Levine v. Commissioner of Correctional Services

• Decision Date: 03 January 1995
• Docket Number: No. 75,D,75
• Citation: 44 F.3d 121
• Parties: Sheldon LEVINE, Petitioner-Appellant, v. COMMISSIONER OF CORRECTIONAL SERVICES, Respondent-Appellee. ocket 93-2803.
• Court: U.S. Court of Appeals — Second Circuit

Page 121

44 F.3d 121

Sheldon LEVINE, Petitioner-Appellant, v. COMMISSIONER OF CORRECTIONAL SERVICES, Respondent-Appellee.

No. 75, Docket 93-2803.

United States Court of Appeals, Second Circuit.

Argued Sept. 23, 1994.

Decided Jan. 3, 1995.

Perry S. Reich, Lindenhurst, NY, for petitioner-appellant.

Christine Duisin, Asst. Atty. Gen., New York City (G. Oliver Koppell, Atty. Gen., State of N.Y., Jerry Boone, Edward D. Saslaw, Asst. Attys. Gen., of counsel), for respondent-appellee.

Before: VAN GRAAFEILAND, MINER, and McLAUGHLIN, Circuit Judges.

McLAUGHLIN, Circuit Judge:

Sheldon Levine appeals from the dismissal of his petition for a writ of habeas corpus filed in the United States District Court for the Eastern District of New York (Eugene H. Nickerson, Judge ) pursuant to 28 U.S.C. Sec. 2254. In that petition, Levine raised a double jeopardy claim, two due process claims, and an ineffective assistance of counsel claim. The district court held that, because he had failed to raise it before the New York Court of Appeals, Levine's double jeopardy claim should be dismissed for failure to exhaust state remedies. We agree, and affirm on that basis.

Despite the presence of this indisputably unexhausted claim, the district court went on to consider and reject the first of Levine's two due process claims as well as his ineffective assistance of counsel claim. This, of course, contravenes the teaching of Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Accordingly, we reach a different resolution of those claims. We agree with the district court, however, that review of Levine's second due process claim is unavailable due to a state procedural bar.

BACKGROUND

On May 11, 1987, Sheldon Levine pled guilty in the Supreme Court of the State of New York, Suffolk County (Kenneth K. Rohl, Justice ) to all but one count in a massive 1,004 count indictment charging him with grand larceny, falsification of business records, criminal solicitation, conspiracy, and violations of New York state tax law. The indictment alleged that Levine and his co-defendants stole $35.9 million in tax revenues from New York between 1984 and 1986 by selling gasoline without paying excise and sales taxes.

A plea bargain had been negotiated on the indictment. Integral to the plea was Justice Rohl's agreement to a sentence of two consecutive one-year terms of incarceration, $1 million in restitution "up front" at the time of sentencing, $10 million in total restitution in the form of a confession of judgment, and a stay of the proceeding to impose the sentence until a pending federal indictment Two years later, almost to the day, Levine pled guilty in the United States District Court for the Eastern District of New York to tax evasion and obstruction of justice. He was sentenced to three years' imprisonment, a fine, costs of prosecution, and restitution of $996,755 in federal excise taxes. With the federal indictment thus out of the way, the state sentence could now be imposed.

against Levine stemming from the same tax avoidance scheme was resolved. The agreement also provided that if the federal court imposed restitution, there would be a $5 million reduction of the state restitution figure, as well as a $500,000 reduction in the "up front" payment. Although the record is fuzzy, it seems to have been understood that the "up front" money would be paid as soon as possible, but no later than the day the state sentence would be imposed. Finally, the agreement specified that Levine's state prison sentence would run concurrently to any federal prison sentence.

Since restitution had been imposed in federal court, Levine presumably was eligible for the stipulated downward revision in state restitution. There was little discussion about downward revisions at the state sentencing, however, because Justice Rohl was indignant that Levine was unprepared to pay any "up front" restitution at sentencing. Instead, he asked for an additional 12 months to pay, offering no good reason for his recalcitrance. Moreover, since the time of his arrest and subsequent plea bargain (according to the state), Levine had taken expensive vacations, made improvements to his home, continued to own nine Mercedes-Benz automobiles and a boat appraised at $375,000, and funded a costly defense to the federal and state charges against him.

Justice Rohl decided that since Levine had so flagrantly ignored it, he was under no obligation to honor the sentencing agreement of May 11, 1987. After Levine spoke in his own behalf, Justice Rohl sentenced him to 11 consecutive terms of two to six years' imprisonment on the grand larceny counts, to run concurrently to 974 concurrent terms of one to three years' imprisonment on the falsification of business records counts, to run concurrently to concurrent one-year terms of imprisonment on the remaining counts. Under N.Y. Penal Law Sec. 70.30(1)(c), this netted out to a sentence of 10 to 20 years' imprisonment--far in excess of the two-year sentence contemplated in the plea agreement. In addition, the state sentence was not concurrent with Levine's federal sentence, as had been agreed. Justice Rohl also imposed a fine of $1,000 on each of the 11 grand larceny counts, and $500 on each of the 974 falsification of business records counts, for a total of $498,000.

