Francis v. Fiacco

• Citation: 942 F.3d 126
• Decision Date: 12 November 2019
• Docket Number: August Term 2018,No. 18-1011-cv,18-1011-cv
• Parties: Byran FRANCIS, Plaintiff-Appellee, v. Kimberly FIACCO, aka Kimberly Davidson, Richard De Simone, Diane Holford, and Kristina Lennon, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

942 F.3d 126

Byran FRANCIS, Plaintiff-Appellee,
v.
Kimberly FIACCO, aka Kimberly Davidson, Richard De Simone, Diane Holford, and Kristina Lennon, Defendants-Appellants.¹

No. 18-1011-cv
August Term 2018

United States Court of Appeals, Second Circuit.

Argued: June 27, 2019
Decided: November 12, 2019

For Plaintiff-Appellee: Brian M. Quinn, Tabner, Ryan & Keniry, LLP, Albany, NY, for Byran Francis.

For Defendants-Appellants: Laura Etlinger, Assistant Solicitor General (Andrea Oser, Deputy Solicitor General, on the brief), for Barbara D. Underwood, Attorney General of the State of New York, Albany, NY, for Kimberly Fiacco, Richard de Simone, Diane Holford, and Kristina Lennon.

Before: Jacobs, Livingston, and Carney, Circuit Judges.

Debra Ann Livingston, Circuit Judge:

This case concerns the liability of state prison officials attempting to implement a prisoner’s state sentence in relation to a subsequently imposed federal sentence on another charge. In 2006, Byran Francis pleaded guilty to two separate charges in two separate jurisdictions: a drug charge in New York state court and a gun possession charge in federal court. Francis’s state sentencing occurred first. The state court sentenced Francis to a three-year maximum term of imprisonment and directed that his state and federal sentences run concurrently. Under New York law, however, state courts lack the authority to direct that a prisoner’s state sentence run concurrently with a sentence from another jurisdiction unless that latter sentence has already been imposed. See N.Y. Penal Law § 70.30(2-a). Consistent with that statutory scheme, officials of New York State’s Department of Corrections and Community Supervision ("DOCCS") did not implement the state court’s directive of concurrency, instead taking Francis into state custody upon completion of his ten-year federal sentence so that he could begin serving his state sentence. Francis then served about four months of his state sentence in DOCCS custody, before the state court’s adjustment of the sentence ultimately brought about his release.

Upon his release from state custody, Francis brought suit pursuant to 42 U.S.C. § 1983 against four DOCCS officials: Kimberly Fiacco, Richard de Simone, Diane Holford, and Kristina Lennon (collectively, the "State Defendants"). Francis alleged that the State Defendants had violated his rights under the Eighth and Fourteenth Amendments by holding him in state custody rather than releasing him upon expiration of his federal sentence. The United States District Court for the Northern District of New York (D’Agostino, J .) denied the State Defendants’ motion for summary judgment. The district court agreed with Francis that the State Defendants’ conduct had violated the Eighth and Fourteenth Amendments and rejected the State Defendants’ claim of qualified immunity. We reach the merits of only one of Francis’s constitutional claims, holding that pursuant to Mathews v. Eldridge , 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), the State Defendants violated the Due Process Clause by implementing Francis’s sentence in the manner they did without providing adequate notice to the state sentencing court and the attorneys present at

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Francis’s state sentencing. Nevertheless, we conclude that the State Defendants are entitled to qualified immunity from all of Francis’s constitutional claims under the circumstances of this case. We therefore REVERSE the order of the district court and REMAND the case with instructions to grant the State Defendants’ motion for summary judgment on qualified immunity grounds.

BACKGROUND²

I.

The story of this appeal begins with two guilty pleas and their resulting sentences. Francis first faced sentencing in state court. Francis was also subject to federal charges at that time but had not yet undergone sentencing by a federal court. Before the Supreme Court of the State of New York, County of Erie, Francis pleaded guilty to attempted criminal possession of marihuana in the second degree, a class D felony in violation of N.Y. Penal Law § 221.25. On September 8, 2006, the Honorable Penny M. Wolfgang sentenced Francis to a minimum term of imprisonment of one and a half years and a maximum term of three years, indicating that the term should run concurrently with Francis’s "federal sentence sched[uled] to be imposed soon." J.A. 75.

