The opinion of the court was delivered by: Michael A. Telesca United States District Judge
By means of a habeas petition pursuant to 28 U.S.C. § 2254, po se petitioner Fay M. Holliday ("Holliday" or "Petitioner"), challenges the constitutionality of convictions, following his guilty plea, to one count of second degree robbery and two counts of sexual abuse.
After Petitioner pleaded guilty as charged to one count of second degree robbery (one count) and first degree sexual abuse (two counts), he was sentenced in June 2007 to a determinate term of imprisonment of fifteen years, followed by five years of post-release supervision for the robbery conviction, and concurrent determinate terms of imprisonment of seven years, followed by five years of post-release supervision for the sexual abuse convictions.
At the time he was sentenced, Holliday was was 65 years old. Under New York Penal Law, he becomes eligible for parole in 2019; the Department of Correctional Services Inmate Locator website indicates that his conditional release date is October 23, 2019.*fn1 At that time, he will be 77 years old.
On appeal, Petitioner raised two issues: whether the appellate rights waiver encompassed his challenge to the severity of his sentence and whether the sentence was harsh and excessive. The Appellate Division summarily and unanimously affirmed the conviction. People v. Holliday,57 A.D.3d 1477, 869 N.Y.S.2d 839 (App. Div. 4th Dept. 2008) (citing People v. Hidalgo, 91 N.Y.2d 733, 737 (N.Y. 1998) ("While defendant did not know her specific sentence at the time of the waiver, she did acknowledge the sentencing options the trial court could impose in its discretion. By waiving her right to appeal, defendant agreed to end this matter entirely at sentencing and to abide by the court's exercise of discretion in determining her sentence.").
This timely habeas petition followed in which Holliday attacks the length of his sentence as "unduly harsh and excessive". He argues that it essentially amounts to a "death sentence" given his age, and therefore violates the Eighth Amendment's proscription against cruel and unusual punishment.
For the reasons that follow, the petition is dismissed.
III. Discussion of the Petition
A. Abuse of Discretion in Sentencing -- Harsh and Excessive Sentence
In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws or treaties of the United States. 28 U.S.C. § 2254(a). When Holliday appealed his sentence in the state courts, he urged the Appellate Division to exercise its discretionary authority to review factual questions and reduce the length of his sentence in the interests of justice. Thus, Holliday's claims with respect to his sentence, based solely on state law, are not appropriate for federal habeas review.
The Second Circuit has held that no federal constitutional issue amenable to habeas review is presented where, as here, the sentence is within the range prescribed by state law." White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992); Fielding v. LeFevre, 548 F.2d 1102, 1108 (2d Cir. 1977); Underwood v. Kelly, 692 F. Supp. 146 (E.D.N.Y.1988), aff'd, 875 F.2d 857 (2d Cir.), cert. denied, 493 U.S. 837 (1989). Here, Holliday's sentence was clearly within the range authorized for the crime committed. Accordingly, the Court finds that Holliday's claim that the court abused its discretion and imposed an excessive sentence fails to ...