The opinion of the court was delivered by: Denise Cote, District Judge
Petitioner, Edward Sams ("Sams"), proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 that was received by the Pro Se Office in this District on April 26, 2007. Pursuant to an Order dated June 11, 2007, the petition was referred to the Honorable Ronald E. Ellis. Respondent filed a motion to dismiss the petition on October 17, 2007. Sams did not file opposition to the motion, and no further submissions have been made. On July 8, 2008, the Order referring the petition to Judge Ellis was withdrawn. For the following reasons, the respondent's motion is denied without prejudice.
On December 23, 1999, a New York County grand jury returned an indictment charging Sams with robbery in the first degree in connection with the December 7, 1999 robbery of a grocery store on West 129th Street in Manhattan. Following plea negotiations, on May 23, 2000, Sams appeared before Justice Michael J. Obus to enter a plea of guilty. In accordance with the agreement reached with the district attorney's office, Sams pleaded guilty to attempted robbery in the second degree, a Class D violent felony. As Justice Obus explained to Sams, due to a prior conviction for a violent felony, the minimum sentence he was eligible to receive was five years' imprisonment.
Sams was sentenced on July 12, 2000, to a determinate term of five years' imprisonment. Despite New York Penal Law Section 70.45(1), which provides that "[e]ach determinate sentence also includes, as a part thereof, an additional period of post-release supervision," Justice Obus did not impose a term of post-release supervision ("PRS") or otherwise indicate that Sams would be subject to PRS. The written order of commitment also did not mention any PRS term. Justice Obus did note that Sams had waived his appellate rights, and Sams did not file any direct appeal challenging his conviction or sentence.
In March 2004, Sams was granted parole. Sams's petition states that while Sams was incarcerated he never received a written commitment sheet reflecting a PRS term, that he was released "without any stipulations or conditions of post release supervision," and that he was not informed of "any set of conditions of P.R.S." The exhibits accompanying respondent's motion indicate, however, that on March 10, 2004, Sams signed a document entitled "Certificate of Release to Parole Supervision," which indicates that he "agreed to abide by" various conditions of release. The document indicates that Sams was "additionally subject to a period of five years Post-Release Supervision," although the document does not reveal the authority under which that penalty was imposed. The document further states that Sams "voluntarily accept[ed] Parole Post-Release Supervision," and that he "under[stood] that Parole Post-Release Supervision is defined by these Conditions of Release and all other conditions that may be imposed upon [him] by the Board of Parole or its representatives."
In June and July of 2004, parole warrants were issued alleging various violations of the terms of Sams' PRS. Sams then absconded from supervision for a period of two years. He was subsequently apprehended and returned to custody in 2006.
By a Parole Revocation Decision Notice issued by the New York State Division of Parole on June 13, 2006, Sams's parole was revoked for failure to report to his parole officer on June 23, 2004; the seven other charged parole violations were withdrawn. The notice indicates that Sams was to be returned to prison for 18 months.
Sams's petition alleges that it was only on June 28, 2006, when the petition reports that Sams was transferred into the custody of the New York State Department of Correctional Services following the revocation of his parole, that he "received confirmation that a five year P.R.S. period had been added to his sentence." The petition further indicates that Sams attempted to have the PRS term administratively removed, but that his application was denied.
Following this denial, on November 10, 2006, Sams, proceeding pro se, filed a motion in New York State Supreme Court pursuant to New York Criminal Procedure Law Section 440.20 ("CPL Section 440.20") requesting that his sentence (but not his underlying conviction) be "set aside" because, inter alia, his lack of awareness of the PRS term rendered his plea involuntary and, more generally, the PRS term could not form a part of his sentence as it was not part of the "sentence or [judgment] entered upon the records of the Court."
In an opinion dated February 23, 2007, Justice Obus denied Sams's motion. While acknowledging that "the failure of the court to advise him of the mandatory period of PRS would support a challenge to the voluntariness of his plea," Justice Obus noted that Sams did not seek to vacate his plea, but rather to have the PRS term removed from his sentence. Justice Obus concluded that he was "without power" to grant such relief, as "any such action would render the resulting sentence unlawful," citing, inter alia, New York v. Sparber, 34 A.D.3d 265 (N.Y. App. Div., 1st Dep't 2006), in which the First Department had held that even where "the court's oral sentence was silent as to PRS," a determinate sentence "necessarily include[s]" the appropriate term of PRS under Penal Law Section 70.45(1). Id. at 265. Justice Obus did "direct that the written sentence commitment be amended to reflect the five-year PRS period," but stated that "such an amendment does not operate to change the sentence itself, but is intended to clarify an aspect of the sentence and to comply with the requirement that the sentence be entered upon the records of the court."
Sams's petition states that he attempted to appeal this decision to the First Department, but that leave to appeal was denied. By contrast, respondent reports that, having contacted both the appropriate district attorney's office and the First Department, there is no record of such an appeal having been taken.
Sams's habeas petition was received by the Pro Se Office on April 26, 2007. The petition raises substantially the same claims as were raised in the CPL Section 440.20 motion, with the addition of language challenging the holding and reasoning of Justice Obus's February 23, 2007 decision on that motion.
Respondent states that Sams was released from prison on September 24, 2007, having served his full prison term. Respondent further states, however, that Sams is currently serving a term of supervised release "as a result of the ...