Francis was in custody both before and after his state sentencing, but the record reflects some confusion over which governmental authority had custody of him at that time. On Francis’s commitment order, the state court checked a box indicating that Francis was "presently in the custody of [DOCCS]" and directing that he "remain in the custody of [DOCCS]." Id. However, DOCCS records state that Francis was only first received by DOCCS authorities on April 15, 2013, after completion of his federal sentence. Furthermore, Francis stated in his deposition that he was being held at a local jail, the Erie County Holding Center, from the time of his arrest until the time "they took my bail" in June 2006, as well as at the time of his state court sentencing and "until two weeks after I got sentenced." J.A. 111.³

In any event, soon after his sentencing before the state court, Francis was transferred to federal custody for his second round of sentencing. In the United States District Court for the Western District of New York, Francis pleaded guilty to the federal crime of possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). On November 27, 2006, Francis was sentenced by the Honorable William M. Skretny to a term of imprisonment of 120 months and a term of supervised release of five years.

The district court did not direct that Francis’s federal sentence run concurrently with the previously imposed state sentence, and thus his federal sentence was deemed to run consecutively to the state sentence as a matter of federal law. See 18 U.S.C. § 3584(a) ("Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently."). Accordingly, the United States Bureau of Prisons ("BOP") did not direct that Francis serve his federal sentence in state custody,

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as the BOP is statutorily authorized to do when implementing a federal sentencing court’s directive of concurrency. See 18 U.S.C. § 3621(b). Francis was therefore remanded to the custody of the United States Marshal to begin serving his federal sentence in federal prison.

II.

As Francis began serving his federal sentence, the State Defendants faced a predicament in determining how to implement his state sentence. The state sentencing court had directed that Francis’s state sentence should run concurrently with his federal sentence. But at the time of Francis’s state court sentencing, that federal sentence had not yet materialized.

New York law does not authorize its judges to issue such forward-looking directives of concurrency. To the contrary, New York sentencing courts may only direct that a defendant’s state sentence run concurrently with a sentence from another jurisdiction that has already been imposed. Specifically, under New York Penal Law § 70.30(2-a) :

Where a person who is subject to an undischarged term of imprisonment imposed at a previous time by a court of another jurisdiction is sentenced to an additional term or terms of imprisonment by a court of this state, to run concurrently with such undischarged term, such additional term or terms shall be deemed to commence when the said person is returned to the custody of the appropriate official of such other jurisdiction where the undischarged term of imprisonment is being served.

In other words, time served by Francis on his federal sentence while in federal custody could count against his state sentence too, provided that (1) the state sentencing court had directed that the state sentence would "run concurrently with" his federal sentence; (2) the federal sentence was "undischarged," or not yet completed, at the time the state sentence was imposed; and (3) the federal sentence had been "imposed at a previous time" to the state sentence. Absent a state sentence satisfying these three requirements, New York law contains a general rule that the prisoner’s sentence "commences when the prisoner is received in an institution under the jurisdiction of the state department of corrections and community supervision." N.Y. Penal Law § 70.30(1).⁴

The sentence that the state court imposed on Francis failed the third requirement described above. At the time the state court sentenced Francis, his federal sentence had not been previously imposed; indeed, the state court’s decree specifically instructed that Francis’s state sentence run concurrently with the "federal sentence sched[uled] to be imposed soon ." J.A. 75 (emphasis added). Consistent with the statutory scheme described above, New York courts have recognized that sentencing courts lack authority under New York law to direct that a prisoner’s state sentence run concurrently with a not-yet-imposed sentence from another jurisdiction. See Matter of Oquendo v. Quinones , 291 A.D.2d 593, 594, 738 N.Y.S.2d 398 (3d Dep’t 2002) ("[T]he law did not permit the...