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Toliver v. Sheahan

United States District Court, S.D. New York

May 18, 2015




Petitioner Michael Toliver, proceeding pro se, brings this timely petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (the "Petition"). He challenges his conviction, following a jury trial in New York State Supreme Court, of three counts of Failure to Verify Registration Information and one count of Failure to Verify Annual Registration Information, each a violation under New York's Sex Offender Registration Act ("SORA"), N.Y. Correct. Law §§ 168 to 168-w. The Court has carefully considered the papers filed by both sides as well as the record of proceedings in the New York State courts. Because the state courts did not adjudicate Petitioner's claims in a manner that resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, his petition is denied.


A. The Sex Offender Registration Act

1. SORA's Enactment and General Framework

Resolution of Petitioner's many claims requires extensive analysis of SORA's enactment, amendment history, and relevant provisions. On July 25, 1995, New York enacted SORA as the state analogue of the federal statute colloquially known as "Megan's Law." See 1995 N.Y. Laws 2870 (codified at N.Y. Correct. Law §§ 168 to 168-w). The statute took effect on January 21, 1996. See Doe v. Pataki (" Pataki III "), 3 F.Supp.2d 456, 459 (S.D.N.Y. 1998). SORA's objectives are "[i] to protect members of the public, especially vulnerable populations, from sex offenders by notifying [the public] of the presence of sex offenders in their communities and [ii] to enhance law enforcement authorities' ability to investigate and prosecute sex offenses." Doe v. Pataki, 481 F.3d 69, 70 (2d Cir. 2007) (" Pataki IV ") (citing 1995 N.Y. Laws 2870 § 1). To that end, "the Act requires all convicted sex offenders (the registrants') to register with law enforcement authorities and provides for the disclosure of information about the registrants to local law enforcement authorities, entities with vulnerable populations, and the public at large in enumerated circumstances." Id. at 70-71. In New York City, a sex offender must register with the Sex Offender Management Unit ("SOMU") of the state Attorney General's Office at different time intervals as described below. ( See Dkt. #14-2 at 85).

As enacted, SORA allowed (and still allows, though the authorizing language has been amended over the years) the Board of Examiners of Sex Offenders (the "Board") to classify offenders as level one, level two, or level three risk based on the Board's assessment of whether the risk of repeat offense is respectively low, moderate, or high. N.Y. Correct. Law § 168- l (6).[2] Depending on the offender's risk classification, local law enforcement authorities are authorized to disseminate different levels of information about the offender, his or her offense, and any special conditions imposed. See id.

Risk classifications also impact registration requirements. Initially, SORA provided that

[t]he duration of registration for a sex offender shall be annually for a period of ten years from the initial date of registration, provided, however, that for a sexually violent predator, he shall annually register and verify quarterly for a minimum of ten years unless the court determines in accordance with section one hundred sixty-eight- o of this article, that the person no longer suffers from a mental abnormality that would make him likely to engage in a predatory sexually violent offense.

Id. § 168-h (McKinney 1996). Section 168-o set forth a mechanism for relief from these reporting requirements:

[a]ny sex offender required to register pursuant to this article may be relieved of any further duty to register upon the granting of a petition for relief by the sentencing court. Upon receipt of the petition for relief, the court shall notify the board and request an updated report pertaining to the sex offender. After receiving the report from the board, the court may grant or deny the relief sought.

Id. § 168-o. And Section 168-t set forth penalties for non-compliance:

[a]ny person required to register pursuant to the provisions of this article who fails to register in the manner and within the time periods provided for herein shall be guilty of a class A misdemeanor for the first offense, and for a second or subsequent offense shall be guilty of a class D felony.

Id. § 168-t.

Section 168-n outlined the judicial process by which an offender could be designated as a "sexual offender" or a "sexually violent predator": the Board would make a recommendation that the sentencing court would review "any materials submitted by the sex offender" in conjunction with "any victim's statement." N.Y. Correct. Law § 168-n (McKinney 1996). Section 168-n further provided that "[t]he court shall also allow the sex offender to appear and be heard, and inform the sex offender of his right to have counsel appointed, if necessary." Id. § 168-n(3). In other words, SORA initially contemplated that the court had the discretion, but not the obligation, to allow the offender to make an appearance to be heard.

