BOYD v. SMITH

ANDREW PECK, Magistrate Judge To the Honorable Jed S. Rakoff, United States District Judge:

Pro se petitioner Markeith Boyd seeks a writ of habeas corpus from his May 29, 1990 conviction and subsequent December 4, 2001 re-sentencing to seven consecutive terms of six to twelve years imprisonment for a statutory aggregate sentence of twenty-five to fifty years imprisonment. (Dkt. No. 1: Pet. ¶¶ 12(A-D); Dkt. No. 18: Boyd 7/21/04 Letter.).

Boyd's habeas petition raises four grounds, all relating to his re-sentencing, as follows: (a) he was denied due process because the re-sentencing judge failed to consider all factors when imposing the re-sentence (Pet. ¶ 12(A)); (b) he was denied equal protection when the re-sentencing judge failed to comply with sentencing mandates (Pet. ¶ 12(B)); (c) the "law as applied in the `resentencing' context is unconstitutional, or has been unconstitutionally applied" (Pet. ¶ 12(C)); and (d) the sentencing statutes are unconstitutional (Pet. ¶ 12(D)). Additionally, Boyd submitted a letter to this Court requesting that an additional claim that his original trial counsel was ineffective in his pre-trial sentencing advice (which allegedly caused Boyd to reject a plea bargain) be "consolidated" into his habeas petition. (Dkt. No. 18: Boyd 7/21/04 Letter.)

FACTS

On May 29, 1990, Boyd was convicted of seven counts of first degree robbery and sentenced, as a second felony offender, to seven consecutive terms of five to ten years imprisonment. See People v. Boyd, 202 A.D.2d 234, 234, 608 N.Y.S.2d 224, 225 (1st Dep't), appeal denied, 84 N.Y.2d 823, 617 N.Y.S.2d 143 (1994). On December 4, 2001, as a reslt of Boyd's C.P.L. § 440 motion pointing out that he should have been sentenced to terms of six to twelve years, Boyd was resentenced to seven consecutive terms of six to twelve years imprisonment nunc pro tunc to his original sentencing date. (Dkt. No. 6: Attias Aff. Ex. C: 12/4/01 Re-sentencing Transcript ("Tr.") at 27.) Boyd's 2001 C.P.L. § 440 Motion

Boyd previously submitted a writ of habeas corpus in connection with his conviction, asserting claims that: (1) the trial court erred in denying his motion to suppress certain statements made in violation of his right to remain silent; (2) he received ineffective assistance of trial counsel; and (3) the court failed to inspect grand jury minutes, abrogating the court's jurisdiction, and violating the due process and equal protection clauses of the Constitution. Boyd v. Hawk, 965 F. Supp. 443, 445 (S.D.N.Y. 1997) (Batts, D.J. Peck, M.J.). Boyd's petition was denied on the merits on all grounds. Boyd v.Hawk, 965 F. Supp. at 445.

In 2001, Boyd moved pursuant to C.P.L. § 440.20 to set aside his sentence "premised upon the claim his sentence was unauthorized, illegal and invalid as a matter of law." (Dkt. No. 23: Attias 10/29/04 Letter: Att.: Boyd Pre-Sentence Mem. at 1;accord Dkt. No. 23: Attias 10/29/04 Letter: Att.: D.A. § 440 Opp. Br. at 1.) Boyd originally was sentenced by Justice Weissberg to seven consecutive terms of five to ten years imprisonment. (See Boyd Pre-Sentence Mem. at 2.) Boyd made the unusual argument in his § 440 motion that he should have received a greater sentence: because he was adjudicated a violent predicate felony offender, "`the least a criminal defendant should receive for a B class felony was a sentence of six to twelve (6-12) years in prison — [Boyd] was improperly sentenced to a term of only 5-10 years (five to ten) in prison.'" (D.A. § 440 Opp. Br. at 4, quoting Boyd § 440 brief.) The District Attorney's office agreed with Boyd's conclusion, stating that "the defendant needs to be resentenced since he was only sentenced to five to ten years imprisonment on each count." (D.A. § 440 Opp. Br. at 5.) Justice Edwin Torres granted Boyd's motion and ordered Boyd to be resentenced. (Dkt. No. 23: 10/29/04 Letter: Att.: 9/28/01 Justice Torres Order.)

CPL § 440.20 states:

1. At any time after the entry of a judgment, the court in which the judgment was entered may, upon motion of the defendant, set aside the sentence upon the ground that it was unauthorized, illegally imposed or otherwise invalid as a matter of law. . . .

. . . .

4. An order setting aside a sentence pursuant to this section does not affect the validity or status of the underlying conviction, and after entering such an order the court must resentence the defendant in accordance with the law.

The Attorney General Office's was unable to locate Boyd's § 440 motion that gave rise to his re-sentencing. (See Dkt. No. 23: Attias 10/29/04 Letter.) The Court therefore relies upon Boyd's pre-sentence memorandum and the District Attorney's brief in response to Boyd's § 440 motion. (See Attias 10/29/04 Letter: Att.)

Boyd's December 4, 2001 Re-sentencing Hearing Before Justice Torres

On December 4, 2001, Justice Torres held a re-sentencing hearing "because Mr. Boyd's sentence has to be corrected or aimed to reflect what the law required at the time which is six to twelve [years] as opposed to five to ten [years for a violent predicate felony offender]. An error on the part of Judge Weissberg. That's the question." (Dkt. No. 6: Attias Aff. Ex. C: Tr. 2-3.) Justice Torres explained further that this alteration to Boyd's sentence will "not in any way, shape or form . . . impact on the time the defendant will have to serve since there is a setting, so to speak, Class B felony of 25 on any instance. I propose to make any amendment in effect nunc pro tunc to the original date of the sentence which was May 29th of '90." (Tr. 3.)

Boyd's attorney argued that the re-sentencing could not merely correct the error:

MR. ANGIOLETTI: I reviewed this and my research tells me that what we're doing today [Defense Counsel] is not simply a ministerial act. I believe we're in the same posture as if you're re-sentencing a defendant after a second trial upon an Appellate reversal.

. . . .

THE COURT: That's presupposing that it's a consideration that that information was not forthcoming before the learned Judge Weissberg which, in fact, it was. There's nothing new here.

MR. ANGIOLETTI: But, in fact, there is. . . . [T]here is something new.

THE COURT: Not of any essence here essentially, but go ahead.

. . . .

MR. ANGIOLETTI: . . . There was no mechanism for Justice Weissberg to take into consideration all of the factors that Mr. Boyd raises in his presentence materials.

There is now the ability by this Court to take those factors into consideration because this invariably sides a new sentencing procedure with a new presentence report. It is not simply a ministerial act. I believe that it is not that you are obligated to ignore those things and sentence him as if we were in a time machine, move back to 1990 in the place of Judge Weissberg. We have to consider what Mr. Boyd has done in the past eleven years.

The factors I would ask you to consider, as detailed in the presentence report, are four factors:

Number one: One of the biggest differences between 1990 and today in the presentence report today, in his presentence materials, Mr. Boyd expresses remorse for his actions back in 1989.

. . . .

MR. ANGIOLETTI: He did not express any remorse when Judge Weissberg imposed the initial sentence. So that is a very significant change.

The other change in Mr. Boyd's life has to be with his steps towards rehabilitation. . . . The Probation Department contacted a counselor at the Greenhaven Correctional Facility. It's a glowing report. . . . [I]n short, Mr. Boyd has been a model prisoner.

The third factor that should be considered on his re-sentence, he provided information to the Kings County District Attorney's office which led to a young man who was wrongfully charged with a felony being exculpated. . . .

. . . .

The other aspect of his cooperation is there is a letter from [an] Assistant U.S. Attorney . . . concerning cooperation Mr. Boyd provided with a jury tampering case in Federal Court. . . . against organized crime figures. . . .

. . . .

MR. ANGIOLETTI: You can see in the presentence materials he was slashed across his back. He paid a big price for that cooperation.

So what I'm asking you to do, I realize that there is a [ceiling] of 25 to 50, but what I would like the Court to do given the remorse because he is very different — I don't know what it was in 1989, but he's quite different now. That's brought on by all the things he's done since he's been in. Because of the remorse he's expressed, because of his efforts to rehabilitation. . . . I would ask that you make these sentences concurrent so that there will be a reduction from the aggregate of 25 to 50. You can do two sentences of six to twelve consecutive. You can do three sentences of six to twelve consecutive and the rest concurrent. You could do one sentence six to twelve, and make all the rest concurrent. He's made extraordinary efforts since he's been in. I believe you do have the power to take those things into account. I would ask you do so.

(Tr. 4-9.)

