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Brown v. Rich

United States District Court, N.D. New York

January 6, 2020

MARK BROWN, Petitioner,
v.
JOHN G. RICH, Elmira Correctional Facility Superintendent, Respondent.

          MARK BROWN Petitioner, pro se.

          DECISION AND ORDER

          DAVID N. HURD UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Pro se 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.

         On 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.

         On 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 (reopening action).

         II. DISCUSSION

         A. The Petition

         Brown challenges a 2011 conviction, pursuant to a guilty plea, from Schenectady County for second degree attempted robbery. Pet. at 1-2.[1] 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 (2014).[2]

         Brown 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.

         Brown 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.

         B. Petitioner's Prior Habeas Petitions

         On 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.

         On 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 ...


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