11-345-cv
King v. Cuomo
                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 7th day of March, two thousand twelve.

PRESENT: ROBERT D. SACK,
                 REENA RAGGI,
                 DENNY CHIN,
                                 Circuit Judges.
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RICHARD KING, DANIEL RIVERA, JOSE OTERO,
NELSON FERMIN, HARVIL ST. LOUIS, ERIC
SANTIAGO, SHAWN COLEMAN, FREDDIE PICKENS,
MAURICE MALLETTE, KEVIN RESHARD, ADAM
NADLER, KENNETH BRYE, DERRICK STOREY,
TEDDY DALEY, LANDEL ELLIS, WILLIE LOYD,
MARIO COX, SHAWN APPLEBY, SCOTT GULDI,
JOSEPH AMICO, DONNELL HOYES, DERYCK
JACKSON, SALVATORE RUSSO, DANIEL WILLIAMS,
STANLEY JOHNSON, KEVIN HILTON, EDWARD
EALEY, a.k.a. Edward Jones, PETER PRICE, on behalf of
themselves and other members of their class similarly
situated,
                                 Plaintiffs-Appellants,

BURRIS AVANT, JOSE SANTOS, JEFFREY WATKINS,
CECIL RICHARDSON, THOMAS TAYLOR,
                     Plaintiffs,

                         v.                                               No. 11-345-cv
ATTORNEY GENERAL ANDREW M. CUOMO, in his
personal and official capacities, ELIOT SPITZER, in his
personal capacity as former Attorney General and in his
personal capacity as former Governor, COMMISSIONER
BRIAN FISCHER, Department of Correctional Services in
his official and individual capacities, LUCIEN J.
LECLAIRE, former Acting Commissioner Department of
Corrections in his Individual Capacity, ANTHONY J.
ANNUCI, Deputy Commissioner of Corrections and Legal
Counsel in his individual and official capacities, JOHN
PATTERSON, former Executive Commissioner in his
individual capacity jointly and severally, GOVERNOR
DAVID PATERSON, in his personal and official capacities,
                                 Defendants-Appellees.*
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FOR APPELLANTS:                          Anthony Ofodile, Ofodile & Associates, P.C., Brooklyn,
                                         New York.

FOR APPELLEES:                           Laura R. Johnson, Assistant Solicitor General, Barbara
                                         D. Underwood, Solicitor General, Richard Dearing,
                                         Deputy Solicitor General, for Eric T. Schneiderman,
                                         Attorney General of the State of New York, New York,
                                         New York.

        Appeal from a judgment of the United States District Court for the Southern District

of New York (Sidney H. Stein, Judge).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on January 6, 2011, is AFFIRMED.

        Plaintiffs are twenty-eight individuals whose judicially imposed New York State

sentences specified determinate terms of incarceration, but not ensuing terms of post-release


        *
            The Clerk of Court is directed to amend the official caption as shown above.

                                                     2
supervision (“PRS”). Nonetheless, plaintiffs were subjected to PRS terms administratively

imposed by corrections officials pursuant to N.Y. Penal Law § 70.45. Plaintiffs here appeal

the dismissal, on qualified immunity grounds, of their Fifth Amendment double jeopardy

claims under 42 U.S.C. § 1983, against named current and former New York State officials

for imposing and enforcing these PRS terms. We review the dismissal of a complaint under

Fed. R. Civ. P. 12(b)(6) de novo, “accepting as true all material allegations of the complaint

and drawing all reasonable inferences in favor of the plaintiff.” Scott v. Fischer, 616 F.3d

100, 105 (2d Cir. 2010). We assume the parties’ familiarity with the facts and record of prior

proceedings, which we reference only as necessary to explain our decision to affirm.1

1.     Multiple Punishment

       Plaintiffs argue that the district court erred in dismissing their double jeopardy claim

that the administrative imposition of a PRS term following a judicially imposed determinate

prison term constitutes “multiple punishments for the same offense.” United States v. Pettus,

303 F.3d 480, 487 (2d Cir. 2002) (internal quotation marks omitted). “[I]n the multiple

punishments context[,] the interest that the Double Jeopardy Clause seeks to protect is

limited to ensuring that the total punishment did not exceed that authorized by the

legislature.” Id. at 488 (internal quotation marks and brackets omitted). Thus, where a

legislature intends “to impose multiple punishments, imposition of such sentences does not


       1
          Because plaintiffs do not challenge the dismissal of their claims against defendants
in their official capacities, or the district court’s dismissal of their claims for declaratory and
injunctive relief, we do not address these claims further.

