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Patterson v. Thompson

United States District Court, W.D. New York

November 3, 2017

EMMANUEL PATTERSON, Petitioner,
v.
JAMES P. THOMPSON, Respondent.

          DECISION & ORDER

          LAWRENCE J. VILARDO UNITED STATES DISTRICT JUDGE.

         The petitioner, Emmanuel Patterson, has been serving a sentence of 20 years to life since he pled guilty to murder in the second degree in New York State Supreme Court, Erie County, in 1979. He now has filed his third petition for a writ of habeas corpus pursuant to 28 U.S.C. Section 2254, challenging his conviction and his sentence. Docket Item 1 (the “third” or “instant” petition). In the instant petition, Patterson claims that (1) New York State's indeterminate sentencing scheme, New York Penal Law Section 70.40(1)(a), was unconstitutionally applied to him in 1979 inasmuch as he was not advised about the parole component of his sentence before his plea and sentencing; and (2) established federal and state procedures were “ignored and circumvented[, ] leaving the State Board of Parole without proper legal justification and authority in the execution of petitioner['s] sentence after completion of the twenty-year minimum term of imprisonment per plea-agreement.” Docket Item 1, at 6, 7, 16, 17.[1]

         PROCEDURAL BACKGROUND

         Patterson's first petition challenging his conviction, Patterson v. Corr. Dept., 83-CV-840-JTC (“first petition”), was filed in 1983 and denied on the merits in 1987. The second petition, Patterson v. Berbarry, 04-CV-122-HKS ("second petition"), was filed in 2004 and transferred to the United States Court of Appeals for the Second Circuit as a second or successive application under 28 U.S.C. Section 2244(b)(3)(A).[2] 04-CV-122 Docket Item 4. Upon transfer, the Second Circuit found that because claims five to twelve of the second petition did not challenge the same judgment of conviction as the first petition but rather challenged the denial of Patterson's parole-an issue that had not arisen at the time of the first petition-that portion of the second petition was not a "second or successive application" within the meaning of Section 2244(b). The Second Circuit therefore transferred claims five to twelve of the second petition back to this court and noted that the court could require Patterson to file an amended petition. 04-CV-122 Docket Item 5.

         The Second Circuit found that the remaining claims in the second petition- claims one through four-did challenge the same judgment of conviction that the first petition challenged. The court noted, however, that it had not yet decided whether the second or successive application rule ("gatekeeping provisions") of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996), applied to a proposed second petition when, as in Patterson's case, the first petition had been filed before AEDPA's effective date.[3] But the Second Circuit found that it did not need to decide this issue because "[u]nder the standard that existed prior to AEDPA, the petition would not be entertained inasmuch as [the petitioner] . . . failed to show cause for failing to raise the claims in his first petition and prejudice therefrom or that failure to hear the claims would result in a fundamental miscarriage of justice." Docket Item 5 (citing McClesky v. Zant, 499 U.S. 467, 494-95 (1991)). The Second Circuit therefore denied Patterson's second or successive application with respect to claims one through four of the second petition.

         After claims five through twelve in his second petition were sent back to this court, Patterson was given an opportunity to file an amended petition. He filed an amended petition, but he then sought to withdraw it without prejudice, and the court entered an order dismissing the amended petition without prejudice pursuant to Fed.R.Civ.P. 41(a)(1)(i), the predecessor to Fed.R.Civ.P. 41(a)(1)(A)(i). Docket Item 9.

         In light of that history, this court must determine whether the third petition is a "successive application" that should be transferred to the Second Circuit for authorization under 28 U.S.C. Section 2244(b)(3)(A).

         DISCUSSION

         I. THIRD (INSTANT) PETITION

         A. Grounds for relief

         The instant petition was filed on August 28, 2017, and raises two grounds for relief based on the same supporting facts. Docket Item 1 at 6, 7, 16, 17. The first alleges that New York's indeterminate sentencing scheme, New York Penal Law Section 70.40(1)(a), was unconstitutionally applied to Patterson in 1979-when he entered his plea of guilty and understood that his sentence would be twenty years to life-because there was no discussion or explanation about parole "being a part of the of the plea-agreed twenty[-]year minimum term of imprisonment." Docket Item 1 at 6, 7. Patterson now claims that the plea discussions between him and his attorney were limited to how much time he would need to serve in prison before he would be released. He says that no one-not the court, defense counsel, or the district attorney-advised him about the parole consequences of his sentence before he accepted the "twenty-year plea-agreed indeterminate sentence."[4] Docket Items 1 at 6-8; 1-1, Ex. A at 4-14 (Guilty Plea Minutes, Aug. 27, 1979).

         The second ground, which explicitly relies on the same supporting facts, states that "[t]he procedures as required by clearly established United States Supreme Court precedents and federal standards of due process were ignored and circumvented the State Board of Parole without proper legal jurisdiction and authority in execution of petitioner['s] sentence after completion of the twenty-year minimum of imprisonment per plea-agreement." Docket Item 1 at 16-17.

         After serving twenty years of his twenty-year-to-life sentence, Patterson was referred to the State Division of Parole for his first parole release hearing in January 1999. He was denied parole following that first appearance, and he has since been denied parole after each of his next six or more appearances before the Parole Board. Patterson claims that as of 2013, he had served twelve years beyond his agreed-upon minimum term of imprisonment. Docket Items 1 at 8; 1-1 at 24-28.

         Patterson alleges that at his parole release hearing on November 6, 2013, the Board of Parole acknowledged that the Correctional Offender Management Profiling for Alternative Sentences (COMPAS) measured his risk at the “very lowest of categories of Risk to Abscond, Risk to Commit any [Violent] Felony or even a Risk of Arrest.” Docket Items 1 at 8; 1-1, Ex. E at 30. He says that after his administrative appeal was denied, he filed a state habeas corpus petition challenging New York's indeterminate sentencing scheme. Docket Item 1 at 9-10. That petition was converted to a N.Y. C.P.L.R. Article 78 proceeding and denied on October 21, 2014. Id. at 11. Patterson attempted to appeal directly to the New York Court of Appeals, but the Court of Appeals transferred the appeal to New York State Supreme Court, Appellate Division, Fourth Department. The Appellate Division affirmed the denial of the petition, and Patterson's application for leave to appeal to the New York Court of Appeals was denied on June ...


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