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NARANJO v. FILION

United States District Court, Southern District of New York


April 16, 2003

LUIS NARANJO, PETITIONER,
v.
GARY FILION, SUPERINTENDENT, GREEN HAVEN CORRECTIONAL FACILITY, RESPONDENT

The opinion of the court was delivered by: Andrew J. Peck, Magistrate Judge.

REPORT AND RECOMMENDATION

Petitioner Luis Naranjo, pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 from his August 20, 1997 conviction and re-sentencing, alleging that the trial court violated Naranjo's due process rights in imposing sentence by: (1) vindictively retaliating against Naranjo for, inter alia, exercising his constitutional right (a) to take the case to trial, and (b) not to testify (Dkt. No. 2: Pet. ¶ 12; see also Dkt. No. 11: Naranjo Traverse at 5-6); (2) imposing an "excessive" sentence in abuse of the court's discretion (Pet. ¶ 12; see also Traverse at 1, 4, 7-8); and (3) improperly considering the false information that Naranjo "was awaiting tr[ia]l on pending felony drug charges at the time that he committed the instant offense" (Pet. ¶ 12; see also Traverse at 1, 3-4).

For the reasons set forth below, Naranjo's petition should be DENIED.

PROCEDURAL HISTORY

Conviction

On June 22, 1993, Naranjo was convicted after a jury trial in Supreme Court, New York County, of five counts of first-degree robbery, two counts of attempted second-degree assault, and one count of second-degree criminal possession of a weapon. See People v. Naranjo, 225 A.D.2d 392, 392, 640 N.Y.S.2d 13, 13 (1st Dep't 1996). (See also Dkt. No. 9: Answer ¶ 8.) The convictions related to a robbery of a gas station on September 11, 1992, and a second robbery, of a deli, on September 12, 1992. (Dkt. No. 9: Answer Ex. A: Naranjo 1st Dep't Br. at 3.) The jury acquitted Naranjo on two counts of second degree attempted murder. (Id. at 9.)

Initial Sentencing

At Naranjo's initial sentencing hearing, on September 8, 1993, the State asserted (over Naranjo's objection) that shortly before Naranjo's trial, a masked gunman went into the deli and shot an individual who resembled the victim of the September 12, 1992 deli robbery. (Dkt. No. 9: Answer Ex. A: Naranjo 1st Dep't Br. at 4.)*fn1 See People v. Naranjo, 89 N.Y.2d 1047, 1048-49, 659 N.Y.S.2d 826, 827 (1997). The State "asserted that it was likely that [Naranjo's] accomplice in the robbery was the shooter and that [Naranjo] was involved." (Naranjo 1st Dep't Br. at 4.) The trial judge stated that, in imposing sentence, he was "`definitely considering the shooting incident,'" which he described as an attempted assassination of a witness. (Naranjo 1st Dep't Br. at 5.) See also People v. Naranjo, 89 N.Y.2d at 1049, 659 N.Y.S.2d at 827. The judge stated that he was also factoring in Naranjo's attempt to influence two prospective jurors during jury selection and Naranjo's attempt to comment on the evidence during the prosecutor's summation. (Naranjo 1st Dep't Br. at 5.) The judge rejected defense counsel's assertion that Naranjo's drug addiction was a mitigating factor. (Id).

The judge sentenced Naranjo to 12-1/2 to 25 years on the four counts of first-degree robbery relating to the September 12, 1992 robbery; a consecutive sentence of 12-1/2 to 25 years on the first-degree robbery count relating to the September 11, 1992 robbery; two to four years for each of the two counts of second-degree attempted assault to run concurrently with each other but consecutively to the robbery sentences; and a concurrent sentence of 7-1/2 to 15 years for second-degree criminal possession of a weapon. (Dkt. No. 9: Answer ¶ 8.) See also People v. Naranjo, 225 A.D.2d 392, 392, 640 N.Y.S.2d 13, 13 (1st Dep't 1996). The original sentence thus totaled 27 to 54 years imprisonment.

Naranjo's First Appeal

The First Department affirmed, holding that "the sentence was not unduly influenced by the court's consideration of an uncharged crime [the alleged attempt to kill an eyewitness] . . ., and was otherwise a proper exercise of discretion." People v. Naranjo, 225 A.D.2d 392, 392, 640 N.Y.S.2d 13, 13 (1st Dep't 1996). The New York Court of Appeals, however, vacated the sentence and remanded the case for resentencing, holding that "the prosecutor's assertion that defendant was involved in the [alleged attempt to kill an eyewitness] was based on pure speculation and, thus, the court's consideration of the incident in imposing defendant's sentence was improper." People v. Naranjo, 89 N.Y.2d 1047, 1049, 659 N.Y.S.2d 826, 827 (1997).

Resentencing Proceedings

The trial court held a resentencing hearing on August 20, 1997. (Dkt. No. 9: Answer Ex. C: Resentencing Transcript ["Tr."].) Because the prosecutor was absent, the judge deemed the State's position to be the same as that asserted at the original sentencing hearing. (Tr. 2.)

Naranjo's counsel asserted that Naranjo had already served approximately four years of his sentence and had been involved in only one fight, for which he "received a 30-day disciplinary re-sentence." (Tr. 3.) Although Naranjo had been charged with smuggling drugs into the prison, that case was on appeal at the time of resentencing. (Id.) Defense counsel argued that Naranjo was not violent, but "basically suffered from a drug problem." (Tr. 4-5.) Defense counsel also stated that Naranjo was HIV positive, and concluded by asking for a sentence of 7-1/2 to 15 years. (Id.)

Before imposing sentence, the judge stated the following:

