Habeas Corpus - District Court Review - Habeas Granted Outside of WDNY! - CORRECTED

So far this year, there have been four habeas grants in the district courts in New York.  And all four were from the same judge in WDNY.

I am happy to report that there has been another habeas grant in the district courts and this one was from outside of WDNY.  It happened in EDNY.  And for some reason this one made me very happy. 

Actually, I know the reason: the state court undermined a basic concept in the system.  As a criminal defense attorney at the appellate level, there are certain pillars on which you base your representation.  One of those is that, if we pursue a client's legal remedies on appeal (or in a collateral proceeding) and challenge the legality of the sentence, that client won't end up with a worse sentence.  Of course, there are exceptions, and attorneys should always be sure to advise a client of a foreseen risk.  But in a typical case, appellate attorneys feel comfortable telling a client not to worry.  A win will not put him in a worse position.

It's based on the due process concept that any increase in a sentence after a defense victory is presumptively vindictive.  This was established in the Supreme Court case of North Carolina v. Pearce, 395 U.S. 711 (1969).  One of the main policies behind it is that a defendant should not be punished for pursuing his legal rights.  There are limited circumstances where an increase in sentence would not be considered vindictive.  One important situation is where new facts that were not available at the original sentencing proceeding come to light at the resentencing (e.g. defendant committed bad acts after original sentencing or prior criminal conduct that nobody knew about at the original sentencing).  But, all things being equal, a sentence should not go up if a defendant is successful in utilizing his post-conviction remedies in challenging his sentence.

Unfortunately, that's what happened to petitioner here.  And I simply cannot believe that the state courts allowed this to happen.

First, here are the details:

Somerville v. Hunt

• Habeas Granted; Resentencing Ordered before Different Judge
• Lower Ct. Info: 08-CV-1307, 2011WL 795073 (EDNY Feb. 28, 2011) (NGG)
• Issue: whether petitioner's increase in sentence after his original sentence was vacated as illegal was presumptively vindictive

I anticipate that this will be a long post, so I'll drop the analysis under the fold . . .

 

ANALYSIS: When I first saw the name of the case, something seemed familiar to me.  And that's because this particular petitioner had been successful in his first habeas petition.  See Somerville v. Conway, 281 F.Supp.2d 515 (EDNY 2003).  In that case, an EDNY judge concluded that petitioner received IAC based on his attorney's failure to challenge the use of an out-of-state conviction as a predicate violent felony conviction.  As it turned out, the prior conviction did not qualify as a predicate violent felony conviction.  Thus, petitioner was improperly sentenced as a second violent felony offender.  He should have been sentenced as just a second felony offender.  [CORRECTION: As pointed out in the comment below, the out-of-state conviction did not qualify as a predicate felony conviction at all in New York. Thus, petitioner should have only been sentenced as a first felony offender]  The EDNY judge ordered resentencing.

There was a big change to the possible sentence that could be imposed as a result of petitioner's change in status.  When sentencing petitioner as a second violent offender, the court was required to impose a determinate sentence.  However, when sentencing petitioner as simply a second felony offender [CORRECTION: a first felony offender], the court was required to impose an indeterminate sentence.*

*The crime here occurred before 1998.  In 1998, the Legislature changed the sentencing statutes to require that a determinate sentence be imposed for all second-time violent felony convictions, regardless of whether or not the prior conviction was violent.

Quick sentencing lesson: The big difference between an indeterminate sentence and a determinate sentence is that an indeterminate sentence allows for the defendant to be released on parole after serving a required portion of the sentence.  Here's how it works.  When an indeterminate sentence is imposed, the defendant will receive a sentence that has both a minimum and a maximum term.  The maximum term represents the total number of years that the defendant could serve in prison.  The minimum term represents the number of years that a defendant is required to serve before becoming eligible for parole.  Under the current statutes, the minimum is typically set at one-third or one-half the maximum.  In contrast, a determinate sentence is just a set number of years that a defendant is required to serve.

So an indeterminate sentence will look like this: 10 to 20 years; a determinate sentence will look like this: 20 years.

In this case, petitioner orginally received a determinate sentence of 18 years.  But on resentencing he had to receive an indeterminate sentence.  Petitioner argued at resentencing before the same sentencing judge that setting the maximum term on the indeterminate sentence above 18 years was presumptively vindictive.  The court disagreed, saying that it did not believe that the law was clear that an indeterminate sentence of 12 1/2 to 25 (the maximum sentence that could be imposed) was greater than an indeterminate sentence of 18 years.  So the judge believed that he could impose any indeterminate sentence available to him.  Relying on no new facts, the court then sentenced petitioner to 11 to 22 years.

On appeal, the Appellate Division affirmed the sentence.  It stated that it would assume without deciding that the new sentence was greater than the old one.  However, it stated that even if it was an increase, it was not presumptively vindictive because the prior sentence was "vacated as illegal," making it distinguishable from Pearce, which concerned a resentencing after a conviction had been reversed and a new trial occurred.  The Court of Appeals refused to review the case.

On habeas review, the DJ concluded that the Appellate Division decision was at least an unreasonable application of Pearce and could even rise to the level of being contrary to Pearce. 

First, the court engaged in a de novo review of the question of whether this was actually an increase in sentence because the Appellate Division did not decide the issue.  He decided that this clearly was an increase.  In Pearce, the Court implicitly concluded that courts should look to the maximum authorized terms of incarceration to determine whether there has been an increase.  And the Second Circuit has made this explicit -- a court should look to the maximum term, even if the sentence goes from a determinate term to an indeterminate term, which will create the possibility of earlier release from prison on parole.  Thus, this was an increase in sentence.

And then the DJ smacks down the state court on its Pearce analysis.  The court pointed out that it was irrelevant that the sentence was vacated as illegal, as opposed to a resentencing after a new trial.  "'[T]he evil that the [Pearce] Court sought to prevent was not the imposition of enlarged sentences after a new trial but vindictiveness of a sentencing judge' in the resentencing process," quoting Alabama v. Smith, 490 U.S. 794, 799 (1989).  The exact same potential for vindictiveness is present after a sentence is vacated as illegal as it would be after a retrial and re-conviction.  The DJ concluded that the Appellate Division's decision to the contrary was flat out wrong and could even rise to the level of being contrary to Pearce.  In fact, the DJ says that, if the Appellate Division's reasoning was correct, "then the defendants in Pearce would not have been entitled to the very presumption that the Court created on their behalf."

After noting that there was nothing in the record to rebut the presumption, the DJ decided that habeas must be granted. 

In my mind, it's clearly the fair result.  Faith in system restored.

Comments

[Al O'Connor]

Not sure if you got this comment, or just deem it too trivial for correction. Enjoying your blog.

"Thus, petitioner was improperly sentenced as a second violent felony offender. He should have been sentenced as just a second felony offender. The EDNY judge ordered resentencing."

Somerville was resentenced as a first felony offender, which gave rise to the indeterminate / determinate issue. Between 1995 and 1998 determinate sentencing was reserved for violent felony offenders with a violent or non-violent felony prior conviction. First violent felony offenders received indeterminate sentences until Jenna's Law was passed in 1998.