Prendergast v. Rivera

• Decision Date: 13 October 2011
• Docket Number: 06 Civ. 5314 (BMC)
• Citation: Prendergast v. Rivera, 06 Civ. 5314 (BMC) (E.D. N.Y. Oct 13, 2011)
• Parties: JOHN PRENDERGAST, Petitioner, v. ISRAEL RIVERA, Superintendent, Coxsackie Correctional Facility, Respondent.
• Court: U.S. District Court — Eastern District of New York

JOHN PRENDERGAST, Petitioner,

v.ISRAEL RIVERA, Superintendent, Coxsackie Correctional Facility, Respondent.

06 Civ. 5314 (BMC)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Dated: October 11, 2011

Dated: October 13, 2011

MEMORANDUM

DECISION AND ORDER

COGAN, District Judge.

Petitioner pro se seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in connection with his conviction for armed robbery. Petitioner brings three separate claims, alleging various violations of the Fifth and Sixth Amendments to the United States Constitution. Because all of petitioner's claims are either procedurally barred or meritless, I deny the petition for habeas corpus.

BACKGROUND

After a jury trial in Queens County, petitioner was convicted of having robbed a livery car driver by encircling her neck with a cable and demanding her money. On January 6, 2003, he was sentenced, as a second-time violent felony offender under New York law, to concurrent terms of incarceration for Robbery in the First Degree and Criminal Possession of a Weapon. Petitioner's commission of a violent felony subjected him to a law, passed by New York's legislature in 1998, known as "Jenna's Law." This law was named for Jenna Griebshaber, a 22 year-old nursing student murdered by a man who had been released from prison after servingtwo-thirds of his indeterminate sentence. See Barry Kamins, New Criminal Law and Procedure Legislation, 81 N.Y. St. B.J. 28, 28 (2009). Jenna's Law requires that violent felons receive determinate sentences of incarceration followed by a mandatory period of post-release supervision ("PRS"). See N.Y. Pen. L. §§ 70.00(6), 70.45. The mandatory period of PRS for all second-time violent felony offenders is five years. Id.

Although petitioner's fifteen-year determinate sentence was announced in open court, the sentencing judge did not announce that his sentence carried a mandatory five-year term of PRS. Nor did the PRS term appear on the commitment order - a clerk-prepared document that reflects a defendant's commitment to the custody of New York's Department of Correctional Services ("DOCS"). However, DOCS subsequently purported to administratively add this period of PRS to petitioner's sentence. Petitioner's situation was not unique: in the years following the enactment of Jenna's Law, thousands of criminal defendants received an administratively-imposed period of PRS after their sentencing judges did not pronounce this aspect of the sentence. See Kamins, supra, at 28. According to petitioner, he did not learn of this five-year PRS term until he requested his "Time Computation Sheet" from DOCS while working on his criminal appeal.

On direct appeal to the Second Department, petitioner argued that he was deprived of due process of law when the prosecutor asked petitioner's alibi witness, over defense counsel's objection, why she had failed to exculpate petitioner at a grand jury hearing or a pre-trial suppression hearing. Petitioner further asserted that the trial court had failed to offer a curative instruction to the jury regarding this testimony. The Second Department affirmed the trial court, finding that petitioner abandoned this claim at trial when he failed to pursue his motion for amistrial. People v. Prendergast, 27 AD 3d 487, 487, 810 N.Y.S.2d 335 (2d Dep't 2006). The Court of Appeals denied leave to appeal. 6 N.Y.3d 851, 816 N.Y.S.2d 757 (2006).

In September, 2006, petitioner asserted this same claim in the instant petition for a writ of habeas corpus under 28 U.S.C. § 2254(d). After respondent filed opposition papers and petitioner replied, but before this Court issued a decision, petitioner requested a stay of the habeas proceeding while he exhausted additional claims in state court. Along with this request, petitioner provided the Court with a copy of his petition, under Article 78 of New York's Civil Practice Law and Rules, asking the Albany County Supreme Court to direct the DOCS to remove the five-year term of PRS from his sentence on the ground that the failure to pronounce the mandatory PRS term in open court had deprived petitioner of due process of law. This Court granted petitioner's request for a stay.

Two months after this Court granted the stay, petitioner moved for a writ of error coram nobis in the Second Department, raising a new ground for relief: that his appellate counsel was ineffective for failing to argue that it was improper for juror challenges to have been exercised while petitioner was absent from the court room. According to petitioner, although he was present in the court room for voir dire of the jury, the juror challenges occurred in the jury room while petitioner remained in the court room. The Second Department denied the coram nobis application, ruling simply that petitioner had "failed to establish that he was denied effective assistance of counsel," and the Court of Appeals denied leave to appeal.

