Mills v. Lempke

• Decision Date: 04 February 2013
• Docket Number: No. 11-CV-0440(MAT),11-CV-0440(MAT)
• Parties: RICHARD MILLS, Petitioner, v. JOHN B. LEMPKE, Respondent.
• Court: U.S. District Court — Western District of New York

RICHARD MILLS, Petitioner,

v.JOHN B. LEMPKE, Respondent.

No. 11-CV-0440(MAT)

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

Dated: February 4, 2013

DECISION and ORDER

I. Introduction

Proceeding pro se, Richard Mills ("Mills" or "Petitioner") has filed a petition for a writ of habeas corpus petition pursuant to 28 U.S.C. § 2254 alleging that he is being held in Respondent's custody in violation of his federal constitutional rights. Petitioner is incarcerated as the result of a judgment originally entered on December 16, 2004, following a jury trial in Genesee County Court (Noonan, J.) of New York State Supreme Court. Petitioner was convicted of Attempted Murder in the First Degree (New York Penal Law ("P.L.") §§ 110.00/125.27(1)(a)(i)), Attempted Assault in the First Degree (P.L. §§ 110.00/120.10(1)), Reckless Endangerment in the First Degree (P.L. § 120.25), two counts of Criminal Possession of a Weapon in the Third Degree (P.L. § 265.02(1)), and Criminal Possession of Marijuana in the Third Degree (P.L. § 221.20).

II. Factual Background

A. Petitioner's 2004 Trial

For a summary of the evidence from Mills' 2004 trial and post-conviction proceedings, the Court refers to, and incorporates by reference herein, Magistrate Judge Bianchini's Report and Recommendation in Mills v. Poole, 1:06-cv-00842-RJA-VEB (W.D.N.Y. May 14, 2008), adopted in full, 1:06-cv-00842-RJA-VEB (W.D.N.Y. July 1, 2008). A copy of the Report and Recommendation is attached hereto as Appendix I.

B. Petitioner's 2011 Resentencing

In 2011, Petitioner was resentenced with regard to the attempted first degree assault charge, as to which he originally had been sentenced to a determinate term of 15 years with no term of post-release supervision ("PRS"). Under New York law, however, where a defendant is sentenced to a determinate prison term, the sentencing court is required to impose a period of post-release supervision. See N.Y. PENAL LAW § 70.45. Pursuant to New York Corrections Law § 601-d, the New York State Department of Corrections and Community Supervision ("DOCCS") notified the trial court of the defect in Petitioner's sentence.

By order dated January 31, 2011, the trial court, pursuant to P.L. § 70.85 and with the consent of the Genesee County District Attorney, re-imposed the original 15-year determinate sentence forthe attempted first degree assault conviction, without imposing any period of PRS. Petitioner's remaining sentences were undisturbed.

Petitioner filed a motion for reargument with respect to the resentencing on the grounds that he was denied his right to appear in court and to the assistance of counsel. Petitioner repeated also argued that Judge Noonan should have recused himself due to his alleged business and familial ties to various Genesee County officials.

On March 28, 2011, Judge Noonan denied Petitioner's motion, recognizing that "the reimposition of the original sentence was statutorily authorized, and was warranted in this case inasmuch as the additional post-release supervision would have been redundant [to] the lifetime parole supervision mandated under [Petitioner's] [a]ttempted [m]urder conviction." Respondent's Exhibit ("Resp't Ex.") TT at 2. Judge Noonan further concluded that "[s]ince [Petitioner] cannot be considered aggrieved by the . . . determination not to enhance his determinate sentence, such transportation, hearing and appointment of counsel would have been [an] unnecessary expenditure of public resources." Id.

On June 27, 2011, Petitioner filed a pro se motion to vacate the judgment and to set aside his sentence pursuant to New York Criminal Procedure Law ("C.P.L.") §§ 440.10 and 440.20, based on Judge Noonan's refusal to produce him and to assign counsel for the purpose of resentencing him on the attempted first degree assaultconviction. On August 23, 2011, Petitioner added a claim asserting a violation of the Ex Post Facto Clause of the federal Constitution.

