Dove v. York County, PA et al

Filing 36

MEMORANDUM (Order to follow as separate docket entry) re 1 Petition for Writ of Habeas Corpus filed by Ronald A. Dove Signed by Honorable Malachy E Mannion on 11/15/13. (bs) (Additional attachment(s) added on 11/15/2013: # 1 Unpublished Opinion(s), # 2 Unpublished Opinion(s)) (bs).

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Only the Westlaw citation is currently available.
United States District Court, D. New Jersey.
Robert KNIGHT, Plaintiff,
v.
Howard L. BEYER, et al., Defendants.
CIV. No. 88–3180 (CSF).
June 22, 1989.
Robert Knight, # 73430, plaintiff, pro se.
Peter N. Perretti, Jr., Attorney General of New Jersey by
Arthur S. Safir, DAG, Trenton, N.J., for defendants.
OPINION
CLARKSON S. FISHER, Senior District Judge.
*1 This matter comes before the court on a petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The petitioner, Robert G. Knight, is presently incarcerated
in the New Jersey state prison in Trenton, New Jersey.
On November 29, 1982, the Monmouth County
Grand Jury returned Indictment No. 268–82 against the
petitioner. The indictment included the following offenses:
eight counts of first-degree aggravated sexual assault; one
count each of first-degree kidnapping, third-degree
criminal restraint, second-degree attempted aggravated
sexual assault, first-degree armed robbery and third-degree
terroristic threats. On December 6, 1982, the petitioner
pled not guilty to all fourteen counts; however, on January
18, 1983, petitioner changed his plea to guilty to three
counts of first-degree aggravated sexual assault and one
count of first-degree armed robbery. The State moved to
dismiss all other counts.
On April 8, 1983, petitioner was sentenced to three
concurrent twenty-year terms, with a minimum parole of
ten years on each of the three first-degree aggravated
sexual assault counts, and for a term of sixteen years, with
a minimum parole of eight years on the count of
first-degree armed robbery, to run consecutively with the

former counts. In total, petitioner was sentenced to 36
years, with 18 years of parole ineligibility. On February
28, 1985, the Superior Court of New Jersey, Appellate
Division, affirmed petitioner's conviction. On May 7,
1985, the Supreme Court of New Jersey denied his
petition for certification. Petitioner filed the instant
petition for a writ of habeas corpus on July 18, 1988.
Petitioner alleges the following three grounds as a
basis for granting federal habeas relief: 1) Petitioner is
being put in double jeopardy by the imposition of multiple
convictions for the same offense; 2) The sentencing court
erred by not committing defendant to the Adult Diagnostic
and Testing Center (the “ADTC”) for specialized
treatment as per the Center's recommendation; and 3) The
sentence imposed is manifestly excessive and violates the
eighth amendment prohibition against cruel and unusual
punishment, and deviates from the New Jersey sentencing
guidelines.FN1
It is well settled that before a court may reach the
merits of a habeas corpus petition, a petitioner must
demonstrate that he has exhausted all of his state remedies.
Rose v. Lundy, 455 U.S. 509, 516–17 (1982). The
exhaustion doctrine is firmly grounded on principles of
comity. Id. Thus, while collateral review of state court
convictions is recognized as necessary to safeguard
against unconstitutional losses of liberty, “minimization of
friction between the federal and state systems, and ... the
maintenance of the constitutional balance upon which the
doctrine of federalism is founded” are also a concern.
Stone v. Powell, 428 U.S. 465, 491 n. 31 (1976); Zicarelli
v. Gray, 543 F.2d 466, 472 (3d Cir.1976).
Compliance with the exhaustion doctrine mandates
that the petitioner show that the federal claims now
presented in federal court were first presented to the
highest court of the state, so that it has the “ ‘opportunity
to pass upon and correct’ alleged violations of its
prisoners' federal rights.” Picard v. Connor, 404 U.S. 270,
275 (1971); Santana v. Fenton, 685 F.2d 71, 73 (3d
Cir.1982), cert. denied, 459 U.S. 1115 (1983). In
determining whether the petitioner's claims were “fairly

