United States District Court, S.D. New York
July 11, 2005.
RODNEY STEVEN SKINNER, Petitioner,
GEORGE B. DUNCAN Respondent.
The opinion of the court was delivered by: DENISE COTE, District Judge
OPINION AND ORDER
On January 31, 2001, pro se petitioner Rodney Steven Skinner
("Skinner") filed this timely petition for habeas corpus relief
pursuant to 28 U.S.C. § 2254. Skinner seeks to vacate his 1983
conviction following trial of two counts of first degree robbery
and one count of first degree criminal use of a firearm. In his
petition, Skinner claims that he is being held unlawfully on the
following grounds: (1) he was convicted by use of evidence
obtained pursuant to an unlawful arrest; (2) the prosecution failed to disclose favorable evidence; (3) his protection against
double jeopardy was violated; and (4) he was denied his right to
appeal. He separately claims in his petition that the sentence he
is currently serving for an unrelated crime was enhanced due to
the unlawful 1983 conviction and that, therefore, his current
sentence was unlawfully obtained by the State of New York.
On August 31, 2004, the petition was referred to Magistrate
Judge Andrew Peck for a report and recommendation (the "Report").
On February 17, 2005, Judge Peck recommended that the petition be
The relevant facts are set forth in the Report and summarized
here. Skinner was convicted following trial and sentenced on June
17, 1983, to concurrent terms of two to six years imprisonment.
Skinner was advised of his right to appeal and stated during the
sentencing that he had received written notice of his right to
Skinner was released on parole on May 3, 1985. On April 30,
1987, Skinner's parole was revoked when he was arrested and
subsequently convicted of third degree arson and criminal
mischief. As a result, Skinner returned to prison on June 2,
1987, where the two years and two days remaining on his 1983
sentence were added to his new sentence of four to eight years.
On June 2, 1995, New York issued Skinner a certificate of final
parole discharge for the 1983 conviction.
On January 31, 1996, Skinner was arrested again, and on February 21, 1997, a jury found him guilty of first degree
assault, three counts of second degree criminal possession of a
weapon, and fourth degree tampering with a witness, the crimes
for which he is currently incarcerated.
During the sentencing phase, on June 23, 1997, Skinner was
adjudicated a persistent felony offender and sentenced to four
concurrent terms of twenty-five years to life, and a concurrent
one-year term. On February 10, 2000, the First Department
affirmed Skinner's conviction but reduced his sentence to four
concurrent terms of seventeen years to life concurrent with a
term of one year.
Skinner's state court challenges to his 1983 and 1997
convictions are described in the Report. Skinner's pro se
federal habeas corpus petition was received by the district
court's Pro Se Office on January 31, 2001. The district court
dismissed the petition on October 8, 2002 as time-barred under
the Antiterrorism and Effective Death Penalty Act. On April 11,
2003, the Second Circuit found Skinner's petition to be timely.
Skinner v. Duncan, No. 02-2742 (2d Cir. April 11, 2003)
The case was then reopened on October 21, 2003, and reassigned
to this Court on November 11, 2003. The Report recommends that
the petition be denied because Skinner is no longer "in custody"
for the 1983 conviction. Skinner filed timely objections to the
Report on February 26, 2005. For the following reasons, the
Report is adopted, and the habeas petition is denied.
In reviewing the Report, a reviewing court "may accept, reject,
or modify, in whole or in part, the findings or recommendations
made by the magistrate judge." 28 U.S.C. § 636(b) (1) (C). The
court shall make a de novo determination of those portions of
the report to which objection is made. United States v. Male
Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).
The Report concludes that there is no federal jurisdiction over
Skinner's habeas petition because he is no longer "in custody"
for the 1983 conviction, which is a prerequisite for federal
habeas relief. See 28 U.S.C. § 2254(a). Skinner had completely
served his entire sentence for the 1983 conviction five years
before he filed the present habeas petition.
Skinner contends that the Report should not be adopted because
he was granted an early discharge from parole supervision on June
2, 1995 for good behavior, and absent this early discharge he
would not have been released from parole until 1997. Even if
Skinner had not been released from parole until 1997, he would
have been free from any substantial restraints stemming from the
1983 conviction for over three years before he filed his habeas
petition in early 2001. In fact, Skinner was no longer in custody
based on the 1983 conviction as of his discharge from parole in
Skinner also appears to argue that his 1997 sentence is
unlawful because it was enhanced by his unconstitutional conviction in 1983. Skinner cannot use the 1997 sentencing
proceeding to resurrect a habeas challenge on the expired 1983
conviction. As explained in the Report, the Supreme Court has
ruled that the use of a prior conviction to enhance a later
sentence does not mean that a petitioner remains "in custody"
under the prior conviction, Maleng v. Cook, 490 U.S. 488,
492-93 (1989), and does not generally permit a collateral attack
on the expired conviction through an attack on the current
sentence which it was used to enhance. Lackawanna County Dist.
Attorney v. Coss, 532 U.S. 394, 403-404 (2001). Lackawanna
once a state conviction is no longer open to direct
or collateral attack in its own right because the
defendant failed to pursue those remedies while they
were available (or because the defendant did so
unsuccessfully), the conviction may be regarded as
conclusively valid. If that conviction is later used
to enhance a criminal sentence, the defendant
generally may not challenge the enhanced sentence
through a petition under § 2254 on the ground that
the prior conviction was unconstitutionally obtained.
Id. at 403-404 (citation omitted).*fn1
To the extent that the petition may be construed as an attack
on Skinner's 1997 conviction, the petition would have to be
referred to the Court of Appeals as a successive petition.
Skinner's first habeas petition challenging his 1997 conviction
has already been denied. Skinner v. Duncan, No. 01 Civ. 6656,
2003 WL 21386032 (S.D.N.Y. June 17, 2003). Skinner also argues that the Magistrate Judge did not review
the September 9, 1982 transcripts of his co-defendant's testimony
and failed to conduct a complete de novo review of his case.
Judge Peck did not conduct a de novo review of Skinner's case
because he had determined that the Court lacked jurisdiction over
the petition because Skinner is no longer "in custody" as a
result of his 1983 conviction. That determination having been
correct, these last objections to the Report are without merit.
The Report is adopted, and the petition for a writ of habeas
corpus is denied. In addition, no certificate of appealability
shall be issued. The petitioner has not made a substantial
showing of a denial of a federal right, and appellate review is
therefore not warranted. Tankleff v. Senkowski, 135 F.3d 235,
241 (2d Cir. 1998). I also find pursuant to
28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in
good faith. Coppedge v. United States, 369 U.S. 438, 445
(1962). The Clerk of Court shall dismiss this petition.