18-3739
Earley v. Annucci

                          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 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 DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO 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
23rd day of April, two thousand twenty.

Present:
            BARRINGTON D. PARKER,
            DEBRA ANN LIVINGSTON,
            WILLIAM J. NARDINI,
                  Circuit Judges.
_____________________________________

SEAN EARLEY,
                         Plaintiff-Appellee,

                    v.                                             18-3739

ANTHONY J. ANNUCCI, Executive Commissioner and
Counsel, New York State Department of
Correctional Services,

                         Defendant-Appellant,

Roxanne Underwood, Inmate Records Coordinator,
Groveland Correctional Facility, Brian S. Fischer,
Commissioner of the New York State Department of
Correctional Services, in his official capacity and his
unofficial capacity, Richard DeSimone, in his
individual capacity and his official capacity as
Associate Counsel in Charge of the Office of
Sentencing Review of the New York State
Department of Correctional Services, Lucien J.
LeClaire, Jr., in his individual capacity, Glenn S.

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Goord, in his individual capacity, Henry Lemons, Jr.,
in his individual capacity and his official capacity as
Chairman and Chief Executive Officer of the New
York State Division of Parole, George B. Alexander,
in his individual capacity, Robert Dennison, in his
individual capacity, Brion D. Travis, in his
individual capacity, John and Jane Does 1-50,
various training, supervisory and policymaking
employees of the New York State Department of
Correctional Services or the New York Division of
Parole, in their individual capacities,

                  Defendants.
_____________________________________


For Plaintiff-Appellee:                     JON P. GETZ, Vahey Muldoon Reston Getz LLP,
                                            Rochester, NY


For Defendant-Appellant:                    JENNIFER L. CLARK, Assistant Solicitor General
                                            (Barbara D. Underwood, Solicitor General, Andrea
                                            Oser, Deputy Solicitor General, on the brief), for Letitia
                                            James, Attorney General, New York, NY

       Appeal from a judgment of the United States District Court for the Northern District of

New York (Stewart, M.J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is REVERSED, and the case is REMANDED

to the district court with instructions to enter judgment for Defendant Anthony Annucci.

       Defendant-Appellant Anthony Annucci (“Annucci”) appeals from a November 15, 2018,

decision and order awarding Plaintiff-Appellant Sean Earley (“Earley”) $150,000 in compensatory

damages for 202 days of incarceration stemming from the imposition of a term of post-release

supervision that had not been judicially pronounced, arguing, inter alia, that he is entitled to

qualified immunity.       The decision followed the district court’s (Scullin, J.) prior denial of

summary judgment on the basis of qualified immunity. This Court reviews a denial of qualified


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immunity de novo.      Arlio v. Lively, 

, 51 (2d Cir. 2007). We assume the parties’

familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

                                           *       *       *

        Earley’s case has a long history before this Court.        Earley is one of many individuals

affected by the policy of the New York State Department of Correctional Services (“DOCS”) 1 of

administratively adding terms of post-release supervision (“PRS”) to the determinate sentences of

defendants in the New York state court system. This practice began in the wake of a sentencing

reform statute passed by the New York State legislature in 1998, which required determinate

sentences to be followed by a period of PRS, but did not mandate that state court judges pronounce

the PRS term at sentencing.       See N.Y. Penal Law § 70.45(1).          DOCS subsequently began

unilaterally calculating and imposing PRS terms in cases where the sentencing judge had not

imposed the statutorily required term of PRS.      In 2006, Earley’s habeas petition challenging this

practice culminated in the seminal case Earley v. Murray, 

(2d Cir. 2006) (“Earley I”),

reh’g denied, 

(2d Cir. 2006) (“Earley II”), which deemed the administrative

imposition of PRS unconstitutional.

        The instant appeal arises from a subsequent 42 U.S.C. § 1983 lawsuit filed by Earley

against officials including Annucci, who was the Deputy Commissioner and Counsel of DOCS

during the relevant time period.     Annucci challenges the district court’s award of $150,000 in

compensatory damages, arguing, inter alia, that he is entitled to qualified immunity. 2       We agree.


