Fields v. Lee

MARK FIELDS, Petitioner, v. WILLIAM A. LEE, Superintendent, Green Haven Correctional Facility, Respondent.

12 Civ. 4878 (CS)(JCM)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

January 27, 2016

REPORT AND RECOMMENDATION

To the Honorable Cathy Seibel, United States District Judge:

Petitioner Mark Fields ("Petitioner"), proceeding pro se, filed a writ of habeas corpus pursuant to 28 U.S.C. § 2254 by papers dated June 14, 2012. (Docket No. 2). By affidavit and memorandum of law dated November 2, 2012, Respondent William A. Lee, Superintendent, Green Haven Correctional Facility ("Respondent") opposed the petition. (Docket Nos. 11, 12). Petitioner submitted a reply by papers filed December 26, 2012. (Docket No. 16). For the reasons set forth below, it is respectfully recommended that Petitioner's petition for a writ of habeas corpus be denied.

I. BACKGROUND

A. Crime

On October 18, 1998, Petitioner unlawfully entered the Glen Island Nursing Center in New Rochelle, New York. (Ex.¹ 6 at 1). Petitioner took a number of items, including a television, remote control, tape player and compact disc player. (Id. at 1). He was apprehended shortly thereafter by a police officer who observed Petitioner pushing the above items down thestreet in a laundry bin. (Id. at 1). During a subsequent search, police recovered burglar's tools and a glass pipe containing cocaine from Petitioner. (Id. at 1).

A grand jury indicted Petitioner for the crimes of burglary in the second degree, petit larceny, criminal possession of stolen property in the fifth degree, criminal mischief in the fourth degree, and possession of burglar's tools. (Ex. 1).

B. Guilty Plea and Sentence

On May 24, 1999, Petitioner pled guilty in the Supreme Court of the State of New York, County of Westchester ("State Trial Court") to burglary in the second degree in full satisfaction of the indictment. (Ex. 2 at 6, 18). Burglary in the second degree is a Class C felony. (N.Y. Penal Law § 140.25; Ex. 2 at 5). Petitioner agreed to a definite sentence of seven-and-a-half years. (Ex. 2 at 13). The Honorable Judge John Perone, Acting Justice of the Supreme Court ("Justice Perone"), released Petitioner on bail but stated that he could sentence Petitioner to a definite sentence of "up to 15 years" if he did not return for sentencing. (Id. at 13-14). Petitioner agreed. (Id. at 14). Justice Perone also informed Petitioner that he would review Petitioner's probation report and impose a period of post-release supervision ("PRS") of between two-and-a-half to five years. (Id. at 15-17). Petitioner stated that he had discussed the matter with his attorney and he agreed that, in consideration of the negotiated plea, he would waive the right to appeal his conviction and sentence. (Id. at 17-18).

Petitioner failed to appear for his sentencing hearing on September 9, 1999. (Ex. 3 at 6). The sentencing hearing was adjourned to October 7, 1999 and Petitioner again failed to appear. (Id. at 6). On November 4, 1999, Justice Perone found that Petitioner "willfully absconded and willfully avoided sentence" and sentenced him "in absentia to 15 years definite term, a $155surcharge." (Id. at 9). Justice Perone also noted that Petitioner waived his right to be advised of his right to appeal by his willful failure to appear for sentencing. (Id. at 9).

Petitioner was later arrested on a shoplifting charge and his sentence was executed on May 20, 2003. (Ex. 6 at 3).²

C. First Motion to Vacate the Judgment or to Set Aside the Sentence

On May 27, 2009, Petitioner, proceeding pro se, filed in the State Trial Court a motion to vacate the judgment against him pursuant to New York Criminal Procedural Law ("N.Y. C.P.L.") § 440.10 ("440.10 Motion") or to set aside his sentence pursuant to N.Y. C.P.L. § 440.20 ("440.20 Motion").³ (Ex. 4). Petitioner also filed an amended § 440.10 motion and § 440.20 motion dated August 19, 2009 ("Amended 440 Motion," and, collectively with the 440.10 Motion and the 440.20 Motion, the "440 Motions"). (Supp. Ex.⁴ 3).

In the 440.10 Motion, Petitioner asserted that the judgment against him should be vacated because: (i) his guilty plea was not entered voluntarily, knowingly, or intelligently because Justice Perone failed to advise him of the essential elements of the offense; (ii) Justice Perone failed to impose a period of PRS as required by law and failed to advise him that PRS was a consequence of a guilty plea; (iii) Petitioner never entered a guilty plea on the record because he believed he was only admitting to having committed a predicate felony, and not the currentcharges against him; and (iv) his conviction should be reversed in the interest of justice because the building he entered is not a "dwelling" and therefore a conviction of burglary in the third degree would be more appropriate than a conviction of burglary in the second degree. (Ex. 4).