Justice Torres gave Boyd a chance to speak, and Boyd apologized to the victims of his crime, noting: "I apologize to all the victims. . . . I went to trial. I was a jerk. I thought I worked the people, the system. That's why I went to trial." (Tr. 12.) Boyd reiterated that he cooperated with the F.B.I. and was assaulted in prison as a result of cooperating, and discussed his educational and rehabilitative efforts while in prison. (Tr. 12-25.)

Justice Torres explained Boyd's re-sentence:

THE COURT: . . . Obviously you are a very articulate and intelligent individual. You could not bring into play that conceded intelligence and ability to articulate your thoughts at a former time when the issue before this thing crystallized.

With all due respect, I defer to your position, which was very well phrased, and commend you for your talents. Unfortunately, it was directly the wrong channel. Hopefully you have seen the light.

The bottom line, sir, is that I am not an Appellate body per se. So, in essence, contrary to what your attorney indicated, I am not in a position as not being an Appellate body to modify or amend this, what was merely a ministerial flaw on the part of Judge Weissberg.

So, in essence, quite frankly, everything that you have, nothing substantial is reflected in this record. Albeit your steps to rehabilitate yourself and your efforts in that direction are all together commendable, but this cannot in any way, shape or form impact on what already took place on the 29th of May of 1990.

I repeat. I am not an Appellate body. I have examined all of this documentation. In essence, all of which was presented to Judge Weissberg when he saw fit to meet out the sentence that he did.

So I am bound by that and say for the record to correct the error, modify the error which was effected then, which was the five to ten as opposed to the six to twelve is the minimum required.

The only saving grace is that although the sentence I propose to modify from five to ten to six to twelve, this does not and will not impact on the totality of the years that you must serve since there is a [ceiling] of 25 to 50 on all consecutive B felony sentences. I propose to make this nunc pro tunc to that date. So you will not be penalized or punished for any time already served.

I reiterate, although I commend you for the steps you have taken to bring yourself around, and the cooperation which you paid a heavy price, it would appear this is what I am bound to do as I envision the law in so far as the cooperative stance you may have taken, not being properly reflected. That is something that you can or through your attorney or through your own administration pursue on appeal.

At this point, I am really standing in the shoes, in essence, of Judge Weissberg since nothing of any substance is on this record. . . . The sentence is state prison. Minimum/maximum six to twelve on each count. Each to run consecutive to the other.

The sentence is to be nunc pro tunc to the original date which was May 29th of 1990. You may take exception with this ruling. You can pursue the appeal, wherever it takes you.

(Tr. 25-27, emphasis added.)

Boyd's Direct Appeal of His Re-Sentence

Boyd appealed his re-sentence, represented by the Office of the Appellate Defender. (Dkt. No. 6: Attias Aff. Ex. D: Boyd 1st Dep't Br.) The First Department affirmed the re-sentence, holding:

Defendant was resentenced as a result of his successful motion to set aside sentence, made pursuant to CPL 440.20. By granting the motion and by correcting the undisputed illegality in defendant's original sentence, the court accorded defendant all the relief required by the statute (CPL 440.20 [4]). We perceive no basis for either a reduction of sentence or a remand for further sentencing proceedings.

People v. Boyd, 298 A.D.2d 300, 300, 748 N.Y.S.2d 492, 492 (1st Dep't 2002).

The New York Court of Appeals denied leave to appeal on February 14, 2003. People v. Boyd, 99 N.Y.2d 612, 757 N.Y.S.2d 823 (2003). Boyd's Habeas Petition and His 2004 C.P.L. § 440 Motion

On or about September 24, 2003, Boyd brought a coram nobis petition before the First Department. (See Dkt. No. 12: 3/3/04 Attias Letter: Att.: Boyd 9/24/03 Coram Nobis Papers.) Although a coram nobis petition is designed to raise claims of ineffective assistance of appellate counsel, Boyd's coram nobis petition challenged the First Department's denial of his sentencing appeal. (Id.) The District Attorney's office noted in opposition that Boyd's coram nobis petition "essentially consists of a reargument of previously decided appellate claims." (Dkt. No. 12: 3/3/04 Attias Letter: Att.: A.D.A. Handman Coram Nobis Opp. Aff. ¶ 3.) Indeed, Boyd later conceded that he was not claiming his appellate counsel had been ineffective, but rather was challenging the First Department's decision itself. (Dkt. No. 13: Boyd 2004 C.P.L. § 440 Motion ¶ 6.)
On February 26, 2004, the First Department denied Boyd's coram nobis petition. People v. Boyd, 4 A.D.3d 898, 774 N.Y.S.2d 855 (table) (1st Dep't 2004). (See Dkt. No. 11: Attias 2/27/04 Letter: Att.: 2/26/04 1st Dep't Order.) The New York Court of Appeals denied leave to appeal on May 19, 2004. (Dkt. No. 16: Attias 6/1/04 Letter: Att.: 5/19/04 N.Y. Ct. App. Order.)

Boyd's July 22, 2003 habeas petition raises four grounds, all relating to his re-sentencing, as follows: (a) he was denied of due process because the re-sentencing judge failed to consider all factors when imposing re-sentencing (Dkt. No. 1: Pet. ¶ 12(A)); (b) he was denied equal protection when the re-sentencing judge failed to comply with sentencing mandates (Pet. ¶ 12(B)); (c) the "law as applied in the `resentencing' context is unconstitutional, or has been unconstitutionally applied" (Pet. ¶ 12(C)); and (d) the sentencing statutes are unconstitutional (Pet. ¶ 12(D)).

On March 8, 2004, Boyd submitted another C.P.L. § 440 motion, which, along with the re-sentencing claims paralleling the claims in his habeas petition, also alleged ineffective assistance of his original trial counsel. (Dkt. No. 13: Boyd 2004 C.P.L. § 440 Motion.) Specifically, Boyd asserted that he was deprived of effective assistance of counsel because prior to his original trial, his attorney misinformed him about his possible maximum sentence:

The People offered a plea agreement of ten years to twenty years of imprisonment. My attorney, Louis Grisorio then informed me that the most I could possibly receive was twelve and one half years to twenty-five years, and that because it was only a two and a one half year difference, it was not a good idea to plead guilty. On his advice and assurances that I could not receive more than the 12-1/2-25 year maximum, only 2-1/2 years more than what the People were willing to offer, I proceed[ed] to trial. Mr. Grisorio never informed me of the actual aggregate sentence I was exposed to if I proceeded to trial. Had I known that I could receive 25 to 50 years in prison, I would have plead guilty immediately! Mr. Grisorio told me the most was 12-1/2-25!

(Boyd 2004 § 440 Aff. ¶ 4.)

On April 21, 2004, Justice Torres denied Boyd's motion without opinion. (Dkt. No. 14: Boyd 4/28/04 Letter: Att.: Justice Torres 4/21/04 Order Denying § 440 Motion.) On June 24, 2004, the First Department denied leave to appeal from the denial of Boyd's § 440 motion. (Dkt. No. 17: Boyd 7/6/2004 Letter Att.: 1st Dep't Certificate Denying Leave; see also Dkt. No. 15: Boyd Application to 1st Dep't for Leave to Appeal.)

On July 21, 2004, Boyd submitted a letter to this Court requesting that the additional ineffective assistance of trial counsel claim raised in his C.P.L. § 440 motion be "consolidated" into his habeas petition. (Dkt. No. 18: Boyd 7/21/04 Letter.)

The Court never ruled on the claim, but the State responded to it as if it had been added to the petition. (Dkt. No. 20: Attias 8/30/04 Letter.) Accordingly, the Court deems the petition amended to include the ineffective assistance claim.

