Thomas v. Larkin
| Decision Date | 05 November 2013 |
| Docket Number | 12-CV-2899 (NGG) (LB) |
| Parties | ERROLL THOMAS, Petitioner, v. RONALD LARKIN, Superintendent, Eastern Correction Facility Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Petitioner Errol Thomas brings this pro se Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, attacking the administration of his sentences for first-degree rape, first-degree attempted rape, three counts of first-degree sexual abuse, two counts of second-degree sexual abuse, and two counts of second-degree assault. Thomas asserts that his imposed sentence was administratively increased beyond the length set by the sentencing judge, and that this (1) subjects him to cruel and unusual punishment, and (2) violates his due process rights. For the reasons set forth below, Thomas's Petition is DENIED.
Errol Thomas lived with his daughters, Sonica Thomas and DelMarie Thomas, and son, Ricardo Thomas, in their apartment at 85 East 31st Street in Brooklyn, New York, throughout the period in which the crimes at issue were committed. (Response Order Show Cause ( ) (Dkt. 9) at 2-3). On or about and between July 1, 1994, and July 31, 1994, in the bathroom of the apartment, Thomas touched his hand to the breast and vagina of his twelve-year-old daughter, Sonica, without her consent. (Id. at 2.) On or about and between July 1 and July 31, 1995, at the same location, Thomas dragged thirteen-year-old Sonica into the bathroom and touched her vagina with his hand then forced her to touch her hand to his penis. (Id.) On or about and between April 1 and May 31, 1995, Thomas beat sixteen-year-old Ricardo, 13-year-old Sonica, and ten-year-old DelMarie, on the hands, arms, back, and stomach, with an electrical cord, causing pain and bruising, as well as small scars on Ricardo's hands. (Id.) On or about the morning of February 20, 1996, Thomas attempted to forcibly rape fourteen-year-old Sonica but was interrupted by her brother, Ricardo. (Id. at 3.) Later that morning, Thomas forcibly raped Sonica and threatened to kill Sonica and Ricardo with a knife and a gun. (Id.) Ricardo jumped out the window to escape and sought help from a neighbor, who then alerted the police. (Id.) Thomas was caught trying to flee in his car. (Id.)
Thomas was charged in Kings County, New York with (1) one count of Rape in the First Degree; (2) six counts of Sexual Abuse in the First Degree; (3) one count of Attempted Rape in the First Degree; (4) one count of Incest; (5) four counts of Assault in the Second Degree; (6) two counts of Sexual Abuse in the Second Degree; (7) four counts of Assault in the Third Degree; (8) eight counts of Criminal Possession of a Weapon in the Fourth Degree; and (9) three counts of Endangering the Welfare of a Child. (Id.) Thomas was convicted following a jury trial in New York State Supreme Court, Kings County, of one count of Rape in the First Degree, one count of Attempted Rape in the First Degree, two counts of Sexual Abuse in the First Degree, three counts of Sexual Abuse in the Second Degree, and three counts of Assault in the Second Degree. (Id. at 3-4.)
On November 26, 1996, Thomas was sentenced to consecutive terms of imprisonment of twelve and one-half to twenty-five years for one count of Rape in the First Degree, seven and one-half to fifteen years for one count of Attempted Rape in the First Degree, and three and one-half to seven years for each of the three counts of Sexual Abuse in the First Degree and Assault in the Second Degree. (Id. at 4.) Thomas concurrently was sentenced to one year imprisonment for the two counts of Second Degree Sexual Abuse. (Id.) In total, Thomas's sentence was forty-one to eighty-two years imprisonment. (Id.)
Thomas appealed the judgment of conviction to the Supreme Court of the State of New York, Appellate Division, Second Department (the "Appellate Division"). (Id. at 4-5.) Thomas claimed in part that his sentences on the attempted rape and rape counts should be concurrent and that the imposition of consecutive sentences for the three first-degree sexual abuse counts and two second-degree sexual abuse counts were illegal because they were allegedly based upon only two continuous events. (Id. at 5.) On April 7, 2003, the Appellate Division unanimously affirmed Thomas's judgment of conviction, finding that "[t]he Supreme Court properly imposed consecutive sentences for [Thomas's] convictions of sexual abuse in the first degree and the sentence imposed was not excessive." People v. Thomas, 304 A.D.2d 593 (2d Dep't 2003) (citation omitted). On August 5, 2003, Thomas was denied leave to appeal the Appellate Division's decision to the New York Court of Appeals. People v. Thomas, 100 N.Y.2d 600 (2003).
