1 15-2775-pr Walker v. Artus 

### UNITED STATES COURT OF APPEALS FOR THE SECO ND 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 DA TABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NO T 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 Fole y Square, in the City of New York, on the 20 th day of November, two thousand seventeen.
Present: P IERRE N. L EVAL , D EBRA A NN L IVINGSTON , D ENNY C HIN , Circuit Judges ,

_____________________________________ T IMMY L EE W ALKER , Petitioner-Appellant , v. 15-2775

D ALE E. A RTUS , Superintendent, Attica State Prison Respondent-Appellee

.

_____________________________________ For Petitioner-Appellant: R OBERT R AMBADADT , The Rambadadt Law Office, New York, NY. For Respondent-Appellee: W ILLIAM H. B RANIGAN , Assistant District Attorney, for Richard A. Brown, District Attorney for Queens County (John M. Castellano & Joseph N. Ferdenzi, Assistant District Attorneys, on the brief ), Kew Gardens, NY.2 Appeal from a July 29, 2015 judgment of the Un ited States District Court for the Eastern District of New York (Kuntz, J .). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Petitioner-Appellant Timmy Lee Walker (“Wa lker”) appeals from a judgment of the United States District Court for the Eastern Dist rict of New York, denying his petition for a writ of habeas corpus. “We review a district court’ s ruling on a petition for a writ of habeas corpus de

novo .” Corby v. Artus , 699 F.3d 159, 166 (2d Cir. 2012). We assu me the parties’ familiarity with the underlying facts, procedural history, and issues on appeal.
I. Background In October 2006, a jury found Walker guilty of second-degree fel ony murder, two counts of second-degree kidnapping, one c ount of first-degree robbery, one count of criminal possession of a weapon in the second degree, and two counts of criminal posse ssion of a wea pon in the third degree. On February 8, 2007, Walker was sentenced as follows: (1) 25 years to life imprisonment for the second-degree felony murder count (“co unt one”); (2) 25 years for each kidnapping count (“count two” and “count three”); (3) 25 years fo r the first-degree robber y count (“count four”); (4) 15 years for second-degree criminal po ssession of a weapon ( “count five”); (5) three-and-a-half to seven years for one count of third-degree cr iminal possession of a weapon (“count six”); and (6) seven year s for the other count of third-de gree criminal possession of a weapon (“count seven”). Counts one, three, five, si x, and seven were to run concurrently (for a total sentence of 25 years to lif e), counts two and four were to run concurrently (for a total sentence of 25 years), and counts two and four were to run consecutively to count one. The Appellate Division affirmed the conviction, and the New York Cour t of Appeals denied leave to3 appeal. People v. Walker , 908 N.Y.S.2d 419, 422–25 (2d Dep’t 2010); People v. Walker , 15 N.Y.3d 956 (2010). On May 6, 2011, Walker, pro se , moved under New York Criminal Procedure Law § 440.20 to make the consecutive sentences c oncurrent. On October 3, 2011, the trial court granted Walker’s motion in part, specifying in a written order that count two of Walker’s sentence was to run concurrently with c ount one (because imposing those two sentences consecutively was unlawful), and that all other counts would remain unch anged. On October 6, 2011, the trial court judge amended Walker’s se ntence in open court in accordance with his written order, with neither Wa lker nor counsel present. Walker later appealed the trial court’s pa rtial denial of his § 440.20 motion, and also argued on appeal that the trial court judge er red by amending Walker’s sentence outside his presence and the presence of his attorney. The Appellate Division affirmed the trial court’s decision, finding, inter alia , that Walker’s right to be present clai m was “not properly before this
Court.” People v. Walker , 986 N.Y.S.2d 178, 180 (2d Dep’t 2014 ). The New York Court of Appeals denied leave to appeal. People v. Walker , 24 N.Y.3d 965 (2014). On May 11, 2015, Walker, pro se , filed a petition for a writ of habeas corpus with the district court, claiming that his sentence violat ed his Fifth Amendment rights and that the trial court judge violated his Sixth Amendment rights by resentencing him outsi de the presence of either himself or his counsel. Walker v. Artus , 117 F. Supp. 3d 228, 234 (E.D.N.Y. 2015). The district court denied Walker’s motion, finding that he failed to exhaust his Fifth Amendment challenge, and that his Sixth Amendment claim was procedurally barred. Id. at 234–39. Walker timely moved for this Court to issue a certificate of appealability (“COA”) for his habeas petition. On December 15, 2016, we grante d Walker’s COA motion, and ordered counsel4 from this Court’s pro bono panel to brief the issue of “whether the Sixth Amendment requires a criminal defendant to be present at a resentenci ng hearing following a suc cessful collateral attack on his sentence.” App. 9. 1
II. Discussion We affirm the district court’s denial of Walker’s petition on the grounds that, even assuming arguendo that the state court violated Walk er’s Sixth Amendment rights by amending his sentence outside the presence of either hi mself or his counsel, Walker suffered no prejudice thereby. 2 “It is well established that there may be some constitutional errors which in the setting of a particular case are so unimportant and insignifi cant that they may, consistent with the Federal Constitution, be deemed harmless.” United States v. Arrous , 320 F.3d 355, 361 (2d Cir. 2003) (internal quotation marks omitted) (quoting United States v. Hasting , 461 U.S. 499, 508 (1983)). A court’s denial of a defendant’s ri ght to be present duri ng a resentencing is subj ect to this kind of “harmless error” review. United States v. DeMott , 513 F.3d 55, 58 (2d Cir. 2008) (per curiam). Such a violation is “harmless” if the defendant’s absence was “‘unimportant and insignificant’ in the context of the case, such as where . . . [the] ‘defendant’s presence woul d not have affected the
outcome.’” Id. (quoting Arrous , 320 F.3d at 361). Here, Walker puts forward no convincing argumen t for how his presence at the October 6, 2011 sentencing hearing might have affected the hearing’s outcome. The sole change in his sentence was the grant, with respect to counts one and two, of Walker’s motion to make those sentences concurrent instead of consecutive b ecause imposing them consecutively was not lawful