2. Relevant Amendments to SORA

a. 1999 Amendments

SORA has been subject to numerous substantive amendments; the timing and content of several of these amendments are relevant here. In 1999, the New York legislature amended SORA to incorporate extensive procedural due process requirements prompted by the district court's decision in Pataki III, 3 F.Supp.2d at 473. These amendments substantively changed Section 168-n, directing, among other things, that "[n]o later than thirty days prior to the board's recommendation, the sex offender shall be notified that his or her case is under review and that he or she is permitted to submit to the board any information relevant to the review, " and "[t]he written notice to the sex offender shall also advise the offender that he or she has a right to a hearing prior to the court's determination, and that he or she has the right to be represented by counsel at the hearing." 1999 N.Y. Laws 453 § 168-n(3).

The 1999 amendments maintained the registration period as ten years from the original date of registration for all levels of sex offenders. It also left unchanged the requirement that if the offender was a sexually violent predator, he or she would also have to personally verify his address every 90 days with the local law enforcement agency. See 1999 N.Y. Laws 453 § 168-h. Also unchanged was Section 168-t, which continued to provide that an initial registration violation would be a class A misdemeanor and any subsequent violation would be a class D felony. See id. § 168-t.

b. 2002 Amendments

In 2002, the legislature again amended the Act, building on existing offender-type designations in order to create designations for "sexual predator, " "sexually violent offender, " and "predicate sex offender." See 2002 N.Y. Laws 66.[3] It stated that any offender who was labeled any of these three offendertype designations on or after March 11, 2002, or any offender who was designated as a level three risk, would have to register and verify his address annually for life. Id. § 168-h(2). Level three risk offenders also were required to personally verify their addresses every 90 calendar days with local law enforcement. See id. § 168-h(3). By contrast, those who were not given an offender-type designation, or who were designated a level one or level two risk, would only have to register annually for ten years from the initial date of registration. See id. § 168-h(1).

c. 2006 Amendments

In January 2006, the ten-year registration period for many level-one and level-two registrants was approaching an end, prompting a further amendment that increased the length of the registration requirements "to enhance public safety and provide better tracking and monitoring of sex offenders." 2006 N.Y. Laws 1 § 1. Specifically, the amendment increased the period of registration for offenders at risk level one from 10 years to 20, and for those at risk level two from 20 years to life. Id. § 168-h. It also extended the period before lifetime registrants (i.e., those classified as risk level three or designated as sexual predators, sexually violent offenders, or predicate sex offenders) could petition for relief from registration and verification requirements from 13 years to 20, id. § 168-o(1), but continued to provide that "[a]ny sex offender required to register or verify pursuant to this article may petition the sentencing court or the court which made the determination regarding the level of notification for an order modifying the level of notification, " id. § 168-o(2).

d. 2007 Amendments

Finally, in 2007, Section 168-t was amended to provide that an initial registration violation would constitute a class E felony rather than a class A misdemeanor, while any subsequent offense would continue to constitute a class D felony. See 2007 N.Y. Laws 373 § 168-t.

3. SORA as Applied to Petitioner

During 2008 and 2009, the relevant period for the Petition, a sex offender who had not been designated a sexual predator, a sexually violent offender, or a predicate sex offender, and who was classified as a level one risk, or who had not yet received a risk level classification, was required to register annually and verify his address for 20 years from the initial date of registration. See N.Y. Correct. Laws § 168-h(1) (McKinney 2014). By contrast, a sex offender who, on or after March 11, 2002, was designated a sexual predator, sexually violent offender, or predicate sex offender, or who was classified as a level two or level three risk, was required to register annually for life. See id. § 168-h(2). Further, a "sex offender designated as a sexual predator or having been given a level three designation [was required to] personally verify his or her address with the local law enforcement agency every ninety calendar days after the date of release or commencement of parole or post-release supervision, or probation." Id. § 168-f(3). Finally, "[a]ny sex offender [was required to] register with the division no later than ten calendar days after any change of address." Id. § 168-f(4). An initial conviction for failure to register constituted a class E felony, and any second or subsequent violation constituted a class D felony. See id. § 168-t.