By petition dated November 1, 2004, Thomas sought a federal writ of habeas corpus on the grounds that: (1) the evidence was legally insufficient to establish sexual abuse in the first-degree and assault in the second-degree, and (2) the trial court's imposition of consecutivesentences on various counts violated his protection against double jeopardy. (Petition for Writ of Habeas Corpus 04-CV-4691 ("Petition") (Dkt. 1) at 5.) This court issued a Memorandum and Order on September 27, 2005, granting Thomas's "application for a writ of habeas corpus with respect to the state court's impermissible action in sentencing the defendant to consecutive terms of imprisonment for the conviction of three counts of First Degree Sexual Abuse" but denied the petition in all other respects. (Mem. and Order 04-CV-4691 (Dkt. 7) at 13.) This court remitted the matter to the state trial court to resentence Thomas in a manner consistent with the Court's opinion. (Id.)
On January 4, 2007, Thomas was re-sentenced in New York State Supreme Court, Kings County. (Resentencing Hearing (Dkt. 9-1) at 1.) Judge Plummer Lott stated that he would "follow the directions of Judge Nicholas Garaufis," and that "the previous sentences would remain in effect except, the sentence is on [sic] the three counts of Sexual Abuse in the First Degree will run concurrent with all the other sentences, consistent with the orders and direction of Nicholas Garaufis, United States District Judge, Eastern District for the State of New York." (Id. at 4-5.) The judge also stated that he would "decline to disturb the sentence otherwise." (Id. at 4.) After making this pronouncement, the judge had the clerk pronounce the sentence, which was read as:
Count One, Rape in the First Degree, sentence of 12 and a half years to 25 years. Attempted Rape in the First Degree, one count, seven and a half years to 15 years. Sexual Abuse in the First Degree, three counts, will be run concurrently to those sentences as three and a half to seven years. Sexual Abuse in the Second Degree, two counts, one year each. And Assault in the Second Degree, two counts, three and a half to seven years, those counts to run consecutively.
(Id. at 5.)
The clerk's reading of the sentence differed from the November 26, 1996, sentence in that it only listed two, rather than three, counts of Assault in the Second Degree. (Id.) The clerk's reading also did not explicitly mention which sentences were to run consecutively and which concurrently, although the judge had previously indicated he wished the sentence to be identical to the previous one aside from concurrently running the counts of First-Degree Sexual Abuse. (Id. at 4-5.)
The Uniform Sentence and Commitment form issued by the Office of the Supreme Court Clerk, Kings County, for the New York State Department of Corrections and Community Services ["DOCCS"] dated January 4, 2007, listed the following sentences: "(1) Rape 1st degree, 1 count, 12 ½ - 25 years, (2) Attempted Rape 1st degree, 1 count, 7 ½ - 15 years, (3) Sexual Abuse 1st degree, 3 counts, 3 ½ - 7 years each, (4) Sexual Abuse 2nd degree, 2 counts, 1 year post-release supervision each, (5) Assault 2nd degree, 3 counts, 3 ½ - 7 years each." (Uniform Sentence and Commitment ("Uniform Sentence") (Dkt. 9-1) at 1.) The sentences for Rape in the First Degree, Attempted Rape in the First Degree, and Assault in the Second Degree were listed as running consecutively, while Sexual Abuse in the First Degree was listed as running concurrently with the other sentences. (Id.) Thus, the amended commitment issued on January 4, 2007, reflected that the November 26, 1996, sentences were modified such that the three counts of Sexual Abuse in the First degree run concurrently with each other and concurrently with the other counts on that indictment. (DOCCS Letter (Dkt. 9-1) at 1-2.) The total for these sentences was thirty and one-half years to sixty years. (Id. at 3.) By operation of N.Y. Penal Law § 70.30(1)(e)(i), (vi), the aggregate minimum and maximum terms were deemed to betwenty-five to fifty years, respectively,1 which is the sentence that Thomas is currently serving. (Id.)
Thomas filed a petition against Respondent A. Del Gaizo, the Inmate Records Coordinator for DOCCS, pursuant to Article 78 of the New York Civil Practice Law and Rules. (Thomas v. Del Gaizo, Mar. 28, 2011, Judgment of New York State Supreme Court, Albany County ("Judgment") (Dkt. 9-1) at 1.) Thomas argued that Respondent miscalculated his terms of imprisonment based upon the sentencing transcript and certificate of conviction. (Pet. Brief App. Div. ("Pet. Brief") (Dkt. 10-1) at 6.) Specifically, Thomas argued that the re-sentencing court did not indicate whether the sentences were to run concurrently or consecutively. (Id. at 6-8.) Therefore, Thomas argued that, according to N.Y. Penal Law § 70.25,2 all the sentences should run concurrently for an aggregate prison term of twelve and one-half to twenty-five years. (Id. at 7.)
On March 23, 2011, the New York State Supreme Court, Albany County, dismissed Thomas's ...
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