Appeal from a judgment of the District Court for the Eastern District of New York (Thomas C. Platt, Judge) denying a petition for a writ of habeas corpus challenging petitioner's New York state sentence.
Oakes, Newman, and Pierce, Circuit Judges.
JON O. NEWMAN, Circuit Judge:
This appeal primarily presents the issue whether a sentencing judge's incorrect understanding of a defendant's minimum statutory parole eligibility date deprives the defendant of due process at sentencing. The issue arises on an appeal by Darryl King from a judgment entered in the District Court for the Eastern District of New York (Thomas C. Platt, Judge) denying his petition for a writ of habeas corpus to challenge his New York state sentence for a 1971 felony murder conviction. Judge Platt denied the petition for abuse of the writ, finding that King could have raised the issue in either of his two previous petitions for habeas corpus. Under the circumstances of this case, we reverse and remand to the District Court with instructions to grant the writ unless the State promptly arranges for resentencing.
On May 24, 1971, after a jury trial in King's County Supreme Court (John R. Starkey, Justice), King was found guilty of the murder of an off-duty police officer, second-degree manslaughter, attempted robbery in the first degree, attempted grand larceny in the third degree, first-degree assault, and possession of a dangerous weapon.
A hearing was held on April 23, 1971, to determine whether the jury would impose the death penalty or life imprisonment. Under New York law then applicable, if the jury did not impose the death penalty, the defendant was sentenced to life imprisonment; the judge determined, within statutory limits, a minimum period of imprisonment (MPI) after which the defendant would be eligible for parole. During the punishment hearing, Justice Starkey instructed the jury about the parole aspects of a sentence of life imprisonment, stating incorrectly that the minimum parole eligibility date could be one-third less than the minimum sentence imposed by the judge:
The Court is mandated to explain to you the law relating to the possible release or parole of a prison sentence to life imprisonment, and it reads that murder is a Class A felony. Section 70.00 of the Penal Law, Subdivision 2(a) states: "For a Class A felony, the term shall be life imprisonment."
Subdivision 3(a) states: "In the case of a Class A felony, the minimum period shall be fixed by the Court and specified in the sentence. Such minimum period shall not be less than 15 years nor more than 25 years."
Then we come to the Correction Law and Section 230, Subdivision 2, states that any person sentenced to an indeterminate term may receive a maximum reduction in his sentence of four months a year from the minimum sentence, but nothing in the law shall be construed to confer any right whatsoever upon any prisoner to demand or to require the whole or any part of such reduction. Do you understand that? He may get four months a year off, but he may not.
Therefore, it would be possible for a defendant who has been sentenced to life imprisonment to be placed on parole after he has served two-thirds of the minimum sentence which shall be fixed by the Court.
Let us assume I give him a sentence of 24 years to life. Two-thirds of that 24 would be 16 years. He could be eligible for parole after serving the 16 years. If it is 25 years to life, then it would be 8 months more before he would be eligible for parole; four months off the additional year.
Now as I have indicated, the minimum sentence shall not be less than 15 nor more than 25, and if you return a verdict of life imprisonment, I must impose such sentence of between 15 and 25 years to life; and the defendant may be paroled after he serves two-thirds of the minimum sentence imposed. As I have told you, he does not necessarily have the right to be paroled, but he is not eligible for parole before that time.
N.Y. Correct. L. § 230(2) (McKinney 1987), on which Justice Starkey based his remarks about possible reduction of the MPI, had been repealed prior to King's trial and sentencing with respect to crimes committed after September 1, 1967, and was therefore not applicable to his crimes. See id. note. Under the statutes applicable to King, N.Y. Correct. L. § 803(1) (McKinney 1987), N.Y. Penal L. § 70.40(1)(a) (McKinney Supp. 1987), he ...