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SMALLS v. BATISTA

October 5, 1998

KEVIN SMALLS, Petitioner, against WILFREDO BATISTA, Superintendent, Marcy Correctional Facility, Respondent.

ROBERT W. SWEET, U.S.D.J.


The opinion of the court was delivered by: SWEET

Sweet, D.J.

Respondent Wilfredo Batista, Superintendent of Marcy Correctional Facility ("Respondent"), has moved pursuant to Rule 60(b)(4) of the Federal Rules of Civil Procedure for an order vacating the judgment granting the petition for a writ of habeas corpus to Petitioner Kevin Smalls ("Smalls") on the ground that this Court lacked jurisdiction to consider the petition. For the reasons set forth below, Respondent's motion is denied.

 Prior Proceedings and Facts

 The prior proceedings and facts in this action have been set forth in a prior opinion of this Court, familiarity with which is assumed. See Smalls v. Batista, 6 F. Supp. 2d 211 (1998). Those facts and prior proceedings relevant to the instant motion are set forth below.

 On December 2, 1987, Smalls was convicted, after a jury trial conducted in the Supreme Court of the State of New York, Bronx County, of Robbery in the Second Degree and was sentenced to an indeterminate term of imprisonment of two to six years (the "1987 conviction"). He filed a timely notice of appeal on December 29, 1987.

 On September 5, 1989, Smalls was placed on parole, which was due to expire on March 24, 1993. On May 3, 1990, Smalls was arrested in Bronx County and declared delinquent by the New York State Division of Parole.

 By a judgment rendered on January 3, 1991, in the Supreme Court, Bronx County, Smalls was convicted upon his plea of guilty of attempted criminal sale of a controlled substance and sentenced as a second-felony offender to an indeterminate term of imprisonment of three to six years (the "1991 conviction").

 By operation of New York Penal Law § 70.25(2-a), Smalls' sentence under the 1991 conviction was to run consecutively to the unserved term of Smalls' sentence under the 1987 conviction.

 On May 18, 1993, Smalls was again released under parole supervision, which was due to expire on March 19, 1999. On February 16, 1998, Smalls was arrested in New York County and declared delinquent by the Division of Parole.

 By judgment rendered on May 10, 1994, in the Supreme Court, New York County, Smalls was convicted upon his plea of guilty of attempted criminal sale of a controlled substance and sentenced as a second-felony offender to an indeterminate term of imprisonment of four to eight years (the "1994 conviction"). This sentence was to run consecutively to the 1987 and 1991 convictions. Since Smalls' return to the Department of Correctional Services in 1994, he has been serving the aggregate of his 1987, 1991, and 1994 sentences.

 In August 1996, Smalls perfected his direct appeal from his 1987 conviction, to the Appellate Division, First Department. Smalls claimed, inter alia, that the supplemental Allen charge given by the trial court improperly placed a burden on the dissenting juror to convince the other eleven jurors, and therefore deprived Smalls of his rights under the United States Constitution to a fair trial and due process. On March 4, 1997, the Appellate Division unanimously affirmed the conviction. See People v. Smalls, 237 A.D.2d 116, 654 N.Y.S.2d 362 (1st Dep't 1997). On May 19, 1997, the New York Court of Appeals denied Smalls' leave to appeal.

 On August 14, 1997, Smalls filed with this Court a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In an opinion dated May 19, 1998, this Court granted Smalls' petition because the Allen charge given by the trial court was coercive and deprived Smalls of his constitutional rights to due process and a fair trial. See Smalls, 6 F. Supp. 2d at 218-23.

 Smalls is presently incarcerated at Mohawk Correctional Facility in Rome, New York.

 The instant motion was filed on June 4, 1998. Oral arguments were heard on June 24, 1998, at which time the motion ...


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