ANALYSIS

I. THE AEDPA REVIEW STANDARD

For additional decisions by this Judge discussing the AEDPA review standard in language substantially similar to that in this entire section of this Report Recommendation, see, e.g., Curry v. Burge, 03 Civ. 0901, 2004 WL 2601681 at *8 (S.D.N.Y. Nov. 17, 2004) (Peck, M.J.); Otero v. Eisenschmidt, 01 Civ. 2562, 2004 WL 2504382 at *16 (S.D.N.Y. Nov. 8, 2004) (Peck, M.J.); Kanani v. Phillips, 03 Civ. 2534, 2004 WL 2296128 at *10 (S.D.N.Y. Oct. 13, 2004) (Peck, M.J.); Medina v.McGinnis, 04 Civ. 2515, 2004 WL 2088578 at *7-9 (S.D.N.Y. Sept. 20, 2004) (Peck, M.J.); Smalls v. McGinnis, 04 Civ. 0301, 2004 WL 1774578 at *11-13 (S.D.N.Y. Aug. 10, 2004) (Peck, M.J.);Gillespie v. Miller, 04 Civ. 0295, 2004 WL 1689735 at *6-8 (July 29, 2004) (Peck, M.J.); Castro v. Fisher, 04 Civ. 0346, 2004 WL 1637920 (S.D.N.Y. July 23, 2004) (Peck, M.J.); Del Pilar v. Phillips, 03 Civ. 8636, 2004 WL 1627220 at *7-9 (S.D.N.Y. July 21, 2004) (Peck, M.J.); Peakes v. Spitzer, 04 Civ. 1342, 2004 WL 1366056 at *8-10 (S.D.N.Y. June 16, 2004) (Peck, M.J.), report rec. adopted, 2004 WL 1656568 (S.D.N.Y. July 23, 2004) (Berman, D.J.); Brown v. Fischer, 03 Civ. 9818, 2004 WL 1171277 at *4-6 (S.D.N.Y. May 27, 2004) (Peck, M.J.);Rodriguez v. Goord, 02 Civ. 6318, 2004 WL 540531 at *10-13 (S.D.N.Y. Mar. 19, 2004) (Peck, M.J.); Rodriguez v.Senkowski, 03 Civ. 3314, 2004 WL 503451 at *22-24 (S.D.N.Y. Mar. 15, 2004) (Peck, M.J.); Hernandez v. Filion, 03 Civ. 6989, 2004 WL 286107 at *8-10 (S.D.N.Y. Feb. 13, 2004) (Peck, M.J.), report rec. adopted, 2004 WL 555722 (S.D.N.Y. Mar. 19, 2004) (Berman, D.J.); Gomez v. Duncan, 02 Civ. 0846, 2004 WL 119360 at *14-16 (S.D.N.Y. Jan. 27, 2004) (Peck, M.J.);Montalvo v. Annetts, 02 Civ. 1056, 2003 WL 22962504 at *12-14 (S.D.N.Y. Dec. 17, 2003) (Peck, M.J.) (citing my earlier cases);Larrea v. Bennett, 01 Civ. 5813, 2002 WL 1173564 at *14 (S.D.N.Y. May 31, 2002) (Peck, M.J.), report rec. adopted, 2002 WL 1808211 (S.D.N.Y. Aug. 6, 2002) (Scheindlin, D.J.),aff'd, No. 02-2540, 368 F.3d 179 (table), 2004 WL 1094269 (2d Cir. May 18, 2004); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *22 (S.D.N.Y. June 6, 2000) (Peck, M.J.), report rec. adopted, 2000 WL 1154320 (S.D.N.Y. Aug. 14, 2000) (McKenna, D.J.), aff'd, 303 F.3d 411, 417 (2d Cir. 2002), cert. denied, 537 U.S. 1245, 123 S. Ct. 1353 (2003); Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at *10 (S.D.N.Y. May 25, 2000) (Peck, M.J.), aff'd, No. 01-2474, 41 Fed. Appx. 497, 2002 WL 1448474 (2d Cir. June 28, 2002), cert. denied, 538 U.S. 978, 123 S. Ct. 1787 (2003).

Before the Court can determine whether Boyd is entitled to federal habeas relief, the Court must address the proper habeas corpus review standard under the Antiterrorism and Effective Death Penalty Act ("AEDPA").

In enacting the AEDPA, Congress significantly "modifie[d] the role of federal habeas courts in reviewing petitions filed by state prisoners." Williams v. Taylor, 529 U.S. 362, 403, 120 S. Ct. 1495, 1518 (2000). The AEDPA imposed a more stringent review standard, as follows:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) . . . was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1)-(2).

See also, e.g., Cox v. Donnelly, 387 F.3d 193, 197 (2d Cir. 2004); Dallio v. Spitzer, 343 F.3d 553, 559-60 (2d Cir. 2003), cert. denied, 124 S. Ct. 1713 (2004); Eze v.Senkowski, 321 F.3d 110, 120 (2d Cir. 2003) ("AEDPA changed the landscape of federal habeas corpus review by `significantly curtail[ing] the power of federal courts to grant the habeas petitions of state prisoners.'") (quoting Lainfiesta v.Artuz, 253 F.3d 151, 155 (2d Cir. 2001), cert. denied, 535 U.S. 1019, 122 S. Ct. 1611 (2002)); Christie v. Hollins, 01 Civ. 11605, 2003 WL 22299216 at *2 (S.D.N.Y. Oct. 7, 2003) (Mukasey, D.J.) ("As Magistrate Judge Peck explained, the `unreasonable application' clause, and AEDPA more generally, imposes a heavy burden on habeas petitioners.").

The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have "independent meaning." Williams v. Taylor, 529 U.S. at 404-05, 120 S. Ct. at 1519. Both, however, "restrict the source of clearly established law to [the Supreme] Court's jurisprudence." Williams v. Taylor, 529 U.S. at 412, 120 S. Ct. at 1523. "That federal law, as defined by the Supreme Court, may either be a generalized standard enunciated in the [Supreme] Court's case law or a bright-line rule designed to effectuate such a standard in a particular context." Kennaugh v. Miller, 289 F.3d at 42. "A petitioner cannot win habeas relief solely by demonstrating that the state court unreasonably applied Second Circuit precedent." Yung v. Walker, 296 F.3d at 135; accord, e.g., DelValle v. Armstrong, 306 F.3d at 1200.

Accord, e.g., Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003), cert. denied, 124 S. Ct. 962 (2003); Jones v.Stinson, 229 F.3d 112, 119 (2d Cir. 2000); Lurie v.Wittner, 228 F.3d 113, 125 (2d Cir. 2000), cert. denied, 532 U.S. 943, 121 S. Ct. 1404 (2001); Clark v. Stinson, 214 F.3d 315, 320 (2d Cir. 2000), cert. denied, 531 U.S. 1116, 121 S. Ct. 865 (2001).

Accord, e.g., Yarborough v. Alvarado, 124 S. Ct. 2140, 2147 (U.S. 2004) ("We look for `the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'"); Wiggins v.Smith, 539 U.S. 510, 123 S. Ct. 2527, 2534 (2003); Lockyer v.Andrade, 538 U.S. 63, 72, 123 S. Ct. 1166, 1172 (2003) ("Section 2254(d)(1)'s `clearly established' phrase `refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.'"); Tueros v. Greiner, 343 F.3d 587, 591 (2d Cir. 2003), cert. denied, 124 S. Ct. 2171 (2004); Parsad v.Greiner, 337 F.3d at 181; DelValle v. Armstrong, 306 F.3d 1197, 1200 (2d Cir. 2002); Yung v. Walker, 296 F.3d 129, 135 (2d Cir. 2002); Kennaugh v. Miller, 289 F.3d 36, 42 (2d Cir.), cert. denied, 537 U.S. 909, 123 S. Ct. 251 (2002);Loliscio v. Goord, 263 F.3d 178, 184 (2d Cir. 2001); Sellan v. Kuhlman, 261 F.3d 303, 309 (2d Cir. 2001).

As to the "contrary to" clause:

A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases. . . . A state-court decision will also be contrary to [the Supreme] Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.

Williams v. Taylor, 529 U.S. at 405-06, 120 S. Ct. at 1519-20.

Accord, e.g., Price v. Vincent, 538 U.S. 634, 123 S. Ct. 1848, 1853 (2003); Lockyer v. Andrade, 123 S. Ct. at 1173-74; Tueros v. Greiner, 343 F.3d at 591; DelValle v.Armstrong, 306 F.3d at 1200; Yung v. Walker, 296 F.3d at 135; Kennaugh v. Miller, 289 F.3d at 42; Loliscio v.Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 127-28.

In Williams, the Supreme Court explained that "[u]nder the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. at 413, 120 S. Ct. at 1523. However, "[t]he term `unreasonable' is . . . difficult to define." Williams v. Taylor, 529 U.S. at 410, 120 S. Ct. at 1522. The Supreme Court made clear that "anunreasonable application of federal law is different from anincorrect application of federal law." Id. Rather, the issue is "whether the state court's application of clearly established federal law was objectively unreasonable." Williams v. Taylor, 529 U.S. at 409, 120 S. Ct. at 1521. "Objectively unreasonable" is different from "clear error."Lockyer v. Andrade, 538 U.S. at 75, 123 S. Ct. at 1175 ("The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness."). However, the Second Circuit has explained "that while `[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.'" Jones v. Stinson, 229 F.3d at 119 (quotingFrancis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)). "[T]he range of reasonable judgment can depend in part on the nature of the relevant rule." Yarborough v.Alvarado, 124 S. Ct. at 2149.

