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David O'kane v. Robert A. Kirkpatrick

June 20, 2011

DAVID O'KANE, PETITIONER,
v.
ROBERT A. KIRKPATRICK RESPONDENT.



The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge

DECISION AND ORDER

I. Introduction

Pro se Petitioner David O'Kane ("Petitioner") has filed a timely petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the constitutionality of his custody pursuant to a judgment entered March 22, 1994, in New York County Supreme Court, convicting him, after a jury trial, of Criminal Sale of a Controlled Substance in the Third Degree (N.Y. Penal Law ("Penal Law") § 220.39) and Criminal Possession of a Controlled Substance in the Third Degree (Penal Law § 220.16 [1]). Petitioner was sentenced, as a second felony offender, to concurrent, indeterminate prison terms of from five to ten years on each count. By operation of law, this sentence ran consecutively with the undischarged portion of his sentence from an unrelated 1990 conviction. Petitioner is also in state custody from two judgments entered on July 8, 2004, in New York County Supreme Court, convicting him, upon pleas of guilty, of Criminal Possession of a Controlled Substance in the Fourth Degree (Penal Law § 220.09) and Criminal Sale of a Controlled Substance in the Fifth Degree (Penal Law § 220.31). Petitioner was sentenced, as a second felony offender, to an indeterminate prison term of from three to six years on the possession count and a concurrent, indeterminate prison term of from two and one-half to five years on the sale count. These sentences were ordered to run concurrently with each other, but, by operation of law, ran consecutively with the undischarged portion of Petitioner's sentence from his 1994 conviction.

In the instant petition, Petitioner challenges the parole delinquency date set by the Division of Parole ("DOP") following his 2004 conviction. 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 Parole Violations

On August 26, 1993, in Manhattan, Petitioner and an accomplice sold 50 vials of crack cocaine to an undercover police officer. See People v. O'Kane, 224 A.D.2d 182 (1st Dep't 1996); lv. denied, 88 N.Y.2d 939 (1996). Petitioner was arrested and subsequently convicted, upon a jury verdict, of third-degree sale and third-degree drug possession. On March 22, 1994, Petitioner was sentenced, as a second felony offender, to concurrent, indeterminate prison terms of from five to ten years on each count.

See 1994 Sentence and Commitment Order at Resp't Ex. A. By operation of law, Petitioner's sentence ran consecutively with the undischarged portion of his sentence on an unrelated 1990 conviction.*fn1 See Penal Law § 70.25 [2-a]. After accounting for his jail time credit, the Department of Corrections ("DOCS") calculated Petitioner's maximum expiration date to be August 14, 2006. See Certificate of Release at Resp't Ex. C.

On September 3, 1998, Petitioner was released to parole supervision. Id. On April 13, 1999, in Manhattan, Petitioner was arrested after selling a controlled substance to an undercover police officer. See April 28, 1999 Violation of Release Report at Resp't Ex. D. As a result of the arrest, DOP issued a parole violation warrant; however, at the May 17, 1999 preliminary parole hearing, a finding of no probable cause was issued because the arresting officer was not available to testify. Thus, DOP declared that there was no delinquency finding pending court action on the open arrest. See Board Action Report at Resp't Ex. E.

Thereafter, Petitioner stopped reporting to his parole officer and failed to appear in court on the April 1999 arrest. The court issued a bench warrant for his arrest and, on August 19, 1999, DOP declared Petitioner delinquent as of July 1, 1999 and filed a parole violation detainer warrant. Petitioner was arrested on August 7, 2003 and was served a notice of violation. See Notice of Violation at Resp't Ex. F. On December 3, 2003, Petitioner obtained a court order from the Bronx County Supreme Court vacating the parole detainer warrant and nullifying any declaration of delinquency associated with it. Petitioner was also ordered released from custody and restored to parole supervision. See Resp't Ex. G.

On January 7, 2004, in Manhattan, police officers observed Petitioner handling small objects to individuals on a street corner. The police approached Petitioner and recovered 50 ziplock bags of cocaine from inside his jacket pocket. See January 15, 2004 Violation of Release Report and Case Summary at Resp't Ex. H. On July 8, 2004, Petitioner pleaded guilty to fourth-degree drug possession in connection with the January 7, 2004 arrest. He was sentenced, as a second felony offender, to an indeterminate prison term of three to six years. That same day, Petitioner also pleaded guilty to fifth-degree drug sale in connection with his April 13, 1999 arrest. He was sentenced, as a second felony offender, to an indeterminate prison term of from two and one-half to five years. Petitioner's sentences were ordered to run concurrently with each other. See 2004 Sentence and Commitment Orders at Resp't Ex. I. By operation of law, however, Petitioner's sentences ran consecutively with the undischarged portion of his 1994 conviction. See Penal Law § 70.25 [2-a].

Petitioner was credited for the six months he had spent in jail from the time of his latest arrest until he was received by DOCS. DOP declared Petitioner delinquent as of April 13, 1999, based on his arrest that later resulted in his conviction.*fn2 As a result, DOCS calculated Petitioner's maximum expiration date to be May 5, 2017. In a letter dated September 19, 2005, DOCS notified Petitioner that his delinquency date was set at April 13, 1999. The letter stated that Petitioner's delinquency date had been incorrectly set at January 7, 2004, but was re-adjusted to April 13, 1999, to reflect the earliest date that resulted in Petitioner's parole violation. See Resp't Ex. L.

B. The State Habeas Proceeding

On November 11, 2006, Petitioner filed a state petition for a writ of habeas corpus in the Chautauqua County Supreme Court on the basis that: (1) he was denied his right to a timely final parole revocation hearing following his January 7, 2004 arrest; and (2) his parole delinquency date was improperly set at April 13, 1999 instead of January 7, 2004, and, as a result, his maximum expiration date did not reflect the credit he earned for the time that he was on parole. See ...


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