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Willett v. Berbary

October 16, 2006


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



Dana Willett ("Willett" or "petitioner"), has filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in New York State Supreme Court (Monroe County) following a guilty plea. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c).


By indictment number 131/99, Willett was charged with one count of first degree assault, two counts of second degree assault, and one count of endangering the welfare of a child. Willett was offered a plea deal in which he would plead guilty to one count of first degree assault in exchange for a sentence promise of ten years. On July 20, 1999, petitioner pleaded guilty, admitting that between December 22, 1998, and January 18, 1999, he had caused a series of injuries (including a subdural hematoma, retinal hemorrhaging, and various fractures of the ribs and leg bones) to his one-month-old son. On July 27, 1999, petitioner was sentenced, as promised, to a determinate term of ten years in state prison.

On direct appeal, petitioner, represented by new counsel, argued only that his negotiated sentence was harsh and excessive. The Appellate Division, Fourth Department, summarily affirmed the conviction on March 21, 2003. The New York Court of Appeals denied leave to appeal on May 23, 2003.

On July 10, 2003, petitioner filed a motion pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.20, seeking to have his sentence set aside. He claimed (1) that his sentence was harsh and excessive; and (2) that his sentence should be set aside because the trial court failed to advise him that, in addition to the ten-year prison sentence, he also was subject to a mandatory period of five years of post-release supervision. See Respondent's Exhibit U at 83, attached to Respondent's Answer (Docket No. 7). Willett did not move to have his conviction vacated pursuant to C.P.L. § 440.10; the only relief he sought was to have his sentence set aside.

While this motion was pending, petitioner filed the instant petition for federal habeas corpus relief. See Petition (Docket No. 1). In paragraph 22 of the petition, which asked petitioner to state every ground on which he claimed he was being held unlawfully, petitioner wrote that "the defendant's sentence was harsh and excessive." See Petition at ¶22(A) (Docket No. 1). Under paragraph 23,*fn1 petitioner wrote, "There is the matter of 'post-[release] supervision' that was not a part of the sentencing courts sentence of the defendant, and it is being challenged in the lower (supreme court) court." Petition at ¶23 (Docket No. 1). Thus, it is apparent to this Court that petitioner sought to raise two grounds for federal habeas relief: (1) that his sentence was harsh and excessive; and (2) the trial court improperly failed to notify him of the mandatory period of post-release supervision. The first claim was exhausted at the time petitioner filed his petition; the second was in the process of being exhausted. On the same day that he filed his petition, petitioner also filed a motion to have his petition held in abeyance while he awaited a decision regarding his C.P.L. § 440.20 motion.

Respondent answered the petition on October 20, 2003. See Respondent's Answer and Memorandum of Law (Docket No. 7). Respondent admits that petitioner's claim that the sentence was harsh and excessive has been exhausted but asserts that it is not cognizable on habeas review. As to the second claim regarding the court's failure to notify petitioner of the period of post-release supervision, "respondent contends that this argument is just a further embellishment of petitioner's harsh and excessive sentence claim" See Respondent's Answer at 4 (Docket No. 7). Respondent also states that "this is an issue yet pending upon collateral review in State Court." See id. Then, respondent attempts to make an argument regarding the statute of limitations set forth in 28 U.S.C. § 2244, arguing that the C.P.L. § 440.20 motion did not toll the limitations period because it was not a "properly filed" motion for state court collateral relief since the motion court was required to deny it pursuant to C.P.L. § 440.10(2)(c). To the extent that the Court can make sense of this argument, it is incorrect; petitioner's motion was brought pursuant to C.P.L. § 440.20, not C.P.L. § 440.10. Finally, respondent states that it "waive[s] the exhaustion requirement and asks District Court to rule on this meritless claim." See Respondent's Answer at 3 (Docket No. 7).

On January 22, 2004, New York State Supreme Court (Monroe County) (Egan, J.) denied Willett's C.P.L. § 440.20 motion. The state court held that because the five-year period of post-release supervision is automatically included, pursuant to New York Penal Law § 70.45, in the sentence of a defendant convicted of a class B violent felony, it need not be specified at sentencing. See Monroe County Supreme Court Order at 2, attached to Petitioner's Application for Amendment as a Matter of Course (Docket No. 14).*fn2

On February 26, 2004, the Court (Payson, MJ) denied the motion to stay as moot since petitioner's C.P.L. § 440.20 motion had been denied on January 22, 2004, and, moreover, respondent had waived the exhaustion requirement. See District Court Order at 2 (Docket No. 15).

The matter is now fully briefed and ready for decision. Both claims have been fully exhausted and are properly before this Court. Moreover, any issues as to exhaustion are moot since respondent affirmatively has waived the exhaustion requirement.

For the reasons set forth below, the ...

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