06-1422-pr
Willette v. Fischer




                           UNITED STATES COURT OF APPEALS

                               FOR THE SECOND CIRCUIT

                                  August Term 2007

Heard: October 2, 2007                               Decided: October 29, 2007

                               Docket No. 06-1422-pr

- - - - - - - - - - - - - -
STEVEN WILLETTE,
     Petitioner-Appellee,

                      v.

BRIAN FISCHER,
     Respondent-Appellant.
- - - - - - - - - - - - - -

Before: MESKILL, NEWMAN, and SOTOMAYOR, Circuit Judges.

         Appeal from the February 28, 2006, judgment of the United States

District Court for the Northern District of New York (David N. Hurd,

District Judge), reversing, on consideration of a habeas corpus

petition, convictions on four counts of an eight-count state court

indictment.

         Affirmed in part and remanded for entry of a modified judgment

that vacates three counts.

                               Malancha Chanda, Asst. Atty. General, New York,
                                 N.Y. (Eliot Spitzer, N.Y. State Atty.
                                 General, Robin A. Forshaw, Deputy Solicitor
                                 General, Office of the N.Y. State Attorney
                             General, New York, N.Y., on the brief), for
                             Respondent-Appellant.

                         Livingston L. Hatch, Plattsburgh, N.Y., submit-
                           ted correspondence for Petitioner-Appellee.

JON O. NEWMAN, Circuit Judge.

      This appeal from the grant of a petition for a writ of habeas

corpus   primarily   concerns   a   claim   of   unconstitutional   multiple

punishment for the same offense.       Respondent-Appellant Brian Fischer,

Commissioner of the New York State Department of Corrections (“the

State”), appeals from the February 28, 2006, judgment of the United

States District Court for the Northern District of New York (David N.

Hurd, District Judge) adopting a recommended ruling by the Magistrate

Judge (Hon. David E. Peebles) to grant partial habeas corpus relief to

the   Petitioner-Appellee,    Steven    Willette.     The   judgment   orders

reversal of Willette’s conviction on four counts of an eight count

indictment and dismisses his challenge to the other four counts.           We

conclude that punishment for three of the four challenged counts was

unconstitutionally imposed, and therefore affirm in part and remand

for entry of a modified judgment.

                                 Background

      Underlying conviction.     In 1984, Willette was convicted in New

York state court of two counts of first-degree sexual abuse stemming


                                     -2-
from       sexual   contact    with   a   four-year-old    girl.        See   People   v.

Willette, 109 A.D.2d 112, 113, 490 N.Y.S.2d 290, 291 (App. Div. 1985).

That conviction is not challenged on the pending appeal. Willette was

released from custody in September 1995 and placed on parole.                          A

condition of his parole prohibited contact with any minors.

       Challenged conviction. The challenged conviction is for violation

of New       York’s   Sex     Offender    Registration    Act    (“SORA”),     see N.Y.

Correct. Law § 168 et seq. (McKinney 1996), which became effective on

January 21, 1996.           Willette, as a convicted sex offender on parole at

that time, was required to register with law enforcement authorities

pursuant       to   SORA.      SORA   divides     registrants    into    three   levels

depending on the perceived risk of recidivism, with level-three

registrants posing the highest risk.               Willette was determined to be

a level-three registrant.

       Especially pertinent to this appeal are the requirements for

reporting a registrant’s address and any change of address. Level-one

and level-two registrants must verify their address by mail to the

Division of Criminal Justice annually upon the anniversary of their

initial registration. See id. § 168-f(2).1                      However, level-three


       1
           Recent amendments to SORA have changed the language, but not the

substance, of the registration and notification provisions. See N.Y.

                                            -3-
registrants must personally verify their address with the local law

enforcement   agency   every   ninety   days.    See   id.    §    168-f(3).      In

addition, all registrants must register a change of address with the

law enforcement agency where last registered within ten days of

moving. See id. § 168-f(4).     Failure to register or verify as required

by SORA is punishable as a class A misdemeanor upon conviction for the

first offense; any subsequent offense is punishable as a class D

felony. See id. § 168-t.       As a level-three registrant, Willette was

subject to the ninety-day verification requirement.

     Offense conduct, conviction, and appeal. At ninety-day intervals

from August 1997 through November 1998, Willette reported to law

enforcement authorities that he was living with his father at the

address in Redford, N.Y., provided in his initial registration.

