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Harnett v. Conway

United States District Court, S.D. New York

November 17, 2014

JAMES T. CONWAY, Respondent

Timothy Harnett, Petitioner, Pro se, Malone, NY.

For James T. Conway, Respondent: Frances Yufang Wang, The Bronx District Attorney's Office, Bronx, NY; Nancy Darragh Killian, Bronx District Attorney, Bronx, NY.


J. PAUL OETKEN, United States District Judge.

Petitioner Timothy Harnett filed this petition for a writ of habeas corpus against Respondent James T. Conway on February 1, 2008. (Dkt. No. 1.) Harnett asserts several claims--previously raised on direct appeal or in state post-conviction proceedings--as to the illegitimacy of his conviction in New York state court for sodomy and weapons possession. As set out below, these claims are without merit. Harnett further claims that he was subject to a violation of double jeopardy and to judicial vindictiveness due to the imposition of a period of post-supervision release by a state trial judge in a collateral proceeding several years after the initial imposition of his sentence. This claim was not exhausted in state court and does not appear to be procedurally barred. Because the claim is not meritorious, the Court rejects it as well. Accordingly, Harnett's petition is denied.

I. Background

A. Conviction, Initial Sentence, and Post-Conviction Challenges

Harnett was convicted of sodomy and criminal weapons possession in state court in 2000 after a jury trial, and was sentenced to a term of eighteen years' imprisonment. No term of post-release supervision was imposed at that time. (Dkt. No. 11 (" Sentencing Transcript"), at 8.) Harnett's conviction and sentence were upheld on direct appeal to the Appellate Division of the New York State Supreme Court, and the New York Court of Appeals denied him leave to appeal. See People v. Harnett, 3 A.D.3d 338, 769 N.Y.S.2d 888 (App.Div. 1st Dep't 2004); lv. denied, 2 N.Y.3d 800, 814 N.E.2d 471, 781 N.Y.S.2d 299 (N.Y. 2004).

Harnett next filed a series of applications in state court for post-conviction relief. (Dkt. No. 4 (" Amended Petition") ¶ 13.) In his first motion under New York Criminal Procedure Law § 440.10, dated April 4, 2005, Harnett claimed that his indictment was defective because it lacked sufficient detail about the charges against him. (Dkt. No. 12 (" Wang Decl.") Ex. 6.) In the second motion pursuant to § 440.10, dated May 17, 2005, Harnett raised the same point regarding a claimed defect in the indictment and also argued that the trial judge erred in admitting evidence of an unindicted act of anal sodomy, which constituted a variance from the indictment. (Id. Ex. 7.) In August 2005, the Bronx Supreme Court rejected the second motion. It ruled that Harnett's motion was barred under New York Criminal Procedure Law § 440.10(2)(c), because " sufficient facts appeared on the record to have permitted adequate appellate review of the jurisdictional soundness of the indictment and the propriety of the admission of the evidence in question, " but the defendant had not raised them in his direct appeal. (Id. Ex. 10, at 2.) The Court of Appeals denied leave to appeal from this decision. (Id. Ex. 11.)

Harnett then filed a coram nobis petition dated November 25, 2005. In this petition, Harnett claimed that his appellate lawyer had rendered ineffective assistance when he failed to argue that there were three acts of sodomy testified to by the complainant, but only one sodomy charge. (Id. Ex. 12.) Harnett claimed that it was " impossible to ascertain what alleged act of sodomy was found by the jury to have occurred" --i.e., whether it was the count on which he was indicted or a different act--and that his lawyer was ineffective for failing to argue this point. (Id.) The Appellate Division summarily denied the application in October 2006, and the Court of Appeals denied leave to appeal. (Id. Exs. 14-15.)

Harnett filed another coram nobis petition dated March 10, 2007, raising the same arguments as the November 2005 petition. (Id. Ex. 21.) The Appellate Division construed this as a motion seeking reargument on the prior order and denied relief. (Id. Ex. 22.) The Court of Appeals denied leave to appeal. (Id. Ex. 23.)

