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United States District Court, E.D. New York

April 19, 2004.

KENNETH S. PERLMAN, Superintendent, Mohawk Correctional Facility, Respondent.

The opinion of the court was delivered by: JOHN GLEESON, District Judge


On May 7, 2002, I denied petitioner Carlos A. Bailey Parks's first petition for habeas relief from a conviction entered in New York Supreme Court, Kings County, on Parks's plea of guilty on May 18, 2000 to attempted criminal possession of a weapon in the third degree. See Parks v. Hollins, No. 00-CV-4587, 2002 U.S. Dist. LEXIS 9786 (E.D.N.Y. May 7, 2002). Familiarity with that opinion is assumed, and I will only set forth the facts relevant to this second petition based on the same May 18, 2000 guilty plea.

  After I denied his first petition, Parks moved in state court to vacate his judgment of conviction or, in the alternative, to set aside his sentence, pursuant to New York Criminal Procedure Law §§ 440.10 and 440.20, respectively. Parks claimed that I had ruled, in one of his currently pending civil cases, Parks v. N.Y. City Police Dep't, No. 00 CV 2564, that "the arresting New York City Police Dept. officers took physical evidence by way of illegal search and seizure."*fn1 (Resp. Ex. C at 1.) Parks also claimed that his sentence should be vacated because the sentencing court had improperly used his federal conviction to enhance his sentence as a persistent violent felony offender. (Id. at [4].)

  In a decision dated March 11, 2002, the Supreme Court, Kings County, denied Parks's motion to vacate his conviction, but granted in part his motion to vacate his sentence. People v. Parks, Indictment No. 9770/99, slip op. (N.Y.Sup.Ct. Mar. 11, 2002) (contained in Resp. Ex. C). After holding that the federal conviction was irrelevant for purposes of Parks's persistent violent felony offender status, id. at 2-3, the court held that the sentencing court should have imposed "a minimum sentence equivalent to that for a second violent felony offender who is convicted of a class E violent felony." Therefore, the court reduced Parks's sentence from five years to life to four years to life. The presiding justice of the Appellate Division, Second Department, denied Parks leave to appeal. (Resp. Ex. E.) Parks then filed the instant petition, dated February 11, 2003. In the section of the form petition in which petitioners are asked to state the grounds for their petition, Parks writes:

Hon. Gleeson,
Pursuant to the doctrine of collateral estoppel, this plaintiff is barred from bringing issues clearly raised in a prior action or proceeding and decided against a party.
Your honor, plaintiff properly raises challenge based on the theory that the city of New York ha[s] taken responsibility for the illegal search and seizure, brutality, of this case.
Furthermore, through [its] attorney Mr. Paul M. Villanueva [it is] willing to settle this cause of civil liability under $5 million dollars.
Accordingly, the severity degree of this case have depr[e]ciation drastically, plaintiff should be treated in better favor.
Additionally, the guideline range of 24-32 months which is the maximum end of the guideline range on this charge plaintiff ha[s] served 40 months.
If your honor do[es] not help plaintiff, the New York State Parole Division will emphasize [its] bureaucracy over justice because of my past old record on 10-2003, eight months from this date; request immediate release or sent to a federal cadre program urgently.
(Pet. ¶ 13.)

  By order dated February 24, 2003, I ruled that the instant petition was a second or successive petition under 28 U.S.C. § 2244(b)(3)(A), and therefore transferred it to the Second Circuit. On April 21, 2003, that court held that "[i]nsofar as the application challenges the initial judgment, which has already been vacated, the application is denied. Insofar as the application challenges the judgment entered after vacatur, the § 2254 petition is not successive and the application to file it as a successive petition is therefore denied as unnecessary." Parks v. Perlman, No. 03-3529, slip op. at 1 (2d Cir. Apr. 21, 2003).

  Based on the foregoing, to the extent Parks challenges his conviction, his petition is denied. See id. However, as Parks's challenge to his new sentence is not barred, see id., I held oral argument by teleconference on April 16, 2004. For the reasons set forth below, the petition is denied.*fn2


  A. The Standard of Review

  The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") has narrowed the scope of federal habeas review of state convictions where the state court has adjudicated a petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). Under the AEDPA standard, which applies to habeas petitions filed after AEDPA's enactment in 1996, the reviewing court may grant habeas relief only if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The Supreme Court has interpreted the phrase "clearly established Federal law" to mean "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000); see also Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001).

