Robinson v. Connell

*706 SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment entered on March 23, 2011, is AFFIRMED. Eddie Robinson appeals from an award of summary judgment to defendants and denial of summary judgment in his favor in this 42 U.S.C. § 1983 action for unlawful detention. Robinson alleges that defendants improperly calculated the date of his release from New York State prison following five separate convictions and numerous violations of parole between 1989 and 2007. We review an award of summary judgment de novo, resolving all ambiguities and drawing all inferences in favor of the non-movant, and we will affirm only if no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. See Nagle v. Marrón, 663 F.3d 100, 104-05 (2d Cir. 2011). Where, as here, a plaintiff proceeds pro se, we afford his submissions special solicitude. See Sledge v. Kooi, 564 F.3d 105, 109 (2d Cir.2009). We assume the parties’ familiarity with the underlying facts and the record of prior proceedings, which we reference only as necessary to explain our decision to affirm. For the reasons stated in the thorough and well reasoned opinions of both the district court and the magistrate judge, we conclude that defendants properly calculated Robinson’s release date. See Robinson v. Connell, 9:05-cv-1428 (GLS/ATB), 2011 WL 1103771, at *1-2 (N.D.N.Y. Mar. 23, 2011); Robinson v. Connell, 9:05-cv-1428 (GLS/ATB), 2010 WL 6268444, at *7-12 (N.D.N.Y. Sept. 8, 2010). Robinson conceded below that, just prior to his April 28, 2000 sentence of three to six years for grand larceny, defendants had correctly calculated that he still owed approximately fourteen months on his 1991 and 1992 sentences, yielding a maximum expiration date for those sentences of June 26, 2001. Thus, in running his 2000 sentence concurrently with the prior sentences, defendants properly determined that the six-year maximum term of the 2000 sentence “ha[d] the longest unexpired time to run,” N.Y. Penal Law § 70.30(1)(a); see Deary v. Goord, 32 A.D.3d 1074, 1075, 820 N.Y.S.2d 369, 370 (3d Dep’t 2006), and therefore correctly adjusted Robinson’s maximum expiration date to April 27, 2006 (six years after the imposition of the 2000 sentence). 1 See Latham v. N.Y.S. Dep’t of Corr. Serv., 296 A.D.2d 675, 675-76, 745 N.Y.S.2d 136, 138 (3d Dep’t 2002) (commencing concurrent sentence from date of imposition). Robinson’s contention that the 2000 sentence should have concurrently started from 1992 is wholly meritless as a matter of state law and, therefore, cannot support his federal claim. 2 Because Robinson failed to raise below his contention that the 2000 sentence was based on an invalid indictment, we decline to consider that argument on appeal. See Wright v. Goord, 554 F.3d 255, 272 (2d Cir.2009). To the extent that Robinson argued before the district court that defendants violated his procedural due process rights, he has not raised that issue in his brief on appeal, and we deem it aban *707 doned. See Pabon v. Wright, 459 F.3d 241, 247 (2d Cir.2006). In any event, his procedural due process claim is meritless for the reasons stated by the district court. We have considered Robinson’s remaining arguments and conclude they are without merit. The judgment of the district court is AFFIRMED. Footnotes [1] Robinson's maximum expiration date was subsequently advanced to July 21, 2007 because of four separate parole violations occurring in 2000, 2001, and 2007. [2] The concurrent application of Robinson's 2000 sentence pursuant to Justice Dowling’s September 2006 amended commitment order not only afforded Robinson the benefit of avoiding fourteen months' imprisonment from his 1991 and 1992 sentences, but also enabled him to avoid any incremental imprisonment from his 2002 sentence of one-and-a-half to three years for criminal possession of a controlled substance.