Accord, e.g., Wiggins v. Smith, 123 S. Ct. at 2534-35; Parsad v. Greiner, 337 F.3d at 181.

See also, e.g., Yarborough v. Alvarado, 124 S. Ct. at 2150; Wiggins v. Smith, 123 S. Ct. at 2535; Price v.Vincent, 123 S. Ct. at 1853 ("As we have explained, `a federal habeas court may not issue the writ simply because that court concludes that the state-court decision applied [a Supreme Court case] incorrectly.'") (quoting Woodford v. Visciotti, 537 U.S. 19, 24-25, 123 S. Ct. 357, 360 (2002)); Lockyer v.Andrade, 538 U.S. at 75, 123 S. Ct. at 1175; Cox v.Donnelly, 387 F.3d at 197; Eze v. Senkowski, 321 F.3d at 124-25; DelValle v. Armstrong, 306 F.3d at 1200 ("With regard to issues of law, therefore, if the state court's decision was not an unreasonable application of, or contrary to, clearly established federal law as defined by Section 2254(d), we may not grant habeas relief even if in our judgment its application was erroneous.").

Accord, e.g., Yarborough v. Alvarado, 124 S. Ct. at 2150; Wiggins v. Smith, 123 S. Ct. at 2535; Price v.Vincent, 123 S. Ct. at 1853; Lockyer v. Andrade, 538 U.S. at 75, 123 S. Ct. at 1174-75; Woodford v. Visciotti, 537 U.S. at 25-27, 123 S. Ct. at 360-61; Cox v. Donnelly, 387 F.3d at 197; Eze v. Senkowski, 321 F.3d at 125; Ryan v. Miller, 303 F.3d 231, 245 (2d Cir. 2002); Yung v. Walker, 296 F.3d at 135; Loliscio v. Goord, 263 F.3d at 184; Lurie v.Wittner, 228 F.3d at 128-29.

Accord, e.g., Cox v. Donnelly, 387 F.3d at 197, 200-01; Eze v. Senkowski, 321 F.3d at 125; Ryan v.Miller, 303 F.3d at 245; Yung v. Walker, 296 F.3d at 135;Loliscio v. Goord, 263 F.3d at 184; Christie v. Hollins, 2003 WL 22299216 at *3.

The Supreme Court explained:

[T]he range of reasonable judgment can depend in part on the nature of the relevant rule. If a legal rule is specific, the range may be narrow. Applications of the rule may be plainly correct or incorrect. Other rules are more general, and their meaning must emerge in application over the course of time. Applying a general standard to a specific case can demand a substantial element of judgment. As a result, evaluating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case by case determinations.

Yarborough v. Alvarado, 124 S. Ct. at 2149.

Moreover, the Second Circuit has held "that a state court determination is reviewable under AEDPA if the state decision unreasonably failed to extend a clearly established, Supreme Court defined, legal principle to situations which that principle should have, in reason, governed." Kennaugh v. Miller, 289 F.3d at 45.

Accord, e.g., Tueros v. Greiner, 343 F.3d at 591;Yung v. Walker, 296 F.3d at 135; see Yarborough v.Alvarado, 124 S. Ct. at 2150-51 ("The petitioner contends that if a habeas court must extend a rationale before it can apply to the facts at hand then the rationale cannot be clearly established at the time of the state-court decision. There is force to this argument. Section 2254(d)(1) would be undermined if habeas courts introduced rules not clearly established under the guise of extensions to existing law. At the same time, the difference between applying a rule and extending it is not always clear. Certain principles are fundamental enough that when new factual permutations arise, the necessity to apply the earlier rule will be beyond doubt.") (citations omitted).

Under the AEDPA, in short, the federal courts "must give the state court's adjudication a high degree of deference." Yung v.Walker, 296 F.3d at 134.

Even where the state court decision does not specifically refer to either the federal claim or to relevant federal case law, the deferential AEDPA review standard applies:

For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.

Sellan v. Kuhlman, 261 F.3d at 312; accord Early v.Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 365 (2002) (State court not required to cite Supreme Court cases, or even be aware of them, to be entitled to AEDPA deference, "so long as neither the reasoning nor the result of the state-court decision contradicts them."); Francolino v. Kuhlman, 365 F.3d 137, 141 (2d Cir. 2004) (Where "the Appellate Division concluded its opinion by stating that it had `considered and rejected defendants' remaining claims,'" AEDPA deference applies.); Jenkins v.Artuz, 294 F.3d 284, 291 (2d Cir. 2002) ("In Sellan, we found that an even more concise Appellate Division disposition — the word `denied' — triggered AEDPA deference."). "By its terms, § 2254(d) requires such deference only with respect to a state-court `adjudication on the merits,' not to a disposition `on a procedural, or other, ground.' Where it is `impossible to discern the Appellate Division's conclusion on [the relevant] issue,' a federal court should not give AEDPA deference to the state appellate court's ruling." Miranda v.Bennett, 322 F.3d 171, 177-78 (2d Cir. 2003) (citations omitted). Of course, "[i]f there is no [state court] adjudication on the merits, then the pre-AEDPA, de novo standard of review applies." Cotto v.Herbert, 331 F.3d at 230.

Accord, e.g., Cox v. Donnelly, 387 F.3d at 197 ("Neither the Appellate Division nor the New York Court of Appeals addressed [petitioner's] argument beyond a brief statement that the argument was without merit. In the absence of any expressed reasoning behind this conclusion, we turn directly to the facts of the case to determine whether Strickland was applied unreasonably."); Dallio v. Spitzer, 343 F.3d at 559-60; Parsad v. Greiner, 337 F.3d at 180-81; Cotto v.Herbert, 331 F.3d 217, 230 (2d Cir. 2003); Eze v.Senkowski, 321 F.3d at 121; Ryan v. Miller, 303 F.3d at 245; Aeid v. Bennett, 296 F.3d 58, 62 (2d Cir.), cert. denied, 537 U.S. 1093, 123 S. Ct. 694 (2002); Norde v.Keane, 294 F.3d 401, 410 (2d Cir. 2002); Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001).
The Second Circuit "recognize[d] that a state court's explanation of the reasoning underlying its decision would ease our burden in applying the `unreasonable application' or `contrary to' tests." Sellan v. Kuhlman, 261 F.3d at 312. Where the state court does not explain its reasoning, the Second Circuit articulated the analytic steps to be followed by a federal habeas court:

We adopt the Fifth Circuit's succinct articulation of the analytic steps that a federal habeas court should follow in determining whether a federal claim has been adjudicated "on the merits" by a state court. As the Fifth Circuit has explained, "[W]e determine whether a state court's disposition of a petitioner's claim is on the merits by considering: (1) what the state courts have done in similar cases; (2) whether the history of the case suggests that the state court was aware of any ground for not adjudicating the case on the merits; and (3) whether the state court's opinion suggests reliance upon procedural grounds rather than a determination on the merits." Mercadel v. Cain, 179 F.3d 271, 274 (5th Cir. 1999).

Sellan v. Kuhlman, 261 F.3d at 314; accord, e.g., Cotto v. Herbert, 331 F.3d at 230; Eze v. Senkowski, 321 F.3d at 121-22; Norde v. Keane, 294 F.3d at 410; Aparicio v.Artuz, 269 F.3d at 93; see also Dallio v. Spitzer, 343 F.3d at 560.

The Second Circuit in Miranda v. Bennett continued: "Generally, when the Appellate Division opinion states that a group of contentions is either without merit `or' procedurally barred, the decision does not disclose which claim in the group has been rejected on which ground. If the record makes it clear, however, that a given claim had been properly preserved for appellate review, we will conclude that it fell into the `without merit' part of the disjunct even if it was not expressly discussed by the Appellate Division." Id. at 178.

In addition to the standard of review of legal issues, the AEDPA provides a deferential review standard for state court factual determinations: "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). "The petitioner bears the burden of `rebutting the presumption of correctness by clear and convincing evidence.'"Parsad v. Greiner, 337 F.3d at 181 (quoting § 2254(e)(1)).

Boyd's claims were denied on the merits and so AEDPA deference applies.

II. BOYD'S INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL CLAIM SHOULD BE TRANSFERRED TO THE SECOND CIRCUIT AS A SUCCESSIVE PETITION

"AEDPA imposes `stringent limits on a prisoner's ability to bring a second or successive application for a writ of habeas corpus.'" Torres v. Senkowski, 316 F.3d 147, 150 (2d Cir. 2003) (quoting Adams v. United States, 155 F.3d 582, 583 (2d Cir. 1998)). Under 28 U.S.C. § 2244(b)(1), a "claim presented in a second or successive habeas corpus application" by a state prisoner that was presented in a prior habeas petition is required to be dismissed. 28 U.S.C. § 2244(b)(1); see, e.g., Turner v. Artuz, 262 F.3d 118, 124 (2d Cir.) ("The claims [petitioner] seeks to raise in his successive petition were presented in a prior application and, as such, [petitioner]'s present successive application fails — on its face — to satisfy the requirements of § 2244(b)(1). This Court is therefore unable to authorize a successive application in this case."), cert. denied, 534 U.S. 1031, 122 S. Ct. 569 (2001).