Well, I have never been precisely in this situation before, having to impose a sentence where the sentence that I imposed initially included a statement by me that I was going to consider something. I'm trying to figure out how to deal with the circumstances. I thought of high-school chemistry, mercifully, that's long in the past.
I do remember an experiment in high-school chemistry of pouring sugar into a glass of water. I believe the chemical term is saturation, at a point there is no water left and the sugar can't be absorbed any longer, simply falls to the bottom of the glass or container. I use that as a way of attempting to explain credibly that there is a sentence that I am going to impose.
I am going to impose it for the reason I'm going to articulate, and solely on those reasons because, the Court of Appeals correctly pointed out that I should not have considered the aspect — the allegation that I did, and so I am not going to consider that. I'm now going to review the reasons why I am now going to impose the sentence that I'm going to impose today. I use the saturation example simply to say that the sentence imposed today while it may be remark[ably] similar to a sentence imposed previously can stand on its own for the reasons that I am about to state.
Drugs are a scourge and of course as I said the first time around, drugs are not illegal because somebody is trying to stifle [p]eople's ability to have fun and enjoy themselves, make their lives otherwise miserable. Drugs are illegal because if they are abused they lead to addiction which leads to all sorts of crime and misery.
The defendant whether he is an addict, whether he was an addict at the time, whether he was influenced by drugs, alcohol at the time, simply didn't excuse what he is accused of doing, which is extraordinarily serious conduct.
Firing a gun at two people, hitting somebody with a gun during the course of an armed robbery, can't possibly be justified. It's a relatively mature individual who is accused of doing this and found guilty of doing this. He is a person accused of a crime while on probation — he said he was on parole at the time of this incident. The institutional records for better or for worse, whether it's on appeal or not, it's in the probation report and I don't want to get involved in that again.
Institutional records [are] in the probation report. I am not focusing on his pre-institution records; I am focusing on sentencing him on the basis of what I had before me at the time of sentence and that includes the two incidents, portending to influence the two jurors in the very case that Mr. Naranj[o] was on trial here. I can mentally picture an African American woman who came up to me, to complain, [m]aybe I can't picture other potential jurors who were excused when Mr. Naranjo made some unfair action towards her as she was sitting in the jury panel during the jury selection process, and, then there was the time to[o] — during Ms. McCabe['s], the prosecutor's summation — not having testified at his own trial, not having the courage so to speak to get up, face the question under cross examination, twice Mr. Naranjo commented in an eviden[t]iary fashion on what Ms. McCabe was saying during summation.
That to me is a manipulative individual, who doesn't have respect for the system, committed crimes, and try to defeat the system.
As it works out, proper resolution of the allegations on the initial felony convictions, the incident occurred during the time the defendant was indicted and pending trial on another felony drug matter. The defendant deserves to be sentenced similarly to what I sentenced him the last time I sentenced him, 27 to 54.
(Tr. 5-8, emphasis added.)

The new sentence differed from the original sentence only with respect to the sentences for the two counts of second-degree attempted assault. Originally, Naranjo had been sentenced to two to four years on each count of second-degree attempted assault, to run concurrently with each other but consecutively to the robbery and gun possession sentences. See People v. Naranjo, 225 A.D.2d 392, 392, 640 N.Y.S.2d 13, 13 (1st Dep't 1996). At resentencing, the judge again imposed sentences of two to four years on each count of second-degree attempted assault, but ordered the sentences to run concurrently with each other and concurrently with the robbery and gun possession sentences. (Tr. 8-10.) The judge re-sentenced Naranjo to 12-1/2 to 25 years on the four counts of first degree robbery on September 12, 1992, a consecutive sentence of 12-1/2 to 25 years for the September 11 first degree robbery count, and a concurrent term of 7-1/2 to 15 years on the weapons charge. (Tr. 9-10.) The judge concluded that sentence was "[a] total of 27 to 54 — it's 25 to fifty." (Tr. 10.)

Naranjo's Second Appeal

On direct appeal to the First Department, represented by counsel, Naranjo claimed that "[t]he imposition of maximum consecutive sentences was excessive in this case, in light of [Naranjo's] prior non-violent criminal history, his drug addiction, which was a significant cause of the offenses here, and the circumstances of the instant charges." (Dkt. No. 9: Answer Ex. A: Naranjo 1st Dep't Br. at 10). While Naranjo labeled his appeal as one based on the excessiveness of his sentence, the argument in his appeal brief also mentioned reliance on misinformation and vindictive retaliation:

As a second felony offender, [Naranjo] could have been sentenced to concurrent terms with a sentence of as little as 4 1/2 to 9 years on the top count. Indeed, the prosecution, before trial, thought that a sentence of 5 to 10 years would serve society's needs, even when the top counts were attempted murder, charges for which the jury acquitted appellant. The fact that appellant chose to go to trial, rather than to plead, does not allow for vindictiveness in sentencing. See also, Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978) ("To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort"). While it may be "anticipated that sentences handed out after trial may be more severe than those proposed in connection with a plea," [People v. Pena, 50 N.Y.2d 400, 412 (1980)], the gross disparity between the pre-trial plea offer of 5 to 10 years and the maximum consecutive sentences imposed after a partial acquittal and the court's remarks at sentencing suggest the presence of retaliation against appellant for having gone to trial.
These remarks at sentencing concerning appellant's alleged behavior and demeanor before the court during the proceedings in this case should not have had any bearing on the court's sentence. First of all, the court took care of these alleged transgressions during trial by admonishing either defense counsel or appellant directly. In addition, the court's comments regarding appellant's not having the "courage" to testify indicates that the court was improperly penalizing appellant for his failure to testify at trial. See Mitchell v. United States, ___ U.S. ___, 119 S.Ct. 1307, 1315 (1999) (no negative inference from defendant's failure to testify is permitted). Moreover, by judging appellant based on such vague and subjective factors, the court appeared to be elevating its own personal animosity toward appellant over the appropriate factors to be considered in imposing sentence, which are, among other things, "the crime charged, the particular circumstances of the individual before the court and the purposes of penal sanction, i.e., societal protection, rehabilitation and deterrence."
The court also improperly considered that appellant was awaiting trial on pending felony drug charges at the time that he committed these offenses. The presentence report does not bear out the court's assertions nor is there a record of such a pending case in the Court system's computer files.
(Naranjo 1st Dep't Br. at 11-12, emphasis added & citations of state court cases omitted.)

The First Department affirmed without opinion on December 16, 1999, People v. Naranjo, 267 A.D.2d 1110, 703 N.Y.S.2d 431 (1st Dep't 1999), and on April 7, 2000, the New York Court of Appeals denied leave to appeal, People v. Naranjo, 94 N.Y.2d 951, 710 N.Y.S.2d 7 (2000).

Naranjo's Federal Habeas

Petition Naranjo's federal habeas corpus petition is dated May 6, 2002, and was received by the Court's Pro Se Office on May 14, 2002. (Dkt. No. 2: Pet.)*fn2 The petition asserts that the trial court's resentence violated Naranjo's due process rights by: (1) vindictively retaliating against Naranjo for, inter alia, exercising his constitutional right (a) to take the case to trial and (b) not to testify (Pet. ¶ 12; see also Dkt. No. 11: Naranjo Traverse at 5-6); (2) imposing an "excessive" sentence in abuse of the court's discretion (Pet. ¶ 12; see also Traverse at 1, 4, 7-8); and (3) improperly considering the false information that Naranjo "was awaiting tr[ia]l on pending felony drug charges at the time that he committed the instant offense" (Pet. ¶ 12; see also Traverse at 3-4).*fn3

In opposition, the State argued that Naranjo's claims are unexhausted because Naranjo only once mentioned a federal constitutional right (due process) and failed to provide any factual basis in support of a due process violation. (Dkt. No. 10: State Habeas Br. at 4-8.)

