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December 15, 1981

Steve ROBINSON, Petitioner,
Charles SCULLY, Superintendent of Green Haven Correctional Facility, Respondent

The opinion of the court was delivered by: CARTER

This is a petition for a writ of habeas corpus brought by Steve Robinson, an inmate at the Green Haven Correctional Facility in Stormville, New York. Simply stated, Robinson claims that his resentence after a successful appeal constituted an increase in punishment not based upon his conduct after the original sentencing. Petitioner argues that such an increase is a denial of due process of law in violation of the fourteenth amendment.


 On June 12, 1972, in New York Supreme Court, New York County, petitioner pled guilty to grand larceny in the third degree. Judge Leff continued Robinson on parole pending sentencing on August 8, so that he could attend a drug treatment center. Robinson failed to appear at that scheduled hearing, and, on September 29, he was arrested and charged with the robbery and murder of a Columbia Law School professor on September 20.

 In light of this atrocious violation of parole conditions, Judge Leff imposed the maximum sentence of four years for grand larceny in the third degree. During the October 25 sentencing proceeding, Robinson's motion to withdraw his guilty plea was summarily denied. On appeal, the conviction was reversed and remanded for a hearing on the motion to withdraw. People v. Robinson, 44 A.D.2d 813, 355 N.Y.S.2d 425 (1st Dept.).

 Robinson later entered a guilty plea to first degree robbery to satisfy the second pending indictment and, on September 19, 1974, was sentenced to a term of imprisonment between 81/3 and 25 years. Since no valid sentence was outstanding, the court did not specify whether this term was to run consecutive with or concurrent to any time to be served on the original larceny count.

 After a hearing before Judge Klein on April 14, 1975, petitioner's motion to withdraw his plea was denied upon findings that his claim of improper assistance of counsel was unbelievable and that he fully understood the import of his plea. Fifteen days later, Robinson was resentenced by Judge Leff to the same indeterminate term not to exceed 4 years, but with the additional specification that it was to run consecutive to the period of confinement imposed on the robbery conviction. In rationalizing his sentencing decision Judge Leff noted Robinson's previous exploitation of the court's leniency, the esteemed status of the murder victim and the insincerity of petitioner's attempt to revoke his original guilty plea. Hearing Transcript at 9-11.

 Robinson's conviction upon the resentence was affirmed by the Appellate Division. People v. Robinson, 61 A.D.2d 1147, 399 N.Y.S.2d 959 (1st Dept. 1977). Petitioner's papers on that appeal advanced generally the argument that the consecutive sentence was improper because it was based on the eminence of Robinson's second victim.

 Robinson's final attempt to gain redress in state court took the form of a motion, pursuant to N.Y.Crim.Proc.Law § 440.20(2), to set aside the consecutive sentence provision as illegally imposed. The affidavit and memorandum filed in support thereof were nearly identical to those submitted with the instant habeas petition. Emphasizing N.Y.Crim.Proc.Law § 440.20(2), Judge Leff denied the motion because the issue of the sentence's validity was raised and decided on the merits on direct appeal. People v. Robinson, Indictment No. 1202-72 (Sup.Ct.N.Y.Co. Dec. 4, 1980). In reaching this conclusion, Judge Leff quoted from petitioner's brief to the Appellate Division to establish that while a specific due process argument was not presented therein, Robinson had made assertions sufficient to indicate that the federal constitutional issue necessarily was considered by that court. Id. at 2-3. The First Department denied permission to appeal from Judge Leff's order, finding "no question of law or fact presented which ought to be reviewed." People v. Robinson, Certificate Denying Leave M-5179 (1st Dept. Jan. 6, 1981).

 Robinson filed a petition for a writ of habeas corpus on March 12, 1981. The petition was opposed on respondent's behalf by the Attorney General of the State of New York. In an effort to focus more sharply the critical issues in this case, oral argument was heard on November 6, 1981, and supplemental briefs were filed by both parties within the following two weeks.



 The state's initial challenge to Robinson's habeas action is that such a proceeding is barred by his failure to present his claims expressly in constitutional terms either at the time of his resentencing or on direct appeal. Respondent cites petitioner's failure to mention the federal or constitutional bases of his claim and the lack of any reference to the Supreme Court's decision in North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), upon which he now relies extensively.

 Respondent invokes the forfeiture doctrine of Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977) as applied by Forman v. Smith, 633 F.2d 634 (2d Cir. 1980), cert. denied, 450 U.S. 1001, 101 S. Ct. 1710, 68 L. Ed. 2d 204 (1981), in support of its waiver claim. Sykes established the principle that when the petitioner's failure to comply with a state trial practice requirement constituted a waiver of his federal claims under state procedural regulations, federal habeas review of the state conviction is barred unless there is a showing of cause for the noncompliance and actual prejudice resulting from the alleged constitutional violation. 433 U.S. at 84-7, 97 S. Ct. at 2505-6. In Forman, the Second Circuit applied the "cause and prejudice" standard to a situation in which petitioner was found by the state court to have forfeited his sixth amendment claim by failing to present it on direct appeal.

 Although the state submits that Forman is dispositive of the case at bar, it requires another extension of Sykes' logic to attain the result sought here. There is no state procedural rule or practice mandating forfeiture of petitioner's claims not made at resentencing or on direct review; no statute empowers a New York court to bar a defendant's constitutional claims merely for his failure to raise them before seeking state collateral relief. Therefore, in effect, respondent now seeks a determination that regardless of local rules of procedure, whenever an accused fails explicitly to allege a constitutional violation through the ...

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