Cimino v. Conway

Filing 12

DECISION AND ORDER DENYING PETITIONER'S REQUEST FOR A WRIT OF HABEAS CORPUS AND DISMISSING THE PETITION. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 2/27/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

RAYMOND CIMINO,
Petitioner,

No. 6:16-cv-06189-MAT
DECISION AND ORDER

-vsJAMES T. CONWAY, Superintendent,
Attica Correctional Facility,
Respondent.

I.

Introduction
Represented by counsel, Raymond Cimino (“Petitioner”) seeks a

writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the basis
that

he

is

being

unconstitutionally

detained

in

Respondent’s

custody pursuant to an illegally enhanced sentence.
II.

Factual Background and Procedural History
A.

The Underlying Conviction and Persistent Felony Offender
Application

Following a jury trial in Monroe County Supreme Court (Mark,
J.), a verdict was returned on July 31, 2002, convicting Petitioner
of two counts of attempted aggravated assault on a police officer
(New York Penal Law (“P.L.”) §§ 110.00, 120.11), and three counts
of first-degree reckless endangerment (Id. § 120.25), as charged in
Indictment #0569/2001.

B.

The Persistent Felony Offender Hearing

The prosecution subsequently filed an application requesting
that

the

trial

court

exercise

its

discretion

to

find

that

Petitioner was a persistent felony offender (“PFO”) pursuant to
New York Penal Law (“P.L.”) § 70.10. At the hearing1 on October 25,
2002, the prosecution offered proof of five predicate felony
convictions: an April 25, 1980 conviction in Monroe County Court
for Attempted Burglary in the Third Degree for which he was
sentenced to 1 year in Monroe County Jail; an April 9, 1991
conviction in Monroe County Court for Burglary in the Third Degree
for which he was sentenced to 2 to 4 years “DOC” (i.e., state
prison); an October 18, 1991 conviction in Erie County Court for
Burglary in the Third Degree for which he was sentenced to 1 1/3 to
4 years in state prison; a February 2, 2000 conviction in Monroe
County Court for Criminal Possession of Stolen Property in the
Fourth Degree for which he was sentenced to 1 1/2 to 3 years in
state prison; and a November 30, 2000 conviction for Grand Larceny
in the Fourth Degree in Monroe County Court for which he was

1

The procedure by which a judge determines whether to impose a PFO sentence
in a particular case is set forth in New York Criminal Procedure Law (“C.P.L.”)
§ 400.20. Pursuant to that provision, the prosecution must first prove beyond a
reasonable doubt that the defendant is a PFO—that is, that he has previously been
convicted of two or more qualifying felonies—before an enhanced sentence is
authorized. See N.Y. CRIM. PROC. LAW § 400.20(1), (5). The court is also directed
to engage in a second inquiry, that is, to assess whether a PFO sentence is
warranted before imposing such a sentence, taking into consideration the “history
and character” of the defendant and the “nature and circumstances of his criminal
conduct.” Id.

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sentenced to 2 to 4 years in state prison. (See Persistent Felony
Offender Information;2 H.8-9).3
On November 7, 2002, at the conclusion of the PFO hearing,
Justice Mark issued a ruling on the record, finding that Petitioner
“is adjudicated a [PFO] based on his [having] at least five prior
felony

convictions

and

his

conviction

for

the

present

five

felonies. . . .” At sentencing on November 7, 2002, Justice Mark
sentenced him to 16 years to life on the attempted aggravated
assault convictions,

and

10

to

12

years on

the

first-degree

reckless endangerment convictions, those sentences to be served
concurrently.
On November 8, 2002, the parties appeared before Justice Mark
again, who noted that they had utilized the incorrect sentencing
scheme, resulting in an illegal sentence. Accordingly, Justice Mark
issued a corrected sentence, consisting of 15 years to life on each
of the five convictions, those sentences to be served concurrently.
C.