On the merits, the State urged denial of Naranjo's retaliation claim because the trial court "was not suggesting its reliance on [Naranjo's] failure to testify; instead, it was pointing to its reliance on [Naranjo's] misconduct during the trial." (State Habeas Br. at 8.) Although the State's habeas brief did not address Naranjo's excessive sentence claim, the State's First Department brief argued that Naranjo's sentence was warranted by (i) the "extreme gravity of [Naranjo's] crimes," (ii) the "sheer volume and seriousness of [Naranjo's] criminal record," and (iii) Naranjo's refusal to "take responsibility or express remorse for his deplorable conduct." (Dkt. No. 9: Answer Ex. B: State 1st Dep't Br. at 18-19.) As for Naranjo's claim that the judge relied on erroneous information at resentencing, the State contends that the judge's comment was a "mistranscription" and that Naranjo's failure to object to any inaccurate recounting of his criminal history procedurally bars him from doing so now. (State Habeas Br. at 9-10; see also State 1st Dep't Br. at 22.)

ANALYSIS

I. THE AEDPA REVIEW STANDARD*fn4

Before the Court can determine whether Naranjo is entitled to federal habeas relief, the Court must address the proper habeas corpus review standard under the Antiterrorism and Effective Death Penalty Act ("AEDPA").

In enacting the AEDPA, Congress significantly "modifie[d] the role of federal habeas courts in reviewing petitions filed by state prisoners." Williams v. Taylor, 529 U.S. 362, 403, 120 S.Ct. 1495, 1518 (2000). The AEDPA imposed a more stringent review standard, as follows:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) . . . was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d)(1)-(2); see also, e.g., Eze v. Senkowski, 321 F.3d 110, 120 (2d Cir. 2003) ("AEDPA changed the landscape of federal habeas corpus review by `significantly curtail[ing] the power of federal courts to grant the habeas petitions of state prisoners.'") (quoting Lainfiesta v. Artuz, 253 F.3d 151, 155 (2d Cir. 2001), cert. denied, 535 U.S. 1019, 122 S.Ct. 1611 (2002)).

The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have "independent meaning." Williams v. Taylor, 529 U.S. at 404-05, 120 S.Ct. at 1519.*fn5 Both, however, "restrict[] the source of clearly established law to [the Supreme] Court's jurisprudence." Williams v. Taylor, 529 U.S. at 412, 120 S.Ct. at 1523.*fn6 "That federal law, as defined by the Supreme Court, may either be a generalized standard enunciated in the [Supreme] Court's case law or a bright-line rule designed to effectuate such a standard in a particular context." Kennaugh v. Miller, 289 F.3d at 42. "A petitioner cannot win habeas relief solely by demonstrating that the state court unreasonably applied Second Circuit precedent." Yung v. Walker, 296 F.3d at 135; accord, e.g., DelValle v. Armstrong, 306 F.3d at 1200.

As to the "contrary to" clause:

A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases. . . . A state-court decision will also be contrary to [the Supreme] Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.
Williams v. Taylor, 529 U.S. at 405-06, 120 S.Ct. at 1519-20.*fn7

In Williams, the Supreme Court explained that "[u]nder the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. at 413, 120 S.Ct. at 1523. However, "[t]he term `unreasonable' is . . . difficult to define." Id. at 410, 120 S.Ct. at 1522. The Supreme Court made clear that "an unreasonable application of federal law is different from an incorrect application of federal law." Id.*fn8 Rather, the issue is "whether the state court's application of clearly established federal law was objectively unreasonable." Williams v. Taylor, 539 U.S. at 409, 120 S.Ct. at 1521.*fn9 The Second Circuit has explained "that while `[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.'" Jones v. Stinson, 229 F.3d at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)); accord, e.g., Eze v. Senkowski, 321 F.3d at 125; Ryan v. Miller, 303 F.3d at 245; Yung v. Walker, 296 F.3d at 135; Loliscio v. Goord, 263 F.3d at 184. Moreover, the Second Circuit has held "that a state court determination is reviewable under AEDPA if the state decision unreasonably failed to extend a clearly established, Supreme Court defined, legal principle to situations which that principle should have, in reason, governed." Kennaugh v. Miller, 289 F.3d at 45; accord Yung v. Walker, 296 F.3d at 135. Under the AEDPA, in short, the federal courts "must give the state court's adjudication a high degree of deference." Yung v. Walker, 296 F.3d at 134.

Even where the state court decision does not specifically refer to either the federal claim or to relevant federal case law, the deferential AEDPA review standard applies:

For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.
Sellan v. Kuhlman, 261 F.3d at 312; accord, e.g., Eze v. Senkowski, 321 F.3d at 121; Ryan v. Miller, 303 F.3d at 245; Aeid v. Bennett, 296 F.3d 58, 62 (2d Cir.), cert. denied, 123 S.Ct. 694 (2002); Jenkins v. Artuz, 294 F.3d 284, 291 (2d Cir. 2002) ("In Sellan, we found that an even more concise Appellate Division disposition — the word `denied' — triggered AEDPA deference."); Norde v. Keane, 294 F.3d 401, 410 (2d Cir. 2002); Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001).*fn10 "By its terms, § 2254(d) requires such deference only with respect to a state-court `adjudication on the merits,' not to a disposition `on a procedural, or other, ground.' Where it is `impossible to discern the Appellate Division's conclusion on [the relevant] issue,' a federal court should not give AEDPA deference to the state appellate court's ruling." Miranda v. Bennett, 322 F.3d 171, 177-78 (2d Cir. 2003) (citations omitted).*fn11

II. ALL OF NARANJO'S CLAIMS WERE FULLY EXHAUSTED IN STATE COURT OR ARE SO PATENTLY FRIVOLOUS THAT THEY MAY BE CONSIDERED ON THE MERITS EVEN THOUGH UNEXHAUSTED
The State claims that Naranjo has not exhausted his federal habeas claims in State court. (See Dkt. No. 10: State Habeas Br. at 4-8.)

A habeas petitioner may "fairly present" his federal claims in state court by, inter alia, asserting "explicit constitutional argument[s], . . . relying on federal and state cases that employ a constitutional analysis, asserting the claim in terms that `call to mind a specific right protected by the Constitution,' or alleging facts that fall `well within the mainstream of constitutional litigation.'" Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 124 (2d Cir. 1995) (quoting Daye v. Attorney General, 696 F.2d 186, 192-94 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048, 104 S.Ct. 723 (1984)), cert. denied, 520 U.S. 1106, 117 S.Ct. 1112 (1997); see also, e.g., Rosario v. Bennett, 01 Civ. 7142, 2002 WL 31852827 at *17 (S.D.N.Y. Dec. 20, 2002) (Peck, M.J.).