See also, e.g., Carmona v. United States, No. 04-4994, ___ F.3d ___, 2004 WL 2699880 at *1 (2d Cir. Nov. 29, 2004); Robinson v. United States, 95 Civ. 10772, 1999 WL 156000 at *2 (S.D.N.Y. Mar. 22, 1999) ("The [AEDPA] provides . . . more stringent standards for the review of second or successive motions pursuant to § 2255."); Davis v. Keane, 9 F. Supp. 2d 391, 393 (S.D.N.Y. 1998) (One of the "overriding policy goals" of the AEDPA is "the discouragement of successive petitions.").

Section 2244(b)(1) provides:

A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.

On the other hand, where the habeas claim was not presented in a prior habeas petition, it may be brought if it (a) relies on a "new rule of Constitutional law" or (b) newly discovered facts, that would clearly demonstrate that no reasonable jury would have convicted he petitioner. 28 U.S.C. § 2244(b)(2); see also, e.g., Carmona v. United States, 2004 WL 2699880 at *1.

Section 2244(b)(2) provides:

(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless —

(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(B) (i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and

(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

Even aside from the § 2244(b)(2) new law or new facts exemption, not every second attempt to seek habeas corpus relief by the same petitioner is a "second" or successive petition under § 2244. As the Second Circuit has explained:

While the AEDPA sets procedures for filing a successive petition, . . . it does not define successive. As we recently explained, [c]ourts have uniformly rejected a literal reading of Section 2244, concluding that a numerically second petition does not necessarily constitute a second petition for the purposes of AEDPA.

In other words, while prisoners are generally restrained from the filing of repetitious petitions for habeas corpus under the doctrine forbidding abuse of the writ, the particular restrictions imposed by § 2244 apply only if the petitioner has filed at least two petitions that are properly counted under that section.

Not all petitions filed under the habeas statute count under AEDPA's successive petition rule. For example, where a first petition is dismissed for technical procedural reasons, such as failure to exhaust state remedies, a refiling of that petition after complying with the required formalities does not qualify as second or successive. More importantly for present purposes, even a petition that has been finally adjudicated on the merits will not count for the purposes of the successive petition rule unless the second petition attacks the same judgment that was attacked in the prior petition. In other words, two petitions are not successive under § 2244 merely because they are both brought by the same prisoner. Rather, to be considered successive, a prisoner's second petition must, in a broad sense, represent a second attack by federal habeas petition on the same conviction. As we have previously noted, while AEDPA restricts the writ of habeas corpus, it nonetheless ensures every prisoner one full opportunity to seek collateral review. And, it is only after the prisoner has used the allowance of one habeas petition attacking the judgment that the second or successive petition rule restricts his ability to lodge further such attacks.

Vasquez v. Parrott, 318 F.3d 387, 389-90 (2d Cir. 2003) (citations internal quotations omitted, emphasis added); see, e.g., Thai v. United States, No. 01-3800, ___ F.3d ___, 2004 WL 2660532 at *3 (2d Cir. Nov. 23, 2004) ("[A]n initial petition that is dismissed without prejudice because it contains curable procedural defects or because it presents unexhausted claims is not a first petition for purposes of §§ 2244 and 2255."); Villanueva v. United States, 346 F.3d 55, 60 n. 1 (2d Cir. 2003) ("[A] § 2255 petition will not be considered second or successive unless a prior § 2255 petition was adjudicated on the merits." Footnote notes that "our reasoning applies equally to petitions for writs of habeas corpus filed by state prisoners pursuant to 28 U.S.C. § 2254."), cert. denied, 124 S. Ct. 2895 (2004); James v.Walsh, 308 F.3d 162, 167-68 (2d Cir. 2002) (A "claim raised in a prior Section 2254 petition, but dismissed as premature, is not subject to the gatekeeping provision of Section 2244. . . . Similarly, a petition is not `second or successive' when a state petitioner whose first petition was dismissed for failure to exhaust state remedies brings a new petition based on the exhausted claim."); Graham v. Costello, 299 F.3d 129, 133 (2d Cir. 2002) ("When a petition is dismissed because it is procedurally defective or because it presents unexhausted claims, we do not consider it to have been denied `on the merits' because there is a possibility that, once the claims are exhausted in state court or the procedural defect is cured, the claims will be available for review if properly presented in a federal habeas petition. Thus, for example, when a first petition is dismissed without prejudice for failure to exhaust state remedies, a subsequently filed petition is not `second or successive.'");Ching v. United States, 298 F.3d 174, 179 n. 3 (2d Cir. 2002) ("[W]e hold that Ching's August 1998 petition is not second or successive because adjudication of the initial § 2255 motion was incomplete at the time of its submission."); Camarano v.Irvin, 98 F.3d 44, 46 (2d Cir. 1996) ("When a petition is dismissed without prejudice for failure to exhaust, there is no federal adjudication on the merits. To foreclose further habeas review in such cases would not curb abuses of the writ, but rather would bar federal habeas review altogether."); see also, e.g., Carmona v. United States, 2004 WL 2699880 at *1 ("A motion will be regarded as second or successive if a previous habeas petition filed by the movant challenged the same conviction or sentence and was adjudicated on the merits or dismissed with prejudice.").

Boyd essentially raises two claims: (1) challenges to his re-sentencing, which occurred many years after his first habeas petition was decided on the merits and which do not challenge his conviction but only his re-sentence, and (2) a claim of ineffective assistance of original trial counsel. (See pages 1-2, 9-10 above.)

As to the ineffective assistance claim, Boyd now claims that his trial counsel misinformed him in 1990 that the maximum sentence he would face if convicted was only ten to twenty years, and that he would have taken the allegedly offered plea bargain (of 12-1/2 to 25 years) had he known that he could receive an aggregate sentence of 25 to 50 years imprisonment. (See pages 9-10 above.) In his 1994 habeas petition attacking his 1990 conviction, Boyd raised other claims of ineffective assistance of trial counsel:

Boyd asserts a laundry list of bases for his ineffective assistance of counsel claim: (1) counsel failed to make a motion to dismiss the indictment on speedy trial grounds; (2) counsel failed to secure bail at arraignment; (3) counsel failed to submit a N.Y. CPL § 190.50 motion to allow Boyd to appear before the grand jury; (4) counsel never secured a decision from the N.Y. CPL § 210.30 motion filed to inspect the grand jury minutes; (5) counsel failed to insure that a private investigator conducted an investigation; (6) inappropriate defense at a Wade hearing; (7) the omnibus discovery motion was drafted for a narcotics offense with which Boyd was not charged; (8) counsel made no opening statement at trial; (9) counsel failed to make objections to the prosecutor's summation and to the admission of certain evidence; (10) counsel failed to make a record of Rosario materials given to him and failed to secure such materials; and (11) counsel failed to request that the jury be charged with an affirmative defense charge. Boyd v. Hawk, 965 F. Supp. 443, 448-49 (S.D.N.Y. 1996) (Batts, D.J. Peck, M.J.). These claims were rejected by this Court on the merits, and Boyd's petition was dismissed. Boyd v. Hawk, 965 F. Supp. at 453. ( See also page 2 n. 1 above.) At the time of Boyd's first habeas petition, Boyd already had allegedly rejected any plea bargain, and was already convicted and sentenced to consecutive terms totaling (by the state statutory ceiling) twenty-five years to life imprisonment. ( See pages 1-2 above.) There is therefore no legitimate reason why Boyd could not have raised his current ineffective assistance of trial counsel claim in his original habeas petition. See, e.g., Villanueva v. United States, 346 F.3d at 62 ("Villanueva's claim in his present § 2255 petition seeking resentencing relates to the district court's alleged misapplication of the United States Sentencing Guidelines at the time of sentencing. This claim was available when Villanueva filed his first § 2255 petition in 1998. . . . Accordingly, the present petition meets the criteria of a `second or successive' petition and is subject to the AEDPA gatekeeping provision of 28 U.S.C. § 2244."); Torres v. Senkowski, 316 F.3d at 153 (Habeas petition denied as successive. Petitioner "has not shown cause for his previous failure to raise the four claims he asserts in this petition. They are based on circumstances fully known to him at the time of his first . . . application for habeas relief."); Roccisano v. Menifee, 293 F.3d 51, 58 (2d Cir. 2002) (Ineffective assistance of trial counsel claim based upon fact available to petitioner at time of first habeas petition considered successive claim.).

