Johnson v. People

• Decision Date: 23 March 2012
• Docket Number: No. 10 Civ. 8305 (VM).,10 Civ. 8305 (VM).
• Citation: 851 F.Supp.2d 713
• Parties: Marcus JOHNSON, Petitioner, v. The People of the State of NEW YORK and Criminal Court System of New York, Respondent.
• Court: U.S. District Court — Southern District of New York

851 F.Supp.2d 713

Marcus JOHNSON, Petitioner,

v.The People of the State of NEW YORK and Criminal Court System of New York, Respondent.

No. 10 Civ. 8305 (VM).

United States District Court, S.D. New York.

March 23, 2012.

Marcus Johnson, New York, NY, pro se.

Paul M. Tarr, Office of The Attorney General, New York, NY, for Respondent.

DECISION AND ORDER

VICTOR MARRERO, District Judge.

Petitioner Marcus Johnson (“Johnson”) brings this pro se petition (the “Petition”) for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (“§ 2254”) against the State of New York and Criminal Court System of New York (“Respondent”). Johnson claims that during the imposition and execution of his sentence, the sentencing court and New York State Department of Correctional Services (“DOCS”) violated his constitutional due process and double jeopardy rights. Respondent argues that Johnson's claims are unexhausted and without merit. For the reasons discussed below, the Court DENIES Johnson's Petition.

I. BACKGROUND¹

A. JOHNSON'S INITIAL SENTENCING

This Petition arises from a judgment of conviction, entered on October 28, 1999, following a bench trial before the Honorable Marcy Kahn in New York State Supreme Court, New York County (the “Trial Court”). On December 17, 1999, the Trial Court sentenced Johnson, as a second felony offender under New York Penal Law § 70.06 (McKinney 2011) (“§ 70.06”), to an indeterminate prison term of five-and one-half to eleven years for Criminal Possession of a Controlled Substance in the Fourth Degree (N.Y. Penal Law § 220.09(1)); and a one-year terra for Resisting Arrest (N.Y. Penal Law § 205.30) (the “1999 Sentence”).² Johnson also had a prior, undischarged twenty-four month sentence for a parole violation (the “Undischarged Sentence”). The Trial Court stated that the two terms of the 1999 Sentence would run concurrently, but did not specify whether Johnson was to serve them concurrently or consecutively with the Undischarged Sentence.

In administering his sentence, DOCS initially calculated Johnson's conditional release date with the 1999 Sentence running concurrently with his Undischarged Sentence. On this basis, DOCS informed Johnson upon his arrival at Downstate Correctional Facility on January 11, 2000, that he would be eligible for conditional release on June 13, 2006. Subsequently, on June 13, 2001, DOCS informed Johnson that its initial calculation was erroneous because, under New York Penal Law § 70.25(2–a) (“§ 70.25(2–a)”),³ Johnson's 1999 Sentence was required to run consecutively to his Undischarged Sentence. Section 70.25(2–a) provides:

When [a] sentence of imprisonment is imposed pursuant to [§ 70.06], and [the person sentenced] is subject to an undischarged ... sentence of imprisonment imposed prior to the date on which the present crime was committed, the court must impose a sentence to run consecutively with respect to such undischarged sentence.

N.Y. Penal Law § 70.25(2–a). DOCS informed Johnson that his new conditional release date was September 6, 2009.

On June 16, 2008, Johnson wrote to the DOCS Inmate Records Coordinator and argued that, under People ex rel. Gill v. Greene, 48 A.D.3d 1003, 852 N.Y.S.2d 457 (3rd Dep't.2008), DOCS did not have the authority to convert his concurrent sentence into a consecutive sentence when the Trial Court had not specified that his sentences were to run consecutively.

In Gill, a state inmate challenged his sentence on due process grounds. At the time of his sentencing, two previous sentences had not been completed, as “he had been paroled on the first, and had absconded from a temporary release programwhile serving the second.” Id. at 826, 903 N.E.2d 1146. Although the sentencing court, under the terms of § 70.25(2–a), was required to impose a sentence consecutive to the undischarged portions of the first two sentences, the court “did not say, orally or in any document,” whether the sentence imposed was to run concurrently or consecutively. Id. Gill claimed that since the court had remained silent on the issue, the sentences must run concurrently, and DOCS had no authority to impose a corrected sentence. The Third Department ruled in Gill's favor, holding that that the only cognizable sentence is the one imposed by the sentencing court, and DOCS had “no authority to calculate [the defendant's] sentences consecutively where the [sentencing] court did not do so.” Id. at 458.

