govinfo:USCOURTS-nynd-9_23-cv-00077-4

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UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF NEW YORK 
A
NDREW JONES, 
P
etitioner, 
v. 9:23-CV-0077 (LEK) 
T
 MCGUINNESS, 
R
espondent. 
APPEAR
ANCES: OF COUNSEL: 
A
NDREW JONES 
Petitioner Pro Se 
01-A-4383
Shawangunk Correctional Facility
P.O. Box 700
Wallkill, New York 12589
H
ON. LETITIA JAMES MICHELLE ELAINE MAEROV, ESQ. 
Attorney for Respondent Ass’t Attorney General 
New York State Attorney General 
28 Liberty Street 
New York, New York 10005 
Law
rence E. Kahn 
United States District Judge 
AMENDED MEMORANDUM-DECISION and ORDER 
I. I
NTRODUCTION
Petitioner Andrew Jones seeks federal habeas corpus relief pursuant to 28 U.S.C. §
2254. Dkt. No. 1, Petition ("Pet."); Dkt. No. 2, (“Exhibits”).1 After an initial review, the Court 
1 For the sake of clarity, citations to all parties’ filings refer to the pagination generated by CM/ECF, the Court’s electronic 
filing system. The only exception is the State Court Record (“SCR”), Dkt. No. 13-3, where citations will reference the Bates-
stamp at the top-center of each page, as the exhibit is separately and consecutively paginated. 

 
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ordered Respondent to file an answer addressing the Petition. Dkt. No. 7, (“February 2023 
Decision and Order”). 
Petitioner then filed a motion for reconsideration arguing that the Court had misstated 
Petitioner’s grounds for relief. Dkt. No. 9, (“Motion for Reconsideration”). The Court granted 
the motion in part, revising its prior Order to direct Respondent to address Petitioner’s 
clarified claims where a merits analysis was appropriate. Dkt. No. 10, (“March 2023 Decision 
and Order”). 
Respondent filed an answer. Dkt. No. 13, (“Answer”); Dkt. No. 13-1, (“Memorandum 
of Law in Support”); Dkt. No. 13-3, (“State Court Records (“SCR”)”). Petitioner filed a 
traverse the following month. Dkt. No. 15, (“Reply”). 
For the reasons which follow, the Petition is denied and dismissed in its entirety. 
II. RELEVANT BACKGROUND 
During Petitioner’s collateral challenge to his sentencing, the New York State 
Appellate Division, Third Department summarized his sentencing history. SCR at 313. The 
Court will adopt that same history here for purposes of the instant action. Specifically, 
[i]n 1999, [P]etitioner was sentenced to a prison term of 6 to 12 
years upon his conviction of criminal sale of a controlled substance 
in the third degree. In 2001, [P]etitioner was sentenced to a prison 
term of seven years with five years of postrelease supervision 
upon his conviction of assault in the second degree, which ran 
consecutively to his 1999 sentence. In 2003, [P]etitioner was 
convicted of murder in the second degree, for which he was 
sentenced to 23 years to life in prison, to run consecutively to the 
1999 and 2001 sentences. The Department of Corrections and 
Community Supervision (hereinafter DOCCS) calculated 
[P]etitioner’s parole eligibility date on those sentences as March 3, 
2036. 
 
SCR at 313-14. 
Petitioner directly appealed his 2001 conviction, and the Third Department 

 
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reversed the judgment of conviction and remitted the matter for 
further proceedings. Upon remittal, [Petitioner] pleaded guilty to 
[the same charge of] assault in the second degree [in 2016] and 
waived his right to appeal in exchange for a prison term of five 
years, followed by five years of post-release supervision, with such 
sentence to run concurrently with [his] 2003 conviction for murder 
in the second degree. 
 
People v. Jones, 171 A.D.3d 1249, 1249 (3d Dep’t 2019) (citing People v. Jones, 136 A.D.3d 
1153 (3d Dep’t 2016), lv. appeal denied, 27 N.Y.3d 1000 (N.Y. 2016)). Petitioner lists both 
the 2001 and 2016 convictions from Albany County as the bases for his instant challenge and 
requested relief. Pet. at 1. 
Shortly after Petitioner’s 2016 conviction, he filed a motion to vacate his judgment and 
sentence pursuant to New York Criminal Procedure Law §§ 440.10, 440.20 (“440 Motion”). 
Pet. at 3; see also Jones, 171 A.D.3d at 1249. The 440 Motion was denied, without a 
hearing, on January 13, 2017. Pet. at 3–4. Petitioner appealed the denial of his 440 Motion, 
and directly appealed his conviction, and both appeals were decided by the Third 
Department. Jones, 171 A.D.3d at 1249. 
On April 4, 2019, the Third Department held that Petitioner’s guilty plea needed to be 
vacated and the matter remanded for further proceedings based upon Petitioner’s ineffective 
assistance of counsel. Jones, 171 A.D.3d at 1249–51. Accordingly, “the judgment [wa]s 
reversed, on the law, and [the] matter remitted to the [New York State] Supreme Court for 
further proceedings not inconsistent with th[e Third Department’s] decision.” Id. at 1251. 
Given the Appellate Division’s decision, Petitioner’s “remaining arguments on his appeal from 
the judgment of conviction, as well as his appeal from the order denying his . . . 440 [M]otion” 
were “rendered academic,” and were dismissed. Id. The New York State Court of Appeals 
denied leave to appeal the Third Department’s decision on June 17, 2019. People v. Jones, 