Thus, Boyd's ineffective assistance claim is a successive claim. While the claim is probably untimely under the AEDPA's one year limitation period, 28 U.S.C. § 2244(d), this Court cannot reach the merits (or lack thereof) of Boyd's successive claim, since the gatekeeping function for successive petitions is in the Court of Appeals. 28 U.S.C. § 2244(b)(3); see, e.g., Carmona v. United States, 2004 WL 2699880 at *1 ("Under the [AEDPA], a district court cannot consider a successive habeas petition challenging a state court conviction unless the petitioner has first obtained an order authorizing consideration of the successive petition from" the Second Circuit.); Poindexter v. Nash, 333 F.3d 372, 382 (2d Cir. 2003) ("The district court has no power to entertain a second or successive § 2255 motion unless the appropriate court of appeals has authorized the filing of that motion."), cert. denied, 124 S. Ct. 1486 (2004); Torres v. Senkowski, 316 F.3d at 150 ("AEDPA allocates jurisdiction to the courts of appeals, not the district courts, to authorize successive habeas motions or applications.").

Section 2244(b)(3)(A) provides:

(3)(A) Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.

This Court therefore should transfer Boyd's ineffective assistance habeas claim to the Second Circuit. See, e.g., Harris v. United States, 367 F.3d 74, 82 (2d Cir. 2004) (Successive habeas petitions "should be transferred to [the Second Circuit] for possible certification."); Poindexter v.Nash, 333 F.3d at 382 (district court "must" transfer successive petition to Second Circuit); Torres v. Senkowski, 316 F.3d at 151-52 (A "district court must transfer uncertified successive motions to [the Second Circuit] pursuant to 28 U.S.C. § 1631, the provision authorizing transfer to cure want of jurisdiction."); Liriano v. United States, 95 F.3d 119, 121 (2d Cir. 1999) ("[W]hen a second or successive petition for habeas corpus relief or § 2255 motion is filed in a district court without the authorization by [the Second Circuit], the district court should transfer the petition or motion to [the Second Circuit] in the interest of justice. . . ."); Jackson v.Walker, 1998 WL 813439 at *8; Melendez v. Hanslamaeir, 95 Civ. 9964, 1997 WL 349953 at *2 (S.D.N.Y. Jun. 24, 1997) (district court is obligated to transfer successive petition to the Court of Appeals even where the district court could find the claim to be meritless).

Having determined that Boyd's ineffective assistance claim is successive and needs to be transferred to the Second Circuit, the Court now must determine the fate of Boyd's re-sentencing claims. The habeas petition need not be treated as a single entity, but rather the Court must examine each separate claim. E.g., James v. Walsh, 308 F.3d at 168 ("[W]hen a subsequent habeas petition contains both a new claim that could not have been raised in a prior petition and a claim that was previously raised, we deem such petition `first' as to the new claim and `second' as to the old claim."); Galtieri v. United States, 128 F.3d 33, 37-38 (2d Cir. 1997) (A "subsequent 2255 petition will be regarded as a `first' petition only to the extent that it seeks to vacate the new, amended component of the sentence, and will be regarded as a `second' petition to the extent that it challenges the underlying conviction or seeks to vacate any component of the original sentence that was not amended."); Jackson v. Walker, 96 Civ. 1064, 1998 WL 813439 at *4-6 (S.D.N.Y. Nov. 23, 1998) ("[T]he petitioner's first set of claims with respect to his complaints about his counsel, including his allegations about missing transcript pages, were all known to the petitioner at the time of the original petition for habeas corpus. They all could have been raised at that time. . . . Thus, the petitioner's successive petition is hereby transferred to the Court of Appeals. . . . The petitioner's second set of claims is in a very different procedural posture from the first. . . . This challenge goes to the new sentence, not to the underlying conviction. It is a claim that could not have been brought before the 1997 re-sentencing. Therefore, it is not a successive petition with the meaning of AEDPA.").

Thus, the Court must determine whether Boyd's re-sentencing claims are new or successive. Boyd's first habeas petition was brought in 1994 and denied in 1997. Boyd did not bring his C.P.L. § 440 motion to modify his sentence until 2001, and the re-sentencing he now challenges occurred in December 2001, over four years after his first habeas petition was decided. Obviously, Boyd could not have brought claims about a December 2001 re-sentencing in his original 1994 habeas petition. Boyd's current sentencing claims do not attack his conviction or his original sentence but merely his 2001 re-sentence. Boyd's re-sentencing claims thus are new claims. In a somewhat similar circumstance of a claim challenging the petitioner's release date from imprisonment, the Second Circuit made clear that such a sentence challenge did not constitute a successive petition:

In the present case, James's 1999 petition alleged the incorrect application of credit for time served and a miscalculation of the conditional release date. James could not have argued that he was in custody in violation of laws of the United States before the time when, according to his calculations, he should have been released, that is, before April 1999. Thus, the present claim had not arisen by 1997, when James filed his first habeas petition. Because the claim asserted in the 1999 petition did not exist when James filed his 1997 petition, the 1999 petition was not "second or successive" for the purposes of AEDPA's gatekeeping provisions.

Moreover, a denial of permission for James to bring the present claim as a first habeas petition might implicate the Suspension Clause. . . .

Denial of habeas relief in the present case may implicate the Suspension Clause, because it would constitute a complete denial of any collateral review of a claim that arose only after James filed the 1997 petition. Such a denial would be analogous to refusing to hear claims that were erroneously dismissed as untimely in a previous habeas petition, which we have stated would raise a serious constitutional question with respect to the Suspension Clause. See Muniz, 236 F.3d a 128. Like Muniz, the present case involves a claim that is not barred by res judicata, but would nevertheless be totally barred from habeas review by an unconstitutional reading of AEDPA's gatekeeping provisions.

Other circuits have arrived at the same conclusion, holding that claims that could not have been raised in a prisoner's earlier habeas petition do not implicate the gatekeeping requirements of Section 2244.

James v. Walsh, 308 F.3d at 168; see also, e.g., Vasquez v. Parrott, 318 F.3d at 391-92 ("It is manifest that in designing standards under which a second or successive petition would be allowed, Congress was contemplating only petitions that challenged the lawfulness of the conviction and not the sort of petition advnced by our Petitioner . . .");Esposito v. United States, 135 F.3d 111, 113-14 (2d Cir. 1997) (A subsequent petition is not second or successive for purposes of requirements imposed by the AEDPA when it challenges only the new amended sentence and not any component of original sentence that was not amended); Chambers v. United States, 106 F.3d 472, 474 (2d Cir. 1997) ("We hold that a petition asserting a [sentencing] claim to relief available under 28 U.S.C. § 2255 is not a `second or successive' application where the prior petition(s) sought relief available only under 28 U.S.C. § 2241"); Jimenez v.United States, 02 Civ. 1187, 2002 WL 1870060 at *1 n. 1 (S.D.N.Y. Aug. 14, 2002) ("Petitioner's section 2255 motion is not a successive petition subject to the rules found in 28 U.S.C. § 2244(b) as his section 2241 petition challenged the execution of his sentence while the Instant Petition challenges the imposition of his sentence.").

Accordingly, while Boyd's ineffective assistance claim should be transferred to the Second Circuit for gatekeeping purposes, Boyd's re-sentencing claims are not successive and can be reviewed by this Court. The Court therefore turns to the merits of Boyd's sentencing claims in the next section of this Report and Recommendation.

III. BOYD'S SENTENCING HABEAS CLAIMS SHOULD BE DENIED PURSUANT TO THE DEFERENTIAL AEDPA STANDARD

Justice Weissberg originally sentenced Boyd to seven consecutive terms of five to ten years imprisonment. (See page 2 above.) In 2001, Boyd successfully argued in his C.P.L. § 440 motion that five to ten years was an illegal sentence under the New York sentencing statutes. (See page 2 above.) At his subsequent re-sentencing hearing, Justice Torres sentenced Boyd to the correct minimum sentence of six to twelve years imprisonment. (See page 2 above.) Justice Torres explained that he was limited to correcting Justice Weissberg's error and that because the re-sentencing was a ministerial act, he was bound by Justice Weissberg's prior sentence except to the extent of correcting the legal error. (See pages 7-8 above.) Justice Torres therefore did not alter anything but the illegal portion, i.e., correcting the minimum sentence from five to ten years to six to twelve years, while leaving the sentence to run consecutively as before. (See page 8 above.)

