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.
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.)
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.
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).
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
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
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
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.)
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
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).
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 ...