 
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33 N.Y.3d 1070 (N.Y. 2019). 
“DOCCS recalculated Petitioner’s parole eligibility date to be March 3, 2030, based 
upon the 29-year aggregate of the minimum sentences imposed on the consecutive, 
indeterminate sentences in 1999 (six years) and 2003 (23 years).” SCR at 314. 
On August 28, 2019, Petitioner filed an Article 78 proceeding challenging the DOCCS 
parole eligibility calculation, specifically DOCCS’s alleged failure to recalculate Petitioner’s 
terms of imprisonment so that Petitioner would not be twice-punished for the same offense. 
Pet. at 4. Petitioner argued that he was “entitled to 12 years of credit against his 2003 
sentence for the time that he served under the vacated 2001 and 2016 sentences.” SCR at 
314. On March 5, 2020, the Albany County Court dismissed the application. SCR 209-213; 
see also SCR at 313. Petitioner appealed the county court’s decision.2 
On May 19, 2022, the Third Department denied Petitioner’s appeal because 
after [P]etitioner’s 2001 and 2016 sentences were vacated, he 
remained subject to the consecutive 1999 and 2003 indeterminate 
sentences. Under Penal Law § 70.30(1)(b), where multiple 
consecutive indeterminate sentences are imposed, the minimum 
terms imposed on each are added together to arrive at an 
aggregate minimum term, here 29 years for the 1999 and 2003 
sentences, minus 153 days of jail time credit that is not in dispute. 
This results in a parole eligibility date of March 3, 2030. 
Petitioner’s argument that he is entitled to 12 years of credit for 
time served . . . is incorrect given how multiple consecutive 
indeterminate sentences are, by statute, calculated. Under Penal 
Law § 70.30(1)(b), multiple consecutive indeterminate sentences 
are made into one resulting in a single, indeterminate aggregate 
sentence and an incarcerated individual is subject to all the 
sentences that make up the aggregate sentence being served . . . 
Consequently, [P]etitioner was not at any point solely serving the 
individual sentences imposed in 2001 and 2016 . . . . Thus, no 
portion of the time that [P]etitioner was serving after the 2001 and 
2016 sentences were imposed can be attributed to either of those 
sentences individually, as the time is served on the single, 
 
2 In the present Petition, Petitioner explains, in detail, the prolonged and protracted appeal process that followed, and 
why his present Petition should be considered timely. Pet. at 16–17. 

 
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aggregate sentence. Rather, the vacatur of those sentences 
resulted in a reduced minimum aggregate sentence and a 
concomitant recalculation of his earlier parole eligibility date. 
 
Further, [P]etitioner’s reliance on Penal Law § 70.30(5) [wa]s 
misplaced. Although that provision permits an incarcerated 
individual to receive credit for time served under a vacated 
sentence against a new sentence for the same offense, it only 
applies in the event that a new sentence is imposed to replace the 
vacated sentence . . . As the 2001 and 2016 sentences were both 
vacated and the indictment dismissed, [P]etitioner was not subject 
to a new sentence for that offense and, thus, was not entitled to 
credit for any time served under those vacated sentences[.] 
 
SCR at 314-15 (original alterations, quotation marks and internal citations omitted) (emphasis 
in the original). Petitioner unsuccessfully sought leave to appeal, and the motion was denied 
by the Court of Appeals on November 22, 2022. SCR at 371. 
Petitioner argues that he is entitled to federal habeas relief because (1) DOCCS 
violated petitioner’s guarantee against Double Jeopardy when it incorrectly applied state law 
in calculating petitioner’s present sentence, effectively punishing petitioner twice for the same 
crime by failing to account for the twelve years Petitioner had already been incarcerated; and 
(2) the state courts erred when they denied petitioner’s Article 78 petition, misinterpreted the 
Penal Law, and determined that petitioner was not entitled to credit for prison time served 
under assault sentences which were ultimately vacated. March 2023 Decision and Order at 
5; Motion for Reconsideration at 2–3.
 
