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Hsu v. Cunningham

March 27, 2006

JACK HSU, PETITIONER,
v.
SUPERINTENDENT CUNNINGHAM, WOODBOURNE CORRECTIONAL FACILITY RESPONDENT.



REPORT AND RECOMMENDATION

TO THE HONORABLE LAURA T. SWAIN, U.S.D.J.:

Jack Hsu brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the length of the sentence imposed upon him by the Dutchess County Court for criminal possession of a weapon in the second degree and stalking in the second degree. Mr. Hsu argues that his sentence should be vacated because (1) it is excessive, and (2) it violates the Eighth Amendment's prohibition against cruel and unusual punishment.

For the following reasons, I recommend that the petition be denied.

Background

On June 26, 2001, a grand jury in Dutchess County, New York charged Jack Hsu with seven crimes: two counts of Stalking in the Second Degree (N.Y. Penal Law § 120.55(1)(i)); two counts of Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law § 265.03(2)); two counts of Criminal Possession of a Weapon in the Third Degree (N.Y. Penal Law § 265.02(4)); and, finally, one count of Criminal Possession of a Weapon in the Fourth Degree (N.Y. Penal Law § 265.01(2)). (Affidavit of Bridget Rahilly Steller dated Oct. 14, 2005 ("Steller Aff."), Exh. 2).

A. The Plea

On September 26, 2001, pursuant to a plea agreement, Mr. Hsu pled guilty before the Honorable Gerald V. Hayes in the Dutchess County Court to one count of criminal possession of a weapon in the second degree and one count of stalking in the second degree. (Plea Transcript ("Pl. Tr."), attached as Exh. 4 to Steller Aff., at 2-3). The following factual summary is derived from the testimony given by Mr. Hsu at the plea allocution.

Mr. Hsu began dating Jane Porter in April 2001. By the middle of May she ended the relationship. (Pl. Tr. at 17) Soon after, the petitioner began making unwanted phone calls to Ms. Porter's mother in an attempt to contact her. (Pl. Tr. at 17). In addition, Mr. Hsu called and sent threatening e-mails to Ms. Porter's house in New York, despite being told by her not to do so. (Pl. Tr. at 17-18). One such e-mail, sent June 20, 2001, stated that Ms. Porter would die in hell. The e-mail further advised that this was a warning. (Pl. Tr. at 18).

That same night, Mr. Hsu drove to a dance in Newton, Connecticut looking for Ms. Porter. (Pl. Tr. at 19). Upon finding her in the parking lot with a friend, Douglass Giardini, Mr. Hsu displayed a loaded pistol. (Pl. Tr. at 15, 19). He held the two captive until early the next day, when Ms. Porter convinced him to let Mr. Giardini leave and to follow her to her home in Dutchess County, New York. (Sentencing Transcript ("S. Tr."), attached as Exh. 5 to Steller Aff., at 11-12). Ms. Porter drove her car as Mr. Hsu followed in his. (Pl. Tr. at 16).

After Mr. Hsu drove into New York, he was arrested by the state police. The petitioner admitted following Ms. Porter from Connecticut to New York after threatening her with his pistol. (Pl. Tr. at 16-19). He also acknowledged that he intended to use the pistol to harass Ms. Porter for breaking off her relationship with him. (Pl. Tr. at 19, 20).

Mr. Hsu further stated that he understood that the prosecutor would recommend a sentence of 12 years imprisonment, that he would be subject to five years post-release supervision, and that Judge Hayes could sentence him to up to 15 years in prison if he believed a longer sentence was necessary. (Pl. Tr. at 10-13).

B. Sentencing

After reviewing the presentence report, letters submitted on behalf of Mr. Hsu, a psychologist's report, and presentence memoranda, Judge Hayes determined that the violent nature of Mr. Hsu's actions, along with his failure to appreciate the seriousness of the ...


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