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Shand v. Miller

February 2, 2006


The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge



Petitioner Devon Shand ("Shand") filed this pro se petition for habeas corpus pursuant to 28 U.S.C. § 2254 challenging his 1998 conviction following a jury trial in Monroe County Court on two counts of first degree rape, two counts of attempted first degree rape, one count of attempted second degree rape, six counts of first degree sexual abuse, one count of second degree sexual abuse, two counts of first degree sodomy, and four counts of second degree menacing. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c).


Shand's conviction stems from his sexual abuse and menacing of his two step-daughters, aged ten and eighteen, and the menacing of their mother, with a knife and a bottle at their home in the City of Rochester. By indictment #409/98, Shand was charged with fourteen counts of sex offenses against his ten-year-old step-daughter ("C.I.") and three counts of menacing against C.I.'s mother, Sonia Reaves ("Reaves"). Indictment #439/98 charged Shand with three counts of sex offenses and one count of menacing against his eighteen-year-old step-daughter ("L.R."). The crimes charged in the indictment were alleged to have occurred between January 1997 and April 1998. The prosecution moved to consolidate the indictments under New York Criminal Procedure Law § 200.20(2)(c) on the basis that "the offenses contained in the indictments [we]re the same or similar in fashion, and the interests of judicial economy and justice warrant consolidation. . . ." N.Y. Crim. Proc. Law § 200.20(2)(c). Monroe County Court (Sirkin, J.) granted the motion to consolidate over defense counsel's opposition. At Shand's jury trial before Judge Sirkin, eighteen of the twenty-one counts charged in the consolidated indictments were submitted to the jury for consideration. The jury convicted Shand of all eighteen counts.

At the sentencing hearing, Judge Sirkin sentenced Shand to concurrent sentences on all of the counts, the longest of which were the sentences relating to the two convictions on first degree rape. With respect to count three, first degree rape by forcible compulsion, the judge issued a sentence of "maximum of twenty-five [years], minimum of ten [years], to run concurrent with the previous sentences." S.8. On count four, first degree rape with a person less than eleven years-old, the judge issued a different sentence: "maximum, twenty [years], minimum ten [years], concurrent." Id.

Shand appealed his conviction to the Appellate Division, Fourth Department, of New York State Supreme Court, alleging the following grounds for relief: (1) the indictments were improperly joined; (2) some of the charges in the indictment were not sufficiently specific; (3) the verdict was against the weight of the evidence; and (4) the sentence was harsh and excessive. The Appellate Division unanimously affirmed Shand's conviction but remanded the matter to the trial court for re-sentencing because there was a discrepancy between the sentencing minutes and the certificate of conviction. As noted above, the sentencing minutes imposed a sentence of ten to twenty-five years while the certificate of conviction imposed a sentence of ten to twenty years. Presumably, the trial court clarified that Shand's sentence should have been ten to twenty-five years since in his application for leave to appeal to the New York Court of Appeals, counsel argued that the Appellate Division did not have jurisdiction to remand the case for resentencing. The Court of Appeals denied leave to appeal.

This habeas petition followed in which Shand asserts the following arguments: (1) the appellate court did not have jurisdiction to remand the matter for resentencing; (2) the indictments were improperly joined; and (3) court of appeals erred in not allowing petitioner to appeal the remand of his case for resentencing. As grounds one and three are interrelated, they will be discussed together below. All of the issues presented in the habeas petition appear to be fully exhausted and properly before this Court. For the reasons set forth below, the petition is denied.


Standard of Review

To prevail under 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") in 1996, a petitioner seeking federal review of his conviction must demonstrate that the state court's adjudication of his federal constitutional claim resulted in a decision that was contrary to or involved an unreasonable application of clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable factual determination in light of the evidence presented in state court. See 28 U.S.C. § 2254(d)(1), (2); Williams v. Taylor, 529 U.S. 362, 375-76 (2000).

Merits of the Petition

1. Improper Joinder of the Indictments

Under both state and federal law, decisions to sever "are committed to the broad discretion of the trial court, and will be reversed only upon a showing of substantial prejudice." United Stated States v. Alvarado, 882 F.2d 645, 655 (2d Cir. 1989), cert. denied, 493 U.S. 1071 (1990) (direct review of conviction; holding that denial of severance was not erroneous) (quotations omitted). Improper joinder does not, in itself, amount to a constitutional violation. United States v. Lane, 474 U.S. 438, 446 n. 8, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986). Rather, erroneous joinder violates the constitution "only if it results in prejudice so great as to deny a defendant his Fifth Amendment right to a fair trial." Id.; see also Herring v. Meachum, 11 F.3d 374, 377 (2d Cir. 1993) (collateral review of habeas petition; holding that denial of severance did not warrant reversal of conviction) ("Joinder of offenses rises to the level of a constitutional violation only if it actually render[s] petitioner's state trial fundamentally unfair and hence, violative of due process.") (quoting Tribbitt v. Wainwright, 540 F.2d 840, 841 (5th Cir. 1976), cert. denied, 430 U.S. 910 (1977)). Joinder "has long been ...

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