III. DISCUSSION 
Under the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104–132, 
110 Stat. 1214 (1996) (“AEDPA”), a federal court may grant a writ of habeas corpus only if 
the state court's adjudication on the merits 
(1) resulted in a decision that was contrary to, or involved an 
unreasonable application of, clearly established Federal law as 

 
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determined by the Supreme Court of the United States; or 
 
(2) resulted in a decision that was based on an unreasonable 
determination of the facts in light of the evidence presented in the 
State court proceeding. 
 
28 U.S.C. § 2254(d). 
The Supreme Court has given independent meaning to the “contrary to” and 
“unreasonable application” clauses in § 2254(d)(1). Williams v. Taylor, 529 U.S. 362, 405 
(2000). “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state 
court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question 
of law or if the state court decides a case differently than [the Supreme] Court has on a set of 
materially indistinguishable facts.” Id. at 412–13. As for the “unreasonable application” 
clause, a writ may be granted if “the state court's application of clearly established federal law 
was objectively unreasonable.” Id. at 409, 413. “[A]n unreasonable application of federal law 
is different from an incorrect application of federal law.” Id. at 410. In addition, the statutory 
phrase “clearly established Federal law ... refers to the holdings, as opposed to the dicta, of 
[the Supreme] Court's decisions....” Id. at 412 (internal citations omitted). 
The petitioner bears the burden of proving, by a preponderance of the evidence, that 
“he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 
U.S.C. § 2254(a); see also Smalls v. Batista, 191 F.3d 272, 278 (2d Cir. 1999); Jones v. 
Vacco, 126 F.3d 408, 415 (2d Cir. 1997). Further, when evaluating a habeas petition, “a 
determination of a factual issue made by a State court shall be presumed to be correct [and 
t]he applicant shall have the burden of rebutting the presumption of correctness by clear and 
convincing evidence.” 28 U .S.C. § 2254(e)(1). 
On the other hand, “if the federal claim was not adjudicated on the merits, ‘AEDPA 

 
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deference is not required, and conclusions of law and mixed findings of fact and conclusions 
of law are reviewed de novo.’” Dolphy v. Mantello, 552 F.3d 236, 238 (2d Cir. 2009) (quoting 
Spears v. Greiner, 459 F.3d 200, 203 (2d Cir. 2006)). Furthermore, “[w]here a state court's 
decision is unaccompanied by an explanation, the habeas petitioner's burden still must be 
met by showing there was no reasonable basis for the state court to deny relief.” Harrington 
v. Richter, 562 U.S. 86, 98 (2011). 
A. Sentencing Error 
Petitioner primarily argues that the state courts incorrectly applied New York’s 
sentencing laws when they rejected his challenges to his state court sentencing. Pet. at 23-
29 (citing N.Y. P
ENAL LAW §§ 70.04(3)(c), 70.25(2-a), 70.30(1), 70.30(5); Matter of Charles v. 
New York State Dep’t of Corr. Servs., 96 A.D.3d 1341 (3d Dep’t 2012)). Respondent argues 
that any such claims are not cognizable. Dkt. No. 13-1 at 9–12. 
“It is not the province of a federal habeas court to reexamine state-court 
determinations on state-law questions.” Ortiz v. New York State. Parole in Bronx, N.Y., 586 
F.3d 149, 158 (2d Cir. 2009) (quoting inter alia Estelle v. McGuire, 502 U.S. 62, 67–68 
(1991)). “As the Supreme Court has long held, ‘state courts are the ultimate expositors of 
state law;’” thus, these issues are not cognizable on federal habeas review. Portalatin v. 
Graham, 624 F.3d 69, 88–89 (2d Cir.2010) (quoting Mullaney v. Wilbur, 421 U.S. 684, 691 
(1975)); see also Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (“We have stated many 
times that ‘federal habeas corpus relief does not lie for errors of state law.’”) (quoting Estelle 
v. McGuire, 502 U.S. 62, 67 (1991)). A claim that a state court judge failed to comply with a 
state statute raises a question of state law. See Thomas v. Larkin, 2013 WL 5963133, at *13 
(E.D.N.Y. Nov. 7, 2013) (citation omitted). “[F]ederal courts may not issue the writ [of habeas 

