Smith v. Wenderlich, No. 14-3920 (2d Cir. 2016)
Annotate this CasePetitioner appealed the denial of habeas relief under 28 U.S.C. 2254, alleging that his right to be free from double jeopardy was violated when the New York State court that had sentenced him in 2000 to 11 years of imprisonment amended his sentence - after he had been imprisoned for 11 years but remained imprisoned because of additional crimes he committed during that 11-year period - by adding a term of post-release supervision that, under New York law, was required to be part of his 2000 sentence. The court held that it is not contrary to or an unreasonable application of United States v. DiFrancesco for a state court to hold that the Double Jeopardy Clause permits the resentencing of a prisoner while he is still in prison, when such resentencing is necessary to impose a term of supervised release required by statute. The court also concluded that the State court's decision that Smith had no legitimate expectation that his determinate sentence had become final, based on the court's conclusion that his judicially imposed sentences could properly be aggregated by DOCCS pursuant to N.Y. Penal Law 70.30 without further participation by the court, and on the fact that because of his intervening crimes he had not been released, did not constitute an unreasonable application of Hill v. United States ex rel. Wampler. Accordingly, the court affirmed the judgment.
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