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June 26, 1986.

Phillip BROWN, Petitioner,

The opinion of the court was delivered by: BRAMWELL


BRAMWELL, District Judge.

By order to show cause dated June 16, 1986, petitioner Phillip Brown commenced this habeas corpus proceeding pursuant to Title 28, United States Code, section 2254 alleging that the sentence he received in state court was tainted by vindictiveness in violation of North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969) and its progeny. After carefully considering the arguments and submissions of counsel, the Court is of the opinion that petitioner's argument is without merit. Accordingly, for the reasons set forth below, petitioner's application for habeas corpus relief is denied.


 Petitioner was found guilty by a jury in the District Court of Nassau County on two counts of criminal possession of a controlled substance in the seventh degree (N.Y. Penal Law § 220.03), one count of loitering (N.Y. Penal Law § 240.36), and one count of unlawful possession of marijuana (N.Y. Penal Law § 221.05). Consequently, on February 1, 1984, petitioner was sentenced by the Honorable Eli Mellan to imprisonment for a term of nine (9) months. After being granted a stay of execution of sentence pending appeal on February 10, 1984, petitioner posted $1,500.00 bail and was released on March 2, 1984.

 More than one year later, on April 8, 1985, the Appellate Term of New York Supreme Court, Nassau County, unanimously affirmed petitioner's conviction. However, the Appellate Term remanded the matter for resentencing because Judge Mellan, the sentencing judge, inadvertently failed to state the sentence for each individual count, as required by section 380.20 of New York's Criminal Procedure Law.

 On April 24, 1985, petitioner was remanded by Judge Mellan pending resentencing. Four days later, on April 30, 1985, a Justice of the Supreme Court, Nassau County ordered petitioner released upon the posting of $1,000.00 additional bail.

 After an updated presentence report had been ordered and received, Judge Mellan resentenced petitioner on June 13, 1985 to imprisonment for concurrent terms of one year on each of the two controlled-substance counts and three months on the loitering count. Judge Mellan also fined petitioner $100.00 on the marijuana count. After being remanded by Judge Mellan, petitioner again was released the same day pursuant to the order of a Justice of the Supreme Court, Nassau County, pending his appeal to the Appellate Term.

 On appeal to the Appellate Term, petitioner argued that his harsher sentence on remand was vindictively imposed in violation of North Carolina v. Pearce, supra, and its progeny. Petitioner therefore requested that the Appellate Term modify petitioner's sentence to time served, or, in the alternative, remand the matter for resentencing before an impartial judge.

 In an order dated June 2, 1986, the Appellate Term agreed that the harsher sentence was unconstitutional and reduced the total sentence to equal the original term of imprisonment of nine (9) months. Unsatisfied with the result, petitioner sought leave to appeal to New York's Court of Appeals. That application was denied on June 12, 1986 by the Honorable Sol Wachtler. The present petition and order to show cause followed.


 In the present habeas petition, the crux of petitioner's argument is that the Appellate Division committed error in modifying petitioner's sentence rather than remanding for resentencing by an impartial judge. Petitioner contends that the Appellate Term's finding of unconstitutional vindictiveness rendered his entire resentencing proceeding invalid, and that "due process require[d] nothing less than a remand for re-sentencing before an impartial judge." In support of this argument, petitioner relies principally upon the Supreme Court's decision in North Carolina v. Pearce, supra, and subsequent cases interpreting Pearce. However, as discussed below, this Court concludes that Pearce is not controlling here, and that absent such a claim under Pearce the present petition raises no constitutional issues warranting habeas corpus relief.

 A. Inapplicability of Pearce

 In North Carolina v. Pearce, supra, the Supreme Court held that where a defendant is reconvicted following a successful appeal and a new trial, due process prohibits the imposition of an increased sentence when that increase is motivated by vindictiveness on the part of the sentencing judge. 395 U.S. at 724-25, 89 S. Ct. at 2080. In order to assure the absence of any vindictive ...

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