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presented” to the state courts, the federal habeas corpus
court is required to conduct a searching scrutiny of “the
points that were raised in the state tribunals, in order to
ensure that the state system was granted a fair opportunity
to confront arguments that are propounded to the federal
courts.” Zicarelli v. Gray, 543 F.2d at 472.
*2 After a careful review of the record and of the
briefs submitted to the New Jersey Appellate Division, the
court is satisfied that petitioner has exhausted his state
remedies by presenting to the highest state court the
identical grounds upon which he now seeks habeas corpus
relief. The Appellate Division affirmed the conviction,
finding the petitioner's grounds meritless. The Supreme
Court of New Jersey then denied his petition for
certification.
“State prisoners are entitled to relief on federal habeas
corpus only upon proving that their detention violates the
fundamental liberties of the person, safeguarded against
state action by the Federal Constitution.” Townsend v.
Sain, 372 U.S. 293, 312 (1963). Because a federal court
does not have any supervisory authority over state court
proceedings, it “may intervene only to correct wrongs of
constitutional dimension.” Smith v. Phillips, 455 U.S. 209,
221 (1982). Thus, “ ‘before a federal court may overturn
a conviction resulting from a state trial ... it must be
established not merely that the [state's action] is
undesirable, erroneous, or even “universally condemned,”
but that it violated some right which was guaranteed to the
defendant by the Fourteenth Amendment.’ ” Id. (quoting
Cupp v. Naughten, 414 U.S. 141, 146 (1973)).
In the instant case, petitioner pled guilty to three
counts of first-degree aggravated sexual assault (counts 1,
7 and 9) and one count of first-degree armed robbery
(count 11). The three counts of sexual assault charged
petitioner with committing several acts of sexual
penetration, i.e., vaginal intercourse, cunnilingus and
fellatio, during the commission and/or attempted
commission of a robbery, all in violation of N.J.Stat.Ann.
§ 2C:14–2a(3). Petitioner first contends that the
sentencing court erred by not merging the three counts of
aggravated sexual assault to which he pled guilty.
Specifically, petitioner argues that only one continuous act
of sexual assault occurred, and hence, he is being

subjected to double jeopardy by the imposition of three
sentences for the same act.
The fifth amendment to the Constitution provides, in
part, “[N]or shall any person be subject for the same
offense to be twice put in jeopardy of life or limb.” It is
now well settled that the fifth-amendment guarantee
against double jeopardy is enforceable against the states
through the fourteenth amendment. Benton v. Maryland,
395 U.S. 784, 794 (1969). It has been said that the
guarantee against double jeopardy consists of three
separate constitutional protections. “It protects against a
second prosecution for the same offense after acquittal. It
protects against a second prosecution for the same offense
after conviction. And it protects against multiple
punishments for the same offense.” North Carolina v.
Pearce, 395 U.S. 711, 717 (1969).
Here, petitioner was not subjected to multiple
prosecutions; therefore, only the third aspect, multiple
punishment, is implicated in this case. Multiple
punishment cases are further subdivided into “
‘double-description’ cases, in which the issue is whether
two statutes describe two separate offenses or are ‘merely
different descriptions of the same offense’ ” and “ ‘unit of
prosecution’ cases, [in which the issue is whether] a
defendant's continuing course of conduct is fragmented
into more than one violation of a single statutory
provision.” Tarrant v. Ponte, 751 F.2d 459, 461 n. 3 (1st
Cir.1985) (quoting Gore v. United States, 357 U.S. 386,
392 (1958); Callanan v. United States, 364 U.S. 587, 597
(1961)). The instant case falls within the latter
subcategory, “unit of prosecution” cases.
*3 In Missouri v. Hunter, the United States Supreme
Court set forth the narrow scope of the double jeopardy
clause in multiple punishment cases: “With respect to
cumulative sentences imposed in a single trial, the Double
Jeopardy Clause does no more than prevent the sentencing
court from prescribing greater punishment than the
legislature intended.” 459 U.S. 359, 366 (1983). Thus,
under current law, a multiple punishment analysis under
the double jeopardy clause is equated with an analysis of
the substantive criminal law. Gillespie v. Ryan, 837 F.2d
628, 632 (3d Cir.), cert. denied, ––– U.S. ––––, 109 S.Ct.
90 (1988). Since “[l]egislatures, not courts, prescribe the