The First Four Motions to Vacate and the Direct Appeal

Prior to perfecting his direct appeal, Petitioner filed three
pro se motions to vacate the conviction pursuant to New York

2

The Persistent Felony Offender Information (“PFO Information”) was
attached as Exhibit (“Ex.”) C to Petitioner’s July 2014 Motion to Vacate, and has
been submitted as part of Respondent’s Appendix of Exhibits (“Resp’t App.”) as
App. A.
3

References to “H.” in parentheses refer to pages from the transcript of the
PFO hearing held on October 25, 2002, in New York State Supreme Court, Monroe
County, before Justice Donald Mark. The transcript was attached as Ex. B to
Petitioner’s July 2014 Motion to Vacate (Resp’t App. A).

-3-

Criminal Procedure Law (“C.P.L.”) § 440.10, all of which were
unsuccessful.
On March 14, 2008, The Appellate Division, Fourth Department,
unanimously affirmed the conviction, and leave to appeal to the
New York Court of Appeals was denied. See People v. Cimino, 49
A.D.3d 1155 (4th Dep’t), lv. denied, 10 N.Y.3d 861 (2008).
Petitioner then filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, which was denied by this Court on
March 2, 2011. See Cimino v. Conway, No. 08–CV–6318 (MAT), 2011 WL
815677 (W.D.N.Y. Mar. 2, 2011), cert. denied sub nom., Cimino v.
Bradt, 132 S. Ct. 1716 (2012).
In

December

of

2012,

while

Petitioner’s

petition

for

certiorari was pending before the United States Supreme Court, he
filed his fourth C.P.L. § 440.10 motion. The Monroe County Supreme
Court (Renzi, J.) denied the motion on February 24, 2013.
D.

The Fifth Motion to Vacate

On November 8, 2013, Petitioner filed his fifth pro se motion
to vacate in Monroe County Supreme Court (Renzi, J.), seeking to
have his PFO sentence set aside under C.P.L. § 440.20. According to
Petitioner, at the time of his sentencing in 2002, he did not have
at least two prior felony convictions for which sentences of
imprisonment in excess of one year were imposed, contrary to the
requirements of P.L. § 70.10. In particular, Petitioner maintained
that his Monroe County Court convictions for Criminal Possession of

-4-

Stolen Property in the Fourth Degree and Grand Larceny in the
Fourth Degree each resulted in Petitioner being sentenced to the
Willard Campus drug treatment program, from which he was released
to parole before serving one year. Therefore, Petitioner argued,
Justice Mark’s use of the 2000 convictions in connection with the
PFO adjudication was improper.
Justice

Renzi

noted

that

New

York

state

courts

have

consistently held that for purposes of Section 70.10, “it is
immaterial whether a defendant actually served a sentence in excess
of one year.” February 24, 2015 Order Denying C.P.L. § 440.20
Motion

(“2/24/15

Order”)

at

3

(collecting

cases).

Therefore,

Justice Renzi found, even though Petitioner “apparently served less
than one year on his 2000 convictions due to his placement in the
Willard drug

treatment

program,

there

is no

question

he

was

sentenced to terms in excess of one year (1 1/2 to three years on
February

2,

2000,

and

2

to

4

years

on

November

30,

2000,

respectively).” (2/24/14 Order at 3). Justice Renzi noted that
Petitioner violated his parole in June 2000, following his “first
[Willard] sentence”, and received his “second Willard sentence in
November 2000.” (2/24/14 Order at 4). Nevertheless, Justice Renzi
found, “each sentence imposed was in excess of one year.” (Id.). To
the extent that Petitioner argued that he was “not incarcerated in
a prison facility for either sentence in 2000 prior to his arrest
for the offenses underlying this motion. . ., and that those

-5-

felonies do not count for persistent felony purposes,” Justice
Renzi

rejected

that

argument

because

New

York

courts

have

“interpreted the legislative intent behind . . . P.L. § 70.10 . .
. as not precluding the use of sentences which exceed one year, but
which are comprised primarily of a drug-treatment or reformatory
component.” (Id.) (collecting cases)).
E.

