Opinion
Case No. 03-CV-0671 (FB) (LB).
December 1, 2006
For the Petitioner: BERNADETTE STAUBITZ, pro se 99-G-1267 Bedford Hills Correctional Facility Bedford Hills, NY.
For the Respondent: RICHARD A. BROWN, ESQ. District Attorney, Queens County By: JOHNNETTE TRAILL, ESQ. Assistant District Attorney Kew Gardens, New York.
MEMORANDUM AND ORDER
Pro se petitioner Bernadette Staubitz ("Staubitz") filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254, challenging the sentence imposed by the New York Supreme Court, Queens County ("Supreme Court"), as excessive and disproportionate to the sentences received by her co-defendants. After respondent filed her opposition to Staubitz's petition, the Court granted a motion by Staubitz to stay the petition to allow her to exhaust new claims in state court. Although the Court thereafter offered Staubtiz the opportunity to amend her petition to raise her newly exhausted claims, she never availed herself of that opportunity; therefore, all that is before the Court is the original petition, which is meritless and, accordingly, is denied.
I.
Staubitz was charged in the Supreme Court with two counts of second-degree murder, one count of weapons possession, and one count of evidence tampering arising out of an incident in which she and her two co-defendants repeatedly kicked, punched, choked, and eventually fatally stabbed Anthony Pitkins ("Pitkins"); to prevent the police from identifying Pitkins' dead body, Staubitz and a co-defendant saturated it with acid. On September 9, 1999, Staubitz pleaded guilty to first-degree manslaughter and evidence tampering in exchange for consecutive, indeterminate prison terms of 12 1/2 to 25 years and 1 1/3 to 4 years; as part of the plea agreement, Staubitz also waived her right to appeal.Staubitz was sentenced in accordance with her plea agreement on September 30, 1999; however, on direct appeal, Staubitz challenged the sentence as excessive and disproportionate to the sentences received by her co-defendants; the Appellate Division, Second Department, affirmed Staubitz's sentence without an opinion on April 15, 2002. See People v. Staubitz, 293 A.D.2d 964 (2d Dep't 2002). On July 12, 2002, the New York Court of Appeals denied Staubtiz's application for leave to appeal. See People v. Staubitz, 98 N.Y.2d 702 (2002).
In her habeas petition, filed on February 6, 2003, Staubitz again challenged her sentence as excessive and disproportionate. On August 24, 2003, Staubitz submitted a request to stay her petition in order to exhaust new claims in state court. "Upon consent of the parties," the Court granted the application, see Order of M.J. Bloom, dated Sept. 23, 2003 (Docket Entry # 12), and Staubitz thereafter filed a motion in the Supreme Court pursuant to New York Criminal Procedure Law § 440.10 to vacate her conviction.
Staubtiz's § 440 motion is not included in the record before the Court.
According to a decision issued by Supreme Court Judge Robert Hanophy, Staubitz raised two claims: (1) that she was improperly informed of her Miranda rights and denied her right to counsel; and (2) that she was denied effective assistance of counsel. The Supreme Court denied the motion, finding that Staubitz's claims were procedurally barred because Staubitz had waived her right to appeal as part of her guilty plea and had otherwise failed to raise the claims on direct appeal. See People v. Staubitz, Ind. No. 350/97 (N.Y.Sup.Ct. May 21, 2004). The Appellate Division denied leave to appeal on February 9, 2005.
On March 30, 2005, Staubitz filed a motion to lift the stay of the present habeas proceeding, which the Court granted on April 15, 2005; however, Staubitz did not move to amend the original petition. On October 6, 2005, the Court issued an order directing that Staubitz file an amended petition by November 11, 2005 to "include all the claims she wishes this Court to consider," Order of M.J. Bloom, dated Oct. 6, 2005 (Docket Entry # 14); to date, no amended petition has been filed and over one year has passed. Accordingly, the Court will address the original petition.
The statute of limitation for a state prisoner to file a habeas petition is one year from the date on which his judgment became final, subject to certain exceptions. See 28 U.S.C. § 2244(d)(1)(A). Staubitz's conviction became final on October 13, 2002, upon the expiration of the 90-day period to seek a writ of certiorari; Staubitz therefore had until October 13, 2003 to file his petition for habeas corpus. Staubitz's original petition was timely filed on February 6, 2003.
II.