The Albany County Supreme Court denied petitioner's Article 78 petition because, under then-existing state law, the DOCS's administrative application of PRS term was not improper. Petitioner appealed this decision to the Third Department. While his appeal was pending, the District Attorney partially conceded petitioner's point: The District Attorney requested that theQueens County Supreme Court resentence petitioner in order to orally pronounce the mandatory PRS term. On April 28, 2008, petitioner was resentenced by the Queens County Supreme Court and the judge announced petitioner's five-year PRS term in open court. The next day, the New York Court of Appeals issued two opinions, in companion cases, addressing the widespread failure of sentencing courts to announce mandatory PRS terms in open court.

These companion cases were Garner v. New York State Department of Correctional Services, 10 N.Y.3d 358, 362, 859 N.Y.S.2d 590 (2008), and People v. Sparber, 10 N.Y.3d 457, 859 N.Y.S.2d 582 (2008). In Garner, the Court of Appeals held that DOCS has no statutory authority to add the PRS term onto a sentence, as only a sentencing judge is authorized by New York's Criminal Procedure Law to pronounce this component of a sentence. In Sparber. the Court held that the remedy for a judge's failure to announce the PRS term is a resentencing hearing at which the proper pronouncements should be made by the sentencing judge. In response to these opinions, New York's legislature enacted a statutory framework by which to determine whether, and how, an improperly-sentenced defendant should be resentenced to correct the initial sentencing court's omission. See N.Y. Corr. L. § 601-d; N.Y. Pen. L. § 70.85.

Petitioner appealed his resentencing to the Second Department, arguing that it violated the Double Jeopardy and Due Process clauses of the United States Constitution. Petitioner further argued that his resentencing judge was required to exercise his discretion to consider whether the entire sentence, including the term of PRS, was appropriate. The Second Department found that the New York Supreme Court possessed inherent power to correct petitioner's initial, illegal sentence by resentencing him in accordance with the law. The court found that this resentencing did not violate the Due Process or Double Jeopardy clauses, and that the sentencing court was not required to reconsider the sentence as a whole, as the court was"presumed to have been aware that the sentence would include a period of PRS." People v. Prendergast, 71 A.D.3d 1055, 1056,896 N.Y.S.2d 857 (2d Dep't 2010).

Petitioner appealed this decision to the New York Court of Appeals, again arguing that the re-sentencing violated the Due Process and Double Jeopardy clauses. In People v. Lingle, 16 N.Y.3d 621, 926 N.Y.S.2d 4 (2011), the New York Court of Appeals affirmed the Second Department in a consolidated opinion in which the Court settled this issue for petitioner and five other similarly-situated defendants bringing the same claims. The Court held that these defendants' resentencings did not violate the Double Jeopardy clause because the defendants could not claim a "legitimate expectation that the originally-imposed, improper sentence [was] final for all purposes." Lingle, 16 N.Y.3d at 630 (internal quotation marks omitted). The Court also disposed of the defendants' due process claims, finding that the resentencing did not "shock the conscience" because the defendants likely knew all along that they were subject to a term of PRS.

After the Court of Appeals rejected petitioner's resentencing claims, this Court lifted the stay on his federal habeas case and petitioner amended his initial petition. Together with his 2006 petition, the instant petition brings the following claims: 1.) the prosecutor's impeachment of petitioner's alibi witness and the trial court's failure to issue a curative jury instruction deprived petitioner of a fair trial and due process of law; 2.) appellate counsel's failure to raise the argument regarding juror challenges amounted to ineffective assistance of counsel; and 3.) petitioner's resentencing violated the Due Process and Double Jeopardy clauses of the Constitution.

DISCUSSION

A. The Prosecutor's Impeachment of Petitioner's Alibi Witness

Petitioner argues that the prosecutor's cross-examination of his alibi witness - in which the alibi witness was asked why she failed to present her exculpatory testimony before the grand jury or at a prior evidentiary hearing - undermined his right to remain silent and deprived him of a fair trial. Petitioner further argues that the judge should have given a curative instruction to the jury to explain that petitioner's alibi did not have the opportunity to present this exculpatory evidence earlier. Defense counsel objected to this cross-examination at trial and orally moved for a mistrial, but the trial court held his motion in abeyance. Defense counsel failed to renew his request for a mistrial, and the trial court never ruled on this issue.

This claim is procedurally barred...