The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
Rosemary Thompson ("Thompson"), appearing pro se, petitions
this Court for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. For the reasons set forth below, the Court denies
On June 3, 1999, Rosemary Thompson stabbed her boyfriend Albert
Carpenter ("Carpenter") with a knife at her daughter's home in
Wyandanch, New York. Thompson, who had been drinking and was an
intravenous drug user, claimed that Carpenter "scared" her into
thinking he was going to drive while drunk. When he refused to
give her the car keys, Thompson stabbed him. Thompson did not
call for help or dial 911, and Carpenter subsequently died of his
On March 8, 2000, before the Honorable Charles Cacciabaudo of
the County Court of Suffolk County, Rosemary Thompson pled guilty
to Manslaughter in the First Degree in violation of New York
Penal Law § 125.20. On March 21, 2000, Thompson pled guilty to
Aggravated Unlicensed Operation of a Motor Vehicle in the First
Degree in violation of New York Penal Law § 511. Her guilty pleas
were in full satisfaction of the indictment. On April 5, 2000,
Judge Cacciabaudo sentenced Thompson to a determinate term of
thirteen years imprisonment for her manslaughter conviction and a
term of one to three years in prison for her aggravated
unlicensed operation conviction, to be served concurrently.
Thompson directly appealed her convictions, arguing that her
sentence was unduly harsh and excessive, particularly in light of
her HIV status. On July 15, 2002, the Appellate Division, Second
Department affirmed Thompson's sentences. People v. Thompson,
296 A.D.2d 874, 745 N.Y.S.2d 477 (2d Dept. 2002). On November 20,
2002, the New York Court of Appeals denied her leave to appeal.
People v. Thompson, 99 N.Y.2d 540, 752 N.Y.S.2d 601 (2002).
Thompson did not seek certiorari review before the United States
Supreme Court or file any other post-conviction motions.
On April 14, 2003, Rosemary Thompson filed the instant petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, arguing
that her sentence was unduly harsh and excessive and that her
sentence is essentially a "life sentence" because of her HIV and
Hepatitis C status.
It is well-established that an excessive sentence claim will
not prevail as a ground for habeas corpus relief if the imposed
sentence was within the limits prescribed by state law. See
White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (holding that
a state prisoner who was sentenced within the limits of the state
law does not present a federal constitutional issue for habeas
purposes); Richardson v. Artuz, No. 97-CV-2128 (JG), 2004 WL
556688 at *22 (E.D.N.Y. Mar. 22, 2004) (finding that because a
state prisoner's sentence fell within the range authorized by New
York Penal Law, it "does not qualify for consideration as
excessive under the Eighth Amendment").
Rosemary Thompson was convicted of Manslaughter in the First
Degree, a class B felony, in violation of New York Penal Law §
125.20. Under New York Penal Law § 70.00, the minimum sentence
for a class B felony "shall be not less than one year nor more
than one-third of the maximum sentence" and the maximum sentence
is twenty-five years imprisonment. In accordance with her plea
bargain, Thompson received a determinate prison sentence of
thirteen years, which falls squarely within the range prescribed
by state law. As to her conviction for Aggravated Unlicensed
Operation of a Motor Vehicle in the First Degree, a class E
felony, the Court notes that this sentence of one to three years
also falls with the limits prescribed by the New York Penal Law.
The Court is sympathetic to Ms. Thompson's HIV and Hepatitis C
status and acknowledges her many achievements while in prison,
including a high school equivalency diploma, attending an
anti-violence program, and her certificate for completion of
training as a HIV Test Counselor. All of these admirable traits
may stand her in good stead in other avenues that may be
available to her.
Nevertheless, the trial court was within its discretion to
impose these sentences, and therefore, Thompson fails to raise a
federal constitutional issue to warrant habeas relief.
Accordingly, the Court denies Thompson's excessive sentence
For the reasons stated above, Rosemary Thompson's petition for
a writ of habeas corpus is DENIED. Pursuant to Rule 22(b) of the
Federal Rules of Appellate Procedure and 28 U.S.C. § 2253(c)(2),
a certificate of appealability is DENIED, as Thompson has not
made a substantial showing of a denial of a constitutional ...