The March 13, 2014 Vacatur of the 2000 Fourth-Degree
Grand Larceny Conviction

In 2013, Petitioner moved for vacatur of his 2000 fourthdegree grand larceny conviction in Monroe County

Court on the

ground that it was illegal to sentence him to the Willard Drug
Treatment Campus because he had already participated in the program
and did not qualify for admission to the program a second time. The
backgrounds facts relative to this motion are as follows:
On July 9, 1999, Petitioner pled guilty to Criminal Possession
of Stolen Property in the Fourth Degree in Monroe County Court, and
was sentenced, on February 2, 2000, to an indeterminate term of
imprisonment of one and one-half to three years, with a maximum
expiration date of January 13, 2003. Petitioner was released to
parole supervision on June 6, 2000, and never received an early
termination of that parole term.
Less than a month after being released to parole on the 1999
stolen property conviction, Petitioner pled guilty, on July 11,
2000, to one count of Grand Larceny in the Fourth Degree (P.L.

-6-

§ 155.30(1))4 and one count of Driving While Intoxicated (“DWI”)
(misdemeanor) (New York Vehicle and Traffic Law § 1129(3)) in
Monroe County Court. On November 30, 2000, he was adjudicated a
second

felony

offender

and

sentenced,

on

the

grand

larceny

conviction, to an indeterminate term of imprisonment of two to four
years with participation in the Willard Drug Treatment Program,
pursuant to C.P.L. § 410.91. He received a one-year conditional
discharge for the DWI conviction.
The

prosecutor

agreed

that

Petitioner’s

sentence

on

the

November 30, 2000 fourth-degree grand larceny conviction should be
vacated, since, at the time of the conviction, he was subject to an
undischarged term of imprisonment, namely, his term of parole
supervision

on

the

February

2,

2000

fourth-degree

criminal

possession of stolen property conviction. Therefore, under C.P.L.
§ 410.91(2), Petitioner was not eligible for sentencing to a drug
treatment program, and his sentence on the grand larceny conviction
was

unauthorized.

prosecutor

argued

See
that

N.Y.

CRIM. PROC. LAW

“[a]n

order

setting

§

410.91(2).5

aside

a

The

sentence

pursuant to [CPL § 440.20] does not affect the validity or status
of the underlying conviction, and after entering such an order the

4

This felony conviction was referenced in the prosecution’s PFO Information,
see Resp’t App. A.
5

“A defendant is an ‘eligible defendant’ for purposes of a sentence of
parole supervision when such defendant is[, inter alia,] . . . not subject to an
undischarged term of imprisonment.” N.Y. CRIM. PROC. LAW § 410.91(2).
-7-

court must re-sentence the defendant in accordance with the law[.]”
N.Y.

CRIM.

PROC.

LAW

§

440.20(3).

The

prosecutor

noted

the

appropriate sentencing range was an indeterminate sentence having
a minimum of one and one-half to three years and a maximum of two
to four years.
On March 13, 2014, Monroe County Court Judge Vincent M.
Dinolfo granted Petitioner’s motion and vacated the 2000 fourthdegree grand larceny conviction. Petitioner

withdrew his guilty

plea, immediately pled guilty to the same charge, and was resentenced, as a second felony offender, to an indeterminate term of
imprisonment of one and one-half to three years in prison.
F.

The Sixth Motion to Vacate

On July 10, 2014, Petitioner filed his sixth pro se motion to
vacate pursuant to C.P.L. §§ 440.10 and 440.20 in Monroe County
Supreme Court (Renzi, J.), asserting that trial counsel provided
ineffective assistance by giving deficient advice concerning an
alleged

plea

offer

regarding

the

charges

under

Indictment

#0569/2001 (two counts of attempted aggravated assault on a police
officer and three counts of first-degree reckless endangerment) of
which he was convicted following a jury trial in 2002, by failing
to challenge the constitutionality of the guilty plea resulting in
the now-vacated fourth-degree grand larceny conviction, and by
failing

challenge

the

sentencing

court’s

alleged

use

of

Petitioner’s “[s]entence(s) to Parole Supervision” in determining

-8-

that

Petitioner

is

a

PFO.