Sex offenders such as Petitioner are informed of their obligations upon sentencing or prior to release from prison:

Any sex offender, who is released on probation or discharged upon payment of a fine, conditional discharge or unconditional discharge shall, prior to such release or discharge, be informed of his or her duty to register under this article by the court in which he or she was convicted. At the time sentence is imposed, such sex offender shall register with the division on a form prepared by the division. The court shall require the sex offender to read and sign such form and to complete the registration portion of such form.

N.Y. Correct. Laws § 168-d(2) (McKinney 2014). On the particular issue of offender designation, Section 168-n states, "A determination that an offender is a sexual predator, sexually violent offender, or predicate sex offender as defined in subdivision seven of section one hundred sixty-eight-a of this article shall be made prior to the discharge, parole, release to post-release supervision or release of such offender." Id. § 168-n(1).

4. Redetermination Hearings Pursuant to the Doe v. Pataki Settlement

On March 6, 1996, plaintiffs in Doe v. Pataki, No. 96 Civ. 1657 (DC), brought a class action against then-Governor George Pataki seeking declarative and injunctive relief. Pataki III, 3 F.Supp.2d at 456, 465.[4] Plaintiffs claimed that SORA as originally enacted was unconstitutional as applied to individuals who committed their crimes before the Act took effect on January 21, 1996, under the Ex Post Facto, Due Process, and Equal Protection Clauses of the United States Constitution. Id. The district court held that that the Act's original procedures for determining risk levels violated sex offenders' procedural due process rights and that offenders facing risk level classification were entitled to, among other things, a hearing, notice of the evidence upon which the risk level recommendation was based, and the right to appeal. Id. at 473. The New York State legislature soon thereafter passed the first major amendment to SORA in 2002 to provide sex offenders notice and an opportunity to be heard.

The parties to the class action remained in settlement discussions until June 2004. Pataki IV, 481 F.3d at 73. On June 2, 2004, then-United States District Judge Denny Chin signed a Stipulation of Settlement that, among other things, ushered in a period of risk level redetermination hearings. "The Stipulation, the stated purpose of which was to settl[e] the disputes between [the parties] and avoid[] further litigation, ' specified detailed procedures for conducting redetermination hearings for level two and level three Plaintiffs and for notifying them of their right to such hearings." Id. at 73; see also id. at 74 (explaining the notification process).

B. Petitioner's SORA Designations

1. Petitioner's Initial Designation

Petitioner was charged with sodomizing a 13-year-old male in a subway station on April 4, 1991. People v. Toliver, 629 N.Y.S.2d 746, 747 (1st Dep't 1995). After his first trial resulted in a hung jury, see People v. Toliver, 89 N.Y.2d 843, 844 (1996), Petitioner was convicted at a 1992 retrial of Criminal Sexual Act in the Second Degree, in violation of N.Y. Penal Law § 130.45. (Dkt. #14-5 at 51; Dkt. #14-6 at 35).

On November 19, 1996, Petitioner's conviction was reversed by the New York Court of Appeals because the trial judge had been absent from the courtroom during the prosecution's questioning of prospective jurors. See Toliver, 89 N.Y.2d at 845. Petitioner was subsequently retried on the same charge, and was convicted on November 25, 1997, before the Honorable Edward J. McLaughlin. (Dkt. #14-6 at 35; Dkt. #14-3 at 131).

Petitioner's initial "New York State Sex Offender Registration Form, " dated February 14, 1996, was signed by him in two places. (Dkt. #14-4 at 102, 103, 122).[5] The form notified Petitioner of his address verification responsibilities as a level three sex offender in accordance with the version of SORA in force during that time. After the 2002 amendments, Petitioner was required to report to SOMU every 90 days to verify his address and to mail an annual verification letter to the Division of Criminal Justice Services ("DCJS"). (Dkt. #14-2 at 87-88). Although the conviction underlying these registration obligations was vacated by the New York Court of Appeals on November 19, 1996, there is no evidence of a second risk level determination after Petitioner's subsequent conviction on retrial.