 
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corpus] on the basis of a perceived error of state law.” Id. (citing Pulley v. Harris, 46 U.S. 37, 
41 (1984)). 
In this case, Petitioner’s claim based on the state courts' application of New York State 
sentencing law is not cognizable on federal review. See Thomas, 2013 WL 5963133, at *13 
(“whether the sentencing court properly applied New York State Penal Law § 70.25 in 
determining that [Petitioner]'s sentences were consecutive rather than concurrent is not 
cognizable on federal habeas review” (citing 28 U.S.C. § 2254(a)). Accordingly, Petitioner’s 
claim, on this ground, is denied. 
B. Double Jeopardy Claim 
The double jeopardy clause of the Fifth Amendment to the Constitution provides that 
no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” 
U.S. Const. Amend. V; Boyd v. Meachum, 77 F.3d 60, 63 (2d Cir. 1996). The Fifth 
Amendment applies in this instance through the Fourteenth Amendment. See Boyd, 77 F.3d 
at 63 (“The Due Process Clause of the Fourteenth Amendment extends this guarantee to 
state proceedings.”). 
 In its decision, the Appellate Division rejected Petitioner's double jeopardy argument. 
Consequently, contrary to Petitioner’s assertions, the highly deferential standard of review 
codified in 28 U.S.C. §2254 applies. See e.g. Hawkins v. Costello, 460 F.3d 238, 242 (2d 
Cir. 2006) (“When a state court adjudicates a habeas Petitioner’s claim on the merits, we 
must afford that decision the deferential standard of review established by the . . . AEDPA . . . 
.”). Furthermore, the Third Department’s conclusion was neither contrary to, nor an 
unreasonable application of, clearly established Supreme Court precedent or a decision 
based on an unreasonable determination of the facts. 

 
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The double jeopardy clause “protects against: (1) a second prosecution for the same 
offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) 
multiple punishments for the same offense.” Boyd, 77 F.3d at 63 (citing N.C. v. Pearce, 395 
U.S. 711, 717 (1969)). In sum, “the Double Jeopardy Clause protects the finality of criminal 
judgments [and] prohibits alterations to sentences carrying a legitimate expectation of 
finality.” United States v. Kyles, 601 F.3d 78, 83-84 (2d Cir. 2010). 
Here, however, Petitioner had no legitimate expectation of finality in his present 
sentence. Where, as here, multiple sentences are aggregated into a single sentence, a 
defendant’s expectation of finality arises only upon completion of the aggregate sentence. 
See People v. Brinson, 21 N.Y.3d 490, 493-96 (N.Y. 2013). Indeed, even increasing an 
unexpired sentence does not violate double jeopardy. See Smith v. Wenderlich, 826 F.3d 
641, 650-52 (2d Cir. 2016) (citing DiFrancesco, 449 U.S. at 120-21, 137, 139, 143). 
Therefore, because Petitioner has not completed the aggregate 29-year minimum sentence 
that he is presently serving, he has no legitimate expectation of finality. 
Further, despite Petitioner’s assertions to the contrary, North Carolina v. Pearce, 395 
U.S. 711 (1969), “is not clearly established law governing [Petitioner’s] case because Pearce 
involved the imposition of a new sentence after retrial[,] the circumstance not involved here.” 
Rodriguez v. Keyser, 2016 WL 264141, at *5 (S.D.N.Y. Jan. 19, 2016). Because the 
Appellate Division's rejection of Petitioner's double jeopardy argument was neither contrary 
to, nor an unreasonable application of, Supreme Court precedent this claim must be 
dismissed. 
V. CONCLUSION 
 WHEREFORE, it is 

 
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ORDERED that the petition, Dkt. No. 1, be DENIED and DISMISSED in its entirety; 
and it is further 
 ORDERED that no Certificate of Appealability ("COA") shall issue because Petitioner 
has failed to make a "substantial showing of the denial of a constitutional right" as 28 U.S.C. 
§ 2253(c)(2) requires;3 and it is further 
 ORDERED that any further request for a Certificate of Appealability must be 
addressed to the Court of Appeals (Fed. R. App. P. 22(b)); and it is further 
ORDERED that the Clerk of the Court respectfully provide Petitioner with copies of the 
unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron 
v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam); and it is further 
 ORDERED that the Clerk shall serve a copy of this Decision upon the parties in 
accordance with the Local Rules. 
 Dated: June 1, 2026 
 Albany, NY 
 
3 Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); see Richardson v. Greene, 497 F.3d 212, 217 (2d Cir. 2007) (holding that if 
the court denies a habeas petition on procedural grounds, "the certificate of appealability must show that jurists of reason 
would find debatable two issues: (1) that the district court was correct in its procedural ruling, and (2) that the applicant 
has established a valid constitutional violation" (emphasis in original)). 

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