On September 21, 2011, Judge Noonan denied the motion, noting that "resentencing under Correction Law § 601-d implicates the post-judgment imposition of post-release supervision, and does not afford resentencing de novo." Resp't Ex. YY (citing People v. Lingle, 16 N.Y.3d 621, 636 (2011) ("The defendant's right to appeal [a resentencing under P.L. § 70.85] is limited to the correction of errors or the abuse of discretion at the resentencing proceeding. Since the resentencing court is not authorized to lower the prison sentence . . . , appellate courts are likewise unauthorized to do this—i.e., the resentencing court's failure to consider a lesser sentence was not an 'error or defect' subject to reversal or modification.") (internal citations omitted); People v. Long, 85 A.D.3d 521, 522 (1st Dept. 2011) ("Lingle specifically prohibits both the resentencing court and this Court from revisiting the original, lawful sentence.")). Judge Noonan stated that Petitioner's "right to be heard and represented by counsel is only required where an additional term of post-release supervision is contemplated," whereas in Petitioner's case, Judge Noonan declined to impose a term of PRS. Id.

Petitioner sought leave to appeal the denial of his C.P.L. §§ 440.10 and 440.20 motions, which was denied on December 8, 2011,by the Appellate Division, Fourth Department. Petitioner moved for reargument and reconsideration of the denial of the leave application, which was denied on December 8, 2011.

Petitioner also has challenged his resentencing by means of a direct appeal to the Fourth Department. Based upon Petitioner's latest submissions to this Court, it appears that the appeal is scheduled to be heard by the Fourth Department in February 2013.

On November 16, 2011, Petitioner again attacked his resentencing via a motion to dismiss the indictment pursuant to C.P.L. § 380.30(1), arguing that the trial court had been divested of jurisdiction to resentence Petitioner because of an allegedly unreasonable delay in sentencing him. The trial court denied the motion in a written decision and order, Resp't Ex. HHH, concluding that it had resentenced Petitioner within a reasonable time after DOCCS notified it of the defect in Petitioner's original sentence. The trial court noted that although Petitioner challenged the validity of the order resentencing him without a PRS term, the order had not been vacated or modified but rather had been honored by DOCCS. Id. Petitioner sought leave to appeal the denial of this motion, which was denied on January 26, 2012, because the trial court's order was not appealable. Petitioner moved for reargument of his motion, which was denied by the trial court on March 9, 2012.

Further details regarding the extensive procedural history in this matter are contained in Respondent's thorough Memorandum of Law (Dkt #34); Petitioner's various "exhaustion updates" (Dkt ##4, 5, 17, 20, 28, 36); and Magistrate Judge Bianchini's Report and Recommendation (Appendix I).

E. The 2011 Federal Habeas Proceeding

In his amended habeas petition (Dkt #7) dated November 12, 2011, Petitioner asserts the following grounds for relief: he was entitled to be present at and to have counsel appointed for his resentencing (Ground One); his resentencing violated the Ex Post Facto Clause of the United States Constitution (Ground Two); his Confrontation Clause rights were violated because the prosecution admitted into evidence a ballistics report without having the report's author testify (Ground Three); the "administrative reviewer" of a drug analysis report did not testify, in violation of Petitioner's Confrontation Clause rights, and the report's preparer testified untruthfully (Ground Four); trial counsel erroneously stipulated to the admission of the ballistics report (Ground Five); the prosecution violated its disclosure obligations under the Due Process Clause by withholding several documents that Petitioner subsequently obtained through a Freedom of Information Law request (Ground Six); Petitioner is actually innocent of attempted first degree murder because the evidence did not establish that the weapons were operable or loaded with liveammunition, and there was no evidence that a gun was fired (Ground Seven); the trial court erroneously declined to instruct the jury regarding the defense of extreme emotional disturbance, thereby violating Petitioner's right to a fair trial (Ground Eight); the trial court improperly refused to rule on the merits of a renewed omnibus motion because it was untimely (Ground Nine); the police violated Petitioner's Fourth Amendment rights by seizing marijuana from his residence (Ground Ten); the trial court erroneously failed to make a finding on the record that Petitioner was competent to stand trial (Ground Eleven); Inv. Stone's testimony established that he had tampered with the rifle before it was examined by the ballistics expert (Ground Twelve); the conviction for possession of marijuana was not supported by legally sufficient evidence and was against the weight of the credible evidence (Ground Thirteen); the remaining convictions were not supported by legally sufficient evidence and was against the weight of the credible evidence because the prosecution failed to present proof that the weapons were loaded with live ammunition, there was an absence of fingerprint proof that Petitioner had actual possession of a gun, and Petitioner's alleged intoxication and psychosis negated his ability to form the requisite intent (Ground Fourteen); Petitioner's statements to the police were taken in violation of his constitutional rights (Ground Fifteen); Petitioner's motion to suppress was erroneously denied without a hearing (Ground Sixteen);Petitioner's Sixth Amendment right to a speedy trial was violated (Ground Seventeen); the indictment was defective because it failed to give notice of the charges against him (Ground Eighteen); the prosecution withheld documents from the Genesee County Sheriff's Department establishing Petitioner's mental...