King v. Hoke

• Decision Date: 06 August 1987
• Docket Number: D,No. 1102,1102
• Citation: 825 F.2d 720
• Parties: Darryl KING, Petitioner-Appellant, v. Robert HOKE, Superintendent, Eastern Correctional Facility, and Robert Abrams, Attorney General of the State of New York, Respondents-Appellees. ocket 86-2275.
• Court: U.S. Court of Appeals — Second Circuit

Page 720

825 F.2d 720

Darryl KING, Petitioner-Appellant, v. Robert HOKE, Superintendent, Eastern Correctional Facility, and Robert Abrams, Attorney General of the State

of New York, Respondents-Appellees.

No. 1102, Docket 86-2275.

United States Court of Appeals, Second Circuit.

Argued May 4, 1987.

Decided Aug. 6, 1987.

Myron Beldock, New York City (Beldock Levine & Hoffman, New York City, on the brief), for petitioner-appellant.

Ann Bordley, Asst. Dist. Atty., New York City (Elizabeth Holtzman, Dist. Atty., Barbara D. Underwood, Lisa Margaret Smith, Asst. Dist. Attys., New York City, on the brief), for respondents-appellees.

Before OAKES, NEWMAN, and PIERCE, Circuit Judges.

JON O. NEWMAN, Circuit Judge:

This appeal primarily presents the issue whether a sentencing judge's incorrect understanding of a defendant's minimum statutory parole eligibility date deprives the defendant of due process at sentencing. The issue arises on an appeal by Darryl King from a judgment entered in the District Court for the Eastern District of New York (Thomas C. Platt, Judge) denying his petition for a writ of habeas corpus to challenge his New York state sentence for a 1971 felony murder conviction. Judge Platt denied the petition for abuse of the writ, finding that King could have raised the issue in either of his two previous petitions for habeas corpus. Under the circumstances of this case, we reverse and remand to the District Court with instructions to grant the writ unless the State promptly arranges for resentencing.

Background

On May 24, 1971, after a jury trial in King's County Supreme Court (John R. Starkey, Justice), King was found guilty of the murder of an off-duty police officer, second-degree manslaughter, attempted robbery in the first degree, attempted grand larceny in the third degree, first-degree assault, and possession of a dangerous weapon.

A hearing was held on April 23, 1971, to determine whether the jury would impose the death penalty or life imprisonment. Under New York law then applicable, if the jury did not impose the death penalty, the defendant was sentenced to life imprisonment; the judge determined, within statutory limits, a minimum period of imprisonment (MPI) after which the defendant would be eligible for parole. During the punishment hearing, Justice Starkey instructed the jury about the parole aspects of a sentence of life imprisonment, stating incorrectly that the minimum parole eligibility date could be one-third less than the minimum sentence imposed by the judge:

[T]he Court is mandated to explain to you the law relating to the possible release or parole of a prison sentence to life imprisonment, and it reads that murder is a Class A felony. Section 70.00 of the Penal Law, Subdivision 2(a) states: "For a Class A felony, the term shall be life imprisonment."

Subdivision 3(a) states: "In the case of a Class A felony, the minimum period shall be fixed by the Court [and] specified in the sentence. Such minimum period shall not be less than 15 years nor more than 25 years."

* * *

Then we come to the Correction Law and Section 230, Subdivision 2, states that any person sentenced to an indeterminate term may receive a maximum reduction in his sentence of four months a year from the minimum sentence, but nothing in the law shall be construed to confer any right whatsoever upon any prisoner to demand or to require the whole or any part of such reduction. Do you understand that? He may get four months a year off, but he may not.

Therefore, it would be possible for a defendant who has been sentenced to life imprisonment to be placed on parole after he has served two-thirds of the minimum sentence which shall be fixed by the Court.

Let us assume I give him a sentence of 24 years to life. Two-thirds of that 24 would be 16 years. He could be eligible for parole after serving the 16 years. If it is 25 years to life, then it would be 8 months more before he would be eligible for parole; four months off the additional year.

Now as I have indicated, the minimum sentence shall not be less than 15 nor more than 25, and if you return a verdict of life imprisonment, I must impose such sentence of between 15 and 25 years to life; and the defendant may be paroled after he serves two-thirds of the minimum sentence imposed. As I have told you, he does not necessarily have the right to be paroled, but he is not eligible for parole before that time.

