Gainey v. Ward, 6:16-CV-6560 CJS

• Decision Date: 04 December 2019
• Docket Number: 6:16-CV-6560 CJS
• Parties: CURTIS L. GAINEY, Petitioner, v. JOSEPH WARD, Respondent.
• Court: U.S. District Court — Western District of New York

CURTIS L. GAINEY, Petitioner, v. JOSEPH WARD, Respondent.

6:16-CV-6560 CJS

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

December 4, 2019

DECISION AND ORDER

APPEARANCES

For Petitioner:

Curtis L. Gainey, pro se

P.O. Box 90502

Rochester, New York 14609

For Respondent:

Dennis A. Rambaud

Office of the New York State Attorney General

28 Liberty Street

New York, New York 10005

INTRODUCTION

The petitioner, Curtis Gainey ("Gainey" or "Petitioner"), brings this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner, who was convicted of incest under New York State law, contends that his due process rights were violated when the trial court "failed to certify him as a sex offender" at the time of sentencing as required by New York Corrections Law § 168-d. For the reasons explained below, the petition for a writ of habeas corpus is dismissed.

BACKGROUND

The following is a summary of the relevant facts. In 2001 Petitioner was convicted of eighteen counts of Incest in the Third Degree, ¹ a class E felony. See, New York Penal Law § 255.25. Incest in the Third Degree is classified as a "sex offense" under New York's Sex Offender Registration Act ("SORA"), Correction Law § 168 et seq., and, in particular, under Correction Law § 168-a(2). Consequently, Petitioner qualified as a "sex offender" within the meaning of New York Correction Law § 168-a(1)-(2) (Including Penal Law § 255.25 as a "sex offense.").

Because of that, New York State law required the trial court to "certify" Petitioner as a sex offender at the time of sentencing. In particular, Correction Law § 168-d states:

[U]pon conviction of any of the offenses set forth in subdivision two or three of section one hundred sixty-eight-a of this article [(sex offenses)] the court shall certify that the person is a sex offender and shall include the certification in the order of commitment, if any, and judgment of conviction [.] . . . The court shall also advise the sex offender of his or her duties under this article. Failure to include the certification in the order of commitment or the judgment of conviction shall not relieve a sex offender of the obligations imposed by this article.

N.Y. Correct. Law § 168-d (McKinney).

In April 2001, Monroe County Court sentenced Petitioner to 10-to-20 years in prison on his convictions for Incest in the Third Degree. However, County Court neglected to include the "certification" of Petitioner as a sex offender in the order of commitment/judgment of conviction as required by Correction Law § 168-d. Petitioner never notified the County Court or the Prosecutor about this oversight, and never requested resentencing.

Petitioner appealed his convictions, arguing that certain evidence was improperly admitted at trial, that the verdict was against the weight of the evidence, and that his sentencewas unduly harsh. Again, though, Petitioner did not raise any issue concerning the court's failure to certify him as a sex offender. New York State Supreme Court, Appellate Division Fourth Department affirmed the judgment of conviction, see, People v. Gainey, 4 A.D.3d 851 (4^th Dept. 2004), and the New York Court of Appeals denied leave to appeal, see, 2 N.Y.3d 799 (May 11, 2004).

Subsequently, after Petitioner had served approximately fourteen years in state prison and was approaching his release date, Monroe County Court conducted a hearing pursuant to Correction Law § 168-n for the purpose of setting Petitioner's sex-offender notification level.² At the conclusion of the hearing, County Court certified Petitioner as a Level 1 sex offender.