However, in November 1998, law enforcement authorities learned that

Willette had been living in Peru, N.Y.          Investigation disclosed that

Willette had moved into the home of Julia Turner at her request and

was living there, with her two minor children, from July 1997 to

September 1998.

     Willette   was    convicted   on   four    counts   of       filing   a   false

instrument in the first degree in violation of N.Y. Penal Law § 175.35


Correct. Law §§ 168-f(2)-(4), 168-t (McKinney Supp. 2007).

                                    -4-
(McKinney 1999) and four counts of failure to inform law enforcement

authorities of his new residence in violation of the change-of-address

reporting requirement of SORA, N.Y. Correct. Law § 168-f(4). The four

false instrument counts were based on Willette’s 90-day filings of

forms with the Clinton County Sheriff’s Department on or about August

14, 1997, November 14, 1997, February 1998 (date unspecified), and May

19, 1998.      These filings listed Willette’s father’s residence in

Redford, within Clinton County. The four SORA counts charging failure

to report change of address were alleged to have been committed at the

same times as the four false statement counts.

     The state court sentenced Willette to six months’ imprisonment on

the first SORA conviction (Count 2), a class A misdemeanor, and to

three consecutive terms of three and a half to seven years on each of

the other three SORA counts (Counts 4, 6, and 8), class D felonies.2


     2
         SORA prescribes a class A misdemeanor sentence “upon conviction

for the first offense” and a class D felony sentence “upon conviction

for a second or subsequent offense.” N.Y. Correct. Law § 168-t.

Willette has made no claim to the state courts or the District Court

that the enhanced penalty for a second or subsequent offense should

apply only to an offense committed after conviction for an initial

offense, and we express no view on this state law issue.

                                    -5-
The Count 2 sentence ran concurrently with the consecutive sentences

on Counts 4, 6, and 8.     On each of the four false instrument counts

(Counts 1, 3, 5, and 7) the court sentenced Willette to consecutive

terms of imprisonment of two to four years.           The false instrument

sentences ran concurrently with the SORA sentences, resulting in a

total term of imprisonment of ten and a half to twenty- one years (the

consecutive sentences on Counts 4, 6, and 8).

       Willette appealed to the Appellate Division, claiming primarily

that   the   convictions   were   invalid   because   his   risk    level    was

determined without procedural due process protections.                 He also

alleged that Counts 3 through 8 were “cumulative” since the State had

alleged that his residence in the Turner home was continuous. Brief of

Appellant at 7, People v. Willette, 290 A.D.2d 576, 735 N.Y.S.2d 645

(App. Div.    2002).   Although    the    Appellate   Division     agreed   that

Willette’s risk level determination was “constitutional[ly] infirm[],”

Willette, 290 A.D.2d at 577, 735 N.Y.S.2d at 646 (citing People v.

David W., 95 N.Y.2d 130, 137 (2000)), it concluded that the risk level

determination was irrelevant to his SORA convictions because he was

convicted for failing to inform authorities of his change of address

under section 168-f(4), a requirement applicable to all registrants,

regardless of risk classification, see id.            Turning to the false


                                    -6-
instrument   convictions,        the   Appellate   Division    held   that   these

convictions were proper, whether or not Willette had a duty to file

the instruments. See id.          It thus affirmed the convictions on all

eight counts.      The New York Court of Appeals denied leave to appeal.

See People v. Willette, 97 N.Y.2d 763 (2002).

     District Court proceedings.          Willette filed his habeas petition

in the District Court, claiming primarily that his convictions were

constitutionally invalid because his risk level determination violated

his procedural due process rights. In a recommended ruling adopted by

the District Court, the Magistrate Judge rejected Willette’s challenge

to the false statement convictions, agreeing with the Appellate

Division   that    the   false   statement    offenses   did   not    require   the

existence of a legal duty to file the false instrument.               Thus, it was

immaterial that the Petitioner’s risk level determination, which

obliged him to file his 90-day address reports, might have violated

his due process rights.      Willette has not cross-appealed to challenge

this ruling.

     The Magistrate Judge next turned to the SORA change-of-address

convictions.      Unlike the Appellate Division, the Magistrate Judge was

“unable to conclude that petitioner’s SORA convictions are readily

divorced from his level three determination.”                  According to the


                                        -7-
Magistrate Judge, the Petitioner was “convicted of four times changing

his residence without complying with the requirement under section

168-f(4) that he notify officials of any such change within ten days,”

but the Petitioner “changed his residence twice, at most -- once upon

moving in with his girlfriend, and a second time when moving out.”