Contrary to the State's assertions (State Habeas Br. at 6-7), Naranjo has exhausted his vindictive retaliation claim because he cited a Supreme Court case on that issue, with a parenthetical quotation about a "due process violation" (Dkt. No. 9: Answer Ex. A: Naranjo 1st Dep't Br. at 11, citing Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 668 (1978).).*fn12 See, e.g., Williams v. Lord, 996 F.2d 1481, 1483 (2d Cir. 1993) (petitioner exhausted her state claims, "[a]lthough she did not cite specific constitutional provisions," where she "explicitly asserted her constitutional right to present a defense" and "cited a leading Supreme Court case in this area"), cert. denied, 510 U.S. 1120, 114 S.Ct. 1073 (1994); Blissett v. Lefevre, 924 F.2d 434, 438 (2d Cir.) (exhaustion satisfied when petitioner claimed he was "deprived of his `due process right to a fair trial' guaranteed by the Fourteenth Amendment"), cert. denied, 502 U.S. 852, 112 S.Ct. 158 (1991); Abdurrahman v. Henderson, 897 F.2d 71, 73 (2d Cir. 1990) (citation to seminal Supreme Court decision case sufficient to exhaust claim); Herrera v. Senkowski, No. CV 92-880, 1992 WL 373712 at *3 (E.D.N.Y. Nov. 9, 1992) ("Although petitioner's brief to the state court does not cite to a specific constitutional provision, it does cite to a myriad of federal cases, including several which contain parentheticals mentioning a defendant's constitutional right. . . ."). Because the vindictive retaliation in sentencing habeas claim is exhausted, the Court can address it on the merits.

This Court, however, agrees with the State (State Habeas Br. at 6-8) that Naranjo failed to exhaust his remaining habeas claims of excessive sentence and sentencing misinformation, because he did not raise them in state court as federal constitutional claims (but rather only on state grounds). As the State points out (State Habeas Br. at 8), under New York law a defendant retains the right to collaterally attack the legality of his sentence "[a]t any time after the entry of a judgment" as long as the claim was not "previously determined on the merits upon an appeal." C.P.L. §§ 440.20(1) & (2); see, e.g., Dimeglio v. Hodges, 00 Civ. 5694, 2002 U.S. Dist. LEXIS 21434 at *13-14 (S.D.N.Y. Nov. 4, 2002) (sentencing claim is unexhausted because petitioner could still assert it in state court under C.P.L. § 440.20(1)); Santana v. Artuz, 97 Civ. 3387, 2001 WL 474207 at *3 (S.D.N.Y. May 1, 2001) (sentencing claim is unexhausted because "convicted persons may collaterally attack their sentences at any time after conviction" under § 440.20); Cuadrado v. Stinson, 992 F. Supp. 685, 687 (S.D.N.Y. 1998) (Sotomayor, D.J.) (sentencing claim is unexhausted, because "unlike its counterpart for vacating a conviction, see N.Y.Crim. Proc. Law. § 440.10(2)(c), a motion to set aside a sentence under § 440.20 may not be denied on the basis that the asserted ground could have been raised on appeal but was not."); People ex rel. Proctor v. Henderson, 74 A.D.2d 718, 719, 425 N.Y.S.2d 680, 680 (4th Dep't 1980); see also Peter Preiser, Practice Commentaries to C.P.L. § 440.20(2). Because Naranjo's excessive sentence and sentencing misinformation claims were not raised in federal constitutional terms in state court on direct appeal, they can still be raised in a collateral C.P.L. § 440.20 motion to the extent that they are challenging the legality of his sentence. See, e.g., Santana v. Artuz, 2001 WL 474207 at *3 (federal constitutional sentencing claim which was not raised on direct appeal could be raised via C.P.L. § 440.20 and thus was not exhausted).*fn13

Under § 2254(b)(2), the Court has the discretion to deny claims "on the merits, notwithstanding the failure . . . to exhaust. . . ." Although the Second Circuit has yet to enunciate a standard for determining when unexhausted claims should be denied on the merits,*fn14 the majority of district court decisions in this Circuit have embraced a "patently frivolous" test for dismissing unexhausted claims. See, e.g., Hammock v. Walker, No. 99-CV-6354, 2002 WL 31190945 at *2 (W.D.N.Y. Sept. 17, 2002); Cruz v. Artuz, No. 97-CV-2508, 2002 WL 1359386 at *8 (E.D.N.Y. June 24, 2002); Pacheco v. Artuz, 193 F. Supp.2d 756, 761 (S.D.N.Y. 2002); Rowe v. New York, 2002 WL 100633 at *5; Love v. Khulman, 99 Civ. 11063, 2001 WL 1606759 at *5 (S.D.N.Y. Dec. 12, 2001); Shaw v. Miller, No. 99 CV 5020, 2001 WL 739241 at *2 n. 2 (E.D.N.Y. June 26, 2001); Santana v. Artuz, 97 Civ. 3387, 2001 WL 474207 at *3-4 (S.D.N.Y. May 1, 2001). A minority of courts have expressed the test as whether "`it is perfectly clear that the [petitioner] does not raise even a colorable federal claim,' in which case the Court should dismiss the unexhausted claim on the merits (or rather the clear lack thereof)." Hernandez v. Lord, 00 Civ. 2306, 2000 WL 1010975 at *4-5 & n. 8 (S.D.N.Y. July 21, 2000) (Peck, M.J.) (internal quotations omitted; citing cases, and analyzing the diverging views without deciding which standard is appropriate); accord, e.g., Padilla v. Keane, 00 Civ. 1235, 2000 WL 1774717 at *3 (S.D.N.Y. Dec. 4, 2000); Orraca v. Walker, 53 F. Supp.2d 605, 611 (S.D.N.Y. 1999) (McKenna, D.J. & Peck, M.J.); see also, e.g., Basnight v. Keane, No. 99-CV-5907, 2001 WL 901139 at *5 n. 1 (E.D.N.Y. July 31, 2001) (articulating "nonmeritorious" standard rather than "patently frivolous," although claims failed either standard).

As detailed below, Naranjo's excessive sentencing and misinformation claims fail either standard, as they are both patently frivolous and entirely meritless, and thus the Court can address all of Naranjo's claims.

III. NARANJO'S VINDICTIVENESS CLAIM IS MERITLESS

Naranjo claims that the sentencing judge committed constitutional error by imposing a sentence that vindictively retaliated against Naranjo for: (a) exercising his right to take the case to trial; (b) exercising his right not to testify at trial; and (c) certain other behavior at trial. (Dkt. No. 2: Pet. ¶ 12; see also Dkt. No. 11: Naranjo Traverse at 5-6.)

