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Rivera v. Fischer

July 22, 2008


The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge


Petitioner Jose Rivera, a state prisoner appearing pro se, has petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.*fn2 Petitioner is currently in the custody of the New York State Department of Correctional Services incarcerated at the Eastern New York Correctional Facility.


In1993, Rivera was sentenced to five concurrent, indeterminate prison terms, ranging from eight and one-half to seventeen years, for his convictions on four counts of second-degree burglary and one count of attempted second-degree burglary. After he was released on parole in 2001, he committed additional crimes for which he was convicted, after pleading guilty, and sentenced on November 8, 2002, on two counts of attempted second-degree burglary and one count of fifth-degree criminal sale of a controlled substance. Rivera was adjudicated as a second felony offender for the fifth-degree criminal sale of a controlled substance conviction, under N. Y. Penal Law § 70.06, for which he was sentenced to a two and one-half to five-year prison term, and as a persistent violent felony offender for the two attempted second-degree burglary convictions, under Penal Law § 70.08, for which Rivera was concurrently sentenced to an aggregate term of twelve years to life in prison. Both the sentencing judge and the commitment order were silent as to whether petitioner's 2002 sentences would run consecutively or concurrently to his unexpired 1993 sentences. Rivera's conviction was affirmed by the Appellate Division, First Department, on April 22, 2004. People v. Rivera, 774 N.Y.S.2d 710 (N.Y.A.D. 2004). Rivera did not seek leave to appeal from the New York Court of Appeals, and his conviction became final 30 days later when his time to seek leave to appeal to the New York Court of Appeals expired, May 22, 2004.

Upon his commitment to serve the sentences imposed for his 2002 conviction in December 2002, the New York Department of Correctional Services (DOCS) determined that his 2002 sentences would be served consecutive to the undischarged portion of his 1993 sentences. After exhausting his administrative appeals through DOCS, on November 3, 2004, Rivera filed a petition under Article 78 of the N.Y. Criminal Civil Practice Rules in the Dutchess County Supreme Court, which denied his petition on January 20, 2005. Upon appeal, the Appellate Division, Second Department, affirmed the decision of the Dutchess County Supreme Court on December 19, 2005, and the New York Court of Appeals denied leave to appeal on March 28, 2006. Rivera v. Goord, 808 N.Y.S.2d 315 (N.Y.A.D. 2005), lv. denied, 846 N.E.2d 477 (N.Y. 2006) (Table). Rivera filed his petition in this Court on August 7, 2006.


Because Petitioner filed his petition after April 24, 1996, it is governed by the standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d). Consequently, this Court cannot grant relief unless the decision of the state courts was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 405--406 (2000); see Lockyer v. Andrade, 538 U.S. 63, 70-73 (2003) (explaining this standard). In applying this standard, this Court reviews the last reasoned decision by the state court, Jones v. Stinson, 229 F.3d 112, 118 (2d Cir. 2000), which in this case was that of the Appellate Division affirming denial of Rivera's Article 78 petition. In addition, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

To the extent that Petitioner alleges errors of state law, they are beyond the purview of this Court in deciding a petition for federal habeas corpus relief. This Court may only address violations of federal law. 28 U.S.C. § 2254(d); Estelle v. McGuire, 502 U.S. 62, 67--68 (1991) ("We have stated many times that federal habeas corpus relief does not lie for errors of state law. Today, we reemphasize that it is not the province of a federal habeas court to re-examine state-court determinations on state-law questions.") (citations and internal quotation marks omitted). It is a fundamental precept of dual federalism that the states possess primary authority for defining and enforcing the criminal law. See Engle v. Isaac, 456 U.S. 107, 128 (1982). It is also presumed that the state court knew and correctly applied state law. See Walton v. Arizona, 497 U.S. 639, 653 (1990), overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002).

Finally, in a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state-court criminal trial is whether the error had a substantial and injurious effect or influence in determining the jury's verdict. Fry v. Piler, 551 U.S. ___, ___, 127 S.Ct. 2321, 2328 (2007) (adopting the standard set forth in Brecht v. Abrahamson, 507 U.S. 619, 637--38 (1993)).


Rivera raises a single ground: DOCS erred in determining that his 1993 and 2002 sentences ran consecutively, not concurrently, and he should be given credit for the time served on his 1993 sentence. Respondent argues that the petition should be dismissed as untimely, failure to properly exhaust his claim in the state courts, and is procedurally barred from returning to the state courts, and, in any event, Rivera does not present any issue cognizable by this Court on a federal habeas petition.


A. Timeliness

A person in custody pursuant to a judgment of a State court has one year from the date his conviction became final to seek federal habeas relief. 29 U.S.C. § 2241(d)(1). As noted above, Rivera's conviction became final May 22, 2004, and, unless tolled, his time to file a petition in this Court expired May 22, 2005. On November 3, 2004, Rivera initiated his proceedings for post-conviction relief in the New York courts, which proceedings were terminated March 28, 2006. The time Rivera's post-conviction proceedings were pending before the New York courts tolled the limitation period. 28 U.S.C. § 2244(d)(2). At the time Rivera filed his Article 78 petition in the Dutchess County Supreme Court, 164 days had lapsed, leaving Rivera 201 days to file ...

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