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MABERY v. KEANE

September 9, 1996

FRED MABERY, Petitioner, against JOHN P. KEANE, Superintendent, Sing Sing Correctional Facility, Respondent.


The opinion of the court was delivered by: SEYBERT

 SEYBERT, District Judge:

 Petitioner Fred Mabery, proceeding pro se, petitions the Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On October 2, 1972, a North Carolina state court sentenced petitioner to two concurrent terms of life imprisonment for kidnapping and raping a 15-year-old girl. Thereafter, following a jury trial, petitioner was convicted in New York State Supreme Court, Queens County, of first degree robbery, second degree kidnapping and third degree larceny with respect to a separate incident. *fn1" On June 21, 1974, petitioner was sentenced pursuant to his New York judgment of conviction to concurrent terms of incarceration not to exceed twenty-five years for the kidnapping and robbery convictions, and not to exceed four years for the larceny conviction. The New York State Appellate Division later reversed the kidnapping conviction, and affirmed the other two New York convictions. See People v. Mabery, 51 A.D.2d 557, 378 N.Y.S.2d 449 (App. Div. 2d Dep't 1976). Petitioner's application for leave to appeal to the New York Court of Appeals was denied on March 15, 1976.

 In his amended petition for a writ of habeas corpus, petitioner asserts three claims. First, he claims that he was denied his constitutional right to effective assistance of counsel. Specifically, he claims, inter alia, that his appellate counsel should have argued that the 1975 Amendments to the New York Penal Law [NYPL] applied retroactively to the calculation of his sentence. Second, he asserts that he was denied due process of law as a result of an improper calculation of his sentence. Specifically, he claims that NYPL §§ 70.30(1)(c) and 70.30(2)-a apply to the computation of his sentence to place a thirty-year limitation on his aggregate maximum sentence. Finally, petitioner contends that he was denied due process of law through his denial of good-time credits. See Docket # 19.

 FACTUAL BACKGROUND

 On June 21, 1974, Justice Browne, the justice who presided over petitioner's New York trial, ended his sentencing order with the words, "each of these terms to run concurrently." Sentencing Order, at 6. According to the petitioner, it is unclear whether this language referred solely to his New York sentences or to his North Carolina sentence in relation to his New York sentences.

 In 1978, petitioner filed the first of his two federal civil-rights actions in the United States District Court for the Eastern District of North Carolina. Judge Dupree, the federal district judge assigned to petitioner's case, stated in his Order that Mabery may not need to serve any time in New York since "the sentences are running concurrently." Mabery v. Keith, No. 78-429-CRT, at 1 (E.D.N.C. Nov. 28, 1978). Letters from the New York State Department of Correctional Services [DOCS] reinforced this impression that petitioner's North Carolina sentence ran concurrently to his New York sentence.

 In 1981, however, petitioner received a letter from DOCS which noted that, contrary to DOCS' prior position, his New York sentence, in fact, was scheduled to run consecutive to his North Carolina sentence. Thereafter, with the exception of one correspondence (a letter in 1983 which calculated his tentative release date based upon the two terms running concurrently), DOCS officials, in their correspondences to the petitioner, consistently took the position that petitioner's North Carolina and New York sentences would run consecutively.

 In 1985, upon petitioner's filing of a second civil-rights suit in federal district court in North Carolina, Judge Dupree overruled his prior decision, concluding that the petitioner's New York sentences ran consecutively to his North Carolina sentences. Petitioner was paroled by the State of North Carolina on November 22, 1988.

 Petitioner filed a second CPL § 440.20 motion on November 25, 1988, which was denied by the trial court on January 5, 1989. In that motion, petitioner argued that he was denied equal protection of law because the New York courts initially sentenced him to concurrent terms of imprisonment, and subsequently changed their position to provide that the sentences would run consecutively. In this application, petitioner focused upon NYPL § 70.25, arguing that the state legislature, in drafting this provision, intended to provide for concurrent sentences in every case. He further argued that NYPL § 70.20 is unconstitutional because it subjected him to double jeopardy. Petitioner also made passing references to NYPL §§ 70.30(1) and (2) regarding the time that a prison term is commenced.

 On July 10, 1990, petitioner filed a third state habeas petition, this time in New York State Supreme Court, Washington County. In this state habeas petition, petitioner argued that the 1975 Amendments to NYPL §§ 70.20, 70.25, and 70.30 were unconstitutional in their application to his sentence. With respect to his § 70.30 claim, petitioner cited § 70.30(2)-a, which establishes when dual-jurisdiction concurrent and consecutive prison terms commence. The record fails to disclose that petitioner made any reference to § 70.30(1)(c) before the trial court. This latter subsection limits to thirty years the aggregate maximum term for consecutive sentences imposed for two or more felonies, where one of the crimes is a class B felony. See NYPL §§ 70.30(1)(c), (2)-a (McKinney 1987).

 On April 5, 1991, the Washington County Supreme Court converted petitioner's state habeas petition into an Article 78 proceeding and dismissed petitioner's application. The trial court's 20-page opinion made no reference to § 70.30(1)(c). Petitioner appealed this judgment, and his appeal referred to § 70.30(1)(c). On November 7, 1991, the Appellate Division affirmed, noting that habeas relief was not available because petitioner's right to release had not accrued. The court, however, noted in its dicta that petitioner's "25-year New York prison sentence will not expire until 1999." People ex rel. Mabery v. Leonardo, 177 A.D.2d 766, 766, 575 N.Y.S.2d 745, 745 (App. Div. 3d Dep't 1991). The New York Court of Appeals denied petitioner's application for leave to appeal. People ex rel. Mabery v. Leonardo, 79 N.Y.2d 753, 589 N.E.2d 1263, 581 N.Y.S.2d 281 (1992).

 Petitioner filed his final CPL § 440.20 motion on March 7, 1991. In that motion, he claimed, inter alia, that he had been denied due process of law and had been subjected to cruel and unusual punishment. Specifically, he argued that the New York court, in 1974, did not have the statutory authority to run his North Carolina and New York prison terms consecutively, as that authority was only granted in the 1975 Amendments to NYPL § 70.25. This motion was denied by the trial court on April 4, 1991. Leave to ...


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