In

a

decision

and

order

dated

November 13, 2014, Justice Renzi denied the first two claims on the
merits, and denied the third claim as repetitive of the claim
raised in the November 2013 motion to vacate, and lacking merit for
the same reasons stated in the February 2014 order.
G.

The Seventh Motion to Vacate

In motion papers dated February 26, 2015, Petitioner moved,
pursuant to C.P.L. § 440.20 in Monroe County Supreme Court (Renzi,
J.), to set aside the PFO sentence imposed following his 2002
conviction, under Indictment #0569/2001, to two counts of attempted
aggravated assault on a police officer (P.L. §§ 110.00, 120.11),
and

three

counts

of

first-degree

reckless

endangerment

(Id.

§ 120.25). Petitioner argued that his trial counsel was ineffective
for having failed to challenge the constitutionality of his 2000
fourth-degree grand larceny conviction at his PFO hearing, and that
he was prejudiced because that 2000 conviction was used as a
predicate felony for purposes of P.L. § 70.10. Petitioner argued
that the 2014 vacatur of the 2000 fourth-degree grand larceny
conviction

renders

it

a

nullity

for

purposes

of

it

being

a

predicate felony under P.L. § 70.10 for the PFO sentence imposed in
2002. In other words, Petitioner claimed, because the second
sentencing (and by extension, the conviction) on the fourth-degree
grand larceny charge occurred in 2014, after the PFO sentence was

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imposed in 2002, the fourth-degree grand larceny conviction cannot
be a predicate felony.
The prosecution argued that trial counsel was not ineffective
because, in 2002, there was no viable constitutional challenge to
the 2000 fourth-degree grand larceny conviction. The prosecutor
also argued that the effective date of the fourth-degree grand
larceny conviction, for purposes of using it as a predicate under
P.L. § 70.10, remains 2000, and not 2014, when Judge Dinolfo
vacated

that

conviction

and

resentenced

Petitioner.

Both

the

prosecutor and Petitioner argued that People v. Acevedo, 17 N.Y.3d
297 (2011), supported their respective positions.
In

an

order

dated

May

28,

2015,

Justice

Renzi

denied

Petitioner’s motion based on his interpretation of Acevedo, which
he recognized was a decision by a divided court (6-1), lacking a
single rationale establishing a majority (two judges concurred with
the main decision, and three judges joined in a concurrence of the
result).

Justice Renzi focused on the Chief Judge Lippman’s

criticism of the defendants’ “purpose[, which] was, by means of
vacatur and resentence, to render their prior convictions useless
as

predicates

to

enhance

punishment

for

the

crimes

they

subsequently committed.” Acevedo, 17 N.Y.3d at 303. “Resentence[,]”
the chief judge noted, “is not a device appropriately employed
simply to alter a sentencing date and thereby affect the utility of
a

conviction

as

a

predicate

for

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the

imposition

of

enhanced

punishment.”

Id.6

In

short,

Justice

Renzi

determined

that

Petitioner’s predicate sentencing date for purposes of his PFO
status is “that which occurred in 2000, and not the resentence
which occurred in 2014.”
H.

Additional Motions to Vacate

Petitioner apparently filed at least one more motion to vacate
in

Monroe

County

Supreme Court

on

September 23,

2015,

again

challenging the validity of his PFO sentence. Justice Renzi denied
the motion on February 5, 2016. This is the last state court filing
in this matter of which the Court has been made aware. However,
neither Petitioner nor Respondent has provided the Court with
copies of this motion or the related decision denying it.

