The opinion of the court was delivered by: William M. Skretny United States District Judge
Scott A. Saracina ("Saracina" or "petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the sentence arising from his conviction on June 11, 2001, in Chautauqua County Court. (Docket No. 1.)
The conviction stems from a jury verdict on December 6, 2000, in which Saracina was found guilty of unlawfully imprisoning (a class E felony) and assaulting (a class D felony) his former girlfriend. Following the verdict, the prosecutor sought to have Saracina sentenced as a persistent felony offender ("PFO"), pursuant to New York's Penal Law §
70.10. Justice Stephen W. Cass, who had conducted the trial, held a PFO hearing on May 8 and 9, 2001. On June 11, 2001, Justice Cass found Saracina to be a PFO and imposed an enhanced sentence of 15 years to life on each count, with the sentences to run concurrently. (ST 17-18.)*fn1 Unlawful imprisonment in the first degree ordinarily carries a maximum sentence of four years and assault in the second degree ordinarily carries a maximum sentence of seven years. See N.Y. PENAL LAW §§ 70.00(2)(d) and (e), 125.05(1), 135.10.
Saracina's petition challenges the sentence enhancement as violative of the Constitution of the United States. It does not challenge the constitutionality of the underlying conviction. Thus, the background information and discussions that follow relate solely to the PFO hearing and Saracina's challenges to same.
II. BACKGROUND AND PROCEDURAL HISTORY
At the commencement of Saracina's PFO hearing, his trial attorney, Nathaniel Barone, confirmed that he had reviewed a report of Saracina's criminal history. Barone stated his intent to controvert the use of Saracina's 1980 North Carolina ("N.C.") imprisonment for common law robbery*fn2 as a predicate felony conviction. Barone planned to show that the N.C. matter was equivalent to a New York youthful offender finding and, therefore, should not be counted as a criminal conviction for purposes of sentence enhancement.*fn3 (PT 2-4.)
The prosecutor began his proof on predicate felonies with witness William H. Andrews, a retired District Attorney for the Fourth Prosecutorial District of North Carolina. (PT 12.) The Fourth Prosecutorial District includes Onslow County, the place of Saracina's 1980 conviction. (PT 15.) According to Andrews, the N.C. crime at issue involved a male victim who was forced to turn over his wallet and then struck over the head by what may have been a lead pipe. (PT 19.) Saracina was one of three men charged in connection with that incident and he ultimately pled guilty to common law robbery.*fn4 (PT 20, 43.) Andrews testified that common law robbery is a violent felony offense in N.C., the elements of which are "the taking and carrying away the personal property of another . . . without his voluntary consent, and with the intent to deprive the owner of its use permanently by the use of violence or threat of violence." (PT 25, 49.)
Over Barone's objections, Justice Cass accepted into evidence certified copies of: (1) the Transcript of Plea, and (2) the Judgment and Commitment form relating to Saracina's 1980 plea to common law robbery. (PT 21-23.) Andrews testified that the Judgment and Commitment was the final disposition of Saracina's plea, the document by which the Department of Corrections took him into its custody, and the sole document produced by the N.C. courts as documentation of the conviction. (PT 23, 35.)
Andrews went on to explain that because Saracina was under age 21 at the time of sentencing, he was eligible to be sentenced as a "committed youthful offender" and was, in fact, sentenced as such. According to Andrews, at the time of Saracina's plea, adults between the ages of 16 and 21*fn5 were eligible for committed youthful offender status, and someone so designated could be released from prison at the discretion of the parole commission at any time up to the maximum imposed by the judge, which in Saracina's case was five years. (PT 26-27, 37-38.) In other words, this status did not change the fact that Saracina received an adult conviction, but it did confer a potential sentencing benefit because of his age. (PT 27.)
Barone cross-examined Andrews, but did not elicit any testimony that called into question Andrews' earlier statements about the fact or nature of Saracina's conviction. Barone did not offer any evidence in support of his contention that Saracina's N.C. confinement was not pursuant to a felony conviction. (PT 27-47.)
The prosecutor next produced Karen Saracina, petitioner's ex-wife, who testified about the circumstances leading to petitioner's 1992 conviction in New York for attempted assault in the second degree. (PT 56-63.) Saracina does not dispute the counting of this conviction as a predicate felony.