N.Y.Correct.L. Sec. 230(2) (McKinney 1987), on which Justice Starkey based his remarks about possible reduction of the MPI, had been repealed prior to King's trial and sentencing with respect to crimes committed after September 1, 1967, and was therefore not applicable to his crimes. See id. note. Under the statutes applicable to King, N.Y.Correct.L. Sec. 803(1) (McKinney 1987), N.Y.Penal L. Sec. 70.40(1)(a) (McKinney Supp.1987), he would not be eligible for parole until he served all of his minimum sentence. The jury voted for life imprisonment.

On May 24, 1971, Justice Starkey imposed a life sentence and set the MPI at 25 years, the highest point allowable. At the sentencing Justice Starkey made no explicit reference to a possible reduction in the MPI. He did not state that the possibility of a reduction had influenced him to set the highest possible MPI. On the other hand, he did not state that he had learned that his instruction to the jury concerning reduction of the MPI was erroneous and that he was nonetheless selecting the highest allowable MPI with awareness that it could not be reduced. Prior to the imposition of sentence, neither the prosecutor nor defense counsel brought to Justice Starkey's attention his previously expressed misunderstanding of the MPI provision. The record suggests they both were unaware of the repeal of section 230(2).

King attacked his conviction both on direct appeal and through numerous collateral procedures. He filed four state motions to vacate his judgment of conviction and two previous federal habeas petitions. He was granted one state post-conviction hearing and two federal habeas hearings. In none of these proceedings did he challenge the constitutionality of his sentence. All of his challenges to his conviction were rejected.

Fourteen years after he was sentenced, King learned for the first time of Justice Starkey's error concerning the MPI. In 1985, in expectation of being eligible for parole within two years, King requested transfer to a pre-parole facility. He was then told that he was not eligible until 1995, when he would have served his minimum sentence. King immediately applied to the New York state courts to set aside the sentence, arguing that it had been illegally imposed or was invalid because Justice Starkey had relied on a repealed statute. The Supreme Court denied the motion because "nothing in the record indicates the Court concerned itself with parole consideration at the time of sentencing." The Appellate Division denied King permission to appeal further.

King then filed his third petition for a writ of habeas corpus in the Eastern District of New York, contending that Justice Starkey's error regarding the applicable parole law violated his constitutional rights and that he was denied effective assistance of counsel because his trial counsel failed to introduce certain relevant evidence. Judge Platt dismissed the petition for abuse of the writ. He later explained that King's petition had been dismissed and held to be meritless "[b]ecause the facts and bases for these claims were available and known to petitioner at the time of his prior habeas corpus hearing in this court." This Court granted a certificate of probable cause to appeal only the sentencing claim. See Vicaretti v. Henderson, 645 F.2d 100 (2d Cir.1980), cert. denied, 454 U.S. 868, 102 S.Ct. 334, 70 L.Ed.2d 171 (1981).

Discussion

I. Dismissal of the Petition

The initial question on this appeal is whether the District Judge acted within his discretion in dismissing King's petition for abuse of the writ. A district court has discretion to dismiss a habeas application if it is a successive petition that raises new claims that should have been asserted in an earlier petition, Rule 9(b), Rules Governing Cases in the United States District Courts Under Section 2254 of Title 28, United States Code ("Sec. 2254 Rules"), or if the delay in filing the petition prejudices the state in its ability to respond, Rule 9(a), Sec. 2254 Rules. Because Judge Platt based his dismissal on both of these grounds, we consider each in turn.

The rule permitting dismissal of successive petitions on new claims is directed primarily at petitioners who deliberately withhold one of several grounds in an earlier petition or who use successive petitions to vex, harass, or delay. Rule 9, Sec. 2254 Rules, advisory committee's note; see Sanders v. United States, 373 U.S. 1, 18, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963). The District Court did not find that King filed the pending petitions with such abusive intent. However, it held that because the facts and bases for King's challenge were available to him from the time he was sentenced, King had constructive knowledge of his sentencing claim at the time he filed his earlier petitions. The State invites us to affirm this decision, arguing that King's failure to raise the claim was inexcusable.

Although this petition is successive, we believe that under the unusual circumstances of this case, King's belated challenge to his sentence is not an abuse of the writ. King should not be faulted for relying on a New York Supreme Court Justice's statement of New York parole law where, as here, the State prosecutor as well as defense counsel shared the misunderstanding. Unlike most trial court errors that may be expected to be challenged during the course of direct review or prompt collateral attack, the Justice's incorrect understanding of the MPI calculation was not likely to be of any concern to petitioner until just...