Rivera v. Quick, 83 Civ. 118(MEL).
Decision Date | 06 October 1983 |
Docket Number | No. 83 Civ. 118(MEL).,83 Civ. 118(MEL). |
Citation | 571 F. Supp. 1247 |
Parties | Marcos RIVERA, Petitioner, v. William QUICK, Respondent. |
Court | U.S. District Court — Southern District of New York |
Marcos Rivera, pro se.
Robert Abrams, Atty. Gen. of N.Y., New York City, for respondent; George C. Perry, Asst. Atty. Gen., New York City, of counsel.
Marcos Rivera seeks a writ of habeas corpus based on the alleged unconstitutionality of his sentence. Because Rivera's claims are without merit, his petition is denied.
Rivera pled guilty to two counts of Criminal Sale of a Controlled Substance in the Second Degree, a Class A-II felony, on April 23, 1979, in the Supreme Court of New York County. New York Penal Law ("N.Y.P.L.") § 220.41 (McKinney's 1980). On July 13, 1979, Rivera was sentenced to two concurrent terms of seven and a half years to life. Subsequent to Rivera's sentencing, the minimum statutory sentence for a Class A-II felony was reduced from six years to three years. See N.Y.P.L. § 70.00(3)(a)(ii) (McKinney's 1975 & Supp. 1982-83). The change in sentencing provisions was accompanied by the enactment of a provision permitting resentencing of certain persons sentenced under the earlier guidelines. See N.Y.P.L. § 60.09 (McKinney's 1975 & Supp.1982-83). On December 7, 1979, Rivera was resentenced, pursuant to N.Y.P.L. § 60.09, to a new minimum term of six years on both counts.
Slip op. at 1. In denying Rivera's petition, Judge Leval noted that Rivera's claims had not been exhausted in the state courts. His opinion went on to hold, however, that the claims were without merit. Slip op. at 4-5.1
In his instant petition, Rivera states that, after having exhausted state remedies, he wishes to assert the same claims raised in his earlier petition, along with one new claim. The new claim is that the imposition of a sentence of six years to life for Rivera's sale of heroin worth $21,300 violates his Fourteenth Amendment right to equal protection, because Abbie Hoffman was sentenced to a term of one to three years for selling narcotics worth $36,000. Rivera further contends that black and Hispanic defendants generally receive harsher sentences for narcotic offenses than do white defendants or defendants who are "notorious." Petition, at p. 7. Rivera also claims that his due process rights have been violated by the refusal of the state courts to entertain his equal protection claim.
As to Rivera's re-assertion of the claims raised in his earlier petition before Judge Leval, Rivera has not suggested any reason, nor do we perceive one, why Judge Leval's discussion of the merits of his claims should not be considered dispositive. Accordingly, for the reasons stated in Judge Leval's memorandum those claims are dismissed.
As to the new claim raised in Rivera's petition, which appears to have been adequately exhausted in the state courts,2 the claim does not afford a basis for habeas corpus relief. Rivera's sentence is within the range prescribed by state law,3 and its length therefore does not present a question of constitutional dimensions. See Reese v. Bara, 479 F.Supp. 651 (S.D.N.Y.1979). Rivera's comparison of his sentence to that allegedly given to Abbie Hoffman does not establish a violation of his right to equal protection. There exists no authority for the proposition that all persons convicted of the same crime must receive the same sentence. Instead, a court is entitled to consider the defendant's history, as well as the surrounding circumstances of the offense, in determining the length of a sentence:
Warren v. Hogan, 373 F.Supp. 1241, 1246 (S.D.N.Y.1974) (Gurfein, J.) Accordingly, the imposition of a lower sentence on Abbie Hoffman than on Rivera is not a Fourteenth Amendment violation.
As to...
To continue reading
Request your trial-
McPherson v. Greiner
...F. Supp. 945, 949 (S.D.N.Y. 1988); Castro v. Sullivan, 662 F. Supp. 745, 753 (S.D.N.Y. 1987) (citing earlier cases); Rivera v. Quick, 571 F. Supp. 1247, 1249 (S.D.N.Y. 1983). 34. See, e.g., Griffin v. Mann, 156 F.3d 288, 290 (2d Cir. 1998) ("Under Section 70.10, the minimum term is fifteen ......
-
Thomas v. Greiner
...claim might be available to a habeas petitioner in different circumstances,10 it is not available here. As the Court explained in Rivera v. Quick: [Petitioner's] sentence is within the range prescribed by state law, and its length therefore does not present a question of constitutional dime......
-
DeArmas v. People of State of NY
...Diaz v. LeFevre, 688 F.Supp. 945, 949 (S.D.N.Y.1988); Castro v. Sullivan, 662 F.Supp. 745, 753 (S.D.N.Y.1987); Rivera v. Quick, 571 F.Supp. 1247, 1249 (S.D.N.Y. 1983); Reese v. Bara, 479 F.Supp. 651, 657 (S.D.N.Y.1979). At the time of his sentencing, petitioner was a second felony offender.......
-
Castro v. Sullivan
...term during his sentencing hearing precludes his subsequent constitutional claim of an excessive sentence. See Rivera v. Quick, 571 F.Supp. 1247, 1248 n. 2 (S.D.N.Y.1983); Boyd v. LeFevre, 519 F.Supp. 629, 637 (E.D.N.Y.1981). However, even if petitioner's excessive sentence claim had been p......