6

However, Chief Judge Lippman expressly noted that “[t]he present scenarios
afford no occasion to decide what effect a bona fide Sparber resentence, or any
resentence other than the ones before us, should have for predicate felony
purposes.” In neither of the cases on appeal in Acevedo was the appellant’s
conviction or sentence vacated, unlike in Petitioner’s case. Likewise,
Petitioner’s case does not present a Sparber resentencing of either the “bona
fide” or other variety. The position urged by Petitioner was adopted by one of
the Appellate Divisions in 2014. See People v. Esquiled, 121 A.D.3d 807, 808, 993
N.Y.S.2d 578, 579 (2d Dep’t 2014) (reversing second felony offender sentence
where “[t]he predicate for this adjudication was a 1993 conviction for which, the
parties agree, an illegal sentence was imposed. A lawful sentence on that
conviction was not imposed until after the instant crimes were committed. The
relevant statute provides, however, that for purposes of determining whether a
prior conviction is a predicate felony conviction, the sentence upon such prior
conviction ‘must have been imposed before commission of the present felony’.
Thus, the 1993 matter may not serve as a predicate felony conviction in the
instant case. We reach this determination notwithstanding the fact that the
defendant did not move to set aside his sentence in the 1993 matter until after
the sentence in the instant case was imposed, as ‘multiple offender status is
defined by the plain statutory language, which courts are not free to disregard’
at will”) (internal quotations and citaitons omitted), lv. denied, 25 N.Y.3d 1201
(2015), recons. denied, 26 N.Y.3d 967 (2015).

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I.

The Federal Habeas Petition

On December 23, 2015, Petitioner filed a pleading

in Cimino

v. Conway, No. 08-cv-06318, styled as a “motion to vacate and set
aside this Court’s prior order . . . under Rule 60(b)(5), (6) of
the Federal Rules of Civil Procedure” “on the sole ground” that his
“persistent felony offender adjudication is based upon a[n] earlier
judgment of conviction that his since been reversed.” Respondent
filed a Response on February 11, 2016, arguing that the Motion to
Vacate is actually a “second or successive” petition, which, under
28 U.S.C. § 2244(b)(2), requires permission from the Second Circuit
to file. Petitioner filed a Reply conceding that Rule 60(b) was not
the proper procedural vehicle for his claim, but argued that the
Motion to Vacate is not a “second or successive” petition and
requested that it be re-characterized as a Section 2254 petition.
The Court issued a Decision and Order finding that the Motion to
Vacate was not a second or successive petition, and that it should
re-characterized as a new Section 2254 petition. Accordingly, the
Court directed that the Motion to Vacate be filed as the initial
petition in this matter. Respondent answered the petition, and
Petitioner, through retained counsel filed a reply.
For

the

reasons

discussed

below,

the

Court

finds

that

Petitioner’s sentencing claim is not cognizable, to the extent that
it relies on the state courts’ interpretation of the PFO statute.
To the extent that Petitioner asserts a violation of due process in

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regards to his sentencing as a PFO, the Court finds that the claim
is unexhausted but may be denied under the authority of 28 U.S.C.
§ 2254(b)(2).
III. Discussion
A.

New York’s PFO Sentencing Scheme

Subject to certain exceptions, a PFO is defined as a “person,
other than a persistent violent felony offender . . . who stands
convicted of a felony after having previously been convicted of two
or more felonies.” N.Y. PENAL LAW § 70.10(1)(a). “A previous felony
conviction within the meaning of [Section 70.01(1)(a)] . . . is a
conviction of a felony in this state, or of a crime in any other
jurisdiction,

provided:

(i)

that

a

sentence

to

a

term

of

imprisonment in excess of one year . . . was imposed therefor;
(ii) that the defendant was imprisoned under the sentence for such
conviction prior to the commission of the present felony [for which
the enhanced sentence is sought]. . . .” N.Y. PENAL LAW § 70.10(b).
Once a defendant is determined to be a PFO, he may receive an
indeterminate sentence corresponding to potential sentence for a
class A–I felony, which must have a minimum range of between 15 to
25 years, and a maximum of up to life in prison. See N.Y. PENAL LAW
§§ 70.10(2); 70.00(3)(a)(i).7

7

In Petitioner’s case the effect of PFO status was to increase his
sentencing exposure from a 15-year determinate sentence on his various 2002
convictions to an indeterminate sentence of at least 15 years to life.

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B.

