The opinion of the court was delivered by: Scullin, Senior Judge
MEMORANDUM -DECISION AND ORDER
Petitioner Walter J. Roache, a state prisoner appearing pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in which he argued that the New York State Department of Corrections and Community Supervision ("DOCCS") improperly altered a sentencing commitment order by calculating his 1993 sentence to run consecutively to an undischarged 1979 sentence, without a court order, in violation of the separation of powers doctrine and his right to due process. See Dkt. No. 4, Amended Petition, at 2-14; Dkt. No. 21, Supplemental Traverse, at 1-11. On February 23, 2010, Respondent filed an answer, memorandum of law and the relevant state-court records. See Dkt. Nos. 16-18. Petitioner filed a traverse on February 24, 2010, and a supplemental traverse on March 17, 2010. See Dkt. Nos. 19, 21.
A. Relevant state-court proceedings
On July 31, 1979, Petitioner was convicted of first degree rape in Orange County Court and was sentenced to serve 8 1/3 to 25 years in prison. See Dkt. 17, Exhibit "A," Sentencing Transcript ("Sentencing Tr."), at 3-4; Dkt. No. 16, Respondent's Memorandum of Law, at 4. Petitioner was paroled in 1987 and re-incarcerated following a parole violation in 1989. See Sentencing Tr. at 4. In 1990, Petitioner was again paroled. On January 5, 1993, he pled guilty to first degree sexual abuse (N.Y. Penal Law § 130.65(3)), a class D felony. See Sentencing Tr. at 2. During the sentencing proceedings, Petitioner asked the court to run his sentence concurrently to the undischarged 1979 sentence. See id. at 13. The court refused, stating, "It is illegal. I cannot run a sentence of this nature concurrent." See id. The court then sentenced Petitioner to serve 3 to 6 years in prison and reiterated that, "by statute, that sentence runs consecutive. I would mandate anyway that that [sic] sentence would run consecutive just in case there's a question about that." See id. at 17. The sentencing commitment order was silent with regard to whether the sentence ran consecutively or concurrently to the undischarged 1979 sentence. See Dkt. No. 17, Exhibit "B". Petitioner's sentence expired on February 2, 2010. See Dkt. No. 16, Respondent's Memorandum of Law, at 2.
Petitioner filed a state-court petition for a writ of habeas corpus, dated March 23, 2004, in which he argued that he was entitled to release because the 1993 sentence had expired, his 1979 conviction was illegal, and he was improperly deprived of good time credits. See Dkt. No. 17, Exhibit "E," Petition for a Writ of Habeas Corpus, at 6-72. Petitioner also filed another document, dated April 29, 2004, in support of his petition in which he argued that DOCCS could not disregard the 1993 sentencing commitment order, which was silent regarding whether the sentence was consecutive or concurrent. See id., Affidavit In Support of Motion Pursuant to Exigi Facias, Exigent Circumstances Pursuant to Writ of Habeas Corpus,at 92-99. The court denied the petition on August 30, 2004.*fn1 See id. at 148-49 (Decision and Order, Julian, J., Aug. 30, 2004). The court also issued an amended order on April 12, 2005, denying the petition because "the sentence was properly calculated." See id. at 160 (Order (Amended), Julian, J., Apr. 12, 2005). Petitioner appealed the denial of his petition in March 2006; and, on July 7, 2006, the Appellate Division affirmed. See Dkt. No. 17, Exhibit "D"; People ex rel. Roache v. Connell, 31 A.D.3d 1199 (4th Dep't 2006). On January 19, 2007, the Court of Appeals denied leave to appeal and denied reargument on March 27, 2007. See People ex rel Roache v. Connell, 8 N.Y.3d 803, rearg. denied, 8 N.Y.3d 907 (2007).
Petitioner filed another state-court habeas petition on May 23, 2007, in Westchester County, in which he again argued that, because the 1993 sentencing commitment order did not specify whether the sentence was consecutive or concurrent, DOCCS was required to calculate it to run concurrent.*fn2 See Dkt. No. 17, Exhibit "N," Petition for Writ of Habeas Corpus, at R 12-31. The Westchester County court transferred the petition to Oneida County Court, which denied it on July 6, 2007. See Dkt. No. 17, Exhibit "N," at R 7-8 (Decision and Order, Julian, J., July 6, 2007). On August 15, 2007, Petitioner moved to reargue his petition. See id., Notice of Motion, Pursuant to Reargument,at R 55-86. The court denied the motion on December 7, 2007. See id. at R 4-5 (Order, Julian, J., Dec. 7, 2007). Petitioner appealed; and, on March 30, 2009, the Appellate Division, Fourth Department, dismissed the appeal. See People ex rel Roache v. Connell, 60 A.D.3d 1367 (4th Dep't 2009); Dkt. No. 17, Exhibit "P." The court denied leave to appeal on June 24, 2009. See People ex rel Roache v. Connell, 12 N.Y.3d 1367 (2009); Dkt. No. 17, Exhibit "R."
B. Relevant federal-court proceedings
In 2006, Petitioner filed a habeas petition pursuant to 28 U.S.C. § 2254 in the Southern District of New York in which he challenged both his 1979 and 1993 convictions. See Roache v. Connell, No. 06 Civ. 3567, 2010 WL 6512333 (S.D.N.Y. May 24, 2010). One of Petitioner's claims was that "the consecutive nature of his sentence [was] illegal[.]" Id. at *1. Petitioner had previously filed a habeas petition in the Southern District challenging his 1979 conviction, which the court had denied in May 2001. See id. at *3. The court, therefore, construed the 2006 petition as a successive petition and transferred it to the Second Circuit for authorization. See id.
On September 28, 2006, the Second Circuit denied the application. See id. Petitioner moved for reconsideration of the dismissal of his challenge to his 1993 conviction. See id. On February 13, 2008, the Second Circuit found that the district court had misconstrued the 2006 petition as a successive challenge to the 1979 conviction instead of an initial section 2254 petition challenging the 1993 conviction. See id. The Circuit vacated the district court's transfer order with respect to the 1993 conviction and remanded the petition for review. See id.
In a Report and Recommendation issued on May 24, 2010, Magistrate
Judge Ronald L. Ellis recommended that the district court deny and
dismiss the petition because it was untimely and, in the alternative,
lacked merit. See Roache, 2010 WL 6512333, at *3-*9. Magistrate Judge
Ellis rejected Petitioner's consecutive sentence claim, finding that
"Roache's sentence was lawfully imposed" pursuant to New York Penal
Law § 70.25 (2)(a), which required the sentencing court "to impose a
consecutive sentence because of [Petitioner's] status as a
second-felony offender." Id. at *8 (citation omitted).*fn3
On April 14, 2011, District Judge William H. Pauley III
adopted the Report and Recommendation in its entirety, denied the
petition, and declined to issue a certificate of appealability. See
Roache v. Connell, No. 06 Civ. 3567, 2011 WL 1465989, *1 (S.D.N.Y.
Apr. 14, 2011).
Petitioner's filed his original petition, dated November 18, 2009, in this Court while his 2006 petition was pending in the ...