismissed as moot. See, e.g., Razzoli v. United States Parole Comm'n, 116 F. App'x 292, 293 (2d Cir. 2004) ("Where, as here, a petitioner's habeas petition challenges parole revocation proceedings, his petition becomes moot when he is released from custody unless he is able to demonstrate collateral consequences stemming from the parole revocation proceedings."); Lewis v. N.Y., No. 08-CV-4978, 2012 WL 5419899, at *4 (E.D.N.Y. Nov. 6, 2012) ("In this case, the petition is moot because petitioner was released from post-release supervision . . ., and does not allege that he suffers from any ongoing restraints on his liberty.").
Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.
B. Review of Petitioner's Claims
Notwithstanding my recommendation concerning mootness, out of an abundance of caution, I will proceed to address the merits of the petition.
Although respondent argues that the court need not reach the merits of the petition because the petitioner's two grounds for relief are not fully exhausted, Dkt. No. 11 at 15-16, even assuming respondent is correct, the court is not precluded from addressing the merits of unexhausted claims when it is clear they lack palpable merit. 28 U.S.C. § 2254(b)(2); see also Pratt v. Greiner, 306 F.3d 1190, 1197 (2d Cir. 2002).
1. Standard of Review
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant habeas corpus relief with respect to a claim adjudicated on the merits in state court only if, based upon the record before the state court, the adjudication of the claim (1) was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Cullen v. Pinholster, --- U.S. ----, 131 S. Ct. 1388, 1398, 1400 (2011) (citing 28 U.S.C. § 2254(d)); Premo v. Moore, --- U.S. ----, 131 S. Ct. 733, 739 (2011); Thibodeau v. Portuondo, 486 F.3d 61 (2d Cir. 2007) (Sotomayor, J.). The AEDPA "'imposes a highly deferential standard for evaluating state-court rulings' and 'demands that state-court decisions be given the benefit of the doubt.'" Felkner v. Jackson, --- U.S. ----, 131 S. Ct. 1305, 1307 (2011) (per curiam) (quoting Renico v. Lett, 559 U.S. 766, 773 (2010)); accord, Cullen, 131 S. Ct. at 1398. Federal habeas courts must presume that the state court's factual findings are correct "unless applicants rebut this presumption with 'clear and convincing evidence.'" Schriro v. Landrigan, 550 U.S. 465, 473-74 (2007) (quoting § 2254(e)(1)); see also Boyette v. Lefevre, 246 F.3d 76, 88 (2d Cir. 2001). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable - a substantially higher threshold." Schriro, 550 U.S. at 473 (citing Williams v. Taylor, 529 U.S. 362, 410 (2000)).
As required by section 2254, on federal habeas review, a court may only consider claims that have been adjudicated on the merits by the state courts. 28 U.S.C. § 2254(d); Cullen, 131 S. Ct. at 1398; Wash. v. Schriver, 255 F.3d 45, 52-55 (2d Cir. 2001). The Second Circuit has held that, when a state court adjudicates a claim on the merits, "a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim - even if the state court does not explicitly refer to either the federal claim or to relevant federal case law." Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001).
2. Double Jeopardy
The double jeopardy clause of the Fifth Amendment to the Constitution provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. Amend. V; Boyd v. Meachum, 77 F.3d 60, 63 (2d Cir. 1996). The Fifth Amendment applies in this instance through the Fourteenth Amendment. See Boyd, 77 F.3d at 63 ("The Due Process Clause of the Fourteenth Amendment extends this guarantee to state proceedings."). In its decision, the Appellate Division rejected petitioner's double jeopardy argument, concluding that, because he had not yet fully served his prison sentence, the defective sentence was subject to correction without running afoul of the protection against double jeopardy. Jenkins, 78 A.D.3d at 1213. This conclusion was neither contrary to nor an unreasonable application of clearly established Supreme Court precedent.
