14-1682-pr
Saxon v. Lempke
14‐1682‐pr
Saxon v. Lempke
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 COURTʹS 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
ʺSUMMARY ORDERʺ). 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 24th day of September, two thousand fifteen.
PRESENT: ROBERT D. SACK,
DENNY CHIN,
CHRISTOPHER F. DRONEY,
Circuit Judges.
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KEVIN SAXON,
Petitioner‐Appellant,
v. 14‐1682‐pr
JOHN B. LEMPKE,
Respondent‐Appellee.
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FOR PETITIONER‐APPELLANT: SALLY WASSERMAN, Law Office of Sally
Wasserman, New York, New York.
FOR RESPONDENT‐APPELLEE: KAREN SCHLOSSBERG, Alan B. Gadlin,
Assistant District Attorneys, for Cyrus R.
Vance, Jr., New York County District Attorney,
New York, New York.
Appeal from an order of the United States District Court for the Southern
District of New York (Gardephe, J., and Fox, M.J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the order of the district court is AFFIRMED.
Petitioner‐appellant Kevin Saxon appeals from the district courtʹs denial
of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Saxon contends
that his due process rights were violated at sentencing because the judge was
influenced by the prosecutorʹs inaccurate assertions that this was Saxonʹs third murder
conviction, when it was his first. We assume the partiesʹ familiarity with the underlying
facts, procedural history of the case, and issues on appeal.1
We review de novo the denial of a petition for a writ of habeas corpus.
Grayton v. Ercole, 691 F.3d 165, 169 (2d Cir. 2012). We have conducted an independent
review of the record, and we affirm for substantially the reasons set forth by the district
court in its Memorandum Opinion and Order filed March 21, 2014, adopting a May 23,
2011 Report and Recommendation of the magistrate judge.
1 The certificate of appealability was granted solely on the question of ʺwhether the
sentencing courtʹs alleged reliance on the Stateʹs alleged misstatement of Appellantʹs criminal
record violated due process.ʺ Docket No. 39. The other questions addressed by the district
court are not properly before us on review, and those portions of the appeal were dismissed.
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Saxon was convicted, on a plea of guilty in the Supreme Court of New
York, New York County, of eleven counts, including second degree murder. After
breaching a cooperation agreement with the New York County District Attorneyʹs
Office, he was sentenced to a term of imprisonment of 109 years to life.
At the sentencing, both the Assistant District Attorney and the judge
made reference to the death in the instant case as Saxonʹs third ʺmurder.ʺ App. at 35‐44,
52‐56. In fact, though Saxon was charged in connection with two prior deaths, he had
pled guilty in the two prior cases to second degree criminal possession of a weapon and
first degree manslaughter ‐‐ he had no prior convictions for murder.
On appeal, Saxon argues that because the sentencing judge relied on these
purported misstatements of his criminal record, his habeas petition must be granted
under Townsend v. Burke, 334 U.S. 736 (1948), a case where the trial judge mistakenly
relied at sentencing on an uncounseled defendantʹs three prior felony convictions,
which in fact had been dismissed or adjudicated as not guilty. Because the assumptions
about Townsendʹs criminal record were ʺmaterially untrue,ʺ the Supreme Court held
that ʺ[s]uch a result, whether caused by carelessness or design, is inconsistent with due
process of law, and such a conviction cannot stand.ʺ Id. at 741; see also Roberts v. United
States, 445 U.S. 552, 563 (1980) (Brennan, J., concurring) (ʺAs a matter of due process, an
offender may not be sentenced on the basis of mistaken facts or unfounded
assumptions.ʺ); United States v. Tucker, 404 U.S. 443, 447 (1972) (ʺThe record in the
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present case makes evident that the sentencing judge gave specific consideration to the
respondentʹs previous convictions before imposing sentence upon him. Yet it is now
clear that two of those convictions were wholly unconstitutional . . . .ʺ (footnote
omitted)).
We disagree. This case is not Townsend, and the sentencing judge was not
misled in any way. Saxon was represented by counsel. At his sentencing he admitted
to the convictions in the information that charged him with being a predicate violent
felon, and he was adjudicated a violent felony offender. And although the prosecutorʹs
pre‐sentencing memorandum did refer to the two prior deaths as murders, the
submissionʹs criminal history section accurately outlined the prior convictions and the
clerk of court correctly announced the criminal record at the commencement of
sentencing.
Finally, there is nothing in the record to suggest that the judge thought the
two prior deaths resulted in murder convictions, or that she relied on any
misstatements in her sentencing decision. To the contrary, the sentencing court
explained that it had ʺexamined [Saxonʹs] record carefully,ʺ and that it had ʺread the
case file, the pre‐sentence record,ʺ and ʺall the documents.ʺ App. at 53. The sentence
here was not ʺfounded . . . upon misinformation of constitutional magnitudeʺ; rather, it
was ʺimposed in the informed discretion of a trial judge.ʺ Tucker, 404 U.S. at 447.
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For the foregoing reasons, we AFFIRM the order of the district court.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk
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