Jones v. Hollins

• Decision Date: 11 April 1995
• Docket Number: No. 94-CV-111H.,94-CV-111H.
• Citation: 884 F. Supp. 758
• Parties: Terrance JONES, Petitioner, v. Melvin L. HOLLINS, Superintendent, Oneida Correctional Facility, Respondent.
• Court: U.S. District Court — Western District of New York

884 F. Supp. 758

Terrance JONES, Petitioner, v. Melvin L. HOLLINS, Superintendent, Oneida Correctional Facility, Respondent.

No. 94-CV-111H.

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

April 11, 1995.

Lolar Quinlan, Ginger D. Schroder, Jaeckle, Fleischmann & Mugel, Buffalo, NY, for petitioner.

Matthew J. Murphy, III, Dist. Atty., Niagara County, Thomas H. Brandt, Asst. Dist. Atty., Lockport, NY, for respondent.

DECISION AND ORDER

HECKMAN, United States Magistrate Judge.

The parties have consented to having the Magistrate Judge conduct all proceedings, including entry of judgment, in this petition under 28 U.S.C. § 2254 for habeas corpus relief from a state court conviction. For the reasons that follow, the petition is dismissed.

BACKGROUND

This is the second habeas corpus petition heard by this court in which the petitioner, Terrance Jones, seeks relief from his June 19, 1985 state court conviction for first degree manslaughter and third degree assault. The facts underlying his conviction are set forth at considerable length in this court's Decision and Order dismissing his first petition, see Jones v. Speckard, 827 F.Supp. 139 (W.D.N.Y.1993), aff'd, 14 F.3d 592 (2d Cir. 1993), and will not be restated here unless pertinent or necessary to the determination of this successive petition.

On August 5, 1985, Niagara County Judge Aldo L. DiFlorio sentenced petitioner as a predicate felon to an indeterminate term of imprisonment of 9 to 18 years on the manslaughter conviction and one year on the assault conviction, with the sentences to run concurrently. On direct appeal to the Appellate Division, Fourth Department, petitioner argued that:

(1) the trial court erred by allowing a rebuttal witness to present evidence that had previously been suppressed;

(2) the trial court failed to give the jury a limiting instruction on the consideration to be given the rebuttal witness's testimony;

(3) the trial court improperly charged the jury on principal and accessorial liability;

(4) he was denied effective assistance based on trial counsel's:

(a) failure to request limiting instructions on the consideration to be given the rebuttal testimony;

(b) failure to object to the rebuttal witness's testimony;

(c) failure to object to the court's "interested witness" charge;

(d) failure to object to the court's improper charge on principal and accessorial liability; and

(e) failure to object to the sentence; and,

(5) the court sentenced him based on the erroneous belief that the minimum allowable sentence was 9 to 18 years (see Pro Se Appellate Brief dated April 2, 1987, State Court Records).

On November 10, 1987, the Fourth Department affirmed petitioner's conviction, finding that a proper foundation had been established for use of the rebuttal testimony for impeachment purposes, and that no request for limiting instructions relating to the rebuttal testimony had been made. The court stated that it had considered the remaining claims preserved for review and found "that none requires reversal." People v. Jones, 134 A.D.2d 915, 522 N.Y.S.2d 70, 71 (4th Dept.1987). However, the court vacated the sentence and remanded petitioner for resentencing, finding the record unclear as to whether petitioner was sentenced as a second felony offender or a second violent felony offender, and "since the court mistakenly assumed that the minimum sentence was a term of 9-18 years...." Id. Petitioner's request to appeal from this order was denied by the Court of Appeals on May 19, 1988. People v. Jones, 71 N.Y.2d 1028, 530 N.Y.S.2d 563, 526 N.E.2d 56 (1988).

At resentencing on January 1, 1988, Judge DiFlorio gave petitioner the same 9 to 18 year term. Petitioner appealed, arguing that the judge should not have used his February, 1979 conviction, entered on a plea of guilty to robbery charges filed against him in 1978 when he was 14 years old, as a predicate felony to enhance his sentence. He also argued that the sentence was harsh and vindictive.

On July 12, 1989, the Fourth Department affirmed the judgment on resentencing. The court found that a prior juvenile offender felony conviction is a predicate felony for sentencing purposes, and that there was no merit to petitioner's arguments that his sentence was harsh and excessive. People v. Jones, 152 A.D.2d 917, 917, 544 N.Y.S.2d 745, 745 (4th Dept.1989). Leave to appeal to the Court of Appeals was denied on September 15, 1989. People v. Jones, 74 N.Y.2d 848, 546 N.Y.S.2d 1013, 546 N.E.2d 196 (1989).

