The opinion of the court was delivered by: Nicholas G. Garaufis, United States District Judge.
Petitioner Steven Somerville ("Somerville") brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his sentence of eleven to twenty-two years imprisonment following his conviction on charges of burglary, assault, and criminal mischief in New York State Supreme Court, Kings County. (Pet. (Docket Entry #1).) For the reasons set forth below, Somerville's petition is granted.
In April 1996, Kenya Hosay ("Ms. Hosay") was entering her home with her infant son in Brooklyn, New York, when Somerville appeared behind her, put his hand over her mouth, and pushed her inside. (Resp. Aff. (Docket Entry # 8) at 2.) Somerville punched Ms. Hosay in the eye and placed a knife against her throat. (Id.) He ordered her into her bedroom and demanded that that she provide him with the order of protection she had obtained from family court against him. (Id.) After Somerville further demanded that Ms. Hosay allow him to see their infant son anytime he desired, he exited the home. (Id.) He subsequently wrote an explicit account of his activities in a day minder calendar book. (Id.) The police ultimately arrested Somerville for the crime. (Id.)
In January 1997, following a jury trial before Justice John Leventhal in New York State Supreme Court, Kings County, Somerville was convicted of two counts of Burglary in the First Degree, and one count each of Burglary in the Second Degree, Assault in the Second Degree, Assault in the Third Degree, and Criminal Mischief in the Fourth Degree. (Pet. at 1.) At his February 1997 sentencing hearing, the prosecution noted that Somerville had been convicted of robbery with a deadly weapon in Maryland in 1993, and asked Justice Leventhal to adjudicate him as a second violent felony offender under New York Penal Law § 70.04. (Pet'r. Mem. (Docket Entry # 2) at 2-3.) Defense counsel did not challenge the use of the Maryland conviction and Justice Leventhal sentenced Somerville accordingly. (Id. at 3.) Because of his determination that Somerville was a second violent felony offender, Justice Leventhal was required to sentence him to a determinate term of imprisonment, falling in the range of between ten and twenty-five years in prison. See former N.Y. Penal Law § 70.04(2), (3) (1997). He sentenced Somerville to concurrent terms of imprisonment of eighteen years on each of the first-degree burglary counts, and lesser terms on the other crimes. (Pet'r. Mem. at 3.)
Somerville appealed his conviction to the New York State Supreme Court, Appellate Division, Second Department (the "Appellate Division"). (Id. at 6.) He argued, inter alia, that his sentence was illegal and that he was not a second violent felony offender because the Maryland offense for which he was convicted lacked a New York felony equivalent. (Id.) He further argued that his trial attorney, by acquiescing to the Supreme Court's use of Somerville's Maryland conviction as the predicate for adjudicating him a second violent felony offender, had provided him with ineffective assistance in violation of his Sixth Amendment right to counsel.
(Id.) In May 2001, the Appellate Division affirmed Somerville's conviction and sentence, finding that his counsel had provided him with "meaningful assistance." People v. Somerville, 283 A.D.2d 596 (2d Dep't 2001). In September 2001, the New York Court of Appeals denied Somerville leave to appeal. People v. Somerville, 96 N.Y.2d 942 (2001).
Somerville subsequently sought a writ of habeas corpus in this court from United States District Judge Jack B. Weinstein, raising the same ineffective assistance of counsel argument that he presented to the Appellate Division. Somerville v. Conway, 281 F. Supp. 2d 515, 517 (E.D.N.Y. 2003) (Weinstein, J.). Judge Weinstein concluded that but for defense "counsel's unprofessional errors, [Somerville] would not have been adjudicated a second violent felony offender." Id. at 524. Judge Weinstein granted Somerville's petition for a writ of habeas corpus and ordered Somerville to be released unless he was retried or resentenced. Id. Respondents did not appeal to the Second Circuit.
In February 2004, Somerville's case was remanded to state court and was reassigned to Justice Leventhal, the same judge who originally sentenced him in 1997. (Pet'r. Mem. at 9.) Justice Leventhal agreed that the Maryland conviction had no New York felony equivalent and that Somerville should be sentenced as a first violent felony offender. (Resentencing Minutes ("S.") (Docket Entry # 8) at 17.) Because Somerville was convicted of first-degree burglary, a class B and violent felony, Justice Leventhal was required to sentence him to an indeterminate term of imprisonment. See former N.Y. Penal Law § 70.02(2)-(4) (1997) (requiring the indeterminate maximum term to be at least six years, but not to exceed twenty-five years, with a fixed minimum term of one-half of the maximum term imposed by the court). Before deciding Somerville's new sentence, Justice Leventhal considered whether the maximum term of Somerville's new indeterminate sentence could exceed the eighteen-year determinate term of his original sentence. People v. Somerville, 3 Misc. 3d 593, 601-07 (N.Y. Sup. Ct. 2004). Justice Leventhal stated that "[t]he law in New York is unclear with respect to whether an indeterminate sentence of 12 1/2 to 25 years in prison is greater than a determinate sentence of 18 years." Id. at 603. Nonetheless, he rejected Somerville's argument that a new indeterminate sentence with a maximum term longer than his original determinate term would be presumptively vindictive and thus violate his due process rights under North Carolina v. Pearce, 395 U.S. 711 (1969). Id. at 603-04. Justice Leventhal concluded that he was free to impose any sentence within the statutory range for first-time felons. Id. at 607.
In determining Somerville's new sentence, Justice Leventhal took into account both the nature of Somerville's crime and his written description of it. (S. at 39-40.) Justice Leventhal also decided that he would not use Somerville's "unremarkable" prison record in resentencing him. (Id. at 40.) Justice Leventhal then resentenced Somerville to concurrent terms of eleven to twenty-two years on the first-degree burglary counts and to lesser concurrent terms on the other crimes. (S. at 42). He explicitly stated that had he initially sentenced Somerville in 1997 under the sentencing statute applicable to first violent felony offenders, he would have given Somerville the same eleven to twenty-two-year sentence he imposed on resentencing. (Id. at 41).
In 2006, Somerville appealed his new sentence on due process grounds to the Appellate Division, which affirmed the new sentence. People v. Somerville, 33 A.D.3d 733 (2d Dep't 2006). The Appellate Division assumed without deciding that Somerville's new indeterminate sentence was greater than his original determinate one. Id. at 734. However, the Appellate Division distinguished Pearce and found no constitutional violation because his prior sentence was "vacated as illegal" and thus no presumption of vindictiveness attached to his second sentence. Id. On April 2, 2007, the New York Court of Appeals denied Somerville leave to appeal. People v. Somerville, 8 N.Y.3d 950 (2007).
On March 31, 2008, Somerville timely filed this petition for a writ of habeas corpus, challenging his 2004 sentence on due process grounds. (Pet. at 6).*fn2 He argues that Justice Leventhal denied him due process of law when, after his successful habeas challenge to the legality of his original sentence, Justice Leventhal increased his maximum term of incarceration in violation of the rule set forth in Pearce, 395 U.S. 711. (Id.) Specifically, although Justice Leventhal acknowledged that Somerville had engaged in no misconduct since his original sentence sufficient to justify a hasher one, he increased Somerville's potential maximum term of imprisonment from eighteen to twenty-two years. (Id.)