Opinion
08 Civ. 0113 (JSR)(KNF).
September 29, 2008
REPORT AND RECOMMENDATION
I. INTRODUCTION
Before the Court is Roman Levites' ("Levites") pro se petition for a writ of habeas corpus made pursuant to 28 U.S.C. § 2254. Levites contends that his confinement by New York State is unlawful because the sentence imposed on him is excessive. In support of this claim, Levites asserts that, in imposing his sentence, the trial court: (1) considered improperly the elements of the petitioner's crimes; and (2) noted that it believed the petitioner's trial testimony was false, without specifying the false portions of his testimony.
Respondent opposes the petitioner's application, which is analyzed below.
II. BACKGROUND AND PROCEDURAL HISTORY
On December 16, 1995, Jamie Ng ("Ng"), who was thirteen years old, and William Lee ("Lee"), who was fourteen years old, were shopping in Manhattan. As they did so, Lee purchased a jacket. While inside a store, Ng and Lee noticed the petitioner and two men, who appeared to be with him. As Lee and Ng exited the store, Ng was approached by the petitioner, who put his arm around Ng's shoulder and led Ng down a street. While the petitioner was with Ng, one of the petitioner's accomplices put his arm around Lee and he and a second man led Lee around a corner. Ng struggled to loosen himself from the petitioner's grip and, after he freed himself, the petitioner stated that Lee was "'going to die'" and ran toward the location where his two accomplices had guided Lee. Ng ran to his home, called 911 and requested that police officers be sent to the location where the incident with the petitioner had occurred.In the meantime, one of the petitioner's accomplices took Lee's jacket, while the other held a knife to Lee's throat and threatened to stab Lee. The petitioner approached Lee and stated, "'You're dead because your friend ran away'"; whereupon, the petitioner punched Lee's face. Lee recalled that the petitioner stated he had a gun, and reached into his jacket. It appeared to Lee that the petitioner was carrying a gun. The petitioner and his accomplices searched Lee's pockets and removed money. The petitioner punched Lee a second time and fled with his accomplices. Lee ran to a nearby store and called the police. After police officers arrived, they drove Lee around the vicinity where the robbery had occurred. Lee spotted the petitioner and his accomplices and Lee informed the police, who took the three men into custody. Thereafter, Lee provided Ng's telephone number to the police; a police officer called Ng and requested that he meet the police personnel outside of his apartment building. Police officers arrived at Ng's apartment building with Lee. The police officers drove Ng and Lee to the location where the petitioner and his accomplices were being held. The police instructed Ng to "look around" and indicate whether he "recognized anybody." Ng recognized the petitioner.
The petitioner was arrested and, subsequently, indicted by a grand jury. Levites proceeded to trial before a petit jury on June 9, 1997. Levites testified in his own defense at his trial, and stated that, on December 16, 1995, he was eighteen years old, and he had gone shopping with two friends. The petitioner explained that, Ng and Lee had been shopping in the same store as he, and that Lee and one of the petitioner's friends began to argue. The petitioner asserted that, outside of the store, Lee argued with both of the petitioner's friends, and so Levites put his arm around Ng and advised him to stay out of the argument. The petitioner alleged he kept a "firm grip" on Ng's shoulder so Ng would not join the argument. According to Levites, eventually, he released his grip on Ng and Ng ran away. Thereafter, the petitioner approached his friends and observed Lee "swing at" one of them; this prompted the petitioner to punch Lee's face. After Lee "went down," Lee rose to his feet; the petitioner punched Lee a second time, and the petitioner and his friends ran away. According to Levites, he: (1) never told Lee he had a gun; (2) did not put his hand inside his jacket; (3) did not see that either of his friends had a knife; (4) did not take money or property from Lee; and (5) did not see his friends take money or property from Lee.
