Edwards v. The People of State of New York

Filing 17

REPORT AND RECOMMENDATION re: 2 Petition for Writ of Habeas Corpus filed by Darren Edwards. For the reasons set forth in this Report and Recommendation, I recommend that Mr. Edwards' petition for a writ of habeas corpus be denied. Objections to R&R due by 11/9/2009. (Signed by Magistrate Judge James C. Francis on 10/23/09) Copies Mailed By Chambers.(tro)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - -: DARREN EDWARDS, : 08 Civ. 0112 (RJS) (JCF) : Petitioner, : : REPORT AND - against : RECOMMENDATION : THE PEOPLE OF THE STATE OF NEW : YORK, : Respondent. : - - - - - - - - - - - - - - - - - -: TO THE HONORABLE RICHARD J. SULLIVAN, U.S.D.J.: Darren Edwards brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. of his sentence mandating He contends that the portion

five years of post-release supervision

("PRS") was unlawful because it was imposed administratively by the Department of Correctional Services ("DOCS") rather than by the judge at his initial sentencing. For the reasons discussed below,

I recommend that the petition be dismissed as moot. Background On August 26, 2002, having been convicted by a jury of assault in the second and third degrees, Darren Edwards was sentenced by Justice John Stackhouse in New York State Supreme Court, New York County, to a seven-year determinate term of incarceration for the second-degree assault conviction concurrent with a one-year term on the third-degree assault charge. ("8/26/02 Tr.") at 28). (August 26, 2002 Transcript

At the time he was convicted, New York

Penal Law § 70.45 required that every determinate sentence include

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a period of five years of PRS.1

N.Y. Penal Law § 70.45(1)-(2)

(1998); People v. Edwards, 23 Misc. 3d 793, 795, 872 N.Y.S.2d 881, 883 (N.Y. Sup. Ct. 2009) ("Edwards 2009"). However, at Mr.

Edwards' August 26, 2002 sentencing, the trial judge made no mention of the PRS term.2 (8/26/02 Tr. at 28-29). The PRS term

was also omitted from the commitment order prepared by the court clerk. (Sentence & Commitment Order (Aug. 26, 2002) (attached to People v. Edwards, 15 Misc. 3d 1115(A), 839

Petition ("Pet."))).

N.Y.S.2d 435, 2007 WL 969416, slip op. at *1-2 (N.Y. Sup. Ct. March 21, 2007) ("Edwards 2007"). The petitioner did not learn of the

PRS component of his sentence until sometime after September 18, 2002, when he received a notice from DOCS. 969416, at *2. Edwards 2007, 2007 WL

Mr. Edwards claims that he did not know about the

PRS term until early 2006, at which time he wrote his sentencing judge asking for clarification. (Pet. at 14; Letter from L.

Shipman, New York County Supreme Court, to Darren Edwards (April 12, 2006), attached to Pet.). On November 8, 2006, having already appealed his conviction and sentence on other grounds, Mr. Edwards filed a motion pursuant

Although this section of the New York Penal Law was subsequently amended to allow different time periods of supervision for some crimes, those changes are irrelevant to this case. Because judges believed there was no need to pronounce these sentences since they were mandatory by operation of law, such an omission at sentencing was not uncommon. Edwards 2009, 23 Misc. 3d at 795, 872 N.Y.S.2d at 883; see also Earley v. Murray, 462 F.3d 147, 150 (2d Cir. 2006) ("Earley II"). 2
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to New York Criminal Procedure Law ("CPL") § 440.20 to set aside the PRS portion of his sentence. (Notice of Motion to Set Aside

Indictment No. 5588-01, attached as Exh. J to Declaration of Priscilla Steward dated Aug. 8, 2008 ("Steward Decl.")). He relied on the Second Circuit's decision in Earley v. Murray, which held that a criminal defendant's due process rights are violated by DOCS' administrative imposition of a PRS term. (2d Cir. 2006) ("Earley I"). On March 21, 2007, New York County Supreme Court Justice Marcy L. Kahn3 denied Mr. Edwards' motion. at *14. Edwards 2007, 2007 WL 969416, 451 F.3d 71, 75-76

Her opinion described in detail how New York State

appellate courts had been grappling with cases involving criminal defendants whose PRS terms had not been pronounced by judges at sentencing. Edwards 2007, 2007 WL 969416, at *3-8. She reasoned

that the petitioner's request for excision of his PRS term on statutory grounds must be denied because the Appellate Division, First Department had found that "the mandatory five-year period of [PRS] was automatically, and validly, imposed by operation of law under [Penal Law] § 70.45(1) at the time the judge pronounced his determinate prison sentence, resulting in an authorized, legal and valid sentence." Id. at *11. "Indeed," she wrote, "were this

Justice Stackhouse, who had sentenced Mr. Edwards, had been reassigned to another court before he had an opportunity to rule on the petitioner's § 440.20 motion. Edwards 2007, 2007 WL 969416, at *1 n.1. 3

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court to grant his motion, it would render his sentence illegal." Id. Justice Kahn, however, opined that Mr. Edwards likely had a

valid claim for violation of his constitutional right to due process based on the Second Circuit's decision in Earley I. at *12. Edwards' sentence Id.

She thus concluded that the proper remedy was to deny Mr. motion already and re-sentence this him time to the same determinate the

imposed, Id.

explicitly

imposing

mandatory PRS term.

at *12-14.

On May 15, 2007, Justice Kahn

re-sentenced the petitioner, who, along with his court-appointed counsel, vigorously objected to the proceeding.4 (May 15, 2007

Transcript ("5/15/07 Tr."), attached as Exh. S to Steward Decl., at 4-5, 16-17, 19-25). On December 20, 2007, Mr. Edwards, having exhausted his appeals in state court, filed this petition.

