United States District Court, W.D. New York
DECISION AND ORDER
MICHAEL A. TELESCA, District Judge.
Ronnie Diggs ("Petitioner") has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he is being held in Respondent's custody in violation of his federal constitutional rights. Petitioner is incarcerated as the result of a January 30, 2003 judgment of the New York State, Monroe County Court, convicting him, after a jury trial, of four counts of Robbery in the First Degree (N.Y. Penal Law ("P.L.") §§ 160.15(2), (4)), three counts of Robbery in the Second Degree (P.L. §§ 160.10(1), (2)(a)), one count of Assault in the Second Degree (P.L. § 120.05(2)), and one count of Criminal Possession of a Weapon in the Second Degree (P.L. § 265.03(2)).
Petitioner filed a § 2254 petition in this Court challenging these underlying convictions, which was denied on March 22, 2011. Diggs v. Burge, 6:07-CV-6240(RJA)(VEB) (W.D.N.Y. Mar. 22, 2011). In the present habeas petition, he challenges only his September 2, 2010, resentencing proceeding.
II. Factual Background and Procedural History
A. The Underlying Convictions
The factual background concerning the underlying convictions is set forth in detail in Respondent's Memorandum of Law (Dkt #15-1). It need not be repeated here, since this petition does not address these convictions.
B. Petitioner's Resentencing
On June 16, 2010, Petitioner filed a pro se motion to set aside his sentence pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.20 on the ground that the court clerk improperly altered the sentence pronounced by the trial court by adding a period of post-release supervision ("PRS"). Petitioner claimed that the improper alteration annulled his sentence. The prosecution acknowledged that the trial court had failed to pronounce a PRS term and that the clerk's notation in the sentence and commitment papers did not satisfy the requirement that the sentencing court pronounce the PRS term of Petitioner's sentence. Rather than expunging the PRS term, the prosecution argued, the proper remedy was to vacate the sentence and have the County Court resentence him and include the required pronouncement of the PRS terms.
On August 26, 2010, the Monroe County Court Judge David Egan denied Petitioner's motion, but ordered that he be resentenced so that the court could make the proper sentencing pronouncements, including the required PRS terms. Petitioner's attorney filed a motion to prevent Petitioner's resentencing on the indictment, arguing that to do so would constitute multiple punishments for the same offenses, and thereby violate Petitioner's rights under the Double Jeopardy clause.
On September 2, 2010, Petitioner appeared before Judge Egan, who denied his motion and resentenced Petitioner to concurrent, determinate prison terms of 25 years, plus 5 years of PRS, for each of the first-degree robbery counts; 15 years, plus 5 years of PRS, for each of the second-degree robbery counts; 7 years, plus 3 years of PRS, for the assault count; and 15 years, plus 5 years of PRS, for the weapons possession count.
Through counsel, Petitioner pursued a direct appeal to the Appellate Division, Fourth Department, of New York State Supreme Court, arguing that the 7½-year delay between his original sentencing and his resentencing divested the County Court of jurisdiction to resentence him. On September 28, 2012, the Appellate Division unanimously affirmed the resentence. People v. Diggs , 98 A.D.3d 1255 (4th Dep't 2012). On December 11, 2012, a judge of the New York Court of Appeals denied leave to appeal. People v. Diggs , 20 N.Y.3d 986 (2012).
C. The Federal Habeas Proceeding
In his timely-filed pro se habeas petition, Petitioner argues that (1) the clerk of the Monroe County Court improperly added a period of PRS to the original sentence pronounced by the County Court judge; (2) the County Court lacked jurisdiction to resentence Petitioner due to the delay in ...