Petitioner’s Arguments

Petitioner argues that the prosecutor “false[ly]” claimed, in
the PFO Information, that he had five qualifying prior felony
convictions prior to the date of 2002 conviction. While it does not
appear that the contents of the PFO Information are false, the
Court agrees that the prosecutor and original sentencing court
misapplied New York State law in finding that Petitioner had five
prior felonies that qualified under P.L. § 70.10, a challenge that
was not made by Petitioner’s trial counsel at the time.
The first felony listed in the PFO Information is an April 25,
1980 conviction in Monroe County Court for Attempted Burglary in
the Third Degree for which he was sentenced to 1 year in Monroe
County Jail. However, “[b]ecause the sentence was not in excess of
one year, that conviction could not be considered a previous felony
for the purpose of adjudicating the defendant a persistent felony
offender.” People v. Melero, 182 A.D.2d 839, 839, 582 N.Y.S.2d 795,
796 (2d Dep’t 1992) (finding that 1972 conviction for fourth-degree
criminal possession of dangerous drugs which resulted in a term of
imprisonment of one year could not serve as a previous felony for
purposes of adjudicating the defendant a PFO).
Petitioner next argues that the second and third felonies in
the PFO Information can only count as one predicate felony because
“both offenses took place before [Petitioner] was sentenced on
either of them.” (Dkt #11 at 3). See People v. Morse, 62 N.Y.2d

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205, 215 (1984) (holding that the “Legislature intended that the
two or more predicate violent felony offenses required under the
persistent
enhanced

violent

punishment

felony
under

offender
that

law

as

the

predicate

statute

be

determined

.

for
.

.

sequentially (i.e., so that the second offense, to be counted as a
predicate, must be committed after sentence was imposed on the
first)”). Here, the second felony is an April 9, 1991 conviction in
Monroe County Court for Burglary in the Third Degree for which he
was sentenced to 2 to 4 years in prison, and the third is an
October 18, 1991 conviction in Erie County Court for Burglary in
the Third Degree for which he was sentenced to 1 1/3 to 4 years in
prison. It appears, based on the Court’s review of the Criminal
History Record Information from the New York State Division of
Criminal Justice Services (“NYSDCJS Report”), that the offense
underlying the third (i.e., Erie County Court) conviction was
committed on January 31, 1991, which was before the sentence was
imposed on the second (i.e., Monroe County Court) conviction.
With regard to the fourth conviction in the PFO Information
was a

February 2, 2000 conviction in Monroe County Court for

Criminal Possession of Stolen Property in the Fourth Degree,
Petitioner argues that he did not serve a qualifying sentence of
incarceration in state prison. Instead, Petitioner states, he was
sentenced to “immediate parole supervision” under C.P.L. § 410.91,
which allows an eligible defendant to be given an indeterminate

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term of imprisonment which is then served under parole supervision
for 90 days at an intensive drug treatment facility operated by
New York State Department of Corrections and Community Supervision
(“DOCCS”) (in Petitioner’s case, the Willard campus). The records
submitted to the Court bear this out. While the PFO Information
states that he was sentenced to “1 1/2 to 3 DOC,” presumably, 1 1/2
to 3 years in

the custody of, review of the NYSDCJS Report

indicates as follows: “SENT

18 months - 3 years SENTENCED ON 02-

02-00.” However, farther down in that entry, under “Penal/Parole
Data,” it states as follows: “02-02-00 SENTENCED TO PAROLE.”
Finally, Petitioner argues that the fifth conviction in the
PFO Information, and a November 30, 2000 conviction for Grand
Larceny in the Fourth Degree in Monroe County Court, likewise
resulted in release to immediate parole supervision to Willard. The
Court has reviewed the NYSDCJS Report, which indicates that he was
sentenced on “11-30-00.” to “PAROLE SUPERVISION SENTENCE SENT 2
YEARS - 4 YEARS.” Petitioner also argues that the fifth conviction
cannot constitute a predicate felony because that conviction and
the resulting sentence were vacated in March 2014, see Section
II.E, supra. Even though he pled guilty to the same charge and
received a legal sentence, the new conviction and re-sentence
cannot be considered predicates they violates the sequentiality
requirement of P.L. § 70.10 insofar as they post-date the 2002
convictions on which the PFO sentence was imposed.