Boyd now makes several claims in connection with his re-sentencing: (a) he was denied of due process because the re-sentencing judge failed to consider all factors when imposing the re-sentence (Pet. ¶ 12(A)); (b) he was denied equal protection when the re-sentencing judge failed to comply with sentencing mandates (Pet. ¶ 12(B)); (c) the "law as applied in the `resentencing' context is unconstitutional, or has been unconstitutionally applied" (Pet. ¶ 12(C)); and (d) the sentencing statutes are unconstitutional (Pet. ¶ 12(D)).

While stated as four separate claims (Pet. ¶ 12(A)-(D)), they really all raise the single issue of whether the re-sentencing judge's failure to consider rehabilitation and other facts, as opposed to merely correcting the error in the prior sentence, deprived Boyd of any federal Constitutional rights.

On appeal of his re-sentence, the First Department found no basis for a sentence reduction or a remand for further sentence proceedings:

Defendant was resentenced as a result of his successful motion to set aside sentence, made pursuant to CPL 440.20. By granting the motion and by correcting the undisputed illegality in defendant's original sentence, the court accorded defendant all the relief required by the statute (CPL 440.20 [4]). We perceive no basis for either a reduction of sentence or a remand for further sentencing proceedings.

People v. Boyd, 298 A.D.2d 300, 300, 748 N.Y.S.2d 492, 492 (1st Dep't 2002).

Claims arising out of a state court's sentencing decision ordinarily are not reviewable by a federal habeas court. See, e.g., Fielding v. LeFevre, 548 F.2d 1102, 1108 (2d Cir. 1977) ("Essentially, [petitioner] asks this Court to review a sentence handed down by a state court, which we are powerless to do. The fact that he has cast his argument in constitutional terms does nothing to change this. Arguments such as this are properly addressed to the state courts."); Alvarez v. Scully, 91 Civ. 6651, 1993 WL 15455 at *8 (S.D.N.Y. Jan. 11, 1993), aff'd, 23 F.3d 397 (2d Cir. 1994); see also, e.g., Perez v.Ricks, 00 Civ. 4846, 2003 WL 22019731 at *9 (S.D.N.Y. Aug. 7, 2003); Jones v. Hollins, 884 F. Supp. 758, 761 (W.D.N.Y.),aff'd, 89 F.3d 826 (2d Cir. 1995). "No federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law." White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992).

Accord, e.g., Bruno v. Cunningham, 03 Civ. 937, 2004 WL 2290503 at *13 (S.D.N.Y. Oct. 8, 2004); Peakes v.Spitzer, 04 Civ. 1342, 2004 WL 1366056 at *13 (S.D.N.Y. June 16, 2004) (Peck, M.J.); Rowe v. Miller, 299 F. Supp. 2d 231, 241 (S.D.N.Y. 2004); Rodriguez v. Senkowski, 03 Civ. 3314, 2004 WL 503451 at *38 (S.D.N.Y. Mar. 15, 2004) (Peck, M.J.);McPherson v. Greiner, 02 Civ. 2726, 2003 WL 22405449 at *17 (S.D.N.Y. Oct. 22, 2003) (Peck, M.J.); Briggs v. Phillips, 02 Civ. 9340, 2003 WL 21497514 at *7 (S.D.N.Y. June 30, 2003) (Peck, M.J.); Hoover v. Senkowski, No. 00 CV 2662, 2003 WL 21313726 at *10 (E.D.N.Y. May 24, 2003); Wilson v. Senkowski, 02 Civ. 0231, 2003 WL 21031975 at *13 (S.D.N.Y. May 7, 2003) (Peck, M.J.); Naranjo v. Filion, 02 Civ. 5449, 2003 WL 1900867 at *13 (S.D.N.Y. Apr. 16, 2003) (Peck, M.J.); Alfini v. Lord, 245 F. Supp. 2d 493, 502 (E.D.N.Y. 2003); Reynolds v. Artuz, 97 Civ. 3175, 2003 WL 168657 at *4 (S.D.N.Y. Jan. 23, 2003);Pressley v. Bennett, 235 F. Supp. 2d 349, 368 (S.D.N.Y. 2003); Ferguson v. Walker, 00 Civ. 1356, 2002 WL 31246533 at *10 (S.D.N.Y. Oct. 7, 2002) (Swain, D.J. Peck, M.J.);Schreter v. Artuz, 225 F. Supp. 2d 249, 258 (E.D.N.Y. 2002);Bryant v. Bennett, 00 Civ. 5692, 2001 WL 286776 at *6 (S.D.N.Y. Mar. 2, 2001) (Peck, M.J.); Solomon v. Artuz, 00 Civ. 0860, 2000 WL 863056 at *7 (S.D.N.Y. June 28, 2000) (Peck, M.J.); Foreman v. Garvin, 99 Civ. 9078, 2000 WL 631397 at *13 (S.D.N.Y. May 16, 2000) (Peck, M.J.); Thomas v. Greiner, 111 F. Supp. 2d 271, 278 n. 8 (S.D.N.Y. 2000) (Preska, D.J. Peck, M.J.); Thomas v. Senkowski, 968 F. Supp. 953, 956 (S.D.N.Y. 1997) ("It is well established that, when a sentence falls within the range prescribed by state law, the length of the sentence may not be raised as grounds for federal habeas relief."); see also, e.g., Townsend v. Burke, 334 U.S. 736, 741, 68 S. Ct. 1252, 1255 (1948) (severity of sentence generally not reviewable on habeas); DeFeo v. Artuz, 958 F. Supp. 104, 109 (E.D.N.Y. 1997); Briecke v. New York, 936 F. Supp. 78, 85 (E.D.N.Y. 1996); Haynes v. Lacey, Civ. A. No. 93-CV-2294, 1995 WL 500474 at *4 (E.D.N.Y. Aug. 8, 1995); Underwood v.Kelly, 692 F. Supp. 146, 152 (E.D.N.Y. 1988), aff'd, 875 F.2d 857 (2d Cir.), cert. denied, 493 U.S. 837, 110 S. Ct. 117 (1989); Diaz v. LeFevre, 688 F. Supp. 945, 949 (S.D.N.Y. 1988); Castro v. Sullivan, 662 F. Supp. 745, 753 (S.D.N.Y. 1987) (citing earlier cases); Rivera v. Quick, 571 F. Supp. 1247, 1249 (S.D.N.Y. 1983).

If Boyd were simply bringing an excessive sentence claim, the Court would stop here and find that, because Boyd's sentence undisputedly is within the statutory range, it is not reviewable by this Court for "excessiveness." However, while Boyd does not dispute that his sentence is within the statutory range, he challenges the fact that Justice Torres, assuming that he was bound by Justice Weissberg's sentence except to correct the error, failed to use discretion during his re-sentencing and thus denied him due process, rendering his sentence "illegal." (See page 3 above.)

"If the sentence is within statutory limits, a [habeas] petitioner must show that the state court's sentencing decision was wholly devoid of discretion or amounted to an arbitrary or capricious abuse of discretion, or that an error of law resulted in the improper exercise of the sentencer's discretion and thereby deprived the petitioner of his liberty." Jones v.Hollins, 884 F. Supp. at 761-62; accord, e.g., Perez v.Ricks, 2003 WL 22019731 at *9; Carrasco v. David, 00 Civ. 5693, 2002 WL 1205750 at *5 (S.D.N.Y. Jun. 4, 2002).

See also, e.g., Gatling v. Mantello, 99 Civ. 10757, 2001 WL 1868126 at *5 (S.D.N.Y. June 1, 2001); Diaz v.Mazzuca, 00 Civ. 4843, 2001 WL 170662 at *5 (S.D.N.Y. Feb. 21, 2001); Mitchell v. Herbert, 97 Civ. 5128, 1998 WL 186766 at *7 (S.D.N.Y. Apr. 20, 1998); Phan v. McCoy, No. 94-CV-1596, 1997 WL 570690 at *7 (N.D.N.Y. Aug. 28, 1997) (Pooler, D.J.);Moore v. Irvin, 908 F. Supp. 200, 207 (N.D.N.Y. 1995);Wills v. Andrews, 903 F. Supp. 318, 320 (N.D.N.Y. 1995);Alvarez v. Scully, 1993 WL 15455 at *8.

Boyd argues that Justice Torres' failure to use any discretion rendered his sentence unconstitutional. However, none of the cases that discussed the "wholly devoid of discretion" standard interpreted whether a sentencing judge who does not use any discretion at a re-sentencing hearing to correct an error in the original sentence is administering a sentence that is "wholly devoid of discretion." This Court has not found, and Boyd has failed to offer, any case law — much less Supreme Court precedent — holding that a re-sentencing judge who treats as a ministerial act a resentencing held for the purpose of correcting an error in the original sentence (which utilized discretion) is acting in violation of the Constitution.