1 We later rescinded our order to appoint pro bono counsel given that Walker retained appellate counsel. 2 Although the district court dismissed Walker’s Sixth Amendment claim on procedural grounds, we may affirm the district court’s judgment “on any ground that the record supports,” Carpenter v. Republic of Chile , 610 F.3d 776, 781 n.6 (2d Cir. 2010), and in the interest of judicial economy, we may avoid “a procedural-default question if the merits [are] easily resolvable against the habeas petitioner,” Johnson v. Lee , 136 S. Ct. 1802, 1806 (2016) (per curiam) (internal quotation marks omitted) (quoting Lambrix v. Singletary , 520 U.S. 518, 525 (1997)).5 under New York law. Under CPL § 440.20, the court had no authority to change the sentence otherwise than to correct an illegali ty, and Walker does not argue otherwise. 3 Furthermore, Walker had ample opportunity to ch allenge the substance of the October 3, 2011 order on appeal to the Appellate Division. Since this he aring was “essentially a non-event,” Walker , 117 F. Supp. 3d at 238 (quoting Mills v. Lempke , 11–CV–440, 2013 WL 435477 at *9 (W.D.N.Y. Feb. 4, 2013)), Walker’s absence did not prejudice him. See United States v. Pagan , 785 F.2d 378, 381 (2d Cir. 1986) (explaining that when the actions of a trial judge at a sentencing he aring are “mandatory,” and “the defendant’s presence could not have affected” the result, “the trial court’s failure to recall the defendant [is] harmless error”); see also Hall v. Moore , 253 F.3d 624, 627 (11th Cir. 2001) (“[W]here the precise sentence for a particular o ffense is mandatorily fixed by law such that its imposition is merely a ministerial ceremony, with no discretion to be exer cised by the sentencing judge, the absence of counsel at such a proceeding could not possibly be prejudicial.” (emphasis in original) (quoting Golden v. Newsome , 755 F.2d 1478, 1483 n.9 (11th Cir. 1985))). Thus, even assuming arguendo that the trial court violated Walker’s Sixth Amendment rights, we find that any such violation was harmless.
* * * We have considered Walker’s remaining argum ents and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

3 Under CPL § 440.20, a court may “set aside [a] sentence upon the ground that it was unauthorized, illegally imposed or otherwise invalid as a matter of law.”