11-0802-pr
Montstream v. Superintendent


                                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 20th day of June, two thousand twelve.

PRESENT: JON O. NEWMAN,
         CHESTER J. STRAUB,
         GERARD E. LYNCH,
                        Circuit Judges.

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ANNETTE MONTSTREAM,
                                          Petitioner-Appellant,

                               v.                                       No. 11-0802-pr

SUPERINTENDENT, Bedford Hills Correctional Facility,
BEDFORD HILLS CORRECTIONAL FACILITY,
                          Respondent-Appellee.

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FOR APPELLANT:                      ROBERT J. BOYLE, New York, New York.

FOR APPELLEE:                       THOMAS H. BRANDT, Of Counsel, for Michael J. Violante,
                                    Niagara County District Attorney, Lockport, New York.
       Appeal from the United States District Court for the Western District of New York

(Richard J. Arcara, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

       Petitioner-appellant Annette Montstream (“Montstream”) appeals the district

court’s dismissal of her petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

Montstream pled guilty pursuant to a plea agreement entered in the County Court of the

State of New York, Niagara County, to manslaughter in the first degree, pursuant to

N.Y.P.L. §§ 20.00, 125.20(1); criminal possession of a weapon in the second degree,

pursuant to N.Y.P.L. §§ 20.00, 265.03; and criminal solicitation in the second degree,

pursuant to N.Y.P.L. § 100.10. All charges arose in connection with the death by gunshot

of her husband, John Montstream. The indictment charged, and the plea agreement

acknowledged, that Montstream solicited and helped plan the murder, and that co-

defendant Michael Northrup possessed the weapon, which he used to shoot and kill John

Montstream. In exchange for the dismissal of murder charges, Montstream agreed to be

sentenced to 12 ½ to 25 years for first degree manslaughter, 6 ½ to 13 years for criminal

possession of a weapon in the second degree, and 1 to 3 years for second degree criminal

solicitation, the sentences to run consecutively.

       Montstream appealed the sentence to the New York Supreme Court, Appellate

Division, arguing that New York State’s consecutive/concurrent sentencing statute


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required sentences arising from “a single act or omission” to “run concurrently,” N.Y.P.L.

§ 70.25(2), and that in this case the manslaughter, solicitation, and weapons possession

charges all arose from a single act. The Appellate Division ruled that “[c]onsecutive

sentences are appropriate where, as here, separate offenses are committed through

separate acts, though they are part of a single transaction.” People v. Montstream, 21

A.D.3d 1353, 1354 (4th Dep’t 2005) (internal quotation marks omitted), lv. denied,

People v. Montstream, 6 N.Y.3d 756 (2005).

       Montstream thereafter sought habeas relief from the federal district court, arguing

inter alia that the state court misapplied the state sentencing statute, and thereby violated

her rights under the Double Jeopardy Clause of the Fifth Amendment of the U.S.

Constitution. The district court accepted the magistrate judge’s recommendation that

“there was no error of New York state law, much less an error of federal constitutional

magnitude,” and dismissed the petition. On appeal, Montstream, inter alia, restates her

double jeopardy argument. We assume familiarity with the facts and procedural history

of the case.

       On appeal, the parties sharply contest whether the state court erred, as a matter of

New York law, by concluding that Montstream’s sentence did not violate the New York

concurrent/consecutive sentencing statute. Since this case’s submission, however, the

New York Court of Appeals appears to have resolved the question in Montstream’s favor,

concluding that N.Y.P.L. § 70.25(2) requires concurrent sentences when the intent

element of the weapons possession charge coincides with a separately charged offense.

People v. Wright, --- N.Y.3d ---, 2012 WL 1986517 (June 5, 2012).

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       The habeas jurisdiction of the federal courts, however, is not implicated simply

because a state court may have erroneously applied state law. As the Supreme Court has

repeatedly held, “federal habeas corpus relief does not lie for errors of state law.” Estelle

v. McGuire, 502 U.S. 62, 67 (1991), quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990).

Under the statutory framework that governs our review of habeas petitions by state

prisoners, the writ cannot issue unless the state court’s decision was “contrary to, or

involved an unreasonable application of, clearly established Federal law, as determined

by the Supreme Court of the United States.” 28 U.S.C. § 2254(d); see also Parker v.