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C.

Habeas Relief Is Unavailable for a Misapplication of the
PFO Statute

Even assuming that Petitioner is correct that he only had one
qualifying predicate felony conviction at the time he was sentenced
as a PFO, and that the sentencing judge misapplied the PFO statute,
he cannot obtain habeas relief on this basis alone. “[A] district
court shall entertain an application for a writ of habeas corpus in
behalf of a person in custody pursuant to the judgment of a State
court only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C.
§

2254(a).

Habeas

relief

is

further constrained

by

the 1996

amendments to 28 U.S.C. § 2254, which now provides that
(d) [a]n application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment of
a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim--(1)
resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States; or (2) resulted in a decision that was
based on an unreasonable determination of the facts in
light of the evidence presented in the State court
proceeding.
28 U.S.C. § 2254(d) (emphases supplied).
Here, Petitioner’s claim regarding his PFO sentence has been
adjudicated on the merits, multiple times, by the state courts.
Habeas

relief

is

unavailable

under

the

plain

terms

of

Section 2254(d)(1), because the state courts never applied “clearly
established” Supreme Court precedent in adjudicating his sentencing

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claim. Although Petitioner’s habeas counsel did not raise an
argument under Section 2254(d)(2), i.e., that the sentencing judge
unreasonably determined the facts when arriving at his ruling on
Petitioner’s PFO status. However, the Court considered such an
argument but found that it has been rejected by the Second Circuit,
albeit in an unpublished decision. See Saracina v. Artus, 452 F.
App’x 44, 46 (2d Cir. 2011) (unpublished opn.). The Second Circuit
found

unavailing

a

habeas

petitioner’s

argument

that

he

was

entitled to relief under Section 2254(d)(2) on the basis that “the
state court made an unreasonable factual determination Whether a
New York court erred in applying a New York recidivist sentencing
enhancement

statute[,]”

because

that

involved

“a

question

of

New York State law, not a question of fact.” Saracina, 452 F. App’x
at 46.

The Second Circuit rejected the claim as non-cognizable

since “it is well-established that ‘[i]t is not the province of a
federal habeas court to reexamine state-court determinations on
state-law questions.’” Id. (quoting Estelle v. McGuire, 502 U.S.
62, 67–68 (1991)).
B.

Petitioner’s Due Process Claim Is Unexhausted and Without
Merit

Petitioner also argues that the state court’s use of his 2000
fourth-degree grand larceny conviction deprived him of due process
under the United States Constitution because the sentence in that
case was illegal from the outset, and because both the conviction
itself and the sentence were vacated in 2014. (See Petitioner’s
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Reply at 11). However, Petitioner never framed his sentencing claim
as a federal due process violation, and therefore never presented
the federal constitutional nature of the claim to the state courts,
which means he has not fulfilled the exhaustion requirement. See
Daye v. Attorney Gen. of the State of N.Y., 696 F.2d 186, 190-91
(2d Cir. 1982) (en banc); 28 U.S.C. § 2254(b)(1), (c). This claim
could still be raised via a C.P.L. § 440.20 motion and, therefore,
the

claim

is

not

procedurally

barred.

E.g.,

Ford

v.

Smith,

No. 12CIV8993VBLMS, 2016 WL 7647042, at *7 (S.D.N.Y. Aug. 8, 2016),
rep. and rec. adopted, No. 12 CV 8993(VB), 2017 WL 27982 (S.D.N.Y.
Jan. 3, 2017). Petitioner has not recognized that the due process
claim is unexhausted, and has not asked for a stay of the petition
to allow him to exhaust this claim. The Court finds that it would
be an abuse of its discretion to grant a stay, in any case, because
Petitioner cannot possibly demonstrate “good cause” for failing to
exhaust the due process claim sooner, and the claim is plainly
lacking

in

merit.8

The

Court

accordingly

will

exercise

its

statutory authority to consider the claim’s merits. See 28 U.S.C.
§ 2254(b)(2) (“An application for a writ of habeas corpus may be

