United States District Court, E.D. New York
April 19, 2004.
CARLOS A. BAILEY PARKS, Petitioner,
KENNETH S. PERLMAN, Superintendent, Mohawk Correctional Facility, Respondent.
The opinion of the court was delivered by: JOHN GLEESON, District Judge
MEMORANDUM AND ORDER
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
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 .)
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:
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
(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
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
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