At the completion of the hearing, Justice Cass reserved decision and accepted briefing from the parties. (ST 3; Docket 11, Ex. G at 2.) On June 11, 2001, Justice Cass determined that Saracina was a PFO and proceeded to sentence him consistent with that finding. In making his decision, the judge first acknowledged that he was required to determine whether Saracina had been convicted of two prior felonies in accordance with N.Y. PENAL LAW § 70.10. Justice Cass found that Saracina had been convicted of prior felonies in N.C. and in New York, both of which involved a sentence of imprisonment in excess of one year, and concluded "that the People of the State of New York have proven beyond a reasonable doubt that the defendant, Scott A. Saracina, is a persistent felony offender." (ST. 11-12, 16.) Justice Cass went on to find that Saracina's history and character and the nature and circumstances of his criminal conduct indicated that extended incarceration and lifetime supervision would best serve the public interest. (ST 16.) In particular, the judge noted Saracina's complete disregard for the law over a twenty year period, a history of antisocial behavior, and the progressively more violent nature of Saracina's crimes. (ST 16-17.)
B. The State Court Challenges
Saracina mounted numerous challenges to his conviction and sentence in the state courts. On direct appeal, his appellate counsel argued that: (1) the prosecutor engaged in a pattern of misconduct during trial and the court erred in failing to grant a mistrial, (2) the court abused its discretion in determining that Saracina's history and character warranted sentencing him as a PFO, and (3) the evidence at trial was insufficient to support the jury verdict, which is also against the weight of the evidence. (Docket No. 11, Ex. A.) The Appellate Division, Fourth Department, of the New York State Supreme Court unanimously affirmed Saracina's conviction on October 1, 2002. People v. Saracina, 298 A.D.2d 953. All claims raised on appeal were disposed of on the merits. Appellate counsel sought leave to appeal, but the application was denied by the New York State Court of Appeals on December 17, 2002. People v. Saracina, 99 N.Y.2d 564. Saracina's conviction became final on March 17, 2003, 90 days after the Court of Appeals denied him leave to appeal. Walker v. Artuz, 208 F.3d 357, 358 (2d Cir. 2000), rev'd on other grounds sub nom. Duncan v. Walker, 533 U.S. 167, 121 S.Ct. 2120, 150 L.Ed. 2d 251 (2001).
While his appeal was pending, Saracina, acting pro se, moved to set aside his sentence pursuant to New York Criminal Procedure Law § 440.20. (Petition, Appx. A.) Saracina claimed the N.C. conviction could not serve as a predicate felony for purposes of a PFO determination because: (1) the N.C. conviction was unconstitutionally obtained due to the court's failure to apprise Saracina of his privilege against self-incrimination at the plea colloquy, and, even if found to be constitutional, (2) the N.C. conviction was more than ten years old at the time of his PFO hearing, it was akin to a New York youthful offender matter, and there was no certificate of conviction or proper finding that the crime was analogous to a New York felony. The trial court denied the motion in an 8-page written decision dated May 13, 2002. (Docket No. 11, Ex. G.) Saracina raised the same issues in his application for leave to appeal, asserting, among other things, that Justice Cass failed to conduct a sufficient "analogy test" when he based his determination that the N.C. conviction was analogous to a New York felony solely on the uncorroborated testimony of Andrews. (Id. Ex. H.) The Fourth Department denied Saracina's motion for leave on February 7, 2003, concluding that there was "no question of law or fact which ought to be reviewed" by the court. (Id. Ex. J.)
On August 13, 2003, Saracina filed a second pro se § 440.20 motion urging that his sentence as a PFO violated his federal constitutional rights as a matter of law because, pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed. 2d 435 (2000), a sentence that exceeds the statutory maximum must be based on facts found by the jury, not the trial judge. (Petition, Appx. B.) In his supporting affidavit, Saracina also alleged ineffective assistance of trial counsel based on his attorney's failure to raise Apprendi in the PFO hearing. The trial court denied Saracina's motion on August 28, 2003 (Docket No. 11, Ex. N.), the Fourth Department denied him leave to appeal on December 6, 2003 (Id., Ex. Q),*fn6 and the Court of Appeals dismissed his motion for leave to appeal on December 30, 2003, People v. Saracina, 1 N.Y.3d 580.
On December 24, 2003, Saracina moved, pro se, for a writ of error coram nobis, alleging violations of his federal and state constitutional rights to effective assistance of appellate counsel. (Petition, Appx. C.) According to Saracina, appellate counsel failed to argue that: (1) trial counsel was ineffective when he failed to raise Apprendi at the PFO hearing, and (2) Saracina was denied due process when the court adjudged him a PFO absent the production of a certificate of conviction, without conducting a proper "same elements" analysis, and based on false testimony about the nature of his conviction and the elements of the crime to which he pled. The Fourth Department denied Saracina's application for ...