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Mercado v. Lempke

United States District Court, S.D. New York

June 16, 2015

OSCAR MERCADO, Petitioner,
JOHN LEMPKE, Superintendent, Five Points Correctional Facility, Respondent.

Oscar Mercado, Five Points Correctional Facility, Romulus, NY, Petitioner (Pro Se).

John M. Collins, Esq., Camacho Mauro Mulholland, LLP, New York, NY, for Respondent.

John J. Sergi, Assistant District Attorney, White Plains, NY.


SHIRA A. SCHEINDLIN, District Judge.


Oscar Mercado brings this pro se petition for habeas corpus under section 2254, challenging his state court conviction following a jury trial in New York County Court, Westchester County.[1] In 2002, petitioner was found guilty of two brutal incidents of sexual assault, and he was sentenced to an aggregate sentence of thirty years in prison. After unsuccessfully appealing his conviction in state court, petitioner timely filed a habeas petition (the "2007 Petition") in the Southern District of New York, which was eventually denied by Judge Vincent Briccetti on December 7, 2011.[2]

In the interim between petitioner's filing of the 2007 Petition and its denial in 2011, he was resentenced on July 24, 2008 - per the Second Circuit's decision in Earley v. Murray [3] - to add terms of post-release supervision to his sentence.[4] After a series of appeals, petitioner's renewed sentence became final on February 22, 2011, when his petition for a writ of certiorari from the Supreme Court of the United States was denied.[5]

On September 13, 2011, petitioner filed the instant petition (the "2011 Petition"), which the Government moved to dismiss as successive, insofar as it "attacks the same judgment" challenged in the 2007 Petition.[6] On September 27, 2012, Judge Edgardo Ramos - adopting the Report and Recommendation of Magistrate Judge Lisa Smith - denied the Government's motion.[7] Relying on the Supreme Court's holding in Magwood v. Patterson, [8] Judge Smith reasoned that petitioner's re-sentencing in 2008 qualified as a new judgment for the purposes of section 2254, effectively resetting the habeas clock.[9]

This Opinion addresses the merits of the 2011 Petition, in which petitioner raises six constitutional claims. First, the imposition of post-release supervision (per Earley ) violated the Ex Post Facto Clause.[10] Second, the trial court's "determination of facts" violated a number of constitutional provisions.[11] Third, petitioner's sentence is disproportionate to the crime committed, in violation of the Eighth Amendment.[12] Fourth, the New York statute governing petitioner's sentence - Penal Law ยง 70.85 - deprives convicted persons (including petitioner) of equal protection of the laws.[13] Fifth, petitioner received ineffective assistance of appellate counsel, in abrogation of his Sixth Amendment rights.[14] Sixth, the state court's "abuse of discretion" violated petitioner's rights.[15]

In response, the Government makes two arguments. First, the Government argues that all of petitioner's federal constitutional claims are either procedurally barred or lacking in merit, or both.[16] Second, the Government asks the Court to reconsider its previous ruling as to the "successive" nature of the 2011 Petition.[17] In its opposition brief, the Government spends a considerable amount of space arguing, in effect, that under the standard set forth in Magwood, and clarified by the Second Circuit in Johnson v. United States, [18] only petitions that "challenge new judgments" are exempt from the prohibition on successive petitions[19]-and that petitioner's 2008 resentencing does not qualify as a new judgment, because it served only to rectify a ministerial error.


A. Deferential Standard for Federal Habeas Review

This petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"). The AEDPA provides that a federal court may not grant a writ of habeas corpus to a prisoner in custody pursuant to the judgment of a state court with respect to any claim, unless the state court's adjudication on the merits of the claim: "(1) was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;"[20] or (2) "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."[21]

A state-court decision is contrary to clearly established federal law, as determined by the Supreme Court, ...

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