B. Challenge to Post-Release Supervision and Resentencing

In 2001 or 2002, according to Harnett, the New York Department of Correctional Services[1] (" DOCS") " administratively added an additional penalty of five years post-release supervision" to his sentence. (Dkt. No. 52, at 1.) In response, Harnett filed a motion in Bronx Supreme Court pursuant to New York Criminal Procedure Law § 440.20 to set aside the term of post-release supervision. (Wang Decl. Ex. 16.) As a basis for the § 440.20 motion, Harnett cited the Second Circuit's decision in Earley v. Murray, 451 F.3d 71 (2d Cir. 2006), which granted relief to a New York prisoner upon whom DOCS had administratively imposed a sentence of post-release supervision. Harnett protested that any period of post-release supervision not imposed by a court in his case was likewise unlawful.

A state judge--the judge who presided over Harnett's trial--appointed counsel for Harnett on the § 440.20 motion. (Wang Decl. Ex. 17.) At a July 2007 hearing on the § 440.20 motion, the state court vacated the original sentence as improper. (Id. Ex. 18, at 2.) The court then heard argument from both parties and resentenced Harnett to the same eighteen-year prison term, along with an additional period of five years post-release supervision. (Id. Ex. 18, at 9; id . Ex. 19.) Harnett filed a request in state court seeking leave to appeal the resentencing.

C. Federal Habeas Petition

While Harnett's appeal on his resentencing was pending, Harnett filed this habeas petition. The petition incorporates all of the grounds that he raised on direct appeal; in his post-conviction § 440.10 motions and coram nobis petitions; and in his § 440.20 motion to correct his sentence. (Amended Petition ¶ 13.)

In March 2009, after the parties had briefed the issues, Harnett moved to stay this proceeding in order to await the exhaustion of his state appeal. (Dkt. Nos. 20-21.) On December 10, 2009, Judge Koeltl, to whom this case was originally assigned, granted Petitioner's motion to stay his petition for a writ of habeas corpus pending Harnett's appeal in the Appellate Division. In October 2011, this case was reassigned to the undersigned. (Dkt. No. 38.)

In November 2013, the Appellate Division denied Harnett leave to appeal from his resentencing by the Bronx County Supreme Court. (Dkt. No. 45.) In April 2014, the parties were directed to file letter briefing regarding the Appellate Division's decision. (Dkt. No. 47.) The Court has received additional briefing from both Petitioner and Respondent. (Dkt. Nos. 49, 52.)

II. Discussion

" In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). " Once a claim has been 'adjudicated on the merits' by the state court, " federal habeas review of a state court decision " is subject to the deferential standard" set out in the Antiterrorism and Effective Death Penalty Act (" AEDPA"), 28 U.S.C. § 2254. See Earley v. Murray, 451 F.3d 71, 74 (2d Cir. 2006). Under AEDPA, a writ of habeas corpus cannot be granted unless the state court's decision on the claim was " contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, " or " was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). The AEDPA standard is " difficult to meet, " and requires " that state-court decisions be given the benefit of the doubt." Cullen v. Pinholster, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011) (internal quotation marks omitted).

A. Claims Raised on Direct Appeal

Harnett incorporates the arguments he made on direct appeal into his habeas petition. Each is considered in turn.

Sufficiency of the evidence . First, Harnett claims that the evidence was insufficient to convict him of sodomy and the possession of a weapon.[2] (Amended Petition ¶ 13; Ex. 1, at 21.) A sufficiency of the evidence claim is reviewed in federal habeas proceedings under a " twice-deferential" standard. Parker v. Matthews, 132 S.Ct. 2148');"> 132 S.Ct. 2148, 2152, 183 L.Ed.2d 32 (2012) (per curiam). First, the evidence underlying a conviction " is sufficient to support a conviction whenever, 'after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Under this standard, " judges must be highly deferential to the jury's verdict of conviction." Langston v. Smith, 630 F.3d 310, 314 (2d Cir. 2011). And second, a " state-court decision rejecting a sufficiency challenge may not be overturned on federal habeas unless the decision was objectively unreasonable." Parker, 132 S.Ct. at 2152 (citing Cavazos v. Smith, 132 S.Ct. 2, 4, 181 L.Ed.2d 311 (2011) (per curiam)). " [A] federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court." Cavazos, 132 S.Ct. at 4.

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