In his habeas traverse brief and his state § 440 brief, Boyd relies heavily on Murray v. Goord, 1 N.Y.3d 29, 769 N.Y.S.2d 165 (2003), in which the New York Court of Appeals held that when a reversal on appeal results in multiple sentencing proceedings, the discretion to determine the appropriate sentence "devolves upon the last judge in the sentencing chain." Murray v.Goord, 1 N.Y.3d at 32, 769 N.Y.S.2d at 167. (See Dkt. No. 10: Boyd Traverse Br. at 5-7, 11; Dkt. No. 13: Boyd § 440 Br. at 3-7.) The defendant in Murray was sentenced on his conviction under a second indictment to a term of imprisonment that was to run consecutively to a sentence imposed on his conviction under a prior indictment. See Murray v. Goord, 1 N.Y.3d at 31, 769 N.Y.S.2d at 166-67. After his conviction under the first indictment was reversed on appeal the defendant entered into a plea agreement, pursuant to which he was re-sentenced by a third judge to a prison term that was to run concurrently with the sentence imposed on the conviction under the second indictment.See id. at 31-32, 769 N.Y.S.2d at 167. DOCS, however, held his term had to be consecutive, and the issue rose to the New York Court of Appeals. Id. at 32, 769 N.Y.S.2d at 167. The New York Court of Appeals held that after a vacated conviction and re-sentencing, the defendant was entitled to have his sentences run concurrently and to have his release dates computed accordingly as ordered by the last judge in the sentencing sequence. Id. at 32, 769 N.Y.S.2d at 167. "Moreover, divesting the last sentencing judge of this discretion would, as an unwise subsidiary consequence, limit the parties' latitude in negotiating a plea." Id.

In contrast, where the conviction has been affirmed but there was an error in sentence, there will be no plea bargaining, so that "policy" reason is inapplicable. Indeed, to allow rehabilitation to be taken into account on re-sentencing to correct an error in the original sentence would encourage defendants to do what it appears Boyd did here — wait until after all appeals are over, then call the trial court's attention to an error in the sentence, so that the defendant can then accept responsibility and take advantage of prison rehabilitation efforts. (Why else would Boyd have moved to correct his sentence from 5-10 years to increase it to 6-12 years?) The decision of this policy issue is for the state (legislature and/or courts to interpret state law), and not for a habeas court. Here the First Department has interpreted New York's sentencing laws adversely to Boyd, and there are no federal constitutional issues at stake.

Boyd uses Murray v. Goord to argue that Justice Torres, as the last judge to sentence a him, had full discretion to sentence him to concurrent terms. ((Boyd Traverse Br. at 5-7, 11; Boyd § 440 Br. at 3-7.) Murray v. Goord, however, is not relevant to the facts of Boyd's case. Boyd's conviction was not vacated, as was the defendant's in Murray. Boyd's re-sentence occurred merely because of a mistake in the original sentence. The First Department in Boyd's case, however, did not construe Murray v.Goord as applicable in Boyd's situation. The state court's interpretation of state law is controlling. Even if the First Department erred as a matter of state law (and there is no evidence that it did), that would not provide a basis for federal habeas relief. See, e.g., cases cited in Point I.

Similarly, during his resentencing hearing, Boyd's attorney cited People v. Van Pelt, 186 A.D.2d 604, 588 N.Y.S.2d 397 (2d Dep't 1992), to bolster his assertion that Justice Torres was not bound by Justice Weissberg's prior sentence. (Tr. 4.) LikeMurray, the defendant in Van Pelt had successfully appealed his conviction and after a new trial was resentenced (to a greater sentence). People v. Van Pelt, 186 A.D.2d at 604, 588 N.Y.S.2d at 398. The second conviction was upheld but the matter was remanded for re-sentencing. The (third) sentence was exactly the same as the original (first) sentence. The Second Department held that "the sentencing court mistakenly assumed that it was absolutely bound by the original sentence imposed upon the defendant's original conviction in 1982. Accordingly, the court treated the resentencing merely as a ministerial function and proceeded to simply reimpose the sentence which was imposed by the original Sentencing Justice. Under these circumstances, the court failed to perform its obligation to exercise its own independent discretion based upon a review of all relevant factors when it determined that the sentence imposed must run consecutively to a sentence imposed with respect to an unrelated indictment." Id. at 605, 588 N.Y.S.2d at 398 (citations omitted). Van Pelt, as Murray, involved sentencing after a correction was overturned. That is not Boyd's case. But even ifVan Pelt were applicable, there would merely be an error in state law here, not a violation of federal rights.

But see Barone v. Bellevue Hospital, 8 A.D.2d 858, 858-59, 190 N.Y.S.2d 336, 336 (2d Dep't 1959) ("The resentence to which relator is now entitled is only for the limited purpose of correcting the original sentence under such final judgment so as to make the sentence accord with relator's true status as a first felony offender. Thus the only duty of the County Court of Kings County is to effectuate such correction through the medium of the resentence, and that clear limited duty may even be enforced by mandamus."); cf., United States v. Campbell, No. 03-1309, 88 Fed. Appx. 465, 466-67, 2004 WL 939143 at * 1 (2d Cir. Mar. 3, 2004) ("Our remand in Campbell 1 was for the very limited purpose of correcting clearly delineated errors in the calculation of Campbell's sentence and, thus, did not empower Campbell to relitigate issues he had already waived."), cert. denied, 125 S. Ct. 427 (2004).

The one arguably relevant federal case that Boyd cites isUnited States v. Core, 125 F.3d 74, 77 (2d Cir. 1997), cert. denied, 522 U.S. 1067, 118 S. Ct. 735 (1998), dealing with sentencing under the federal sentencing guidelines, and interpreting those guidelines. (Boyd Traverse Br. at 8.) HoweverCore was superceded by amendment to the Sentencing Guidelines and by Quesada-Mosquera v. United States, 243 F.3d 685, 687 (2d Cir.) ("[N]o one may have post-sentencing rehabilitation considered upon resentencing."), cert. denied, 534 U.S. 872, 122 S. Ct. 165 (2001); accord, e.g., United States v.Quintieri, 306 F.3d 1217, 1235 (2d Cir. 2002) ("[Defendant]'s pro se argument that the district court failed to consider his motion for a downward departure based on post-sentencing rehabilitation is without merit. . . . [as the Sentencing] Guidelines as of that date prohibits a downward departure based on post-sentencing rehabilitative efforts."), cert. denied, 539 U.S. 902, 123 S.Ct. 2246 (2003); United States v. Reyes, 96 Cr. 1099, 2001 WL 505258 at * 1 (S.D.N.Y. May 14, 2001) ("[T]he Court is prohibited by statute from modifying the sentence on the ground advanced by Reyes," i.e., rehabilitation achievements.);Pughe v. United States, No. 00-1507, 4 Fed. Appx. 65, 2001 WL 138295 at *1 n. 1 (2d Cir. Feb. 16, 2001) ("`Post-sentencing rehabilitative efforts, even if exceptional, undertaken by a defendant after imposition of a term of imprisonment for the instant offense are not an appropriate basis for a downward departure when resentencing the defendant for that offense.'") (quoting Sentencing Guidelines). Since the Sentencing Guidelines and Second Circuit case law prohibit a federal re-sentencing judge from taking into account the defendant's post-initial sentence rehabilitation efforts, the Court is hard pressed to see how it can be unconstitutional for New York's laws to prevent a re-sentencing judge from considering such facts where the re-sentence is merely to correct an error in the original sentence (as opposed to a resentencing after a conviction is overturned); cf. Curry v. Burge, 03 Civ. 0901, 2004 WL 2601681 at *22 n. 36 (S.D.N.Y. Nov. 17, 2004) (Peck, M.J.) ("[C]ourts have rejected habeas relief where the error violated state rules but comported with the presumptively constitutional Federal Rules of Evidence.") (citing, inter alia, Glenn v. Bartlett, 98 F.3d 721, 728 (2d Cir. 1996),cert. denied, 520 U.S. 1108, 117 S. Ct. 1116 (1997)).

CONCLUSION

For the reasons set forth above, Boyd's ineffective assistance claim should be transferred to the Second Circuit as a successive petition, while his re-sentencing claim should be denied.

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Jed S. Rakoff, 500 Pearl Street, Room 1340, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Rakoff. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993),cert. denied, 513 U.S. 822, 115 S. Ct. 86 (1994); Roldan v.Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).