Deeming the four change-of-address convictions to have stemmed from

Willette’s level-three obligation to verify his address every ninety

days,   the   Magistrate   Judge   concluded,   “To   allow   petitioner’s

convictions to stand would be to impermissibly inflate a single, or at

most two, violations for failure to report changes of address into

multiple convictions based upon circumstances which, the New York

Court of Appeals has concluded, were the product of a due process

violation.”

     In response, the State contended that the change-of-address

violation was a “continuing violation, with each day potentially

giving rise to a new charge,” thereby supporting four convictions that

were not dependent on the level-three classification because all

registrants, regardless of classification, were required to report a

change of address.     However, the Magistrate Judge concluded that

convicting the Petitioner four times on a continuing violation theory

violated the Double Jeopardy Clause.        Apparently overlooking the


                                   -8-
reference in Willette’s brief to the Appellate Division that the

convictions on Counts 3 through 8 were cumulative, the Judge expressed

the view that Willette had not raised a double jeopardy claim in the

state courts.   To “relieve petitioner of the otherwise harsh results

of his failure to exhaust,” the Magistrate Judge applied the “actual

innocence” exception, see Murray v. Carrier, 477 U.S. 478, 496 (1986),

to excuse what he understood to be Willette’s procedural default. The

Magistrate Judge therefore recommended that the convictions on all

four SORA counts be set aside, with leave to retry the Petitioner.

The District Judge adopted the recommended ruling and granted the

habeas   petition   insofar    as    it    sought    to   vacate   the   four   SORA

convictions.

                                    Discussion

     Exhaustion of state court remedies. We need not consider whether

the Magistrate Judge and, by adoption, the District Judge properly

invoked the actual innocence exception to procedural default, because

we are satisfied that Willette’s brief to the Appellate Division

adequately   alerted   the    state    court    to   his   claim   that   multiple

punishments for the SORA change-of-address violations were invalid.

Exhaustion of state court remedies requires that a habeas petitioner’s

federal claim must be “fairly presented” to the state courts.                    See


                                          -9-
Picard v. Connor, 404 U.S. 270, 275 (1971); Smith v. Duncan, 411 F.3d

340, 349 (2d Cir. 2005).    We have required at least the “substance” of

the federal claim to be fairly presented, see Smith, 411 F.3d at 349,

and have stated that among the ways to satisfy this requirement are

“assertion of the claim in terms so particular as to call to mind a

specific right protected by the Constitution,” Daye v. Attorney

General, 696 F.2d 186, 194 (2d Cir. 1982) (in banc).   Willette’s brief

to the Appellate Division stated that “counts 3 through 8 of the

indictment were cumulative.”      Counts 4, 6, and 8 alleged the same

change-of-address violations set forth in Count 2, varying only in the

use of the same dates for the false statement offenses charged in

Counts 3, 5, and 7.     The allegation that the three change-of-address

counts were “cumulative,” assessed against the specifics of the

indictment, sufficed to “call to mind,” id., the protection against

multiple punishment safeguarded by the Double Jeopardy Clause.3     See

Illinois v. Vitale, 447 U.S. 410, 415 (1980) (Double Jeopardy Clause


     3
         Willette’s counsel also preserved his claim at trial, seeking

dismissal of Counts 4, 6, and 8, among others, on the ground that

“there can be only one charge as to change of address, because

subsequent to July of 1997, the prosecution is alleging [Willette] was

continuously . . . resid[ing] [at Turner’s home in Peru, N.Y.].

                                   -10-
“protects    against   multiple    punishments   for    the    same    offense”)

(internal quotation marks omitted); Brown v. Ohio, 432 U.S. 161, 165

(1977) (same); United States v. Josephberg, 459 F.3d 350, 355 (2d Cir.

2006) (“If the jury convicts on more than one multiplicitous count,

the defendant’s right not to suffer multiple punishments for the same

offense will be protected by having the court enter judgment on only

one   of   the   multiplicitous   counts.”).     The   New    York    courts   are

thoroughly familiar with the vice of multiplicitous counts. See, e.g.,

People v. Getman, 188 Misc. 2d 809, 812, 729 N.Y.S.2d 858, 860

(Chemung County Ct. 2001); People v. Miller, 138 Misc. 2d 639, 643,

524 N.Y.S.2d 622, 625 (Sup. Ct. 1988).

      Multiple punishments. Willette’s multiple punishment claim does

not present the more frequently arising issue of whether two different

statutes may punish the same conduct, see Blockburger v. United

States, 284 U.S. 299, 303-04 (1932); Sharpton v. Turner, 964 F.2d

1284, 1286-88 (2d Cir. 1287), but the less frequently recurring issue

of whether multiple punishments may be imposed for more than one

violation of a single statute, see United States v. Universal C.I.T.