DOCS responded to Johnson in writing, citing § 70.25(2–a) as the reason why Johnson's sentences were consecutive. Johnson then appealed to the Office of Sentence Review, but his appeal was denied.

B. JOHNSON'S SECOND SENTENCING

On July 15, 2008, Johns on filed a pro se motion under CPL § 440.20, challenging DOCS' authority to administer his sentences consecutively. On November 14, 2008, the Trial Court denied Johnson's motion but vacated his sentence and ordered a new sentencing hearing to specify whether Johnson's sentences were to run consecutively or concurrently.

On December 12, 2008, Johnson appeared with counsel at a resentencing hearing before Judge Kahn. On the basis of § 70.25(2–a), the Trial Court denied Johnson's request that the court order the sentences to run concurrently, and resentenced Johnson to the same prison term, this time specifying that his 1999 Sentence and Undischarged Sentence were to run consecutively.

C. JOHNSON'S APPEAL

On February 12, 2009, the New York Court of Appeals reversed the Third Department's decision in Gill, holding that when a statute requires a court to impose a consecutive sentence, and the court is silent regarding whether a sentence is consecutive or concurrent, the court is deemed to have imposed the consecutive sentence required by law, giving DOCS the authority to administer the sentences consecutively. People ex rel. Gill v. Greene, 12 N.Y.3d 1, 875 N.Y.S.2d 826, 903 N.E.2d 1146 (2009), cert. denied sub. nom. Gill v. Rock, ––– U.S. ––––, 130 S.Ct. 86, 175 L.Ed.2d 59 (2009).

On appeal to the New York Appellate Division, First Department (“First Department”), Johnson argued that: (1) because his case is distinguishable from Gill and because Gill was wrongly decided as a matter of federal constitutional law, the Trial Court's silence on the issue meant that Johnson's 1999 Sentence should have run concurrently to his Undischarged Sentence; and (2) the Trial Court exceeded its inherent authority and violated Johnson's due process and double jeopardy rights when it resentenced Johnson to consecutive terms nearly nine years after the imposition of his original sentence.

On November 24, 2009 the First Department unanimously affirmed Johnson's resentencing, finding that: (1) by operation of New York state law, Johnson's 1999 sentence had always been consecutive to his Undischarged Sentence, and the Trial Court said nothing at the 1999 sentencingthat could lead Johnson to believe he had received concurrent sentences; (2) the Trial Court had inherent authority to resentence Johnson in 2008 although the resentencing was unnecessary since the sentences were already consecutive; and (3) DOCS correctly calculated Johnson's conditional release date to reflect the consecutive nature of his sentences. Thus, the First Department concluded that Johnson's due process and double jeopardy claims were without merit. Johnson, 888 N.Y.S.2d at 407.

Johnson sought leave to appeal the First Department's ruling to the New York Court of Appeals. His request was denied by the Court of Appeals on April 5, 2010. Johnson, 901 N.Y.S.2d 148, 927 N.E.2d at 569.

Currently, Johnson is under parole supervision and resides in Manhattan. ⁴ He was released from the Wyoming Correctional Facility in Attica, New York on September 21, 2009. Johnson timely filed this petition for a writ of habeas corpus ⁵ on October 12, 2010.⁶

II. DISCUSSION

A. LEGAL STANDARD FOR HABEAS RELIEF

As a starting point, the Court notes that Johnson is a pro se litigant. Accordingly, his submission must be held “to less stringent standards than formal pleadings drafted by lawyers.” Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir.1993) ( quoting Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980)). The Court must construe Johnson's submissions “liberally and interpret them to raise the strongest arguments that they suggest.” McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.1999) (citation omitted). A pro se litigant, however, is not exempt “from compliance with relevant rules of procedural and substantive law,” Boddie v. N.Y. State Div. of Parole, 285 F.Supp.2d 421, 426 (S.D.N.Y.2003) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.1983)).

1. Exhaustion

A petitioner in custody pursuant to the judgment of a state trial court is entitled to federal habeas relief only if he has exhausted all available state court remedies. See28 U.S.C. § 2254(b)-(c). A claim has been exhausted if it was fairly presented in state courts, thereby giving the state the “opportunity to pass upon and correct” alleged violations of federal rights. Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) ( quoting Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971)). A petitioner need not have cited “book and verse on the federal constitution” in advancing his claim in state court in order for the claim to have been exhausted. Picard, 404 U.S. at 278, 92 S.Ct. 509. Instead, a petitioner may have fairly presented his claim to state courts through

(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.

Daye v. Att'y Gen., of the State of N.Y., 696 F.2d 186, 194 (2d Cir.1982).

2. Independent and Adequate State Grounds

A federal court's authority...