In North Carolina v. Pearce, the Supreme Court addressed the issue of vindictive resentencing and held that the due process clause limits a state's authority to impose a harsher sentence on a defendant who has been reconvicted after a new trial for the same offense. 395 U.S. 711, 724-26, 89 S.Ct. 2072, 2080-81 (1969). According to the Supreme Court, "vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial." Id. at 725, 69 S.Ct. at 2080. Thus, where a harsher sentence is imposed by the same judge on resentencing, the defendant is entitled to a "presumption of vindictiveness, which may be overcome only by objective information in the record justifying the increased sentence." United States v. Goodwin, 457 U.S. 368, 374, 102 S.Ct. 2485, 2489 (1982); accord, e.g., Wasman v. United States, 468 U.S. 559, 564-65, 104 S.Ct. 3217, 3221 (1984).*fn15 This "prophylactic rule" also applies to resentencing after vacation of sentence. E.g., United States v. Jefferson, 760 F.2d 821, 825 (7th Cir.), vacated on other grounds, 474 U.S. 806, 106 S.Ct. 41 (1985); Robinson v. Scully, 690 F.2d 21, 24 (2d Cir. 1982) ("The distinction between retrial and a hearing upon remand has no legal significance for present purposes since both present an equal opportunity for judicial vindictiveness upon resentencing."); Jones v. Hollins, 884 F. Supp. 758, 762 (W.D.N.Y. 1995), aff'd on other grounds, No. 95-2279, 89 F.3d 826 (table), 1995 WL 722215 (2d Cir. Nov. 30, 1995); Guantlett v. Kelley, 658 F. Supp. 1483, 1490-91 (W.D.Mich. 1987), aff'd, 849 F.2d 213 (6th Cir. 1988).

"[T]he presumption of vindictiveness does not apply where the penalty imposed on resentencing is the same as the original sentence." Jones v. Hollins, 884 F. Supp. at 762; see also United States v. Moore, 997 F.2d 30, 38 (5th Cir.), cert. denied, 510 U.S. 1029, 114 S.Ct. 647 (1993); United States v. Schoenhoff, 919 F.2d 936, 938-39 (5th Cir. 1990); Brown v. District Court, Nassau Co., 637 F. Supp. 1096, 1098-99 (E.D.N.Y. 1986).*fn16 "If the presumption does not apply, then the burden remains on the defendant to show actual vindictiveness upon resentencing." United States v. Perez, 904 F.2d 142, 146 (2d Cir.) (citing Alabama v. Smith, 490 U.S. 794, 799-800, 109 S.Ct. 2201, 2204-05 (1989)), cert. denied, 498 U.S. 905, 111 S.Ct. 270 (1990); see also, e.g., Jones v. Hollins, 884 F. Supp. at 762 (Where the presumption of vindictiveness does not apply, "a due process violation can be demonstrated only by showing of `actual vindictiveness upon resentencing.'") (quoting Texas v. McCullough, 475 U.S. 134, 148, 106 S.Ct. 976, 978-79 (1986)); Pabon v. Hake, 763 F. Supp. 1189, 1194 (E.D.N.Y. 1991) ("When a presumption of vindictiveness does not apply, the Petitioner has the burden of proving vindictiveness by a preponderance of the evidence.") (citing Alabama v. Smith).

Naranjo is not entitled to the Pearce presumption of vindictiveness because the sentence imposed on him on resentencing was equal to (or less than) the original sentence.*fn17 Consequently, Naranjo has the burden of showing actual vindictiveness, which "must be proved by a preponderance of evidence." Alvarez v. Keane, 92 F. Supp.2d 137, 154 (E.D.N.Y. 2000); see also cases cited at page 21 above.

Naranjo argues that the disparity between the prosecution's pre-trial plea offer of five to ten years imprisonment and Naranjo's ultimate sentence of twenty-five to fifty years suggests "the presence of retaliation against [Naranjo] for having gone to trial." (Naranjo 1st Dep't Br. at 11.) This disparity does not make out a claim of actual vindictiveness, because the judge never suggested that the sentence was based on Naranjo's refusal of the plea offer, and the mere fact that the court, following conviction, imposed a sentence on Naranjo approaching the maximum legal limit does not, in itself, demonstrate actual vindictiveness. See, e.g., Corbitt v. New Jersey, 439 U.S. 212, 219, 223, 99 S.Ct. 492, 497, 499-500 (1978) ("We have squarely held that a State may encourage a guilty plea by offering substantial benefits in return for the plea. . . . We discern no element of retaliation or vindictiveness against [appellant] for going to trial. There is no suggestion that he was subjected to unwarranted charges. Nor does this record indicate that he was being punished for exercising a constitutional right. . . . There is no doubt that those homicide defendants who are willing to plead non vult may be treated more leniently than those who go to trial, but withholding the possibility of leniency from the latter cannot be equated with impermissible punishment as long as our cases sustaining plea bargaining remain undisturbed."); Chaffin v. Stynchcombe, 412 U.S. 17, 31, 93 S.Ct. 1977, 1985 (1973) (While confronting a defendant with the risk of more severe punishment following trial clearly may have a "discouraging effect on the defendant's assertion of his trial rights, the imposition of these difficult choices . . . [is] an inevitable attribute of any legitimate system which tolerates and encourages the negotiation of pleas."); United States ex rel. Williams v. McMann, 436 F.2d 103, 106-07 (2d Cir. 1970) (finding neither judicial nor prosecutorial vindictiveness where defendant was sentenced to five to ten years after conviction at trial despite a negotiated pre-trial offer of three to seven years in return for pleading guilty to a reduced charge, stating: "This is nothing more than a `heads-I-win-tails-you-lose' gamble. To frustrate this strategy, prosecutors would be restrained from entering plea bargains, thereby adding further to the staggering burdens of our criminal courts, and judges would become more rigid in exercising their discretion in favor of permitting withdrawal of a guilty plea. This would hardly enhance the administration of criminal justice. Accordingly, we find no substance to [petitioner's] claim that he has been the victim of official retaliation.") (fn. omitted), cert. denied, 402 U.S. 914, 91 S.Ct. 1396 (1971); Bailey v. Artuz, No. 94 Civ.1240, 1995 WL 684057 at *2 (N.D.N.Y. Nov. 15, 1995) (Pooler, D.J.) ("a sentencing judge does not show vindictiveness or violate the due process clause by sentencing a defendant who, after withdrawing his plea of guilty to a lesser offense carrying a lower penalty, has then been convicted of a more serious offense to the higher penalty authorized for the more serious offense . . . [Petitioner] has offered no evidence of vindictive sentencing beyond the fact of the plea bargain offered to him and the actual sentence he received. . . . Therefore, [petitioner] has not made out a claim of constitutionally impermissible vindictive sentencing."); People v. Pena, 50 N.Y.2d 400, 411, 429 N.Y.S.2d 410, 416 (1980) ("From the fact that the court had been willing to accede to the District Attorney's recommendation as to sentence in a plea bargaining context, it does not follow that it was not free, once the defendant was found guilty, to impose a greater, but nevertheless lawful, term of imprisonment."), cert. denied, 449 U.S. 1087, 101 S.Ct. 878 (1981).

