United States District Court, N.D. New York
JAMES K. SINGLETON, Jr., District Judge.
Antonio Velez, Jr., a New York state prisoner proceeding pro se, filed a Petition for Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. At the time he filed his Petition, Velez was in the custody of the New York State Department of Corrections and Community Supervision and incarcerated at the Coxsackie Correctional Facility. The Department of Corrections and Community Supervision's inmate locator website (http://nysdoccslookup.doccs. ny.gov/, Department ID Number 06-R-1177) indicates that Velez has been released on supervised parole from his last known location. Velez has not filed a change of address with this Court. Respondent has answered the Petition, and Velez has not replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Velez is in state custody as a result of two separate convictions. On May 21, 1991, Velez was convicted of first-degree robbery and sentenced to an indeterminate prison term of 7 to 21 years. See http://nysdoccslookup.doccs.ny.gov/, Department ID Number 91-A-5427). On January 28, 2003, Velez was conditionally released to parole supervision. Id. As of that date, Velez no longer owed time toward his minimum sentence term but still owed 5 years, 11 months, and 15 days toward his maximum sentence expiration date.
Velez's parole was subsequently revoked for violating the terms of his conditional release after he was arrested in March 2004 for a robbery offense. After pleading guilty to attempted third-degree robbery, Velez was sentenced as a second felony offender to an imprisonment term of 1½ to 3 years on March 6, 2006. The sentencing court did not specify whether the 2006 sentence was to run consecutively with Velez's undischarged 1991 sentence but stated that Velez was "remanded to the custody of the New York State Department of Correctional Services [("DOCS")], there to be dealt with in accordance with the laws pertaining to this sentence." Velez did not appeal the conviction underlying his 2006 sentence.
When Velez was returned to state custody on April 6, 2006, DOCS calculated the maximum expiration date of his sentence (also known as his conditional release date) by adding the maximum 3-year term of his 2006 sentence with the maximum sentence time of 5 years, 11 months and 15 days owed from his prior 1991 sentence. See N.Y. PENAL LAW ("NYPL") § 70.25(2-a) ("the court must impose a [subsequent] sentence to run consecutively with respect to [an] undischarged sentence").
On December 9, 2008, Velez filed a pro se petition under New York Civil Practice Law and Rules ("CPLR") Article 78 ("Article 78 petition"), challenging the DOCS's sentence computation. He argued that, although NYPL § 70.25(2-a) mandated that his sentences run consecutively, DOCS had no authority to calculate the sentences consecutively because the court did not expressly pronounce a consecutive sentence. The county court dismissed Velez's petition on April 22, 2009, concluding that Velez failed to state a cause of action in light of the New York Court of Appeals' decision in People ex rel. Gill v. Greene, 903 N.E.2d 1146 (N.Y. 2009), which held that, where a court is silent as to whether its sentence is consecutive or concurrent but is required by statute to impose a consecutive sentence, the court is deemed to have imposed the consecutive sentence the law requires.
Velez appealed the dismissal to the Appellate Division, which unanimously affirmed. Citing Gill, the appellate court stated, "Where, as here, a statute compels the sentencing court to impose a consecutive sentence, the court is deemed to have imposed the consecutive sentence the law requires even in the absence of an express judicial directive to that effect." The Court of Appeals summarily denied Velez's application for leave to appeal.
Velez filed a Petition for a Writ of Habeas Corpus to this Court on December 4, 2010.
II. GROUNDS RAISED
Velez's Petition asserts one ground for relief: that the DOCS violated his due process rights when, after the Court of Appeals' decision in Gill, it altered Velez's sentence to run consecutively, rather than concurrently, to the undischarged portion of his 1996 sentence.
III. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, " § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, " § 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that contradicts controlling Supreme Court authority or "if the state court confronts a set of facts that are materially indistinguishable from a decision" of the Supreme Court, but nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000).
To the extent that the petition raises issues of the proper application of state law, they are beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was correctly applied). It is a fundamental precept of dual federalism that the states possess primary authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (a federal habeas court cannot reexamine a state court's interpretation and application of state law); Walton v. Arizona, 497 ...