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SIMS v. SUPERINTENDENT OF THE CLINTON CORRECTIONAL

May 19, 1995

ANDREW SIMS, Petitioner, against SUPERINTENDENT OF THE CLINTON CORRECTIONAL FACILITY, DANNEMORA, NEW YORK, Respondent.


The opinion of the court was delivered by: KEVIN THOMAS DUFFY

 KEVIN THOMAS DUFFY, D.J.:

 Petitioner pro se Andrew Sims seeks a writ of habeas corpus to be discharged from the custody of the Clinton Correctional Facility, Dannemora, New York, pursuant to 28 U.S.C. § 2254. In Sims' first petition to this court, he argues that in 1988 he was improperly sentenced as a persistent violent felony offender, in violation of his rights under the Eighth and Fourteenth Amendments of the United States Constitution. Sims' second petition alleges that he was deprived of his right to appeal his 1976 conviction through the ineffective assistance of his trial counsel. For the following reasons, both petitions for writs of habeas corpus are denied.

 I.

 On September 8, 1976, Sims pleaded guilty in New York Supreme Court, Kings County, to a charge of attempted robbery in the second degree, pursuant to N.Y. Penal L. §§ 110.00, 160.10. During these plea proceedings, Petitioner was represented by a court-appointed attorney.

 Sims was convicted a second time on June 3, 1980. After a trial by jury held in New York Supreme Court, Kings County, Sims was found guilty of criminal possession of a weapon in the third degree, pursuant to N.Y. Penal L. § 265.02.

 Sims' third conviction -- the conviction presently at issue -- was entered on March 30, 1988. Petitioner was convicted in New York Supreme Court, New York County, of criminal possession of a weapon in the third degree, which is classified as a violent felony pursuant to N.Y. Penal L. §§ 70.02, 265.02. At sentencing on April 20, 1988, Sims argued that attempted second degree robbery was not considered a violent felony at the time when he committed that crime, but that it only became so by a later change in the law. Therefore, Sims claimed that his 1976 conviction should not be used to enhance his 1988 sentence. Justice Harold Rothwax rejected Sims' argument and, based on his 1976 and 1980 convictions, sentenced him to a prison term of ten (10) years to life as a "persistent violent felony offender," pursuant to N.Y. Penal L. § 70.08. *fn1"

 On direct appeal to the Appellate Division, First Department, Petitioner argued for reversal of his 1988 conviction based upon the prosecutor's allegedly improper summation statements, and for vacation of his sentence on the grounds that his sentence was excessive. The Appellate Division affirmed the judgment without opinion June 28, 1990. The New York Court of Appeals denied leave to appeal on November 9, 1990.

 On October 4, 1993, Petitioner moved before Justice Rothwax to vacate his 1988 conviction, arguing that his 1980 conviction for criminal possession of a weapon in the third degree had been the result of an illegal stop and frisk, and therefore should not have been used to enhance the April 20, 1988 sentence. Justice Rothwax denied this motion without opinion on October 20, 1993. On November 10, 1993, Sims sought leave to appeal to the Appellate Division, which the First Department denied on March 1, 1994. On April 4, 1994, Petitioner moved for reconsideration of the denial of leave to appeal before the First Department. Sims' application was denied on May 10, 1994.

 On February 4, 1994, while these state court appeals were pending, Petitioner filed the present motion seeking federal review of his 1988 conviction and sentence. Sims' asserts that criminal possession of a weapon in the third degree does not constitute a violent felony, and therefore his 1980 conviction should not have been used as a predicate supporting his 1988 sentencing as a persistent violent felony offender.

 Almost simultaneously with his federal challenge to his 1988 sentence, on February 8, 1994, Sims initiated an appeal of his 1976 conviction and sentence in New York Supreme Court, Kings County, arguing ineffective assistance of counsel. Justice Gerges, finding that Sims had failed to prove his allegations of fact pursuant to N.Y. Crim. Proc. L. § 440.30(4)(d), denied the appeal on May 10, 1994. Sims then applied to the Appellate Division, Second Department, for leave to appeal. The Second Department denied Sims such leave on July 28, 1994. On January 17, 1995, Sims sought a writ of habeas corpus in this court to vacate his 1988 sentence on the basis that his 1976 conviction was unconstitutional, and therefore that it should not have been used as a predicate supporting his 1988 sentencing as a persistent violent felony offender.

 II.

 DISCUSSION

 Exhaustion of state remedies is required prior to federal review of habeas corpus petitions under 28 U.S.C. § 2254(b). Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991); Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990) (per curiam). A motion to set aside sentence may be heard by the New York court which entered the original judgment, unless the issue has been previously determined on the merits on direct appeal. N.Y. Crim. Proc. L. § 440.20. Even where the issue has been previously determined on direct appeal, § 440.20 provides for state court review of a sentence if there has been a retroactively effective change in the controlling law. Furthermore, federal ...


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