United States District Court, N.D. New York
BROWN Petitioner, pro se.
DECISION AND ORDER
N. HURD UNITED STATES DISTRICT JUDGE.
petitioner Mark Brown ("Brown" or
"petitioner") filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, as well as various
supporting exhibits. Dkt. No. 1, Petition ("Pet.");
Dkt. Nos. 1-1-1-4, Exhibits.
December 11, 2019, the Court administratively closed the
action because it had not been properly commenced: Brown did
not pay the statutory filing fee or file a properly certified
in forma pauperis ("IFP") application. Dkt. No. 2.
December 30, 2019, the Court received the statutory filing
fee, Dkt. Entry dated 12/30/19 (indicating receipt
information for filing fee transaction), and Brown's case
was reopened, Dkt. No. 3, Text Order dated 12/30/19
challenges a 2011 conviction, pursuant to a guilty plea, from
Schenectady County for second degree attempted robbery. Pet.
at 1-2. The New York State Supreme Court,
Appellate Division, Third Department, affirmed the judgment
of conviction; the New York Court of Appeals denied leave to
appeal; and, on January 13, 2014, the United States Supreme
Court denied his petition for a writ of certiorari.
Id. at 2; accord, People v. Brown, 101
A.D.3d 1267 (3d Dep't 2012), lv. denied, 21
N.Y.3d 1014 (2013), cert. denied, 571 U.S. 1143
also collaterally challenged his state court conviction by
filing a motion to vacate pursuant to New York Criminal
Procedure Law § 440.20 ("440 motion"), on
January 30, 2019. Pet. at 3. The motion asserted that
petitioner's sentence was illegally imposed, unlawful,
and invalid as a matter of law given his re-sentencing and
the court's inconsistent application of post-release
supervision ("PRS"). Id. The 440 motion
was denied on July 23, 2019. Id. On October 31,
2019, petitioner's application for leave to appeal the
decision was also denied by the Third Department.
Id. at 4, 6-7.
argues that he is entitled to federal habeas relief because
(1) his original "sentence did not have . . . a
mandatory component of PRS which made it invalid to use to
[later] sentence [him] as a persistent [violent felony
offender] and [(2)] the manner in which [the county court] .
. . correct[ed petitioner's sentence] was not in
accordance [with] the law." Pet. at 5-7. Petitioner
indicated that the only motion he had previously filed
regarding his 2011 conviction was the aforementioned 440
motion. Id. at 7-8.
Petitioner's Prior Habeas Petitions
March 10, 2014, this Court received a petition from Brown,
pursuant to 28 U.S.C. § 2254, challenging the same
conviction at issue in his current petition. Brown v.
Racette, No. 9:14-CV-0262 (TJM) ("Brown
I"), Dkt. No. 1, Petition.
April 29, 2015, this Court entered a Decision and Order
denying and dismissing the petition. Brown I, Dkt.
No. 9. Specifically, Brown I held that (1)
petitioner's claim that his waiver of the right to appeal
was invalid was based on state law and did not entitle him to
federal habeas relief, (2) petitioner's claim that his
legal sentence was nevertheless harsh and severe was not
cognizable, and (3) the Appellate Division's decision
finding that petitioner was advised that sentencing could
proceed in his absence, and of the potential sentence he