                                                3
violate the Constitution.” Albernaz v. United States, 450 U.S. 333, 344 (1981). Here, the

New York State legislature undoubtedly intended that plaintiffs be sentenced to PRS terms

as well as determinate sentences. When plaintiffs were sentenced, N.Y. Penal Law § 70.45

provided that “[e]ach determinate sentence also includes, as a part thereof, an additional

period of post-release supervision.” N.Y. Penal Law § 70.45(1) (1998), amended by 2008

N.Y. Sess. Laws Ch. 141, § 3 (2008); see also Missouri v. Hunter, 459 U.S. 359, 368 (1983)

(holding double jeopardy not violated “[w]here, as here, a legislature specifically authorizes

cumulative punishment under two statutes”). Accordingly, plaintiffs fail to state a double

jeopardy claim for multiple punishment.

       Insofar as plaintiffs’ real complaint is that the legislative intent to have them serve

both prison and PRS terms was effected by a combination of judicial and administrative

orders, their claims raise due process, not double jeopardy, concerns. See Earley v. Murray,

451 F.3d 71, 76 (2d Cir. 2006) (holding administratively imposed terms of PRS violated due

process). But because a due process right to be free from administratively imposed PRS

terms was not clearly established before Earley, see Scott v. Fischer, 616 F.3d at 107-08, the

district court correctly concluded that defendants were qualifiedly immune from suit for PRS

terms administratively imposed before Earley. The complaint does not sufficiently allege

post-Earley administrative imposition of terms of PRS because it does not indicate which

plaintiffs had terms of PRS administratively imposed without judicial resentencing, or when

such terms were imposed. Indeed, on appeal, plaintiffs suggest that their PRS terms could


                                              4
have been imposed at any time after 2000 in arguing that, for purposes of qualified immunity,

“the challenged action” occurred “when Defendants started imposing PRS, in or about the

year 2000/2001.” Appellant’s Br. at 22. Accordingly, we conclude that plaintiffs have not

sufficiently alleged that defendants administratively imposed terms of PRS on them after our

decision in Earley so as to avoid dismissal on qualified immunity grounds.

2.     Expectation of Finality

       Alternatively, plaintiffs submit that defendants upset their expectations of finality in

their judicially imposed determinate sentences by altering them to include administratively

imposed terms of PRS. See United States v. Kyles, 601 F.3d 78, 83-84 (2d Cir. 2010)

(holding that Double Jeopardy Clause prohibits alterations to sentences “carrying a legitimate

expectation of finality”). Plaintiffs point to no law clearly establishing a prisoner’s legitimate

expectation of finality in a sentence that fails to include a PRS term mandated by law. See

N.Y. Penal Law § 70.45. Defendants are thus qualifiedly immune from suit—on either

double jeopardy or due process grounds—insofar as their administrative imposition of PRS

terms “rel[ied] on a presumptively valid state statute” that is not “grossly and flagrantly

unconstitutional.” Vives v. City of New York, 405 F.3d 115, 117 (2d Cir. 2005) (internal

quotation marks omitted).

       Nothing in our decision in Earley signaled that an expectation of finality attached to

a judicially imposed determinate sentence so as to preclude subsequent imposition of a PRS

term. Indeed, after Earley, the New York State legislature authorized state courts to


                                                5
resentence offenders who had not received judicially imposed terms of PRS. See N.Y.

Correct. Law § 601-d (2008). No federal or state court has held that such resentencing

violates double jeopardy’s reasonable expectation of finality, except in circumstances where

offenders have completed their determinate terms and been released from custody. Even as

to those offenders, no court reached that conclusion until the New York Court of Appeals

decided People v. Williams in 2010. See People v. Williams, 14 N.Y.3d 198, 899 N.Y.S.2d

76 (2010).

       Thus, because neither clearly established principles of double jeopardy nor due

process prohibited defendants from administratively imposing legislatively mandated PRS

terms before 2006, or from obtaining judicial resentencing of offenders already released from

their determinate prison terms before 2010, the district court correctly granted dismissal on

the ground of qualified immunity.

3.     Conclusion

       We have considered plaintiffs’ remaining arguments on appeal and conclude that they

are without merit. Accordingly, the judgment is AFFIRMED.1

                                    FOR THE COURT:
                                    CATHERINE O’HAGAN WOLFE, Clerk of Court




       1
        Because we affirm the dismissal of plaintiffs’ amended complaint, plaintiffs’ motion
for an order directing the district court to allow them an opportunity to further amend their
complaint is denied as moot.

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