Naranjo also maintains that the sentence constituted punishment for his behavior during trial (Pet. ¶ 12; see also Traverse at 5-6), as evidenced by the trial judge's sentencing remarks:

I am focusing on sentencing him on the basis of what I had before me at the time of sentence and that includes the two incidents, portending to influence the two jurors in the very case that Mr. Naranj[o] was on trial here. I can mentally picture an African American woman who came up to me, to complain, [m]aybe I can't picture other potential jurors who were excused when Mr. Naranjo made some unfair action towards her as she was sitting in the jury panel during the jury selection process, and, then there was the time to[o] — during Ms. McCabe['s], the prosecutor's summation — not having testified at his own trial, not having the courage so to speak to get up, face the question under cross examination, twice Mr. Naranjo commented in an eviden[t]iary fashion on what Ms. McCabe was saying during summation.
(Tr. at 7-8.) Naranjo argues that "[t]hese remarks at sentencing concerning [his] alleged behavior and demeanor before the court during the proceedings in th[e] case should not have had any bearing on the court's sentence." (Naranjo 1st Dep't Br. at 11.)

Naranjo is mistaken. A defendant's behavior during trial can properly be used as a basis for sentencing. Over fifty years ago the Supreme Court in Williams v. New York upheld a New York statute that gave sentencing judges wide discretion to consider information about the defendant's "past life, health, habits, conduct, and mental and moral propensities" when determining what sentence within the statutory range should be imposed:

New York criminal statutes set wide limits for maximum and minimum sentences. Under New York statutes a state judge cannot escape his grave responsibility of fixing sentence. In determining whether a defendant shall receive a one-year minimum or a twenty-year maximum sentence, we do not think the Federal Constitution restricts the view of the sentencing judge to the information received in open court. The due-process clause should not be treated as a device for freezing the evidential procedure of sentencing in the mold of trial procedure. So to treat the due-process clause would hinder if not preclude all courts — state and federal — from making progressive efforts to improve the administration of criminal justice.
337 U.S. 241, 245, 250-51, 69 S.Ct. 1079, 1082, 1085 (1949) (fn. omitted). Williams and its progeny affirm the longstanding principle, codified in 18 U.S.C. § 3661 for federal criminal cases, that sentencing courts have broad discretion to consider various kinds of information. See 18 U.S.C. § 3661 ("No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence."); United States v. Watts, 519 U.S. 148, 152, 117 S.Ct. 633, 635 (1997) ("Neither the broad language of § 3661 nor our holding in Williams suggests any basis for the courts to invent a blanket prohibition against considering certain types of evidence at sentencing."); Nichols v. United States, 511 U.S. 738, 747, 114 S.Ct. 1921, 1927-28 (1994) ("As a general proposition, a sentencing judge `may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come.'") (quoting United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 591 (1972)); Wisconsin v. Mitchell, 508 U.S. 476, 485, 113 S.Ct. 2194, 2199 (1993) ("Traditionally, sentencing judges have considered a wide variety of factors in addition to evidence bearing on guilt in determining what sentence to impose on a convicted defendant."); United States Sentencing Commission, Guidelines Manual § 1B1.4 (2003) ("In determining the sentence to impose within the guideline range, or whether a departure from the guidelines is warranted, the court may consider, without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law.").

At resentencing, the judge reviewed Naranjo's misbehavior during trial and concluded: "That to me is a manipulative individual, who doesn't have respect for the system, committed crimes, and tr[ied] to defeat the system." (Tr. 8.) It is permissible for the trial judge to partially base the sentence on character traits that were manifested by Naranjo's trial behavior. See, e.g., Alabama v. Smith, 490 U.S. at 801, 109 S.Ct. at 2206 ("The defendant's conduct during trial may give the judge insights into his moral character and suitability for rehabilitation."); United States v. Grayson, 438 U.S. 41, 53, 98 S.Ct. 2610, 2617 (1978) ("[T]he evolutionary history of sentencing . . . demonstrates that it is proper — indeed, even necessary for the rational exercise of discretion — to consider the defendant's whole person and personality, as manifested by his conduct at trial and his testimony under oath, for whatever light those may shed on the sentencing decision."); United States v. Hendrix, 505 F.2d 1233, 1236 (2d Cir. 1974), cert. denied, 423 U.S. 897, 96 S.Ct. 199 (1975).

In United States v. Blackman, 66 F.3d 1572 (11th Cir. 1995), cert. denied, 517 U.S. 1126, 116 S.Ct. 1365 (1996), the Eleventh Circuit applied the "character" provision of the federal sentencing guidelines in circumstances strikingly similar to those at bar. 66 F.3d at 1578. At the sentencing hearing in Blackman, the defendant "began yelling obscenities at the judge and was removed from the courtroom." Id. The district court stated that he "believed [defendant's] outburst was indicative of his `absolute lack of remorse' and `complete defiance of rules,'" and thus levied the maximum sentence under the guidelines, in contrast to the other defendants, who "received the lowest possible sentence." Id. The district court "said that it was imposing the sentence, not to punish [defendant] for making the statements, but because [defendant's] statements reflected his lack of remorse and refusal to accept responsibility for his acts." Id. The Eleventh Circuit affirmed on the grounds that U.S.S.G. § 1B1.4 "permits a judge to consider `any information concerning the background, character, and conduct of the defendant,'" and the district court "did not abuse its discretion in considering [defendant's] outrageous conduct at the sentencing hearing." Id. See also In re Barry, 946 F.2d 913, 914 (D.C. Cir. 1991) ("[A] trial judge is entitled to form his own judgment as to the conduct of a defendant and to take that judgment into account in sentencing," citing, inter alia, Sentencing Guidelines §§ 1B1.3-.4 & Commentary. "A judge's candid reflections of what he has inferred from the trial about the defendant's character and conduct simply do not establish bias or prejudice.").

Naranjo also asserts that the judge's comment that Naranjo lacked the courage to testify indicates that the judge unconstitutionally penalized Naranjo for not testifying. (Pet. ¶ 12; see also Traverse at 5-6.) It is certainly true that a judge may not draw an adverse inference from a defendant's failure to testify at trial, Griffin v. California, 380 U.S. 609, 614, 85 S.Ct. 1229, 1233-34 (1965), or at sentencing, Mitchell v. United States, 526 U.S. 314, 328, 119 S.Ct. 1307, 1315 (1999) ("We decline to adopt an exception [to the Griffin rule] for the sentencing phase of a criminal case with regard to factual determinations respecting the circumstances and details of the crime."). The sentencing judge here, however, did not do this. The judge's complete statement is as follows:

[T]here was the time to[o] — during Ms. McCabe['s], the prosecutor's summation — not having testified at his own trial, not having the courage so to speak to get up, face the question under cross examination, twice Mr. Naranjo commented in an eviden[t]iary fashion on what Ms. McCabe was saying during summation.
(Tr. 8.) In context, the judge's comment appears to have been directed toward Naranjo's misbehavior at trial, not his failure to testify. Since trial misbehavior may be considered at sentencing, the trial judge did not err. (See cases cited at pages 26-27 above.)

