Toliver v. Sheahan
| Decision Date | 18 May 2015 |
| Docket Number | 13 Civ. 5056 (KPF) |
| Parties | MICHAEL TOLIVER, Petitioner, v. SUPERINTENDENT MICHAEL SHEAHAN, Respondent. |
| Court | U.S. District Court — Southern District of New York |
Petitioner Michael Toliver, proceeding pro se, brings this timely petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (the "Petition"). He challenges his conviction, following a jury trial in New York State Supreme Court, of three counts of Failure to Verify Registration Information and one count of Failure to Verify Annual Registration Information, each a violation under New York's Sex Offender Registration Act ("SORA"), N.Y. Correct. Law §§ 168 to 168-w. The Court has carefully considered the papers filed by both sides as well as the record of proceedings in the New York State courts. Because the state courts did not adjudicate Petitioner's claims in a manner that resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, his petition is denied.
Resolution of Petitioner's many claims requires extensive analysis of SORA's enactment, amendment history, and relevant provisions. On July 25, 1995, New York enacted SORA as the state analogue of the federal statute colloquially known as "Megan's Law." See 1995 N.Y. Laws 2870 . The statute took effect on January 21, 1996. See Doe v. Pataki ("Pataki III"), 3 F. Supp. 2d 456, 459 (S.D.N.Y. 1998). SORA's objectives are "[i] to protect members of the public, especially vulnerable populations, from sex offenders by notifying [the public] of the presence of sex offenders in their communities and [ii] to enhance law enforcement authorities' ability to investigate and prosecute sex offenses." Doe v. Pataki, 481 F.3d 69, 70 (2d Cir. 2007) ("Pataki IV") (citing 1995 N.Y. Laws 2870 § 1). To that end, "the Act requires all convicted sex offenders ('the registrants') to register with law enforcement authorities and provides for the disclosure of information about the registrants to local law enforcement authorities, entities with vulnerable populations, and the public at large inenumerated circumstances." Id. at 70-71. In New York City, a sex offender must register with the Sex Offender Management Unit ("SOMU") of the state Attorney General's Office at different time intervals as described below. (See Dkt. #14-2 at 85).
As enacted, SORA allowed (and still allows, though the authorizing language has been amended over the years) the Board of Examiners of Sex Offenders (the "Board") to classify offenders as level one, level two, or level three risk based on the Board's assessment of whether the risk of repeat offense is respectively low, moderate, or high. N.Y. Correct. Law § 168-l(6).2 Depending on the offender's risk classification, local law enforcement authorities are authorized to disseminate different levels of information about the offender, his or her offense, and any special conditions imposed. See id.
Id. § 168-h (McKinney 1996). Section 168-o set forth a mechanism for relief from these reporting requirements:
[a]ny sex offender required to register pursuant to this article may be relieved of any further duty to register upon the granting of a petition for relief by the sentencing court. Upon receipt of the petition for relief, the court shall notify the board and request an updated report pertaining to the sex offender. After receiving the report from the board, the court may grant or deny the relief sought.
Id. § 168-o. And Section 168-t set forth penalties for non-compliance:
[a]ny person required to register pursuant to the provisions of this article who fails to register in the manner and within the time periods provided for herein shall be guilty of a class A misdemeanor for the first offense, and for a second or subsequent offense shall be guilty of a class D felony.
Id. § 168-t.
Section 168-n outlined the judicial process by which an offender could be designated as a "sexual offender" or a "sexually violent predator": the Board would make a recommendation that the sentencing court would review "any materials submitted by the sex offender" in conjunction with "any victim's statement." N.Y. Correct. Law § 168-n (McKinney 1996). Section 168-n further provided that "[t]he court shall also allow the sex offender to appear and be heard, and inform the sex offender of his right to have counsel appointed, if necessary." Id. § 168-n(3). In other words, SORA initially contemplated that the court had the discretion, but not the obligation, to allow the offender to make an appearance to be heard.
SORA has been subject to numerous substantive amendments; the timing and content of several of these amendments are relevant here. In 1999, the New York legislature amended SORA to incorporate extensive procedural due process requirements prompted by the district court's decision in Pataki III, 3 F. Supp. 2d at 473. These amendments substantively changed Section 168-n, directing, among other things, that "[n]o later than thirty days prior to the board's recommendation, the sex offender shall be notified that his or her case is under review and that he or she is permitted to submit to the board any information relevant to the review," and "[t]he written notice to the sex offender shall also advise the offender that he or she has a right to a hearing prior to the court's determination, and that he or she has the right to be represented by counsel at the hearing." 1999 N.Y. Laws 453 § 168-n(3).
The 1999 amendments maintained the registration period as ten years from the original date of registration for all levels of sex offenders. It also left unchanged the requirement that if the offender was a sexually violent predator, he or she would also have to personally verify his address every 90 days with the local law enforcement agency. See 1999 N.Y. Laws 453 § 168-h. Also unchanged was Section 168-t, which continued to provide that an initial registration violation would be a class A misdemeanor and any subsequent violation would be a class D felony. See id. § 168-t.
In 2002, the legislature again amended the Act, building on existing offender-type designations in order to create designations for "sexual predator," "sexually violent offender," and "predicate sex offender." See 2002 N.Y. Laws 66.3 It stated that any offender who was labeled any of these three offender-type designations on or after March 11, 2002, or any offender who was designated as a level three risk, would have to register and verify his address annually for life. Id. § 168-h(2). Level three risk offenders also were required to personally verify their addresses every 90 calendar days with local law enforcement. See id. § 168-h(3). By contrast, those who were not given an offender-type designation, or who were designated a level one or level two risk, would only have to register annually for ten years from the initial date of registration. See id. § 168-h(1).
In January 2006, the ten-year registration period for many level-one and level-two registrants was approaching an end, prompting a further amendment that increased the length of the registration requirements "to enhance public safety and provide better tracking and monitoring of sex offenders." 2006 N.Y. Laws 1 § 1. Specifically, the amendment increased the period of registration for offenders at risk level one from 10 years to 20, and for those at risk level two from 20 years to life. Id. § 168-h. It also extended the period before lifetime registrants (i.e., those classified as risk level three or designated as sexual predators, sexually violent offenders, or predicate sex offenders) could petition for relief from registration and verification requirements from 13 years to 20, id. § 168-o(1), but continued to provide that "[a]ny sex offender required to register or verify pursuant to this article may petition the sentencing court or the court which made the determination regarding the level of notification for an order modifying the level of notification," id. § 168-o(2).
Finally, in 2007, Section 168-t was amended to provide that an initial registration violation would constitute a class E felony rather than a class A misdemeanor, while any subsequent offense would continue to constitute a class D felony. See 2007 N.Y. Laws 373 § 168-t.
During 2008 and 2009, the relevant period for the Petition, a sex offender who had not been designated a sexual predator, a sexually violent offender, ora predicate sex offender, and who was classified as a level one risk, or who had not yet received a risk level classification, was required to register annually and verify his address for 20 years from the initial date of registration. See N.Y. Correct. Laws § 168-h(1) (McKinney 2014). By contrast, a sex offender who, on or after March 11, 2002, was designated a sexual predator, sexually violent offender, or predicate sex offender, or who was classified as a level two or level three risk, was required to register annually for life. See id. § 168-h(2). Further, a "sex offender designated as a sexual predator or having been given a...
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