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scope of punishments,” see Missouri v. Hunter, 459 U.S.
at 368, the focus of a double jeopardy inquiry in a “unit of
prosecution” case is on whether the legislature intended
that a continuing criminal episode be treated as a single
offense, for which only one punishment may be imposed,
or fragmented into multiple offenses, for which cumulative
punishment is permitted. Ashford v. Edwards, 780 F.2d
405, 406 (4th Cir.1985); United States v. Gomberg, 715
F.2d 843, 851 (3d Cir.1983), cert. denied, 465 U.S. 1078
(1984) (“ ... the propriety of cumulative punishment is
entirely a legislative matter”); see also Harrell v. Israel,
478 F.Supp. 752, 755 (E.D.Wis.1979).
Thus, the “question to be resolved is legislative intent....
If the [legislative] purpose can be discerned from the
language of the statute, its structure, or its legislative
history, then the inquiry is at an end.” United States v.
Gomberg, supra (citing Albernaz v. United States, 450
U.S. 333, 340 (1951)). In the instant case, petitioner was
indicted and pled guilty to three counts of first-degree
aggravated sexual assault under N.J.Stat.Ann. §
2C:14–2a(3). In relevant part, the statute provides:
a. An actor is guilty of aggravated sexual assault if he
commits an act of sexual penetration with another person
under any of the following circumstances:
(3) The act is committed during the commission, or
attempted commission ... of robbery....
N.J.Stat.Ann. § 2C:14–2a(3) (West Supp.1989). In
addition, “sexual penetration” is defined by the New
Jersey State Legislature as “vaginal intercourse,
cunnilingus, fellatio or anal intercourse....” N.J.Stat.Ann.
§ 2C:14–1c (West Supp.1989).
The court notes, at the outset, that the above statute
explicitly defines each act committed by petitioner (i.e.,
vaginal intercourse, cunnilingus and fellatio) to be an act
of penetration subject to punishment under N.J.Stat.Ann.
§ 2C:14–2a(3). Thus, on its face, the statute clearly
fragments the petitioner's criminal conduct into separate
and distinct offenses, each subject to punishment.
Moreover, in State v. Fraction, the Appellate Division of
the New Jersey Superior Court faced exactly the same
issue and concluded that, in enacting N.J.Stat.Ann. §§

2C:14–1c and 2a, the legislature did not intend to bar
multiple convictions for separate sexual offenses merely
because they are separated by a brief span of time. 206
N.J.Super. 532, 539 (App.Div.1985). The court found that
the defendant's two convictions for the separate acts of
vaginal intercourse and cunnilingus did not merge simply
because they constituted episodic fragments of a single
criminal transaction. 206 N.J.Super. at 536–39.
*4 It is clear, in these cases, that a state court's
interpretation of a state criminal statute is binding on a
federal court reviewing the merits of a habeas corpus
petition. Gillespie v. Ryan, 837 F.2d at 632 (“Absent
extraordinary circumstances, the state courts will have the
final word on the substantive criminal law.”); see also
Tarrant v. Ponte, 751 F.2d at 463–64; Thomas v. Warden,
Maryland State Penitentiary, 683 F.2d 83, 85 (4th Cir.),
cert. denied, 459 U.S. 1042 (1982); Harrell v. Israel, 478
F.Supp. at 755. In holding the merger doctrine
inapplicable to the defendant's dual convictions under
N.J.Stat.Ann. § 2C:14–2a, the Fraction court stated:
Although the crimes were reasonably proximate in
time and place, we perceive no justifiable basis to reward
defendant on that account by vacating one of the two
convictions. In our view, the victim suffered separate and
distinct insults to her dignity and defendant may be
punished separately for each of the offenses committed.
206 N.J. at 536. This court is not only bound by the
state court's finding in this regard; it is in complete
agreement. The petitioner herein should not be rewarded
with two “free crimes” merely because he violated the
victim's person three times within a short time span, rather
than on three occasions which are separated in time and
place. Petitioner's double jeopardy claim fails as a matter
of federal constitutional and New Jersey state law. FN2
In ground two, petitioner argues that the sentencing court
violated his right to due process by failing to commit him
to the ADTC in accordance with the Center's
recommendation. It is well settled that questions of state
substantive law are not a proper subject for federal habeas
corpus review. Wainwright v. Sykes, 433 U.S. 72, 81
(1977); Jones v. Superintendent of Rahway State Prison.
725 F.2d 40, 42–43 (3d Cir.1984). Sentencing is