The double jeopardy clause "protects against: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense." Boyd, 77 F.3d at 63 (citing N.C. v. Pearce, 395 U.S. 711, 717 (1969)). It does not, however, prohibit the resentencing of a convicted defendant unless the defendant has "developed a legitimate 'expectation of finality in his original sentence.'" United States v. Triestman, 178 F.3d 624, 630 (2d Cir. 1999) (quoting United States v. DiFrancesco, 449 U.S. 117, 139 (1980)). Although petitioner argues that the five-year period of post-release supervision required by New York State law was imposed by the sentencing court in connection with both convictions, including the sexual abuse conviction for which he had served his complete sentence at the time of resentencing in September 2008, the transcript from that proceeding reflects the court's intention to impose post-release supervision only with regard to the nine-year sentence still being served by the petitioner for the attempted sodomy conviction. Dkt. No. 12-10 at 6. During the resentencing, in response to the double-jeopardy objection raised by counsel for the petitioner, Judge Rogers stated that she was authorized to resentence petitioner "[b]ased on the fact that Mr. Jenkins has not served the nine years for the Attempted Sodomy, and has not been released, and the fact that the Court was required, by law, to impose a term of post-release supervision[.]" Id. at 6-7. The court then imposed the original determinate sentences of seven years and nine years, to be served concurrently, with an additional post-release five year supervision period. Id. at 7. Under the circumstances, because petitioner was still serving the nine-year sentence at the time of resentencing, he could not have developed a legitimate expectation of finality in his sentence, and thus no violation of double jeopardy occurred. See Bozza v. United States, 330 U.S. 160, 166-67 (1947) (resentencing to include statutorily required fines inadvertently omitted was not double jeopardy because "[t]he Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner"); Warren v. Rock, No. 12-CV-3101, 2012 WL 2421916, at *2 (E.D.N.Y. June 27, 2012) (finding that the petitioner had no expectation of finality in his sentence where he was still incarcerated and serving time on his sentence when the trial court resentenced him imposing periods of post-release supervision); Thomas v. Heath, No. 10-CV-5861, 2011 WL 1849097, at *11 (S.D.N.Y. May 16, 2011) ("Here, [the petitioner]'s original sentence was inadequate under New York law, and [the petitioner] was therefore resentenced to the additional five years of [post-release supervision] to correct the error in his original sentencing. Since such a resentencing does not constitute double jeopardy or a violation of due process, [the petitioner]'[s] claim should be dismissed[.]"). Because the Appellate Division's rejection of petitioner's double jeopardy argument was neither contrary to nor an unreasonable application of Supreme Court precedent, I recommend this claim be dismissed.
3. Due Process Claim
Petitioner's due process claim also lacks palpable merit. The basis for petitioner's due process argument is unclear. According to the transcript from the resentencing hearing in September 2008, Jenkins was afforded the right to be heard with regard to his double-jeopardy argument, Dkt. No. 12-10 at 6, and he availed himself of the opportunity to challenge that resentencing both on direct appeal and collaterally through the filing of a CPL § 440.20 motion. Dkt. Nos. 12-11, 12-14. The resentencing only rectified the illegality of petitioner's original sentence, which omitted the period of post-release supervision required by State law. Dkt. No. 12-10 at 6-7; Jenkins, 78 A.D.3d at 1212-13. Resentencing for the purpose of correcting a sentence, including to impose a period of post-release supervision, does not offend notions of due process. Warren, 2012 WL2421916, at *2; Thomas, 2011 WL1849097, at *11. I therefore conclude that the petitioner's due process claim also lacks merit and recommend that it be dismissed.
Petitioner appears to ground his due process, at least in part, on that alleged failure to meet the requirements of CPL § 380.20. Dkt. No. 7-1 at 10. It is well established, however, that federal habeas relief does not lie to correct errors of state law. Estelle v. McGuire, 502 U.S. 62, 67 (1991).
C. Certificate of Appealability
To appeal a final order denying a request for habeas relief by a state prisoner, a petitioner must obtain from the court a certificate of appealability ("COA"). 28 U.S.C. § 2253(c)(1)(A); see also Fed. R. App. P. 22(b)(1) ("[T]he applicant cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c)."). In the absence of a COA, a federal court of appeals lacks jurisdiction to entertain an appeal from the denial of a habeas petition. Hoffler v. Bezio, 726 F.3d 144, 152 (2d Cir. 2013). A COA may issue only "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); Hoffler, 726 F.3d at 154. A petitioner may demonstrate a "substantial showing" if "the issues are debatable among jurists of reason; . . . a court could resolve the issues in a different manner; or . . . the questions are adequate to deserve encouragement to proceed further." Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983) (quotation marks and alterations omitted); accord, Lucidore v. N.Y. State Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000). In this instance, I conclude that the petitioner has not made a substantial showing of the denial of a constitutional right and therefore recommend against the issuance of a COA.
IV. SUMMARY AND RECOMMENDATION
Jenkins' petition, which presents two claims, appears to be moot and, in any event, lacks merit. The petitioner's resentencing by the trial court to remedy a sentencing error and to include a mandated period of post-release supervision neither offends notions of due process nor subjects Jenkins to double jeopardy. Accordingly, it is hereby respectfully
RECOMMENDED that the petition in this matter be DENIED and DISMISSED in all respects; and it is further hereby
RECOMMENDED based upon my finding that Jenkins did not make a "substantial showing of the denial of a constitutional right" pursuant to 28 U.S.C. § 2253(c)(2), that a certificate of appealability not issue with respect to either of the claims set forth in his petition.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.
/s/_________
David E. Peebles
U.S. Magistrate Judge
Dated: March 11, 2015
Syracuse, New York