Appeal from a judgment of the United States District Court for the Eastern District of New York (Garaufis, J.) granting Appellee's petition for a writ of habeas corpus.
The opinion of the court was delivered by: Barrington D. Parker, Circuit Judge:
Before: NEWMAN, KATZMANN, and B.D. PARKER, Circuit Judges.
We hold that the Appellate Division's determination that a presumption of vindictiveness did not apply to the Appellee's resentencing was not an unreasonable application of clearly established Supreme Court law.
The State of New York appeals from a decision of United States District Court for the 4 Eastern District of New York (Garaufis, J.) granting Steven Somerville's petition for a writ of 5 habeas corpus. See 28 U.S.C. § 2254. After Somerville's initial sentence was vacated on the 6 ground that it was illegal, the state court resentenced Somerville to a term he contended was 7 higher than his initial sentence and that, as a result, this higher sentence was presumptively 8 vindictive under North Carolina v. Pearce, 395 U.S. 711 (1969). The Appellate Division 9 affirmed the sentence, holding that the presumption did not apply to the resentencing. The 10 district court concluded that it was unreasonable for the state court not to apply the presumption, 11 that the presumption applied, and that it could not be rebutted. On this basis, the court granted 12 habeas relief. Somerville v. Hunt, No. 08-CV-13072011, WL 795073 (E.D.N.Y. Feb. 28, 2011). 13 Because we conclude that the Appellate Division's determination that the Pearce presumption 14 did not apply to Somerville's resentencing was not an unreasonable application of Supreme 15 Court law, we reverse.
In 1997, a New York state jury found Somerville guilty of first degree burglary, assault 18 in the second and third degree and criminal mischief in the fourth degree arising from an attack 19 on his girlfriend. At his original sentencing, the prosecution informed the court that Somerville 20 had been convicted of a violent felony in 1993 in Maryland. Taking this conviction into 21 consideration, the judge - Justice John M. Levanthal - adjudicated Somerville as a second 22 violent felony offender and sentenced him to a concurrent term of imprisonment of 18- years on 1 the first-degree burglary count and to lesser terms on the other offenses. See former N.Y. Penal 2 Law § 70.04(3)(a) (establishing a statutory determinate term within the range of 10 to 25 years). 3 After his direct appeal, Somerville sought a writ of habeas corpus on the ground that he 4 had been erroneously adjudicated as a second violent felony offender and that his counsel had 5 been constitutionally ineffective for not pointing out the error. The district court agreed that 6 under New York law, the Maryland conviction could not serve as a predicate felony, granted 7 Somerville's petition, and remanded the case to Justice Leventhal for resentencing under the 8 appropriate statute. See Somerville v. Conway, 281 F. Supp. 2d 515, 524 (E.D.N.Y. 2003) 9 (Weinstein, J.).
10 At resentencing, Somerville was classified as a first violent felony offender. Under 11 then-applicable law, the court was required to sentence him to an indeterminate term ranging 12 from a minimum of 3 - 6 years to a maximum of 12.5 - 25 years. See former N.Y. Penal Law 13 § 70.02(1)(a), (2)(a), (3)(a), (4). Somerville argued that, because he had previously been 14 sentenced to a "mid-range" determinate sentence, the court should now impose a "mid-range" 15 indeterminate sentence of 7.5 to 15 years. The prosecution, in contrast, requested the maximum 16 range of 12.5 to 25 years. 17 At the resentencing, the judge noted that he considered the initial sentence to be illegal 18 and added that, "[i]f the sentence was illegal, I believe it was null and void, never existed, I can 19 sentence him again." J.A. 73. The judge also noted that, even if he sentenced Somerville to the 20 maximum indeterminate term of 12.5 to 25 years, Somerville would be eligible for release earlier 1 than he would have under the vacated 18-year determinate term.*fn1 The court then sentenced 2 Somerville to concurrent terms of imprisonment of 11 - 22 years on the first-degree burglary 3 count and to lesser terms on the others. The court stated that the 11 - 22 year term was the 4 sentence it would have chosen in 1997 had Somerville been sentenced under the appropriate 5 statute. J.A. at 97.
6 In a written decision accompanying the sentence, the court considered and rejected 7 Somerville's argument that any indeterminate sentence whose maximum term exceeded eighteen 8 years would be presumptively vindictive. See People v. Somerville, 3 Misc. 3d 593, 604-06 9 (N.Y. Sup. Ct. 2004). The court assumed, without holding, that the indeterminate sentence of 11 10 - 22 years was an increase over the vacated 18-year determinate sentence. Then, relying on dicta 11 from People v. Harrington, 21 N.Y.2d 61, 64 (1967), the court concluded that, where the 12 previous sentence is "vacated as illegal," it is "a nullity and it is as though [Somerville] was 13 never sentenced" in the first place, and thus "[t]he presumption of vindictiveness simply does not 14 apply." Somerville, 3 Misc. 3d at 605.
15 The Appellate Division affirmed the sentence. People v. Somerville, 33 A.D.3d 733 16 (N.Y. App. Div. 2d Dep't 2006). Like the trial court, it "[a]ssum[ed] without deciding that the 17 indeterminate terms of imprisonment were in fact greater than the determinate terms they 1 replaced," id at. 734, and then held that, "[i]nasmuch as the prior sentences imposed were 2 vacated as illegal, no presumption of vindictiveness attaches to resentencing . . . ." Id. The 3 Court of Appeals denied leave to appeal. People v. Somerville, 8 N.Y. 3d 950 (2007).
4 In 2008, Somerville filed a second petition for a writ of habeas corpus. His main 5 contention was that the Appellate Division's decision not to apply a presumption of 6 vindictiveness to his resentencing was an unreasonable application of Pearce. He argued that, 7 when a defendant receives a harsher sentence from the same judge who imposed the original 8 one, a reasonable likelihood exists that unlawful vindictiveness tainted the new sentence and, 9 therefore, Pearce applies. See Appellee Br. at 16. 10 The district court agreed with Somerville and granted the writ. Somerville v. Hunt, 08- 11 CV-1307, 2011 WL 795073 (E.D.N.Y. Feb. 28, 2011). First, the district court held that the 12 second sentence was longer and concluded that the Appellate Division's "attempt to limit the 13 rule announced in Pearce and its progeny to Pearce's specific facts" was "contrary to, or at least 14 an unreasonable application of, clearly established federal law." Id. Specifically, the court held 15 that the "presumption of vindictiveness is not limited to only those cases in which a defendant 16 successfully challenges his first conviction[,]" because it concluded that the same potential for 17 vindictiveness by a sentencing judge exists after the a successful challenge to the legality of an 18 original sentence. Id. (emphasis in original). Having concluded that the presumption can apply, 19 the district court also concluded that the presumption must apply to Somerville's resentencing 20 "because his case is materially ...