8

Under Rhines v. Weber, 544 U.S. 269 (2005), a stay and abeyance to allow
the petitioner to exhaust his unexhausted claims may be appropriate, where (1)
the petitioner had good cause for his failure to exhaust; (2) the unexhausted
claims are potentially meritorious; and (3) there is no indication that the
petitioner engaged in intentionally dilatory litigation tactics. See 544 U.S. at
278. All three elements have to be met. See id. A district court should not
grant a habeas petitioner a stay and abeyance in a proceeding involving a mixed
petition of exhausted and unexhausted claims when the petitioner’s unexhausted
claims are “plainly meritless.” Id.

-19-

denied on the merits, notwithstanding the failure of the applicant
to exhaust the remedies available in the courts of the State.”);
see also Ford, 2016 WL 7647042, at *7 (considering merits of
unexhausted claim that petitioner was adjudicated a persistent
violent

felony

offender

in

violation

of

New

York

State’s

sequentiality rules with respect to prior convictions because it
was “plainly meritless”).
A defendant has certain due process rights during sentencing.
Torres v. United States, 140 F.3d 392, 404 (2d Cir. 1998). The
Second Circuit has explained that due process “requires . . . that
a

defendant

not

be

sentenced

based

on

materially

false

information,” id. (citing Townsend v. Burke, 334 U.S. 736, 740–41
(1948); that a defendant “be given notice and an opportunity to
contest the facts upon which the sentencing authority relies in
imposing the sentence,” id. (citing Townsend, 334 U.S. at 741; and
that

a

defendant

“not

be

sentenced

based

on

a

material

misapprehension of fact,” id. (citing United States v. McDavid, 41
F.3d 841, 843–44 (2d Cir. 1995) (in turn citing Townsend, 334 U.S.
at 741). As discussed below, Petitioner “has not demonstrated any
of these violations and thus has failed to show a deprivation of
due process.” Dewall v. Superintendent, Mohawk Corr. Facility,
No. 05 Civ. 5583(NGG)(RLM), 2008 WL 3887603, at *13 (E.D.N.Y.
Aug. 20, 2008); accord Ford v. Smith, 2016 WL 7647042, at *8.

-20-

The sentencing court was not provided with “materially false”
information. Petitioner concedes that in addition to the PFO
Information which Petitioner claims was misleading, the NYSDCJS
Report was before the sentencing court. Indeed, the transcripts of
the PFO hearing and sentencing hearing indicate that the sentencing
court was aware that Petitioner had been sentenced to the Willard
drug treatment program

in connection with two of his prior felony

convictions. At sentencing on November 2, 2002, Justice Mark noted
that Petitioner “was committed to Willard Drug Treatment facility
on two occasions and this did not affect his drug addiction.”
Petitioner was represented by counsel during the PFO hearing
and sentencing. The transcripts of the sentencing proceedings
demonstrate that he clearly was given notice given notice and an
opportunity to contest the facts upon which Justice Mark relied in
adjudicating him a PFO and sentencing him as such.
Nor

did

the

sentencing

court

“misapprehend

the

facts.”

Contrast with McDavid, 41 F.3d at 844 (reversing sentence on direct
appeal of criminal conviction where record reveal the sentencing
judge’s “erroneous belief that McDavid was on probation at the time
he committed the credit card frauds. When McDavid and his counsel
tried to address the error, Judge Spatt silenced them. . . Judge
Spatt’s

mistaken

belief

was

material”).

It

may

be

that

the

sentencing court misapplied the law based on its apprehension of
the facts, but, as noted in Saracina, supra, that would be a

-21-

misapprehension of state law, which is not cognizable on federal
habeas review.
IV.

Conclusion
For the foregoing reasons, Petitioner’s request for a writ of

habeas corpus is denied, and the petition (Dkt #1) is dismissed
with prejudice. Because Petitioner has not made a “substantial
showing of the denial of a constitutional right” pursuant to 28
U.S.C. § 2253(c)(2), no certificate of appealability shall issue.
SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
DATED:

February 27, 2017
Rochester, New York