2. Petitioner's Prior Failure to Register Conviction[6]

On April 27, 1998, Petitioner was charged with Failure to Register under SORA, Criminal Trespass in the Third Degree, and False Personation; the charges arose from an incident in which Petitioner entered a building at Fordham Law School in Manhattan. (Pet. 40-41). The criminal complaint alleged that although Petitioner had advised SOMU on April 16, 1998, that he resided at 1430 Amsterdam Avenue, he stated on the day of his arrest - a mere eleven days later - that he resided at 21 Bleecker Street. (Id. at 41).

The parties dispute the charge(s) to which Petitioner pleaded guilty on August 18, 1998. Petitioner maintains, both at his 2009 trial and in the Petition, that he did not plead guilty to the failure to register charge. Instead, Petitioner believes that he pleaded guilty to possession of burglar's tools in an entirely different case. (Dkt. #14-6 at 14-15, 23, 135-41). According to the 1998 court reporter's transcript as well as the court clerk's minutes, however, Petitioner in fact pleaded guilty to the failure to register charge. (Pet. 42; Dkt. #14-5 at 154-55; Dkt. #14-7 at 20). To add to the confusion, the 2009 trial court indicated during a sidebar that it had access to a plea allocution or agreement showing that Petitioner pleaded guilty both to failure to register and to possession of burglar's tools on that day (Dkt. #14-6 at 137-38), though such allocution or agreement was never introduced at trial. As discussed later in this Opinion, these discrepancies do not provide grounds for relief.

3. Petitioner's Redesignation

On February 14, 2005, Petitioner was sent a letter from the New York County Clerk's Office to an address he had provided at 464 Hudson Street in Manhattan; the letter made reference to his initial sodomy conviction and gave him notice "concerning his rights to challenge his sex offender registration level." (Dkt. #14-6 at 16-25). Petitioner was sent this letter in response to the settlement arrived at in Doe v. Pataki. (Pet. 54 (document showing that on June 20, 2005, Petitioner was redetermined to be a level three offender in a "Redetermination Proceeding Pursuant to Stipulation of Settlement in Doe v. Pataki, 96 Civ. 1657 (DC)"); see also Dkt. #14-6 at 26-33). The letter noted that as of that date, Petitioner was registered as a level three sex offender and that he was required, "among other registration obligations, to verify your address annually by mail for life, as well as every 90 days in person with your local law enforcement agency." (Dkt. #14-6 at 23). Petitioner responded to the letter indicating that he wanted a "risk level determination proceeding" and that he wanted a lawyer for the proceeding. (Id. at 340-42).

On June 20, 2005, a risk level redetermination hearing was held before Justice McLaughlin - the very judge who had presided over Petitioner's 1997 retrial. (Dkt. #14-5 at 159-60; Dkt. #14-3 at 131). At the hearing, Justice McLaughlin adjudicated Petitioner a risk level three sex offender. (Dkt. #14-5 at 156-62; Dkt. #14-6 at 26-34; see also Pet. 54-55).[7]

B. Petitioner's 2009 Trial for Failure to Register

In the criminal prosecution underlying the Petition, Petitioner was charged with failure to verify his 90-day registration on three dates - June 14, 2008, October 13, 2008, and January 12, 2009 - and with failure to verify his annual registration on February 24, 2009. (Dkt. #14-3 at 207). On July 29, 2010, Petitioner proceeded to trial on these charges before the Honorable Bonnie Wittner ( id. at 11), though the case was transferred multiple times ( see infra ). Because Petitioner raises numerous claims concerning the fairness of this prosecution, it is discussed in some detail in the remainder of this section.

1. The People's Case

On June 27, 2007, Petitioner met with Officer Lisa Marie Newkirk at the SOMU office in Manhattan and provided proof of his current address pursuant to his obligations under SORA. (Dkt. #14-4 at 66-67). Newkirk gave Petitioner a copy of SOMU's rules and regulations governing registration requirements, but Petitioner refused to sign for the packet of information. (Id. at 67-68). She also gave him a 90-day appearance slip indicating when to return to make his next verification. (Dkt. #14-7 at 1-2).

On September 12, 2007, Petitioner submitted a change of address form to DCJS, disclosing that, on August 31, 2007, he had moved to 545 West 146th Street in Manhattan. (Dkt. #14-4 at 108-16). However, Petitioner failed to notify DCJS of any subsequent address change: from September 12, 2007, until February 11, 2009 (when DCJS sent Petitioner his annual verification form), DCJS had no other record of his living anywhere but 545 West 146th Street. (Id. at 120-21).

