The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM-DECISION AND ORDER
Defendant, Hon. David A. Paterson, Governor of the State of New York, moves (Dkt. No. 18) to dismiss this pro se action under 42 U.S.C. § 1983 ("section 1983") for failure to state a claim. See Fed. R. Civ. P. 12(b)(6). In his pro se complaint, plaintiff Leslie Becker ("Becker"), an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), seeks a declaration that N.Y. Correction Law §601-d ("section 601-d") is unconstitutional, an order enjoining New York State from imposing increased sentences under section 601-d, and a declaration that the portion of his sentence imposed under that section is null and void. In moving for dismissal, defendant argues, inter alia, that Becker's claim is not cognizable under section 1983 and that section 601-d is not unconstitutional. As explained below, the Court grants the motion and dismisses the complaint.
On September 26, 2000, Becker was sentenced to a determinate term of 15 years based on his conviction after a non-jury trial for attempted rape in the first degree and other charges stemming from his conduct on December 1, 1999.*fn1 The sentence did not expressly impose a period of post-release supervision ("PRS"), although New York law since 1998 mandated PRS for all inmates serving determinate terms. See N.Y. Penal Law § 70.45(1).*fn2 In 2007, DOCS administratively added five years of PRS to Becker's sentence .*fn3
When DOCS added PRS to Becker's sentence in 2007, the Second Circuit had already disapproved the practice. See Earley v. Murray, 451 F.3d 71 (2d Cir. 2006). The Earley court held: "The only cognizable sentence is the one imposed by the judge. Any alteration to that sentence, unless made by a judge in a subsequent proceeding, is of no effect." Id. at 75.
Accordingly, the addition of PRS to the Earley defendant's sentence by DOCS was "contrary to clearly established federal law as determined by the United States Supreme Court." Id. at 76.
Becker filed a grievance challenging the administrative addition of PRS to his sentence. The grievance was denied. He then filed a CPLR Article 78 petition. On January 28, 2008, Supreme Court, Saratoga County, granted the petition and prohibited DOCS from imposing any period of PRS which had not been included by the sentencing court as part of the sentence.
In April 2008, New York's Court of Appeals ruled that only a sentencing judge has the authority to impose PRS. See Matter of Garner v. New York State Dept. of Corr. Servs., 10 N.Y.3d 358, 360 (2008) (holding that "only a judge may impose a PRS sentence" and that therefore "DOCS may not do so") and People v. Sparber, 10 N.Y.3d 457, 471-72 (2008) (holding that the appropriate remedy was usually a re-sentencing proceeding that could provide for the proper inclusion of PRS). Garner and Sparber were decided on state law grounds; New York's high court did not reach constitutional issues or the federal law issues raised in Earley. See Garner, 10 N.Y.3d at 363; Sparber, 10 N.Y.3d at 471, n.5.
On May 15, 2008, Becker filed a C.P.L. 440.20 motion to have his sentence set aside as illegal because it did not include PRS as required by Penal Law § 70.45(1). He sought re-sentencing to a determinate term that included the mandatory term of PRS and did not exceed 15 years in total. In response, the State conceded that Becker's sentence was illegal as a matter of law, consented to set it aside, and requested that the court re-sentence him to a determinate term of 15 years to be followed by five years of PRS.
On December 19, 2008, Schenectady County Court Judge Richard C. Giardino re-sentenced Becker to a determinate term of 15 years followed by five years of PRS.*fn4 Judge Giardino cited the recently-enacted section 601-d of New York Correction Law (L 2008, c 141, § 5, eff. June 30, 2008), which provides procedures for the re-sentencing of defendants whose initial commitment orders did not specify a period of PRS.
Becker then commenced the instant action, asserting that section §601-d is unconstitutional. He contends that it is an unconstitutional ex post facto law and that it subjects him to a second punishment in violation of the double jeopardy clause. The complaint's "Wherefore" clause asks the Court to:
A) Grant the declaratory judgment decreeing the post release supervision portion of his sentence is null and ...