The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge
Pro se Petitioner Elroy Hendrix, a/k/a Elero Hendrix, ("Petitioner") has filed a timely petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the constitutionality of his custody. Petitioner is in state custody as a result of a judgment of conviction entered November 13, 1986 in New York Supreme Court, Bronx County. By that judgment, Petitioner was convicted of two counts of Robbery in the First Degree (N.Y. Penal Law ("Penal Law") § 160.15), and was sentenced, as a second felony offender, to concurrent, indeterminate terms of from 9 to 18 years imprisonment on each count. Petitioner is also in state custody as a result of a judgment of conviction entered October 6, 1999 in New York County Court, Monroe County. By that judgment, Petitioner was convicted, after a jury trial, of Robbery in the First Degree (Penal Law § 160.15 ), Assault in the Second Degree (Penal Law § 120.05 ), Grand Larceny in the Fourth Degree (Penal Law § 155.25), Burglary in the Third Degree (Penal Law § 140.02), and Criminal Mischief (Penal Law § 145.00), and was sentenced, as a persistent violent felony offender, to concurrent, indeterminate prison terms of 25 years to life on the robbery count, 16 years to life on the assault count, 2 to 4 years on the grand larceny count, 3 1/2 to 7 years on the burglary count, and a definite jail term of one year on the criminal mischief count.
For the reasons stated below, habeas relief is denied and the petition is dismissed.
II. Factual Background and Procedural History
A. Petitioner's Convictions and Sentences Imposed
On November 2, 1986, Petitioner was sentenced, as a second felony offender, in New York Supreme Court, Bronx County, to two concurrent, indeterminate prison terms of from 9 to 18 years following his conviction of two counts of first degree robbery. This conviction stemmed from a May 23, 1983 incident in which Petitioner forcibly raped and sodomized a woman at gunpoint and forced her to go to an ATM machine and give him money. See NYS Div. of Parole Case Summary, dated 08/27/98 (Resp't Ex. A). In an effort to obtain more money, Petitioner stayed with the victim overnight at her apartment, where he threatened the lives of her and her daughter. The next day, Petitioner forced the victim to give him more cash from the bank. Id. Petitioner was released to parole custody on August 12, 1997. He was declared delinquent by the NYS Division of Parole as of August 20, 1998 as a result of additional crimes he committed. See NYS Div. of Parole, Parole Revocation Decision Notice (Resp't Ex. B).
On October 6, 1999, judgment was entered on Petitioner's convictions of first degree robbery, second degree assault, third degree burglary, fourth degree larceny, and criminal mischief. This conviction stemmed from two separate incidents that occurred in 1998, wherein Petitioner was arrested and tried in connection with a school break-in and an unrelated robbery. See Dkt. No. 04-CV-6086. He was sentenced, as a persistent violent felony offender, to concurrent, indeterminate terms of 25 years to life on the robbery count, 16 years to life on the assault count, 2 to 4 years on the grand larceny count, 3 1/2 to 7 years on the burglary count, and a definite jail term of one year on the criminal mischief count. The commitment order did not state whether Petitioner's sentence would run concurrently or consecutively with the period remaining on the unexpired 1986 sentence. See Sentence Commitment of the Monroe County Court (Hon. Patricia D. Marks), Ind. No. 98-0800, dated 10/06/99 (Resp't Ex. C).
