The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Pro se petitioner Thomas C. Ricks ("Ricks" or "Petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the basis that he is being unconstitutionally detained in Respondent's custody. Ricks is incarcerated pursuant to a judgment of conviction entered against him in New York State Supreme Court, Erie County, on July 17, 2006, following his plea of guilty to sodomy in the first degree (five counts) and endangering the welfare of a child (one count).
II. Factual Background and Procedural History
Under Erie County Indictment No. 01271-2005, Petitioner was charged with five counts of sodomy in the first degree (N.Y. Penal Law ("P.L.") § 130.50(4)) and one count of endangering the welfare of a child (P.L. § 260.10). Petitioner elected to forego a trial and entered a guilty plea to all six counts of the indictment.
Following a hearing, Petitioner was adjudicated a second felony offender and sentenced to concurrent terms of eight years of incarceration on each sodomy conviction, and a concurrent one-year term of incarceration on his conviction for endangering the welfare of a child. Petitioner was also sentenced to a mandatory five-year term of post-release supervision.
On direct appeal, Petitioner challenged the trial court's adjudication of him as a second felony offender, arguing that it improperly relied upon a document from Colorado confirming his status as a predicate felon. On March 19, 2010, the Appellate Division, Fourth Department, of New York State Supreme Court modified the judgment by vacating the sentence and remitting the matter for re-sentencing. People v. Ricks, 71 A.D.3d 1444, 1444 (App. Div. 4th Dept. 2010) ("We agree with defendant that [the trial court] erred when, over his objection, it admitted in evidence at the second felony offender hearing the Colorado fingerprint record and the Colorado judgment of conviction without the certifications required by [New York Civil Practice Law & Rules] 4540(c)[.]") (citations omitted). Upon remittal, the prosecution was permitted "to overcome the technical defects of [its] proof" as to Ricks' predicate-felon status. Id. (quotation omitted).
A second predicate felony hearing was conducted on June 28, 2010, after which the trial court again adjudicated Petitioner a second felony offender. Petitioner was re-sentenced on August 2, 2010, and received the same sentence.
Petitioner appealed the re-sentencing, perfecting his appeal on July 12, 2011. The prosecution submitted a reply on August 11, 2011, and the Appellate Division heard oral argument on December 6, 2011. On December 23, 2011, the Appellate Division issued an order reversing the judgment and remanding the matter again for re-sentencing because the deficiencies in the prosecution's proof in support of Ricks' predicate felony status remained unremedied. People v. Ricks, No. 10-01756, 1398, 90 A.D.3d 1562, ___ N.Y.S.2d ___, 2011 WL 6464268, 2011 N.Y. Slip Op. 09460 (App. Div. 4th Dept. Dec. 23, 2011).
The Appellate Division found that at the second predicate felony
hearing, the prosecution submitted a fingerprint record from Colorado
that was properly authenticated by the agent in charge of the
identification unit for the Colorado Bureau of Investigation in
conformance with the first requirement of C.P.L.R. 4540(c).*fn1
v. Ricks, 2011 WL 6464268, at *1. However, the document
that purported to certify that the agent in charge had legal custody of the
fingerprint record was signed by the same agent in charge, and thus it
did not comply with the C.P.L.R. 4540(c)'s requirement that the
out-of-state document be authenticated by the certificate of a second,
separate authority. Id. (citations omitted). The Appellate Division
rejected the prosecution's contention that strict compliance with
C.P.L.R 4540(c) was unnecessary, and remitted the matter for
resentencing to allow the prosecution to attempt to overcome the
technical defects of its proof. Id. (citations omitted). At present,
the matter is presumably before the Erie County Supreme
Petitioner has not sought a stay of the instant habeas petition pending the outcome of the appeal of his re-sentencing. In his timely filed petition, Ricks presents the following four grounds for relief: (1) the prosecutor relied on hearsay evidence to adjudicate petitioner as a second felony offender; (2) the trial court erroneously relied upon the Colorado statute to adjudicate Petitioner as a second felony offender; (3) he has been incarcerated in excess of the lawful term of incarceration; and (4) the trial court improperly relied upon his prior Colorado conviction at re-sentencing.
Respondent argues that the petition must be dismissed because Petitioner's claims are not exhausted and, in any event, do not implicate the federal constitution.
There is no reason why the Court should not proceed to adjudicate the petition, notwithstanding Ricks' failure to exhaust his state remedies, as none of the claims raised in the ...