Meanwhile, on June 29, 1988, petitioner filed his original petition for habeas corpus (No. 88-CV-0688E) with this court, in which he raised the following six grounds for relief:¹

(1) improper use of previously suppressed evidence on rebuttal;

(2) failure to properly instruct the jury as to how that evidence should be considered;

(3) improper jury instruction on accessorial liability;

(4) denial of effective assistance of trial counsel;

(5) denial of right to be present at all material stages of the trial; and

(6) failure to instruct the jury as to manslaughter in the second degree as a lesser included offense of second degree murder.

On June 9, 1992, No. 88-CV-0688E was referred to the undersigned to hear and report, pursuant to 28 U.S.C. § 636(b)(1)(B). Upon being informed that petitioner's previously assigned counsel could not continue in her representation, this court assigned new counsel, allowed further amendment of the petition and set a new briefing schedule. An amended petition was filed on November 2, 1992, asserting the following four grounds for relief:

(1) failure to instruct the jury as to second degree manslaughter as a lesser included offense;

(2) improper sentence as a second felony offender;

(3) trial on a charge based on principal liability that varied from the charge in the indictment based on accessorial liability; and

(4) ineffective assistance of counsel.

On December 1, 1992, an answer was filed by the respondent raising an exhaustion of state remedies defense to grounds (2) and (4). By stipulation filed on January 4, 1993, the petition was again amended to delete the two unexhausted grounds. The parties consented to have all further proceedings conducted by the Magistrate Judge, and the petition then proceeded through judgment on June 15, 1993, and affirmance by the Second Circuit on November 24, 1993, as mentioned above.

Meanwhile, on March 27, 1993, petitioner filed a motion in Niagara County Court pursuant to N.Y.C.P.L. 440.10, challenging his June, 1985 conviction on the grounds (1) that he was unconstitutionally adjudicated a predicate felony offender, and (2) that he was denied effective assistance of trial counsel. On April 20, 1993, the County Court denied this motion, finding that these grounds should have been raised on appeal. On June 10, 1993, the Fourth Department denied leave to appeal, and on August 2, 1993, the Court of Appeals dismissed the appeal.

This second petition was filed pro se on February 18, 1994, alleging three grounds for relief:

(1) unconstitutional adjudication as a second felony offender;

(2) vindictive resentencing; and

(3) ineffective assistance of counsel (Item 1).

On March 4, 1994, Hon. John T. Elfvin appointed the same counsel who represented petitioner on his previous petition (Item 4). On March 6, 1994, Judge Elfvin ordered petitioner to explain why this petition should not be dismissed as an abuse of the writ under Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Court² (Item 5). In response, petitioner explained that he withdrew the sentencing and ineffective assistance claims from his first habeas petition on the advice of counsel, and attempted to exhaust those claims in state court by way of his C.P.L. § 440.10 motion, so that the exhausted claims set forth in the first petition could be heard by this court without further delay (Item 7).

On April 20, 1994, Judge Elfvin referred the second petition to the undersigned to hear and report (Item 8). Upon receipt of the file, this court issued a scheduling order for service, answer and briefing (Item 9). On August 3, 1994, an answer was filed on behalf of respondent by the Niagara County District Attorney's Office (Item 10), along with a memorandum of law (Item 11), raising the defense that petitioner has failed to exhaust claim two (vindictive sentencing) and has procedurally defaulted on claims one (second felony offender) and three (ineffective assistance). The answer and memorandum also request dismissal of the petition under Rule 9(b) of the Habeas Rules for abuse of the writ.

On December 20, 1994, after the parties consented to proceed before the undersigned (Item 14), petitioner filed a memorandum of law in support of the claims in his second petition (Item 17). On February 10, 1995, respondent filed a memorandum of law addressing the merits of each of those claims (Item 18).³ Oral argument of the petition was held on April 7, 1995.

DISCUSSION

This petition presents two basic claims for habeas corpus relief: (1) that he was denied due process by the sentencing court, and (2) that his trial counsel was ineffective. Each of these claims will be discussed in turn.

I. Sentencing Issues.

Petitioner claims that his due process rights were violated because the sentence imposed by Judge DiFlorio at his resentencing on January 1, 1988 (a) was vindictive, and (b) was improperly enhanced based on his prior conviction for robbery in 1979.

As an initial matter, claims arising out of a state court's sentencing decision are ordinarily not reviewable by the federal habeas court. Haynes v. Butler, 825 F.2d 921, 923 (5th Cir.1987), cert. denied, 484 U.S. 1014, 108 S.Ct. 717, 98 L.Ed.2d 667 (1988); Alvarez v. Scully, 1993 WL 15455, at *8 (S.D.N.Y.1993), aff'd, 23 F.3d 397 (2d Cir. 1994). However, habeas corpus relief is available where the petitioner is able to show that the sentence imposed falls outside of the range prescribed by state law....