Appeal from an order and judgment of the Southern District of New York, entered by Judge Robert L. Carter upon a state prisoner's petition for a writ of habeas corpus, directing that he be released unless the state court eliminates from his resentence a provision that it run consecutively to rather than concurrently with an intervening sentence for another crime. Petitioner claimed that the provision violated his due process rights under North Carolina v. Pearce, 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969). Reversed.
Mansfield and Kearse, Circuit Judges, and Cabranes, District Judge.*fn* Mansfield, Circuit Judge.
MANSFIELD, Circuit Judge:
Charles Scully, Superintendent of Green Haven Correctional Facility, appeals from an order and judgment of the Southern District of New York, Robert L. Carter, Judge, granting the petition of Steve Robinson, a state prisoner convicted on his guilty plea of Grand Larceny in the Third Degree, a Class E felony, N.Y. Penal Law § 155.30, for a writ of habeas corpus. The court directed the writ to issue in 60 days unless the sentence imposed on him upon resentencing was modified to remove a provision that it run consecutively to (rather than concurrently with) another sentence imposed upon him for a different crime after the original state sentence involved in the present case had been vacated by a state appellate court. The district court considered itself bound by the Supreme Court's decision in North Carolina v. Pearce, 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969), and our decision in United States v. Markus, 603 F.2d 409 (2d Cir. 1979), to grant the writ. 529 F. Supp. 250. We reverse.
The facts are undisputed. On October 25, 1972, Robinson was sentenced by Justice James J. Leff of the Supreme Court of the State of New York to an indeterminate four-year term of imprisonment upon his plea of guilty, which had been entered on June 12, 1972, to Grand Larceny in the Third Degree, a Class E felony, N.Y. Penal Law § 155.30, arising out of his vicious attack upon a woman whose purse he took by force. Pending sentence, which was set for August 8, 1972, he was paroled to a drug rehabilitation center but disappeared and did not show up on the date set for sentencing. Thereafter, on September 29, 1972, he was arrested for the September 20, 1972 robbery and murder of Prof. Wolfgang Friedmann, for which he was indicted. Before being sentenced on October 25, 1972, on the earlier grand larceny charge he sought unsuccessfully to withdraw his guilty plea. The record does not indicate whether at the time of sentence Justice Leff was aware of Robinson's participation in the robbery and murder of Friedmann. However, the four-year indeterminate sentence was the maximum that could be imposed on the Class E grand larceny conviction. N.Y. Penal Law, § 70.00(2) (e).
Upon Robinson's appeal from the denial of his motion to withdraw his plea of guilty to the grand larceny charge the Appellate Division on May 21, 1974, vacated the sentence and remanded the case for a hearing to determine whether he should have been permitted to withdraw his guilty plea. After a hearing on remand Justice Alvin Klein on April 22, 1975, denied Robinson's motion to withdraw his plea, concluding in detailed findings that the plea had been voluntarily entered, that Robinson had failed completely to support his claims for withdrawal, and that he should present himself before Justice Leff for resentencing.
In the meantime, on August 9, 1974, Robinson pleaded guilty to Robbery in the First Degree, a Class B felony, N.Y. Penal Law, § 160.15, in satisfaction of the indictment against him for the murder and robbery of Prof. Friedmann and on September 14, 1974, he was sentenced by Justice Postel to a prison term of from 8 1/3 to 25 years for that offense.
On April 29, 1975, Robinson appeared before Justice Leff for sentencing on the grand larceny charge and was sentenced to the same maximum term originally imposed in October, 1972, with the term to run consecutively to the sentence imposed upon him in the interim for the conviction on his plea of guilty to the robbery charge in connection with the Friedmann homicide. In denying Robinson's request that the sentence be made to run concurrently, Justice Leff pointed out that after his original guilty plea to the grand larceny charge Robinson had violated his agreement to stay on the drug program and that he had expressed no remorse even though he was involved in the Friedmann tragedy. Upon appeal Robinson claimed, among other assertions, that the sentence was excessive. The Appellate Division affirmed the conviction. People v. Robinson, 61 A.D.2d 1147, 399 N.Y.S.2d 959 (1st Dept. 1977). The denial of Robinson's later motion to set aside his sentence pursuant to N.Y. Crim. P. Law, § 440.20 was likewise affirmed by the Appellate Division on January 8, 1981.
Having exhausted his state court remedies*fn1 Robinson on March 18, 1981, filed the present petition for a writ of habeas corpus in the Southern District of New York, alleging that the state court's resentence of him to a consecutive term amounted to an increase in punishment in violation of North Carolina v. Pearce, supra, since it would have the effect of substantially extending his minimum mandatory confinement prior to parole and increasing his maximum time of imprisonment. See N.Y. Penal Law, §§ 70.25(1) (a), 70.30(1) (a), (b). From the district court's order granting the petition the state appeals.
Our starting point is North Carolina v. Pearce, 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969), where the Supreme Court held that the imposition upon a defendant of an increased sentence upon a retrial and conviction after his successful appeal of his first conviction amounted to a denial of due process of law. The Court reasoned that an increased term upon resentence would deter a defendant's exercise of his right of appeal for fear that, if successful, he would be penalized upon retrial by a vindictive trial court. However, the Court made it clear that the trial court was not precluded entirely from increasing the term of the sentence, stating that it might do so on the basis of
"objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding," id. at 726,
and that an increased sentence could be justified by
"events subsequent to the first trial that may have thrown new light upon the defendant's 'life, health, habits, conduct, and mental and moral propensities.'" Id. at 723 (quoting Williams v. New York, 337 ...