Credit Corp., 344 U.S. 218, 224-26 (1952); Bell v. United States, 349

U.S. 81, 81-84 (1955).      This latter issue requires determination of

the “allowable unit of prosecution,” Universal C.I.T., 344 U.S. at


                                     -11-
221, an inquiry that turns on the statutory text and the intent of the

legislature, see Sanabria v. United States, 437 U.S. 54, 69-70 (1978);

Universal C.I.T., 344 U.S. at 221-24, with “ambiguity . . . resolved

in favor of lenity,” see Bell, 349 U.S. at 83.

     Counts 2, 4, 6, and 8 each charged violations of section 168-

f(4), which requires every sex offender, regardless of risk-level

classification, to register with the local law enforcement agency

within ten days after “any change of address.”       As noted above, the

dates of the four alleged change-of-address counts were the same as

the dates of the four false statement counts.       The State’s evidence

permitted the jury to find that Willette had changed his address when

he moved from his father’s home in Redford, N.Y., to his girlfriend’s

home in Peru, N.Y.      This change of address occurred only once, not

four times.4

     At argument in this Court, the State suggested that Willette’s

conduct could be punished at least four times under section 168-f(4)


     4
         Perhaps Willette could have been charged with a second change-of-

address violation when he failed to report that he had moved back to

his father’s home in Redford, but the indictment did not charge that

offense, and the trial court confined the jury’s consideration of the

change-of-address counts to the change from the father’s home.

                                    -12-
on the theory that the unit of prosecution for a change-of-address

violation is each day that a sex offender fails to report a new

address.    We see nothing in the text of the statute to support such an

interpretation, nor have we located any New York case law interpreting

any similar statute to render each day of non-compliance with a

reporting    requirement   a   punishable     unit   of   prosecution.     Since

Willette lived with his girlfriend for at least fourteen months from

July 1997 to September 1998, the State’s theory of a daily offense

would expose him to consecutive terms of nearly 3,000 years.              We are

confident that the New York courts would require clear evidence of

legislative intent before even considering such an interpretation.

     The clearest indication that the legislature did not intend

section    168-f(4)   to   prescribe    daily   offenses    is   the   preceding

provision of section 168-f(3).      This provision requires a level-three

registrant, like Willette, to personally verify his address with the

local law enforcement agency every 90 days.           That 90-day requirement

undermines any contention that section 168-f(4) creates a daily

offense for each day of a single unreported change of address.                To

obtain four SORA convictions for the four dates in the indictment,

which occurred at 90-day intervals, the State simply could have

charged Willette under section 168-f(3).


                                       -13-
      Remedy.        The    District       Court’s      judgment      reverses      Willette’s

convictions on all four of the section 168-f(4) counts. However, only

the   convictions          on    Counts    4,    6,    and    8    resulted   in    cumulative

punishments for the same offense in violation of the Double Jeopardy

Clause. The conviction on Count 2, the first change-of-address count,

is entirely valid.5             The judgment must therefore be modified to vacate

the sentences only on Counts 4, 6, and 8, leaving in place the six-

month sentence on Count 2, which runs concurrently with the aggregate

eight-to-sixteen-year sentence on Counts 1, 3, 5, and 7.6


      5
          Count 2 charged an offense occurring on August 14, 1997, which

was some time after the end of the ten-day reporting interval, but we

see no reason, constitutional or otherwise, why the State may not

allege one change-of-address violation anytime after the ten-day

reporting      interval,         subject      only     to    the   applicable      statute    of

limitations.
      6
          Although    a    grant    of    a     writ   of    habeas    corpus      is   normally

conditional upon a state’s failure to take appropriate corrective

action, especially where a trial error of constitutional dimension

requires a retrial, a district court, considering a petition for a

writ of habeas corpus, is authorized to “dispose of the matter as law

and justice require,” 28 U.S.C. § 2243, including “invalidat[ing] the

                                                -14-
                             Conclusion

     Accordingly, the case is remanded with directions to enter a

modified judgment vacating the sentences on Counts 4, 6, and 8.




challenged sentence even though the prisoner remains in custody to

serve” other sentences, see Wilkinson v. Dotson, 544 U.S. 74, 85

(2005) (Scalia, J., with whom Thomas, J., joins, concurring).

                                -15-
