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JOHN MINGO, pro se v. ROBERT ERCOLE

November 30, 2010

JOHN MINGO, PRO SE,
PETITIONER,
v.
ROBERT ERCOLE, SUPERINTENDENT OF GREEN HAVEN CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: X Kiyo A. Matsumoto, United States District Judge:

NOT FOR PRINT OR ELECTRONIC PUBLICATION

MEMORANDUM & ORDER

Pro se petitioner John Mingo ("petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging as excessive his five to fifteen year sentence for attempted criminal sale of a controlled substance in the third degree which was imposed in Supreme Court, Kings County, after he violated a probationary sentence. Petitioner is currently incarcerated pursuant to this sentence. For the reasons set forth below, the petition is denied.

BACKGROUND

I. The 1999 Conviction and Sentence

On April 30, 1999, petitioner pled guilty to attempted sale of a controlled substance in the third degree (the "1999 conviction"). (Declaration of Fay Ng dated January 29, 2009 ("Ng Decl.") Ex. A at 6.) During his plea, petitioner admitted that on October 6, 1998, he attempted to sell cocaine in Brooklyn, New York. (Ng Decl., Ex. A at 6.) During his plea allocution and while represented by counsel, petitioner stated on the record that as a condition of his guilty plea he voluntarily waived his right to appeal his conviction and any sentence imposed for this offense. (Ng Decl., Ex. A at 5.) Specifically, the following colloquy took place:

THE COURT: You understand that even when you plead guilty you still have a right to appeal, however, here, as part of the plea, you're giving up that right. Do you understand?

MR. MINGO: Yes.

THE COURT: Do you freely give up that right?

MR. MINGO: Yes.

THE COURT: Do you have any questions about that? MR. MINGO: No sir. (Ng Decl., Ex. A at 5 (lines 9-19).)

On August 31, 1999, petitioner was sentenced to five years probation and six months in the START program. (Ng Decl., Ex. B at 6.) The court warned petitioner that a violation of probation could result in a state prison sentence. (Ng. Decl., Ex. B at 7.)

II. The Violations of Probation and Resentence on the 1999 Conviction

After petitioner was arrested in February 2000 for grand larceny in the third degree and then convicted of disorderly conduct, the New York City Department of Probation ("Probation Department") filed a specification of Violation of Probation ("VOP") against him. (Ng Decl., Ex. E.) The Probation Department filed another VOP against petitioner after he was arrested in May 2000 and charged with criminal possession of a controlled substance in the third degree (a felony) and the seventh degree (a misdemeanor). (Id.) Because petitioner entered a conditional plea and successfully completed a Fortune Society drug treatment program, the May 2000 felony charge for criminal possession of a controlled substance in the third degree was ultimately dismissed and the May 2000 misdemeanor for criminal possession of a controlled substance in the seventh degree was conditionally discharged. (Id.) As a result, in November 2001 the Probation Department withdrew without prejudice to renewal both then-pending VOP specifications, and petitioner was restored to probation supervision on the 1999 conviction. (Ng Decl., Ex. D at ¶ 10.)

Additional VOPs were filed against petitioner in 2002 following petitioner's January 2002 arrest for robbery (Ng Decl. Ex. E), petitioner's failure to report to his probation officer (Id.), petitioner's June 2002 arrest for possession of a weapon and driving while intoxicated (Id.), and petitioner's December 2002 arrest for homicide (Ng. Decl., Ex. D at ¶ 12). Although the Probation Department offered petitioner a disposition in connection with these pending VOPs, petitioner refused. (Ng Decl., Ex. D at ¶ 13.)

A violation of probation hearing then took place on January 15, 2004 in connection with petitioner's probationary sentence under the 1999 conviction. (Ng. Decl., Ex. C, Ex. D at ¶ 15.) In order to establish petitioner's violation of probation, the Probation Department reinstated petitioner's conviction for misdemeanor criminal possession of a controlled substance in the seventh degree*fn1 which arose out of his May 2000 arrest and which had previously been conditionally discharged, and then presented a certificate of disposition demonstrating that conviction. (Ng Decl., Ex. C at 2, Ex. D at ¶ 15.)

In light of this evidence of conviction and resulting probation violation, the Probation Department recommended that petitioner be resentenced on the 1999 conviction to five to fifteen years imprisonment. (Ng Decl., Ex. C at 5.) The defense did not contest the fact of conviction or probation violation, but defense counsel asked the court to resentence petitioner to one to three years and noted that petitioner would also be facing a lengthy sentence if convicted on his pending 2002 homicide charge. (Ng. Decl., Ex. C at 5.)

After hearing from the parties, and based upon this evidence of conviction for misdemeanor drug possession, the court found petitioner in violation of probation, revoked the prior probationary sentence for the 1999 conviction, and resentenced petitioner to a term of five to fifteen years imprisonment on the 1999 conviction. (Ng. Decl., Ex. C at 7.)

III. Post-Sentence Appeals

Petitioner appealed the amended sentence for the 1999 conviction to the Supreme Court Appellate Division, Second Department, solely on the grounds that it was excessive. (Ng Decl., Ex E.) In an order dated February 27, 2007, the Appellate Division, Second Department, affirmed the amended sentence without opinion. (See ...


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