In his 440.20 Motion, Petitioner asserted that his sentence should be set aside because: (i) Justice Perone never imposed a term of PRS; (ii) his sentence was excessively harsh and severe; and (iii) his due process rights were violated by his failure to be present at sentencing. (Ex. 4).

In his Amended 440 Motion, Petitioner asserted that the judgment against him should be vacated or his sentence should be set aside because his counsel was ineffective for: (1) failing to challenge an allegedly unlawful search and seizure and unlawful identification procedure; (2) failing to negotiate a plea to the lesser offense of burglary in the third degree; and (3) proceeding with a plea agreement even though Petitioner told counsel that he was not ready to plea. (Supp. Ex. 3).

By papers dated September 16, 2009, the People of the State of New York ("the People") opposed the 440 Motions on all but one ground. (Ex. 5). As to that ground, the People conceded that Justice Perone incorrectly failed to impose the mandatory five-year term of PRS at the time of sentencing and consented to having Petitioner produced for resentencing pursuant to People v. Sparber, 10 N.Y.3d 457 (N.Y. 2008). (Id. at 2 n.2).

By decision and order dated October 7, 2009, the State Trial Court denied the 440 Motions in all respects except one. (Ex. 6). As to that ground, the State Trial Court stated that

since the Court failed to impose any period of postrelease supervision at sentencing, the defendant is entitled to be resentenced in accordance with People v Sparber (10 NY3d 457 (2008)). In Sparber, the Court noted that the remedy for the sentencing courts [sic] failure to pronounce the PRS component of the sentence is to vacate the sentence and to remit for resentencing so the trial judge can make the required pronouncement (Id.; People v Boyd, supra). Accordingly the defendant shall be produced for resentencing in accordance with People v Sparber.

(Id. at 15-16). By order dated March 9, 2010, the Supreme Court of the State of New York, Appellate Division, Second Judicial Department ("Second Department") denied Petitioner's application for leave to appeal the State Trial Court's denial of the 440 Motions, stating simply that "[u]pon the papers filed in support of the application and the papers filed in opposition thereto, it is ORDERED that the application is denied." (Ex. 7).

D. Second Motion to Vacate the Judgment or to Set Aside the Sentence

On December 3, 2009, counsel was assigned to Petitioner to assist him with any resentencing issues. (See Ex. 8). By papers dated February 15, 2010, Petitioner, represented by counsel, filed a motion to: (i) vacate Petitioner's fifteen-year conviction and sentence and impose a sentence of seven-and-a-half years instead; (ii) release Petitioner from the custody of the New York State Department of Corrections; and (iii) direct that a Pre-Sentence Report be prepared. (Ex. 8). The People opposed Petitioner's motion by papers dated February 22, 2010. (Ex. 9).

By decision and order dated February 24, 2010, the State Trial Court denied Petitioner's motion ("[t]o the extent that counsel is now rearguing the motion to vacate defendant's conviction, the motion is denied"), except stated that Petitioner "shall be produced for resentencing in accordance with People v Sparber, so that the Court may properly pronounce the sentence to include the mandatory 5 year postrelease supervision." (Ex. 10) (altered from original).

E. Sparber Resentencing

On March 3, 2010, Petitioner, represented by counsel, appeared for a Sparber resentencing ("Sparber Resentencing") in the State Trial Court, (Ex. 11). Petitioner's counsel asked the Honorable Judge Susan Capeci, Judge of the County Court ("Judge Capeci") to vacate Petitioner's sentence and to impose the originally promised sentence of seven-and-a-half yearsinstead. (Id. at 3). Judge Perone denied counsel's request and sentenced Petitioner to his original determinate sentence of fifteen years with the added requirement of "five years post-release supervision." (Id. at 7).

F. Direct Appeal of Sparber Resentencing

By papers dated August 4, 2010, Petitioner, through counsel, filed an appeal of his Sparber Resentencing with the Second Department. (Ex. 12). Petitioner argued that: (1) his guilty plea was not knowing, voluntary, and intelligent because Justice Perone misinformed him that he could receive a term of PRS less than the mandatory five-year term of PRS; (2) Judge Capeci misunderstood her discretionary authority during the Sparber Resentencing, and the case should be remanded so that the court could consider imposing a reduced term of incarceration; (3) Judge Capeci abused her discretion by failing to consider imposing a reduced term of incarceration and failing to order a presentence report; and (4) the Second Department should exercise its discretion to impose a reduced term of incarceration. (Id.). The People opposed Petitioner's appeal. (Ex. 13).

The Second Department affirmed Petitioner's resentence by order dated December 28, 2010, stating that: (i) Petitioner's claim that his underlying plea...