A. Standard of Review
Only federal issues may be raised on habeas review. See 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 68 (1991). For claims "adjudicated on the merits," habeas relief may not be granted unless the state court decision (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." 28 U.S.C. § 2254(d). A state court decision is "contrary to" clearly established federal law "if the state court applies a rule that contradicts the governing law set forth" in Supreme Court precedent or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives" at a different conclusion. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision involves an "unreasonable application" of clearly established federal law if it unreasonably applies Supreme Court precedent to the particular facts of a case. See id. at 409.This inquiry requires a court to "ask whether the state court's application of clearly established federal law was objectively unreasonable," not whether the application was erroneous or incorrect. Id. In that respect, the standard to be applied "falls somewhere between merely erroneous and unreasonable to all reasonable jurists." Wade v. Mantello, 333 F.3d 51, 57 (2d Cir. 2003) (quoting Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000)). However, the "increment [of incorrectness beyond error] need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Eze v. Senkowski, 321 F.3d 110, 125 (2d Cir. 2003) (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).
B. Original Claims
With respect to Staubitz's original claims challenging her sentence, the only clearly established Supreme Court precedent in noncapital cases is that a sentence of a term of years cannot be grossly disproportionate to the offense. See Lockyer v. Andrade, 538 U.S. 63, 72 (2003) ("Through this thicket of Eighth Amendment jurisprudence, one governing legal principle emerges as `clearly established' under § 2254(d)(1): A gross disproportionality principle is applicable to sentences for terms of years."). The Supreme Court has held that terms longer than 25 years are not grossly disproportionate to offenses less serious than manslaughter. See id. at 77 (25 years to life for petty theft); Ewing v. California, 538 U.S. 11 (2003) (25 years to life for grand theft); Harmelin v. Michigan, 501 U.S. 957 (life in prison without possibility of parole for possession of cocaine). The state court's conclusion that indeterminate prison terms of 12 1/2 to 25 years and 1 1/3 to 4 years was an acceptable sentence for first-degree manslaughter and evidence tampering charges was not contrary to, or an unreasonable application of, this precedent.
Apart from an Eighth Amendment claim, "[n]o federal constitutional issue is presented where," as here, "the sentence is within the range prescribed by state law," White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992); accord, e.g., Thomas v. Greiner, 97 Civ. 2958, 2000 WL 194677, at *7 n. 8 (S.D.N.Y. Feb. 17, 2000) (Peck, M.J.); Thomas v. Senkowski, 968 F. Supp. 953, 956 (S.D.N.Y. 1997) ("It is well established that, when a sentence falls within the range prescribed by state law, the length of the sentence may not be raised as grounds for federal habeas relief."). As the government correctly argues, Staubitz pleaded guilty to first degree manslaughter, a class B violent felony that carried a prison term ranging from a minimum of 3 to 12 1/2 years to a maximum of 6 to 25 years. See New York Penal L. § 125.20 (defining first-degree manslaughter as a class B felony); see also id. 70.02(2)(a), (3)(a), and (4) (defining sentence for class B felonies). 12 1/2 to 25 years of imprisonment, therefore, is within the statutorily prescribed range for first-degree manslaughter. As to her conviction for tampering with evidence, a class E felony, Staubitz was subject to a prison term that ranged from 1 1/3 to 4 years, see id. § 215.40 (defining tampering with physical evidence as a class E felony); see also id. § 70.02(2)(e), (3)(b), and (4) (defining sentence for class E felonies); this was the sentence Staubitz received.
Because these crimes were separate and distinct, it was not improper for the state court to order that the two terms of imprisonment be served consecutively. See id. § 70.25 ("[W]hen multiple sentences of imprisonment are imposed on a person at the same time [for separate and distinct crimes] . . . 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 manner as the court directs at the time of sentence.") Thus, Staubitz's allegation that he received an excessive sentence fails to raise a cognizable habeas claim.
Staubitz's other claim — that her sentence was disproportionate to the ones received by her co-defendants — also fails to state a cognizable habeas claim as the second circuit has held that "a defendant has no constitutional or otherwise fundamental interest in whether a sentence reflects his or her relative culpability with respect to his or her codefendants." U.S. v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (citing Williams v. Illinois, 399 U.S. 235, 243 (1970) ("The Constitution permits qualitative differences in meting out punishment and there is no requirement that two persons convicted of the same offense receive identical sentences."); see also United States v. Perez, 904 F.2d 142, 146 (2d Cir. 1990) ("[D]isparities in sentences among co-defendants are generally not reviewable."), cert. denied, 498 U.S. 905 (1990), and cert. denied, 498 U.S. 1124 (1991).
CONCLUSION
Staubitz's habeas petition is denied. Because Staubitz has failed to make a substantial showing of the denial of a federal right, a certificate of appealability will not issue. See 28 U.S.C. § 2253.
SO ORDERED.