On June 12, 1997, the jury found Levites guilty for two counts of first-degree robbery, see New York Penal Law (" PL") § 160.15(3), (4), and one count of second-degree robbery, see PL § 160.10(1). On July 1, 1997, a sentencing proceeding was held, at which the prosecution argued that the crimes committed by the petitioner warranted a "lengthy sentence," and noted in support that, while on bail, Levites was arrested and indicted for first-degree rape. The prosecution also argued that the petitioner failed to show remorse or to accept responsibility for his criminal conduct, and asserted that Levites had committed perjury. In response, the petitioner's attorney argued that no "aggravating" factors existed to warrant imposition of a sentence above the minimum provided by statute and noted that the petitioner was attempting to reform himself and had participated in therapy. The petitioner's attorney maintained it was "inappropriate" for the prosecution to allege the petitioner had perjured himself and, furthermore, the petitioner was remorseful.
Before imposing the sentence, the court stated that it would not consider the petitioner's pending rape charge. The court noted that, in determining the petitioner's sentence, it considered certain "positive things" about Levites, including: his youth, lack of a prior criminal record and supportive family. However, the court also explained that "aggravating factors" existed, including: the youth of the complainants, the use of a knife during the commission of the robbery, the petitioner's representation that he had a gun, and that Levites had punched Lee. The court noted that the jury had rejected the petitioner's testimony and expressed its view that the jury was correct in doing so. The court remarked it thought the petitioner "did not tell the truth at trial" and explained that Levites' testimony "did not have that ring of truth," and that "[i]t was fanciful, at times risible."
Upon "tak[ing] into account all of these factors," the court sentenced the petitioner to an indeterminate term of imprisonment of six to twelve years on each of the two first-degree robbery counts, and to an indeterminate term of imprisonment of four to eight years on the single count of second-degree robbery, all of which were to run concurrently.
In July 1997, Levites filed a notice of appeal with the New York State Supreme Court, Appellate Division, First Department. In February 2003, while his appeal was pending, Levites filed a motion, in the trial court, for post-conviction relief, pursuant to New York Criminal Procedure Law ("CPL") § 440.20. In this motion, Levites requested that his sentence be vacated because the sentencing court violated his right to due process by enhancing Levites' sentence after considering, inter alia, that the petitioner: (1) had displayed what appeared to be a gun, during the commission of the robbery; (2) aided, and was aided by, others; and (3) had testified falsely.
In June 2003, the petitioner's CPL § 440.20 motion was denied. The court explained that it had considered properly the elements of the offenses for which the petitioner was convicted, sentenced Levites within the range mandated by statute, regarded favorable and negative factors in imposing the petitioner's sentence, and weighed appropriately its belief that Levites had testified falsely.
In July 2003, Levites filed an application for leave to appeal from the denial of his CPL § 440.20 motion. In April 2004, the Appellate Division granted the application and consolidated the petitioner's appeal from the denial of his CPL § 440.20 motion with his direct appeal. In February 2005, the petitioner moved to deconsolidate these proceedings, and for permission to proceedpro se. The Appellate Division granted the petitioner's motion to proceed pro se, and denied his request to deconsolidate the proceedings.
Levites submitted a pro se appellate brief, in which he argued,inter alia, that his sentence was excessive because the sentencing court: (1) considered improperly the elements of the crimes for which the petitioner was convicted, and (2) enhanced his sentence based on a finding that he had testified falsely, without specifying the testimony the court believed to be false.
On September 19, 2006, the Appellate Division affirmed the petitioner's conviction and the denial of his CPL § 440.20 motion unanimously. See People v. Levites, 32 A.D.3d 735, 821 N.Y.S.2d 176 (App.Div. 1st Dep't 2006). The petitioner applied for leave to appeal to the New York Court of Appeals. On December 20, 2006, that application was denied. See People v. Levites, 7 N.Y.3d 926, 827 N.Y.S.2d 695 (2006). On January 19, 2007, the petitioner was released on parole.
The instant application for a writ of habeas corpus followed. In his petition, under a heading entitled "place of confinement," Levites states he is "under parole supervision."