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considered “ ‘a matter of state criminal procedure, and
does not fall within the purview of federal habeas corpus.’
” Johnson v. Beto, 383 F.2d 197, 198 (5th Cir.1967), cert.
denied, 393 U.S. 868 (1968) (quoting Wooten v. Bomar,
267 F.2d 900 (6th Cir.), cert. denied, 361 U.S. 888
(1959)). Thus, “[a]s a general rule, federal courts will not
review state sentencing determinations that fall within
statutory limits.” Williams v. Duckworth, 738 F.2d 828,
831 (7th Cir.1984), cert. denied, 469 U.S. 1229 (1985).
When only state law claims are presented, the above
rule applies, even though the petitioner's challenge to his
sentence is “couched in terms of due process or equal
protection.” Branan v. Booth, 861 F.2d 1507, 1508 (11th
Cir.1988) (quoting Willeford v. Estelle, 538 F.2d 1194,
1198 (5th Cir.1976). Therefore, absent an eighth
amendment claim, where the sentence imposed is within
the bounds set by state law, its alleged severity is not a
sufficient ground for habeas corpus relief. United States ex
rel. Sluder v. Brantley, 454 F.2d 1266, 1269 (7th
Cir.1972). Petitioner claims only that the failure of the
sentencing court to commit him to ADTC to serve his
sentence violates due process. Petitioner pled guilty to
four counts of first-degree offenses. In relevant part,
N.J.Stat.Ann. § 2C:43–6a states:
*5 A person who has been convicted of a crime may
be sentenced to imprisonment, as follows:
(1) In the case of a crime of the first degree, for a specific
term of years which shall be fixed by the court and shall
be between 10 years and 20 years.
N.J.Stat.Ann. § 2C:47–3a further provides that “if
[an] examination reveals that the offender's conduct was
characterized by a pattern of repetitive, compulsive
behavior, the court may, upon the recommendation of the
Adult Diagnostic and Treatment Center, sentence the
offender to the Center for a program of specialized
treatment....” (Emphasis added.)
Conceivably, petitioner could have been sentenced to
four consecutive 20–year terms to be served in state prison
under the relevant state sentencing statutes. Instead,
petitioner was sentenced to three concurrent 20–year terms
on the first-degree aggravated sexual assault counts and a

16–year term on the first-degree robbery count, to run
consecutively to the first term imposed, all to be served in
state prison. The language of N.J.Stat.Ann. § 2C:47–3a
clearly indicates that whether to commit a defendant to the
ADTC remains within the discretion of the court.FN3
Unless an issue of constitutional dimension is raised, this
court is without power to intervene. See Smith v. Phillips,
supra. It is clear to the court that petitioner's sentence is
well within the statutory bounds and, thus, does not raise
any cognizable federal issues. Therefore, it is not a proper
subject for federal habeas corpus review.
Last, petitioner contends that the sentence imposed
violates the constitutional prohibition against cruel and
unusual punishment under the eighth amendment and,
additionally, does not comport with the state's sentencing
guidelines. With regard to the eighth amendment's
proscription against cruel and inhuman punishment, the
United States Supreme Court has held “that a criminal
sentence must be proportionate to the crime for which the
defendant was convicted.” Solem v. Helm, 463 U.S. 277,
290 (1977). Nonetheless, the Court has also pointed out
that “ ‘outside the context of capital punishment,
successful challenges to the proportionality of particular
sentences [will be] exceedingly rare.’ ” Solem, 463 U.S. at
289 (quoting Rummel v. Estelle, 445 U.S. 263, 272
(1980)).
In Coker v. Georgia, the Court stopped short of
authorizing the death penalty for the crime of rape, but
stated:
We do not discount the seriousness of rape as a crime.
It is highly reprehensible, both in a moral sense and in its
almost total contempt for the personal integrity and
autonomy of the female victim and for the latter's privilege
of choosing those with whom intimate relationships are to
be established. Short of homicide, it is the “ultimate
violation of self.”
433 U.S. 584, 597 (1976). The Court further held
that “[r]ape is without doubt deserving of serious
punishment....” Similarly, in Edmund v. Florida, the Court
denied the death penalty for the crime of robbery, but
stated, “[w]e have no doubt that robbery is a serious crime
deserving serious punishment.” 458 U.S. 782, 797 (1982).