Hearing this, Levine tried to protest during the sentencing, but Justice Rohl told him not to interrupt. When Levine again tried to speak at the end of sentencing, he was remanded and removed from the courtroom. Levine's counsel was permitted to leave the courtroom and speak with Levine. After conferring with his client, counsel returned to the courtroom and asked Justice Rohl to reconsider the sentence. Counsel expressly waived Levine's right to be present.

With Levine still outside the courtroom, Justice Rohl reduced the fine for falsification of business records to $100 for each count. This left the total state fine at $108,400. Justice Rohl also imposed, as an alternative to the fines, additional consecutive one-day terms of imprisonment for each $5.00 in fines not paid by June 29, 1990. No other changes in the sentence were made.

On a direct state appeal, the Appellate Division, Second Department, modified the sentence by deleting the provision for additional imprisonment in the event that the fines were not paid, but otherwise affirmed the sentence. See People v. Levine, 167 A.D.2d 484, 562 N.Y.S.2d 155 (2d Dep't 1990). The Court of Appeals denied leave to appeal. 77 N.Y.2d 879, 568 N.Y.S.2d 922, 571 N.E.2d 92 (1991).

Thereafter, Levine mounted a collateral attack on the state sentence. He moved pursuant to N.Y.Crim.Proc.Law Secs. 440.10 and 440.20 to vacate the judgment and sentence. The Supreme Court, Suffolk County, denied the motion, and the Appellate Division, Second Department, affirmed. See People v. Levine, 188 A.D.2d 665, 592 N.Y.S.2d 268 (2d Dep't 1992). Leave to appeal Eventually, Levine returned to the United States District Court for the Eastern District of New York, where he had pled guilty to the federal charges, this time in pursuit of a writ of habeas corpus under 28 U.S.C. Sec. 2254. He raised four arguments: (1) the consecutive sentences imposed on him for grand larceny violated the federal double jeopardy clause because there was only a single larceny; (2) his absence from the "resentencing" proceedings violated his federal due process right to be present; (3) both his trial and appellate counsel were ineffective, in violation of the Sixth Amendment; and (4) the state sentencing court was required, again as a matter of federal due process, to impose the sentence bargained for or, at least, permit him to withdraw his plea and proceed to trial.

to the Court of Appeals was denied. 82 N.Y.2d 708, 601 N.Y.S.2d 604, 619 N.E.2d 682 (1993). Levine also applied for a writ of error coram nobis in the Appellate Division on the ground of ineffective assistance of appellate counsel. The Appellate Division denied the petition at the same time that it denied the Sec. 440 motion. Although Levine sought leave to appeal, the denial of a petition for a writ of error coram nobis is not appealable to the Court of Appeals. See People v. Marsicoveteri, 79 N.Y.2d 913, 581 N.Y.S.2d 664, 590 N.E.2d 249 (1992).

The district court dismissed Levine's petition in an unpublished order. See Levine v. Commissioner of Correctional Services, No. 93 CV 3069 (E.D.N.Y. Nov. 26, 1993). The court held that it could not consider Levine's double jeopardy claim because he failed to raise it in his letter application seeking leave to appeal to the New York Court of Appeals. It was, therefore, fatally defective as an unexhausted claim. See 28 U.S.C. Sec. 2254(b), (c); Rose, 455 U.S. at 510, 102 S.Ct. at 1199.

The court went on to address Levine's remaining claims, holding that: (1) any error associated with Levine's absence from resentencing was harmless because the resentencing proceedings benefitted Levine (after the Appellate Division deleted the provision for additional imprisonment if the fines were not paid); (2) Levine had not received ineffective assistance of trial or appellate counsel; and (3) federal review of Levine's claim concerning the plea bargain was blocked by a state procedural bar. Thus, the district court denied claims (1) and (2) on the merits, even though it had already identified the double jeopardy claim as unexhausted and had dismissed the petition on that ground.

DISCUSSION

The exhaustion requirement of Rose v. Lundy is satisfied if the petitioner "fairly presented" the federal constitutional claim to the highest state court. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); Daye v. Attorney General of the State of New York, 696 F.2d 186, 191 (2d Cir.1982) (in banc ) (petitioner must have informed the state court of both the factual and legal premises of the claim asserted in federal court), cert. denied, 464 U.S. 1048...