On April 10, 2008, Petitioner reported to the Manhattan SOMU office to verify his address with Officer Newkirk. (Dkt. #14-4 at 60-63, 75; id. at 156). During an "extended interview" with Petitioner on that date, Newkirk "tr[ied] to convince" Petitioner to remain compliant with his registration obligations. (Id. at 80). Newkirk also gave Petitioner an appointment sheet indicating that he was next scheduled to report to SOMU on July 14, 2008. (Id. at 62). Petitioner signed that appointment sheet, acknowledging that he had received it. (Id. at 62-63). Petitioner did not, however, report to SOMU on July 14, 2008. (Id. at 77-78, 145-46, 185, 219-20). In consequence, on August 12, 2008, Detective Wendy Santiago went to Petitioner's last reported address at 545 West 146th Street in an attempt to locate him. Petitioner was not at this address, and the occupant of the apartment said that Petitioner no longer lived there. (Id. at 146-51). SOMU representatives testified, relying in part on sign-in sheets maintained in the ordinary course of business, that Petitioner never returned voluntarily to the SOMU office after his April 10, 2008 appointment, missing two subsequent verification appointments on October 13, 2008, and January 12, 2009. (Id. at 77-78, 88; see also id. at 178-81).

On February 11, 2009, DCJS mailed a non-forwardable annual verification form to Petitioner's last known address at 545 West 146th Street. (Dkt. #14-4 at 115-17, 119-20). On February 20, 2009, the postal service returned the blank form to DCJS, with the notations "return to sender" and "vacant." (Id. at 130-31, 151).

On March 11, 2009, NYPD Detective Carlos Sanchez, who was also assigned to SOMU, learned that Petitioner had filed a complaint with the police concerning his roommate. (Dkt. #14-4 at 185-86, 202). The complaint report system listed Petitioner's address as 894 Riverside Drive, New York, New York. (Id. at 185-86). Sanchez went to the listed address; although Petitioner was not there, another occupant confirmed that Petitioner rented a room in the identified apartment. (Id. at 186-87). Sanchez gave the occupant his business card and attempted to reach Petitioner on his mobile telephone. (Id. ).

On March 17, 2009, Petitioner called Detective Sanchez. (Dkt. #14-4 at 187). Sanchez told Petitioner to report to SOMU the following day, but in the meantime decided to verify that Petitioner in fact resided at 894 Riverside Drive by returning there on March 18, 2009, at around 7:30 a.m. (Id. at 187, 189). He knocked on the door to Petitioner's apartment but received no response. (Id. at 189). A neighbor who was in charge of the apartment opened the door with his key and directed Sanchez to Petitioner's room. (Id. ). As Sanchez knocked on the door to Petitioner's room, the door opened and Sanchez observed Petitioner sitting on his bed. (Id. at 189-90). Sanchez identified himself and asked Petitioner to accompany him to SOMU; Petitioner agreed. (Id. at 190, 222-26).

Upon returning to the SOMU office, Sanchez interviewed Petitioner. (Dkt. #14-4 at 190-91). Prior to commencing the interview, Sanchez read Petitioner his Miranda rights; though Petitioner orally waived his rights, he refused to sign the waiver form or answer any questions. (Id. at 191-99). When Sanchez informed Petitioner that SOMU "need[ed] to know this information, " Petitioner replied that SOMU would not be "getting that information." (Id. at 198). Sanchez told Petitioner that he would be arrested whether or not he answered Sanchez's questions, and that he would have to return to SOMU "to register and give [SOMU] this information, " but Petitioner said that he was "never going to return" to the SOMU office, and that "the only way he was going to come back is if [the officers] arrested him." (Id. at 198). At approximately 11:30 a.m., Detective Sanchez placed Petitioner under arrest. (Id. at 182-83, 225; see also Dkt. #14-6 at 1-2).

On March 27, 2009, a grand jury indicted Petitioner on three counts of Failure to Verify Registration Information, in violation of N.Y. Correct. Law § 168-f(3), and one count of Failure to Verify Annual Registration Information, ...

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