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In light of the fact that both rape and armed robbery are
crimes of a violent nature, and that petitioner had a prior
history of such assaults, the court holds that three
concurrent 20–year sentences for first-degree aggravated
sexual assault and one consecutive 16–year sentence for
first-degree armed robbery do not constitute cruel and
unusual punishment under the eighth amendment.
*6 Petitioner also contends that, in sentencing him,
the trial court failed to follow the New Jersey state
guidelines on sentencing, as outlined in the New Jersey
Code of Criminal Justice. While the severity of a sentence
imposed within the statutory limits is not subject to
judicial review on a habeas corpus petition, see Williams
v. Duckworth, supra, improprieties in the sentencing
procedure are cognizable when they rise to the level of
constitutional error. Shriner v. Wainright, 715 F.2d 1452,
1458 (11th Cir.1983), cert. denied, 465 U.S. 1051 (1984).
Other than the eighth amendment claim resolved above,
petitioner does not assert that any “constitutional
infirmity” existed in the sentencing process. Absent some
constitutional violation it is clear that, particularly in the
area of state sentencing guidelines, federal courts cannot
review a state's alleged failure to adhere to its own
sentencing procedure. Branan v. Booth, 861 F.2d at 1508.
As noted earlier, petitioner's sentence falls within the
statutory bounds of N.J.Stat.Ann. § 2C:43–6a. Moreover,
petitioner has not asserted that any error of constitutional
magnitude occurred during the sentencing procedure itself.
Thus, the failure of the trial court to adhere to the New
Jersey sentencing guidelines is not a proper subject for this
court's review.
Accordingly, for the reasons set forth above, the petition
for habeas corpus is denied. An order accompanies this
opinion. No costs.
ORDER
For the reasons set forth in the court's opinion filed
this date, it is, on this 22nd day of June, 1988,
ORDERED that the petition for a writ of habeas
corpus be and hereby is denied. There is no probable
cause for appeal. No costs.

FN1. Although petitioner set out four grounds as
a basis for relief in his petition, the third and
fourth grounds are essentially the same;
therefore, the court has combined them here as
ground three.
FN2. State v. Yarbough, 100 N.J. 627 (1985),
cert. denied, 475 U.S. 1014 (1986) relied on by
petitioner in support of his double jeopardy
argument, does not demand a different result. In
Yarbough, the New Jersey Supreme Court
adopted criteria to be utilized as general
sentencing guidelines for concurrent or
consecutive sentencing of an offender who has
engaged in a pattern of criminal behavior which
constitutes a series of separate offenses. 100 N.J.
at 643–44. There is nothing in the opinion to
support a finding that New Jersey trial courts are
barred from imposing cumulative punishments
for one episode of sexual assault which is
severable into distinct sexual offenses; rather, the
court expressly held that the sentencing court
could conclude that each of the sexual offenses
posed a distinct and different danger to the
victim for which separate punishments would be
warranted. 100 N.J. at 646.
FN3. The court notes that the New Jersey
Supreme Court has held that “the trial court is
not bound by the recommendation of the
[ADTC] that the sentence be served there. The
court may sentence the defendant to the custody
of the Commissioner irrespective of a
recommendation that the defendant be sent to
[the ADTC] for specialized treatment.” State v.
Chapman, 95 N.J. 582, 588 (1984). Once again,
this court defers to the New Jersey state court as
the authoritative interpreter of its own criminal
law. See Gillespie v. Ryan, 837 F.2d at 631.
D.N.J.,1989.
Knight v. Beyer
Not Reported in F.Supp., 1989 WL 68618 (D.N.J.)
END OF DOCUMENT

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© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.