Naranjo thus has offered no evidence of actual vindictiveness in sentencing and, therefore, Naranjo has not made out a claim of constitutionally impermissible vindictive sentencing.

Moreover, under the AEDPA, the Court must give deference to the First Department's affirmance of Naranjo's resentencing, even though it ruled without an opinion. (See pages 13-14 above.) The Court cannot say that the State court's decision is contrary to or an unreasonable application of Supreme Court sentencing procedure.

IV. NARANJO'S EXCESSIVE SENTENCE CLAIM DOES NOT PROVIDE A BASIS FOR FEDERAL HABEAS RELIEF
Naranjo's excessive sentence claim does not provide a basis for federal habeas relief, because "[n]o federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law." White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992).*fn18

Naranjo was resentenced to 12-1/2 to 25 years for the September 11, 1992 first degree robbery and a consecutive term of 12-1/2 to 25 years for the September 12, 1992 first degree robbery, and concurrent terms of 7-1/2 to 15 years for second degree criminal weapons possession and 2 to 4 years for second degree attempted assault, for a total of twenty-five to fifty years imprisonment. (See page 6 above.)

In New York, first-degree robbery is a class B violent felony, Penal Law §§ 160.15, 70.02(1)(a), for which the maximum statutory sentence is 12-1/2 to 25 years imprisonment. Penal Law § 70.02(3)-(4). Second-degree criminal possession of a weapon is a class C violent felony, Penal Law §§ 70.02(1)(b), 265.03, for which the maximum statutory sentence is 7-1/2 to 15 years imprisonment. Penal Law §§ 70.02(3)(b), 70.02(4). Attempted second-degree assault is a class E felony, Penal Law §§ 120.05, 110.05(6), for which the maximum statutory sentence is 4 years imprisonment. Penal Law § 70.00(2).*fn19 Subject to exceptions not applicable in the present case, the trial judge has discretion to impose the sentences concurrently or consecutively. Penal Law § 70.25. Naranjo's resentence of 25 to 50 years imprisonment thus was within the authorized statutory range, i.e., for two consecutive 12-1/2 to 25 year first degree robbery convictions.

Accordingly, Naranjo's excessive sentence claim does not raise a federal constitutional issue and is not cognizable on habeas review.

V. NARANJO'S MISINFORMATION CLAIM IS BOTH PROCEDURALLY BARRED AND MERITLESS
Naranjo claims that in imposing sentence, the judge relied on the erroneous belief that Naranjo was pending trial on another felony matter when he committed the instant offenses. (Pet. ¶ 12; see also Dkt. No. 11: Naranjo Traverse at 3-4.) The State asserts that Naranjo's claim is barred because he failed timely to object at re-sentencing to the judge's alleged use of this "misinformation." (Dkt. No. 10: State Habeas Br. at 9-10, citing Tr. 8.)

This Court is barred from reviewing any habeas claim on the merits that the state court denied on "adequate and independent state grounds," such as a state procedural bar. See, e.g., Rosario v. Bennett, 01 Civ. 7142, 2002 WL 31852827 at *18-22 (S.D.N.Y. Dec. 20, 2002) (Peck, M.J.) (discussing adequate and independent state ground doctrine). In this case, the State's brief to the First Department argued both that Naranjo's misinformation claim was meritless and that he had waived it by failing to object at sentencing. (Dkt. No. 9: State Answer Ex. B: 1st Dep't Br. at 22-23.) The First Department, however, affirmed without opinion. People v. Naranjo, 267 A.D.2d 1110, 703 N.Y.S.2d 431 (1st Dep't 1999).

In Quirama v. Michele, 983 F.2d 12 (2d Cir. 1993), the Second Circuit faced virtually the identical situation. On habeas review, petitioner asserted that "(i) an instruction on accomplice liability was constitutionally defective; [and] (ii) the mandatory minimum sentence was unconstitutionally long." Id. at 13. On direct appeal, the State had argued both that the claims were barred on procedural grounds because defendant failed to object at trial and at sentencing, and also were meritless. Id. The First Department affirmed without opinion. Id. The Second Circuit noted that Harris v. Reed, 489 U.S. 255, 263, 109 S.Ct. 1038, 1043 (1989), "allowed federal habeas review of a state court's rejection of federal claims where the state court had not clearly and expressly state[d] . . . that its judgment rests on a state procedural bar." Quirama v. Michele, 983 F.2d at 14 (internal quotations omitted). The Second Circuit further noted, however, that in Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546 (1991), "the Supreme Court stated that Harris did not apply to affirmances without opinion unless there is `good reason to question whether there is an independent and adequate state ground for the decision.'" Quirama v. Michele, 983 F.2d at 14 (quoting Coleman v. Thompson, 501 U.S. at 739-40, 111 S.Ct. at 2559). The Second Circuit in Quirama also cited Martinez v. Harris, 675 F.2d 51, 54-55 (2d Cir.), cert. denied, 459 U.S. 849, 103 S.Ct. 109 (1982), for the proposition that "because New York permits review of the merits of claims not raised in the trial court only sparingly . . . it is thus reasonable to presume that silence in the face of arguments asserting a procedural bar indicated that the affirmance was on state procedural grounds." Quirama v. Michele, 983 F.2d at 14. Accordingly, the Second Circuit in Quirama held that petitioner's two claims were barred from habeas review on independent and adequate state grounds: "The claims in issue were not raised in the trial court, and the procedural bar was argued by the state on appeal. There is no `good reason' to believe that the Appellate Division's silence reflects a decision on the merits." Id. at 14 (quoting Coleman v. Thompson, 501 U.S. at 739-40, 111 S.Ct. at 2559).