It is evident that the re-sentencing of Mr. Edwards was not only proper, but mandated, under both state and federal law. In Earley I, the Second Circuit found that administrative imposition of PRS violated due process and declared such PRS sentences "unlawful." 451 F.3d at 75-76 n.1. The court noted that the "appropriate remedy" for such violations would be re-sentencing, but left the New York courts to decide the means and scope of such relief. Id. at 76-77 n.2. On remand, the district court granted the petitioner's habeas petition but stayed the order "to permit the sentencing court to exercise its power to conform the sentence to the mandate of New York law." Earley v. Murray, No. 03 CV 3104, 2007 WL 1288031, at *3 (E.D.N.Y. May 1, 2007) ("Earley III"). A year later, in People v. Sparber, the New York Court of Appeals, having examined five cases in which PRS terms were not imposed on the record by the sentencing judge, held that the "sole remedy for a procedural error such as this is to vacate the sentence and remit for a resentencing hearing so that the trial judge can make the required pronouncement." 10 N.Y.3d 457, 471, 859 N.Y.S.2d 582, 588 (2008). 4

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Discussion The respondent contends that Mr. Edwards' petition should be dismissed on two grounds: (1) it is time-barred, and (2) it is moot because when the petitioner was re-sentenced, the PRS component was expressly included. A. Timeliness

The Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA") requires a state prisoner to initiate a habeas proceeding within one year of the latest of several triggering events. U.S.C. §§ 2244(d)(1)(A)-(D). See 28

Under 2244(d)(1)(A), the one-year

period begins on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." A judgment is not deemed final until both a Burton v.

petitioner's conviction and his sentence become final.

Stewart, 549 U.S. 147, 156-57 (2007); Ferreira v. Secretary, Department of Corrections, 494 F.3d 1286, 1292-93 (11th Cir. 2007); Mercado v. Lempke, No. 07 Civ. 9865, 2009 WL 2482127, at *9 (S.D.N.Y. March 20, 2009). "When a sentence is corrected by

amendment or resentencing, it is the final, corrected sentence that constitutes period." the judgment for purposes of AEDPA's limitation

Mercado, 2009 WL 2482127, at *9 (citing Burton, 549 U.S. Such a rule applies no matter how long it has been Id. (citing Walker v.

at 156-57).

since the original sentence was imposed.

Perlman, 556 F. Supp. 2d 259, 262-63 (S.D.N.Y. 2008)).

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In this case, Mr. Edwards' judgment became final on May 15, 2007, when he was re-sentenced by Justice Kahn.5 On that date, his

request for leave to appeal Justice Kahn's March 21, 2007 order denying his § 440.20 motion and ordering a re-sentencing was pending before the Appellate Division. (Affidavit in Support of

Application to Justice of Appellate Division Certificate Granting Permission to Appeal to Appellate Division, attached as Exh. N to Steward Decl.). July 5, 2007. The First Department denied leave to appeal on People v. Edwards, 2007 WL 2780863, slip op. Mr. Edwards then requested

78942(U) (1st Dep't July 5, 2007).

leave to appeal to the New York Court of Appeals (Application Granting Certificate to Appeal to the Court of Appeals, attached as Exh. Q to Steward Decl.), but his application was denied on August 17, 2007. People v. Edwards, 9 N.Y.3d 875, 842 N.Y.S.2d 787

(Table) (2007). The AEDPA's statute of limitations is tolled while a properly filed application for state post-conviction or other

Although at the May 15, 2007 proceeding Justice Kahn appeared conflicted over whether the proceeding was a re-sentencing or simply a "clarification" of Mr. Edwards' sentence (5/15/07 Tr. at 14, 16), in a later opinion denying Mr. Edwards' challenge to his re-sentencing, she made clear ­- in light of Sparber, 10 N.Y.3d at 466-67, 859 N.Y.S.2d at 589-90 ­- that she had re-sentenced Mr. Edwards. Edwards 2009, 23 Misc. 3d at 808, 872 N.Y.S.2d at 893 ("[T]he fact that [this] court, then facing controlling decisional law holding that post-release supervision had already been imposed by operation of law . . ., characterized the proceeding as a `clarification' of [Mr. Edwards'] sentence rather than a `resentencing,' constituted at most, an error in nomenclature, as opposed to one in substance entitling defendant to a further resentencing proceeding under Sparber []."). 6

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collateral review is pending.

Desrosiers v. Phillips, No. 05 CV Thus, the

2941, 2007 WL 2713354, at *1 (E.D.N.Y. Sept. 13, 2007).

statute of limitations here began to run on August 17, 2007, when the petitioner exhausted all appeals from the denial of his § 440.20 motion. Therefore, when Mr. Edwards filed his petition on

December 20, 2007, it was timely. B. Mootness Article III, Section 2 of the United States Constitution limits the federal courts to cases that present a "case or

controversy."

See ABN Amro Verzekeringen BV v. Geologistics Thus, a case

Americas, Inc., 485 F.3d 85, 94 (2d Cir. 2007).

should be dismissed as moot "`when the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome.'" County of Los Angeles v. Davis, 440 U.S. 625, 631

(1979) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)). Mr. Edwards' claim is no longer live. He asserts a violation

of his due process rights as a result of DOCS' administrative imposition of PRS. of PRS by a However, he has since been sentenced to a term Presented with virtually identical

judge.

circumstances, the United States District Court for the Eastern District of New York found a habeas petitioner's challenge to his PRS term to be moot "because the procedurally infirm term of postrelease supervision had been lifted, the matter was remitted to the trial court, and the trial court properly re-sentenced Petitioner

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