Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

William Riley, Pro Se v. Superintendent James T. Conway

March 7, 2011

WILLIAM RILEY, PRO SE,
PETITIONER,
v.
SUPERINTENDENT JAMES T. CONWAY, RESPONDENT.



The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge:

MEMORANDUM AND ORDER ADOPTING IN PART AND MODIFYING IN PART REPORT AND RECOMMENDATION

Pro se petitioner William Riley timely objects to the March 19, 2010 Report and Recommendation ("R&R") of the Honorable James Orenstein, United States Magistrate Judge.*fn1

(See Pet‟r Objections to the R&R ("Docket Entry 21"), at 1.) Petitioner asserts four claims in his petition for a writ of habeas corpus under 28 U.S.C. § 2254: (1) that the imposition of consecutive sentences for several offenses violated the Fifth Amendment‟s Double Jeopardy clause, (2) that the sentencing court violated his Sixth Amendment right to a jury trial by relying on its own fact-finding as a basis for imposing consecutive sentences, (3) that the evidence was insufficient to support any punishment, and (4) that he has been subjected to arbitrary and discriminatory punishment, in violation of several of his constitutional rights. Judge Orenstein recommended that the court dismiss petitioner‟s Double jeopardy claim on procedural grounds, deny his Sixth Amendment claim on the merits, and transfer his remaining claims to the United States Court of Appeals for the Second Circuit to cure Petitioner‟s jurisdictionally fatal failure to seek leave to file those claims in a second and successive petition. Petitioner asserts four specific objections and one general objection to these recommendations. Respondents did not file any response to Petitioner‟s objections. For the reasons set forth below, the R&R is adopted in part and modified in part.

BACKGROUND

On October 11, 1985, Riley, Gary Owens, Dwayne Morrison, and two of Riley‟s associates were traveling by car to Queens, New York. Once they arrived at their destination, Riley and his associates accosted Owens and Morrison with guns. They continued their trip, and Riley‟s associates demanded money and jewelry from Owens and Morrison, threatening to kill them if they disobeyed. Then, one of Riley‟s associates ordered Owens and Morrison out of the car and told them to stand against a wall. One of Riley‟s associates shot Owens at close range. Morrison ran and was shot three times. Owens subsequently died and Morrison survived.

On February 13, 1987, following a jury trial in New York Supreme Court, Queens County, Riley was convicted of one count of intentional murder and one count of felony murder, both in the second degree, arising from the killing of Owens, two counts of robbery in the first degree (one for each victim), and one count of attempted murder in the second degree related to the non-fatal shooting of Morrison. Riley was sentenced to an aggregate term of incarceration of 581/3 years, which was comprised of 25 years to life on each of the murder charges, concurrent with each other; 121/2 -25 years on each of the robbery charges, consecutive to all other sentences; and 81/3 -25 years on the attempted murder charge, consecutive to all other sentences.

Riley‟s attempt to challenge his conviction and sentence on direct appeal and his motion for a writ of error coram nobis were unsuccessful. Riley filed his first petition for a writ of habeas corpus in this court on October 8, 1992, arguing that the state had not adduced sufficient evidence to support his conviction and that he was deprived the effective assistance of appellate counsel. The court dismissed the petition. See Riley v. Kuhlman, Docket No. 92-cv-4787 (E.D.N.Y. Mar. 16, 1994) (copy provided as Pet. Ex. A-7).

On July 24, 1997, Riley moved in New York State Supreme Court, Queens County to set aside his sentence pursuant to New York Criminal Procedure Law § 440.20(1). The court denied the motion, and the New York State Supreme Court, Appellate Division, Second Department ("Appellate Division") denied Riley‟s application for leave to appeal. Riley sought to revisit the issue of whether the murder and robbery counts could run consecutively after the New York State Court of Appeals held, in another case, that a defendant cannot lawfully be subjected to consecutive sentences for felony murder and the predicate felony offense. On October 20, 2003, the Appellate Division granted that motion and remanded the case for resentencing. People v. Riley, 309 A.D.2d 879 (2d Dep‟t 2003).

On April 15, 2004, the trial court resentenced Riley to the same aggregate prison term of 581/3 years it previously had imposed. The sentence was comprised of 25 years to life for each of the murder counts, concurrent with each other; 121/2 -25 years for each of the robbery counts, consecutive to each other and the intentional murder sentence, but concurrent with the felony-murder sentence; and 81/3 -25 years on the attempted murder charge, to run consecutively to all other sentences. The only difference between the original sentence and the revised sentence was that, in the latter, his incarceration for the felony murder charge was to run concurrently with both the intentional murder and two robbery counts, instead of just the intentional murder.*fn2

On appeal, petitioner challenged the revised sentence. The Appellate Division affirmed his revised sentence and rejected the defendant‟s challenge to the imposition of consecutive sentences with respect to the attempted murder, intentional murder, and robbery convictions. The court held that the rejection of the defendant‟s claim on his prior appeal constituted the law of the case. People v. Riley, 22 A.D.3d 609, 610 (2d Dep‟t 2005).

APPLICABLE LAW

A.Standard of Review

When no objections to an R&R are made, the court may adopt the R&R if "there is no clear error on the face of the record." Adee Motor Cars, LLC v. Amato, 388 F. Supp. 2d 250, 253 (S.D.N.Y. 2005) (citation omitted). "The clearly-erroneous standard also applies if a party makes only conclusory or general objections, or simply reiterates his original arguments." United States v. Preston, 635 F. Supp. 2d 267, 269 (W.D.N.Y. 2009) (citation and internal quotation marks omitted). When specific objections are made, a district judge must make a de novo determination with respect to those parts of the R&R to which the party objects. The district court may then "accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions." FED. R. CIV. P. 72(b); 28 U.S.C. § 636(b); see also United States v. Raddatz,447 U.S. 667, 673--76 (1980).

Pro se pleadings are held "to less stringent standards than formal pleadings drafted by lawyers." Hughes v. Rowe, 449 U.S. 5, 9 (1980) (citation omitted). Courts should "interpret [such papers] to raise the strongest arguments that they suggest." Forsyth v. Fed'n Employment and Guidance Serv., 409 F.3d 565, 569 (2d Cir. 2005) (citation and internal quotation marks omitted). Though a court need not act as an advocate for pro se litigants, in suchcases "there is a greater burden and a correlative greater responsibility upon the district court to insure ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.