At the sex offender risk-level classification hearing, Petitioner argued that County Court lacked jurisdiction to conduct the hearing, since no sex-offender certification had been made at the time of his sentencing. County Court rejected that jurisdictional argument. Petitioner appealed, arguing that because the sentencing court had not certified him as a sex offender, he subsequently "could not be treated as sex offender when no such delineation was made a part of his sentence and commitment."³ Interestingly, Petitioner admitted to the Appellate Division Fourth Department that the sentencing court could have corrected its omission and re-sentenced him, since New York law "allow[s] court to correct defects in sentencing orders."⁴ However, Petitioner argued that, in his case, "the passage of time and the Court's failure to act promptly"divested the court of jurisdiction to certify his as a sex offender.⁵ Petitioner's appellate brief also included a fleeting reference to an alleged "due process" violation, stating:

Because the failure to correctly certify Mr. Gainey at the time of sentencing prevented him from pursuing a hearing to determine whether he was properly certified and from seeking an appeal on that determination, the [subsequent] sex offender assessment cannot stand. The violation of Mr. Gainey's due process rights mandates a vacation of the Court's order and a determination that he could not now be subjected to sex offender assessment.⁶

The Appellate Division Fourth Department rejected Petitioner's argument and affirmed County Court's certification of him as a Level 1 sex offender, for the "reasons stated in the decision at County Court," which did not involve any consideration or discussion of a due process claim.

Petitioner subsequently sought leave to appeal to the New York Court of Appeals. In that regard, Petitioner indicated that his appeal below had challenged County Court's jurisdiction to certify him as a sex offender.⁷ Petitioner further argued that his "due process" rights had been violated insofar as he had been deprived of the opportunity to challenge his sex-offender status at the time of sentencing:

[D]ue to the Court's failure resulting in Mr. Gainey being precluded from appealing any certification at the time of sentencing, the error here is not harmless. Mr. Gainey's due process rights were violated by the Trial Court's failure and he should not now, 16 years later, suffer the consequences. Sex offenders are entitled to certain due process protections at the risk level classification proceedings, including notice and an opportunity to be heard. People v. Lashaway, 25 N.Y.3d 478 (2015). Mr. Gainey was not afforded those rights at the time of his conviction.⁸

On June 20, 2016, the New York Court of Appeals denied leave to appeal.

On August 10, 2016, Petitioner filed the subject petition, proceeding pro se. The petition purports to assert a single claim, as follows:

Petitioner's due process rights were violated when County Court certified Petitioner as a sex offender 14 years after sentencing. Petitioner was sentenced in April, 2001 to ten (10) to twenty (20) years after having been convicted of Incest, New York Penal Law section 255.25. At the time of sentencing, the Sentencing Court failed to certify the petitioner as a sex offender thereby precluding petitioner from appealing the certification on his direct appeal. Certification is part of the judgment on conviction and must be appealed on Direct appeal.

Petition [#1] at p. 5. In essence, Petitioner contends that his "due process" rights were violated by the delay in certifying him as a sex offender. Petitioner maintains that he was prejudiced by such delay in that he was prevented from filing a direct appeal challenging a sex offender certification following his conviction in 2001, even though he was later able to challenge that certification at a hearing and then appeal the sex-offender certification and classification made by County Court in 2015. As and for relief, Petitioner demands "[t]hat the judgment that Petitioner be certified as a sex offender 14 years after his initial sentencing be dismissed as unconstitutional."⁹

Respondent opposes the petition, asserting that Petitioner's claim is "not cognizable on federal habeas review," that his claim is unexhausted and procedurally defaulted, and that his claim lacks merit in any event.¹⁰

Petitioner has filed a reply [#8] in which he reiterates his due process argument. Additionally, the reply seems to assert a new argument, namely, that Petitioner's conviction for Incest in the Third Degree under Penal Law § 255.25 is not a sex offense that would subject him to being certified as a sex offender.¹¹

DISCUSSION

Petitioner's Pro Se Status

Since Petitioner is proceeding pro se, the Court has construed his submissions liberally, "to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994).

Section 2254 Principles

Petitioner brings this habeas corpus petition pursuant to 28 U.S.C. § 2254, and the general legal principles applicable to such a claim are well settled:

[A] federal court may grant habeas corpus relief to a state prisoner on a claim that was adjudicated on the merits in state court only if it concludes that the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "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)(1)-(2).

A state court decision is contrary to clearly established Federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to the Supreme Court's result.

A state court decision involves an unreasonable application of clearly established Federal law when the state court correctly identifies the governing legal principle but unreasonably applies it to the facts of the particular case. To meet that standard, the state court's decision must be so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded

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