Matthews, --- S. Ct. ---, 2012 WL 2076341 at *5-*6 (June 11, 2012) (holding that the

Sixth Circuit erred by granting habeas relief under an extension, rather than a direct

application, of Supreme Court precedent). This standard presents habeas petitioners with

a high barrier: the state court error must be “so lacking in justification that there was an

error well understood and comprehended in existing law beyond any possibility for

fairminded disagreement.” Harrington v. Richter, 131 S. Ct. 770, 786–87 (2011).

       Assuming arguendo that Montstream properly presented the federal issue, see

Jackson v. Edwards, 404 F.3d 612, 618-21 (2d Cir. 2005), and that the Appellate

Division’s rejection of her argument therefore necessarily decided the issue against her,

we cannot conclude that Supreme Court precedent clearly renders a state court’s

erroneous application of a state concurrent sentence statute a violation of the federal

Double Jeopardy Clause. Ordinarily, the Double Jeopardy Clause prohibits multiple

punishment “where the two offenses for which the defendant is punished . . . cannot

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survive the ‘same-elements’ test” enunciated in Blockburger v. United States, 284 U.S.

299 (1932). United States v. Dixon, 509 U.S. 688, 696 (1993). Montstream does not

contend, nor could she, that the consecutive sentences imposed on her violate that rule.

The Supreme Court has also held, however, that consecutive sentences not authorized by

Congress violate the Double Jeopardy Clause, Whalen v. United States, 445 U.S. 684,

689 (1980), and that the Clause is not violated when a legislature has “specifically

authorize[d] cumulative punishment under two statutes,” even when those statutes

penalize the same offense under the Blockburger test, Missouri v. Hunter, 459 U.S. 359,

368-69 (1983). Citing these holdings, and language in these and other cases to the effect

that “the question of what punishments are constitutionally permissible is not different

from the question of what punishments the Legislative Branch intended to be imposed,”

Albernaz v. United States, 450 U.S. 333, 344 (1981), Montstream argues that any

imposition of consecutive sentences that violates the New York concurrent sentence

statute necessarily constitutes a federal Double Jeopardy violation.

       Reasonable judges may well find that argument persuasive were the issue

presented for de novo review. We cannot conclude, however, that rejection of that

argument would be an unreasonable application of binding Supreme Court precedent.

While the Supreme Court has held that multiple punishments that would be prohibited

under Blockburger do not violate the Double Jeopardy Clause where the legislature

intended to impose such punishments, we have not found, and the parties do not cite, any

Supreme Court case holding that multiple punishments that would be permissible under

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Blockburger are unconstitutional simply because they violate a state statute that gives

broader protection against consecutive sentences than the federal Constitution requires.

The Court has never held that state legislatures may expand federal constitutional

protection against double jeopardy beyond what the Constitution itself provides. See

Hunter, 459 U.S. at 368 (1983) (“We are bound to accept the Missouri court’s

construction of that State’s statutes. However, we are not bound by the Missouri

Supreme Court’s legal conclusion that these two statutes violate the Double Jeopardy

Clause, and we reject its legal conclusion.”) (“internal quotation marks omitted); see also

United States v. McLean, 287 F.3d 127, 136-37 (2d Cir. 2002) (“[T]here is no

constitutionally cognizable right to concurrent, rather than consecutive, sentences.”)

(internal quotation marks omitted). It is at least a debatable question whether the Court

would extend its holdings in Whalen, Hunter, and Albernaz in a manner that would turn

every question of the interpretation of a state statute limiting consecutive sentences into a

federal double jeopardy claim cognizable on habeas corpus.

          Reasonable jurists may disagree about whether the Supreme Court’s cases should

be read to support Montstream’s constitutional argument. There can be no dispute,

however, that the Supreme Court itself has never clearly answered the question. It

follows, therefore, that we must dismiss Montstream’s petition. To the extent her

sentences violate New York state statutory law, her remedy, if any, must lie with the state

courts.



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       We have considered Montstream’s remaining arguments, and find them to be

without merit. For the foregoing reasons, the judgment of the district court is

AFFIRMED.


                                   FOR THE COURT:
                                   Catherine O’Hagan Wolfe, Clerk of Court




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