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SKINNER v. DUNCAN

July 11, 2005.

RODNEY STEVEN SKINNER, Petitioner,
v.
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 denied.

  BACKGROUND

  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 appeal.

  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 On April 30, 1987, Skinner's parole was revoked when he was arrested and subsequently convicted of third degree arson and criminal mischief.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) (mandate).

  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.

  DISCUSSION

  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 ...


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