  A decision is "contrary to" clearly established federal law, as determined by the Supreme Court, if "the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413. A decision is an "unreasonable application" of clearly established Supreme Court law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. "In other words, a federal court may grant relief when a state court has misapplied a `governing legal principle' to `a set of facts different from those of the case in which the principle was announced.'" Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 2535 (2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 1175 (2003)).

  Under the latter standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Gilchrist, 260 F.3d at 93 (citing Williams, 529 U.S. at 411); see also Yarborough v. Gentry, 124 S.Ct. 1, 4 (2003) (per curiam) ("Where . . . the state court's application of governing federal law is challenged, it must be shown to be not only erroneous, but objectively unreasonable."); Wiggins, 539 U.S. 510, 123 S.Ct. at 2535 (same). Interpreting Williams, the Second Circuit has added that although "[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." Gilchrist, 260 F.3d at 93 (citing Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).

  This standard of review applies whenever the state court has adjudicated the federal claim on the merits, regardless of whether it has alluded to federal law in its decision. As the Second Circuit stated in Sellan v. Kuhlman:

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.
261 F.3d 303, 312 (2d Cir. 2001).

  In addition, a state court's determination of a factual issue is presumed to be correct, and is unreasonable only where the petitioner meets the burden of "rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).


However, "even in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. . . . A federal court can disagree with a state court's credibility determination and, when guided by AEDPA, conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence."
Shabazz v. Artuz, 336 F.3d 154, 161 (2d Cir. 2003) (ellipsis in original) (quoting Miller-El v. Cockrell, 537 U.S. 322, 123 So. Ct. 1029, 1041 (2003)).

  B. Parks's Claim: Excessive Sentence

  After noting that New York law was unsettled as to whether a federal conviction for aggravated bank robbery under 18 U.S.C. § 2113(d) constituted a violent felony offense, the state court did not consider that conviction as a predicate offense in determining whether Parks was properly adjudicated as a persistent violent felony offender. People v. Parks, Indictment No. 9770/99, slip op. at 2 (N.Y.Sup.Ct. Mar. 11, 2002). The court then determined whether Parks's other convictions were properly counted against him:

In reviewing the predicate statement, the first conviction listed was for Robbery in the 1st Degree, a class B violent felony, for which the defendant was sentenced on March 15, 1977. The second conviction listed was for Criminal Possession of a Weapon in the 3rd Degree, a class D violent felony, for which the defendant was sentenced on January 12, 1982. The defendant was incarcerated for a total of 57 months for these two state convictions. He had an immigration hold for 1 month, and then was incarcerated for 11 years and 2 months in various federal correctional facilities upon his conviction for bank robbery. Therefore, between March 1977 and May 2000, a period of 23 years, the defendant was incarcerated for 16 years of that time.
Pursuant to P.L. § 70.04(1)(b)(iv), for the purpose of determining whether a prior conviction is a predicate violent felony conviction, the sentence must have been imposed not more than ten years prior to the commission of the felony in the instant case. However, pursuant to P.L. § 70.04(1)(b)(v), both of these state convictions serve as predicate felonies, since all periods of incarceration for any reason are excluded from the ten year period, extending that period by an amount of time equal to the time served in prison. Once the 16 years of incarceration are excluded, both of these prior New York state convictions for violent felony offenses are included in the determination of the defendant's status. Therefore, even excluding consideration of the federal conviction, the defendant remains a mandatory persistent violent felon.
Establishing the defendant's status is not the end of the consideration of this motion, however. Pursuant to Penal Law § 70.08(2), once the court has found that a person is a persistent violent felony offender, the court must impose an indeterminate sentence of imprisonment, with a maximum term of life. The statute is silent as to the minimum term to be imposed when the conviction is for a class E felony. Both the Court of Appeals and the Second Department have instructed that the court should impose a minimum sentence equivalent to that for a second violent felony offender who is convicted of a class E violent felony. Therefore, the minimum term of imprisonment should be four years, and not the five years imposed upon sentence in this case.
Id. at 3-4.

  Parks's corrected sentence of four years to life, as a persistent violent felony offender, fell within the maximum sentence authorized by New York law for his crime, and therefore does not qualify for consideration as excessive under the Eighth Amendment. See White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) ("No federal constitutional issue is presented where . . . the sentence is within the range prescribed by state law."). I also note that Parks's sentence is not grossly disproportionate and is therefore not unconstitutional. See Ewing v. California, 538 U.S. 11 (2003).


  For the foregoing reasons, the petition is denied. Because Parks has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue.

  So Ordered.

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