Other Second Circuit panels have followed Quirama to the same conclusion. See, e.g., Aparicio v. Artuz, 269 F.3d 78, 92-93 (2d Cir. 2001) (applying Quirama); Pinto v. Stinson, No. 96-2655, 129 F.3d 114 (table), 1997 WL 664866 at *1 (2d Cir. Oct. 21, 1997) (Affirming adequate and independent state procedural bar, for failure to object to reasonable doubt instruction, where Appellate Division affirmed conviction without opinion. "Because it does not `fairly appear' that the State courts rejected [petitioner's] federal claim on the merits, he cannot raise it in a federal habeas corpus petition.") (citing Quirama), cert. denied, 522 U.S. 1131, 118 S.Ct. 1085 (1998); Reyes v. Keane, 118 F.3d 136, 137-38 (2d Cir. 1997) ("There is no doubt or dispute that [petitioner] procedurally defaulted by not raising his jury instruction claim before the state trial court." "[W]here, as in the present case, a claim is not raised in the trial court and a procedural bar is among the grounds [along with the merits] argued by the State on direct appeal, we construe an affirmance without opinion as resting on the procedural ground where `[t]here is no "good reason" to believe that the Appellate Division's silence reflects a decision on the merits.'") (citing Quirama); Epps v. Commissioner of Corr. Servs., 13 F.3d 615, 617-19 (2d Cir.) (Petitioner failed to object to peremptory challenge during jury selection, and the trial court denied petitioner's Batson motion at sentencing. On direct appeal, the State argued both the procedural bar and the merits, and the Appellate Division affirmed without opinion. The Second Circuit followed Quirama, holding that "the Appellate Division's silent affirmance in the face of the State's argument that the claim was both procedurally barred and meritless should be presumed to rest on state procedural grounds."), cert. denied, 511 U.S. 1023, 114 S.Ct. 1409 (1994); see also, e.g., Calderon v. Keane, 97 Civ. 2116, 2002 WL 1205745 at *7 (S.D.N.Y. Feb. 21, 2002) (Petitioner failed to object to jury instruction at trial, and Appellate Division affirmed conviction without opinion. "Under Quirama and its progeny, this Court must presume that the Appellate Division based its decision on procedural grounds, despite the fact that the prosecution also argued the issue on substantive grounds."); Kirby v. Senkowski, 141 F. Supp.2d 383, 394 (S.D.N.Y. 2001) (Where the State argued on direct appeal that Fifth Amendment claims were both "unpreserved and without merit," and the Appellate Division affirmed "without opinion," "under Quirama, this Court must presume that the Appellate Division rejected the Fifth Amendment claims based on an adequate and independent state ground.").

"The scope of Quirama has been much debated in this circuit." Fama v. Commissioner of Corr. Servs., 235 F.3d 804, 810 (2d Cir. 2000); see also Hayes v. Coombe, 142 F.3d 517, 519 (2d Cir. 1998) ("the exact scope of Quirama and its continued vitality need not be resolved today"), cert. denied, 525 U.S. 1108, 119 S.Ct. 879 (1999). In Fama v. Commissioner of Corr. Servs., 235 F.3d at 810, the Second Circuit "decline[d] to extend Quirama to those cases in which an opinion of the state court speaks, however cursorily, to the question of whether the state or federal ground was the basis for decision." Id. The Second Circuit thus reaffirmed its line of cases holding that a state court decision that defendant's claim is "`either unpreserved for appellate review or without merit'" cannot be considered an adequate and independent state ground barring habeas review, because the state court "has not adequately indicated that its judgment rests on a state procedural bar." Fama v. Commissioner of Corr. Servs., 235 F.3d at 810-11; see, e.g., Rosario v. Bennett, 01 Civ. 7142, 2002 WL 31852827 at *20 & n. 29 (S.D.N.Y. Dec. 20, 2002) (Peck, M.J.) (collecting cases that decline to find a procedural bar where the state court decision was in the disjunctive — "either" on the merits "or" on procedural grounds). The Fama — Quirama distinction makes little sense. A state court's reliance on a procedural bar is even less clear where, as here and in Quirama, (1) the State has argued both a procedural bar and the merits, and (2) the state court affirmance is "without opinion."

While the Second Circuit declined to extend Quirama, it has not been overruled or superseded and thus this Court is bound to its holding where, as here, the State argued procedural grounds and the merits and the Appellate Division affirmed without opinion. See, e.g., Henderson v. I.N.S., 157 F.3d 106, 119 (2d Cir. 1998) ("`A decision of a panel of this Court is binding unless and until it is overruled by the Court en banc or by the Supreme Court.'") (quoting Jones v. Coughlin, 45 F.3d 677, 679 (2d Cir. 1995)), cert. denied, 526 U.S. 1004, 119 S.Ct. 1141 (1999). The Court thus concludes that under Quirama, Naranjo's misinformation claim is barred on adequate and independent grounds because of Naranjo's failure to object at sentencing.

Nevertheless, because of the implicit tension in this area of the law, the Court will also address the merits in the alternative.

Naranjo claims that the judge improperly considered erroneous information during resentencing. (Dkt. No. 2: Pet. ¶ 12; see also Dkt. No. 11: Naranjo Traverse at 3-4.) Immediately before announcing the new sentence, the judge stated:

As it works out, proper resolution of the allegations on the initial felony convictions, the incident occurred during the time the defendant was indicted and pending trial on another felony drug matter. The defendant deserves to be sentenced similarly to what I sentenced him the last time I sentenced him, 27 to 54.
(Tr. 8.) According to Naranjo, this shows that the judge thought Naranjo "was awaiting trial on pending felony drug charges at the time that he committed these offenses," when, in fact, Naranjo was not awaiting trial on another matter but was on probation. (Dkt. No. 9: Answer Ex. A: Naranjo 1st Dep't Br. at 10 n. 4, 12.)*fn20

Yet, just moments before, the judge demonstrated his understanding that Naranjo was on probation rather than awaiting trial:

Firing a gun at two people, hitting somebody with a gun during the course of an armed robbery, can't possibly be justified. It's a relatively mature individual who is accused of doing this and found guilty of doing this. He is a person accused of a crime while on probation — he said he was on parole at the time of this incident.
(Tr. 7.) Moreover, as the State pointed out (State 1st Dep't Br. at 22), reference to the "initial felony convictions," committing a crime while pending trial on another "felony drug matter," correctly (but inarticulately) referred to Naranjo's criminal history: he committed his second drug crime in 1988 while awaiting trial on his first drug crime, and was convicted on both. Thus, the judge did not use misinformation in sentencing, a conclusion supported by the fact that Naranjo failed to object to the judge's statement (Tr. 8-9) but rather referred correctly (and properly) to Naranjo's prior record.

Moreover, even if the sentencing judge did confuse Naranjo's status, any error was harmless. Under New York law, a person on "probation" has been previously convicted of a crime. Penal Law §§ 60.01(1) & (2). A person pending trial, on the other hand, will not necessarily be found guilty. Thus, even if the sentencing judge believed that Naranjo was pending trial on a different matter, instead of correctly believing that Naranjo was on probation, this misbelief would have ameliorated, not increased, the judge's sentence, and thus any error is harmless. See, e.g., Aramas v. Donnelly, 99 Civ. 11306, 2002 WL 31307929 at *17 n. 30 (S.D.N.Y. Oct. 15, 2002) (Peck, M.J.) (discussing harmless error standard on federal habeas review).

Finally, the sentencing judge made clear by his sugar in water saturation analogy that there simply were numerous reasons to sentence Naranjo to the maximum, such that removal of any particular reason would not cause the judge to reduce the sentence. There was sufficient basis to support the sentencing judge's viewpoint.

CONCLUSION

For the reasons discussed above, Naranjo's habeas petition should be denied and a certificate of appealability should not be issued.

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable William H. Pauley, III, 500 Pearl Street, Room 2210, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Pauley. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).


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