III. DISCUSSION
Where a state court has adjudicated the merits of a claim raised in a federal habeas corpus petition, 28 U.S.C. § 2254 provides that the writ may issue only if the state court's adjudication resulted in a decision that: (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 proceedings. See 28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362, 374-90, 120 S. Ct. 1495, 1503-11 (2000);Francis S. v. Stone, 221 F. 3d 100, 107-11 (2d Cir. 2000). In addition, when considering an application for a writ of habeas corpus by a state prisoner, a federal court must be mindful that any determination of a factual issue made by a state court is to be presumed correct and the habeas corpus applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
A. "In Custody" Requirement
A district court "shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court. . . ." 28 U.S.C. § 2254(a) (emphasis added). Although Levites' habeas corpus petition indicates that he has been released from physical imprisonment, "§ 2254(a) requires only that the habeas petitioner be 'in custody' under the conviction or sentence under attack at the time [the] petition is filed." Wheel v. Robinson, 34 F.3d 60, 63 (2d Cir. 1994) (quoting Maleng v. Cook, 490 U.S. 488, 490-91, 109 S. Ct. 1923, 1925 (1989) (per curiam) (internal quotations omitted). The Supreme Court has found that parole "imposes conditions which significantly confine and restrain [the petitioner's] freedom; [and] is enough to keep him in the 'custody' of the members of the [state] Parole Board within the meaning of the habeas corpus statute." Jones v. Cunningham, 371 U.S. 236, 243, 83 S. Ct. 373, 377 (1963) (considering the "in custody" requirement of 28 U.S.C. § 2241); see also Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 890 (2d Cir. 1996) (noting that the analogous "in custody" requirements of 28 U.S.C. § 2241(c)(3) and § 2254(a) both "serve as a basis for a federal court to exercise jurisdiction over one held 'in custody' by a state 'in violation of the Constitution or laws or treaties of the United States'"). Altogether, because Levites filed his habeas petition while he was under parole supervision, he has satisfied the "in custody" requirement of § 2254(a).
B. Excessive Sentence Claims
The Second Circuit has explained that, in the habeas corpus context, "[n]o federal constitutional issue is presented where . . . the sentence [imposed by a state court] is within the range prescribed by state law." White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992). Rather, "when a statute provides for punishment thought to be violative of the [Eighth] [A]mendment the constitutionality of the statute itself must be attacked." United States v. Dawson, 400 F.2d 194, 200 (2d Cir. 1968).
The petitioner argues that his sentence is excessive because the sentencing court considered improperly: (a) the elements of the crimes for which he was convicted, and (b) false testimony the petitioner gave at his trial. Following trial, Levites was sentenced to two concurrent sentences of six to twelve years of imprisonment for the class B violent felony offense of first-degree robbery, see PL §§ 160.15, 70.02(1)(a), and to a concurrent term of four to twelve years of imprisonment for the class C violent felony offense of second-degree robbery, see PL §§ 160.10, 70.02(1)(b).
The petitioner's sentence falls within the statutory minimum range prescribed by the relevant statutes, since, in 1995, New York law provided that the minimum period of imprisonment for first-degree robbery may be set at "between one-third the maximum and one-half the maximum term imposed when the sentence is for a conviction of a class B armed felony offense," and that the minimum period of imprisonment for second-degree robbery "must be fixed by the court at one-third of the maximum term imposed." PL § 70.02(4) (McKinney 1995). The maximum period of incarceration to which Levites was exposed, based on his conviction for a class B violent felony, was twenty-five years, see PL § 70.02(3)(a) (McKinney 1995), and the maximum period of incarceration to which he was exposed, based on his conviction for a class C violent felony, was fifteen years, see PL § 70.02(3)(b) (McKinney 1995). Since the sentence imposed upon the petitioner is within the range prescribed by state law, the Court finds that no federal constitutional issue is presented with regard to the petitioner's sentence for violating PL §§ 160.10 and 160.15.
IV. RECOMMENDATION
For the reasons set forth above, I recommend that Levites' petition for a writ of habeas corpus be denied.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Jed S. Rakoff, 500 Pearl Street, Room 1340, New York, New York 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Rakoff. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983).