On November 5, 2004, Petitioner requested a copy of his time computation sheet from the Department of Correctional Services ("DOCS"). See Letter of 11/05/04 from Elero Hendrix to Elmira Correctional Facility (Resp't Ex. D). Subsequently, DOCS sent Petitioner the requested material, which reflected that Petitioner's sentence on his 1999 convictions would run consecutively to the time remaining on the undischarged portion of his 1986 sentence. On November 8, 2004, Petitioner sent a letter to the Inmate Record Coordinator of Elmira Correctional Facility inquiring about the consecutive sentence computation. See Letter of 11/08/04 from Elero Hendrix to Elmira Correctional Counselor (Resp't Ex. E). By letter dated November 17, 2004, Petitioner was informed by the Inmate Record Coordinator that his 1999 prison sentence would run consecutively with his 1986 prison sentence. See Letter of 11/17/04 from Elmira Correctional Facility Coordinator, Inmate Records Coordinator II (Resp't Ex. F). On February 24, 2005, Petitioner sought review of that determination with the Department of Corrections Central Office Review Committee. See Letter of 02/24/05 from Elroy Hendrix to NYS DOCS (Resp't Ex. G). On April 22, 2005, the Committee informed Petitioner that his time computation was correctly calculated and that, pursuant to Penal Law § 70.25(2-a), his sentence was required to run consecutively because he was sentenced as a persistent violent felony offender. See Letter of 04/22/05 from NYS DOCS to Elroy Hendrix (Resp't Ex. H).
B. Petitioner's CPLR Article 78 Proceeding
On August 18, 2005, Petitioner commenced an Article 78 proceeding*fn1 in New York Supreme Court, Chemung County, alleging that DOCS improperly calculated his term of imprisonment to run his 1999 sentences consecutively with the undischarged portion of his 1986 conviction without statutory authorization. See Pet'r Verified Pet. dated 08/16/05 (Resp't Ex. I). On September 23, 2005, the New York Supreme Court, Chemung County, issued a written decision denying his petition and dismissed the Article 78 proceeding. See Decision and Order of the New York Supreme Court, Chemung County (Hon. William F. O'Brien, III), Index No. 05-2195, dated 09/23/05 (Resp't Ex. J). The court explained that Penal Law § 70.25(2-a) states that, "where a sentence is imposed pursuant to Penal Law [§] 70.08 as a persistent violent felony offender, a later sentence must run consecutively to an undischarged sentence." Id. at 2. Thus, the court held that, "[s]ince petitioner was sentenced as a persistent violent felony offender, Penal Law § 70.25(2-a) controls" and, thus, Petitioner's sentence was properly calculated. Id. On or about December 12, 2006, Petitioner appealed the denial of his Article 78 petition, and the Appellate Division, Third Department, affirmed the order of the Chemung County Supreme Court on January 25, 2007. Hendrix v. Goord, 36 A.D.3d 1200 (3d Dept. 2007). On or about June 18, 2007, Petitioner filed for leave to appeal the decision of the Appellate Division, Third Department. See Pet'r Leave Application dated 06/11/07 (Resp't Ex. O). By Order dated July 3, 2007, the New York Court of Appeals denied Petitioner leave to appeal. Hendrix v. Goord, 9 N.Y.3d 859 (2007).
C. The Habeas Corpus Petition
On or about March 4, 2004, Petitioner filed a habeas corpus petition with this Court, seeking relief on six grounds, in relation to his 1999 conviction. See Dkt. No. 04-CV-6086, #1. On or about July 2, 2007, Petitioner filed a notice of motion to stay the pending habeas corpus action so that he could return to state court to resolve a claim that DOCS was improperly calculating his sentences as successive instead of concurrent. See id. at #15. The Court denied Petitioner's motion to stay, without prejudice, on February 13, 2008. See id. at #19. The Court instructed Petitioner that if he wished to include any unexhausted claims in his habeas corpus petition, he should file a motion to amend his petition and to stay the proceedings, and accompany said motion with a proposed amended petition. See id. Petitioner did not comply with these instructions. He did, however, file another habeas corpus petition (i.e., the petition presently before this Court) on or about June 26, 2008, alleging the same claim that was the subject of his motion to stay the original action.*fn2 On August 3, 2009, the Court dismissed the original habeas corpus petition on the merits. See Hendrix v. West, 04-CV-6086, 2009 U.S. Dist. LEXIS 66874 (W.D.N.Y. Aug. 3, 2009). The Court's August 3, 2009 decision did not make reference to the instant habeas ...