1
  DOCS and the New York State Division of Parole (“DOP”) merged in 2011 to become the New York
State Department of Corrections and Community Supervision (“DOCCS”). For all relevant years in this
appeal, however, the agencies operated separately.
2
  Earley contends that Annucci’s arguments as to qualified immunity were waived on appeal because they
were belatedly raised. Even assuming arguendo that Annucci waived any arguments as to qualified
immunity, because the defense requires the application of law to already-developed facts, we exercise our
discretion to reach the issue. See Bogle–Assegai v. Connecticut, 

, 504 (2d Cir. 2006).


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          This Court will grant qualified immunity to government officials on summary judgment

unless “(1) the facts taken in the light most favorable to the officials establish a violation of a

constitutional right; and (2) the officials’ actions violated clearly established statutory or

constitutional rights of which a reasonable person would have known.”       Betances v. Fischer, 

, 171 (2d Cir. 2016) (internal quotation marks, alterations, and citation omitted).

Because our prior decision in Vincent v. Yelich, 

(2d Cir. 2013), already determined

that the relevant law was clearly established as of Earley I, see

our only inquiry is “the

objective reasonableness of Annucci’s efforts to relieve [Earley] of the burdens of [his] unlawfully

imposed [PRS] term[] after he knew it had been ruled that the imposition violated federal law,”

          The district court, adopting the report and recommendation of the magistrate judge,

considered that question to have been resolved by this Court’s decision in Betances v. Fischer,

which found that Annucci’s efforts to bring DOCS into compliance with Earley I were

“unreasonably 

, such that he was not entitled to qualified immunity in

Betances and similar cases, see, e.g., Reyes v. Fischer, 

, 100 (2d Cir. 2019); Hassell v.

Fischer, 

, 51 (2d Cir. 2018).    However, because Earley is positioned differently than

were the plaintiffs in those cases, Betances does not control here.   To be sure, Betances concluded

that Annucci unreasonably delayed the development and launch of large-scale initiatives to

implement Earley across the entire population affected by administratively imposed PRS. 

–73.    However, that finding does not resolve the distinct question now before the

court:    whether Annucci acted unreasonably with respect to the provision of a remedy in Earley’s

case, in which this Court had directed a specific series of actions, the implementation of which

was being actively litigated up until the time of his release.




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       We conclude that Annucci did not act unreasonably in failing to take additional steps to

provide a more expeditious remedy to Earley. As this Court has previously held, Earley I created

wide-ranging implementation obligations for Annucci in his position as a high-level DOCS

policymaker; as to Earley himself, however, the opinion was much more explicit in its instructions.

This Court directed as follows:

       [W]e vacate the district court’s judgment and remand the case for that court to determine
       whether Earley’s petition for a writ of habeas corpus was timely filed. Should the district
       court determine that the petition was timely, it is instructed to issue a writ of habeas corpus
       excising the term of post-release supervision from Earley’s sentence and relieving him of
       any subsequent penalty or other consequence of its imposition. Our ruling is not intended
       to preclude the state from moving in the New York courts to modify Earley’s sentence to
       include the mandatory PRS term.

Earley 

–77.    This Court’s instruction as to any potential release or resentencing

of Earley was explicitly conditioned upon a threshold determination by the district court on remand

that the petition was timely; only then was the district court directed to issue a writ of habeas

corpus directing that the improper term of PRS be excised from Earley’s sentence. This Court

also explicitly affirmed that it was not precluding the possibility of a resentencing in which PRS

would be judicially imposed as a component of Earley’s sentence.       Thus, Betances’s conclusion

that “Annucci immediately understood Earley I’s holding but deliberately refused to change

DOCS procedures to bring them into compliance,” 

, is inapplicable in

the instant case, where this Court had already delineated the next steps and had placed the initial

burden for effectuating those steps on the district court, rather than on DOCS. Nothing about the

Court’s carefully cabined instruction can be read to create an affirmative and immediate duty for

Annucci to take action in Earley’s case, rather than wait for the natural progression of a judicial

process which was still being actively litigated by the parties.




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         Moreover, as that judicial process unfolded, culminating in Earley’s release, Annucci’s

lack of intervention remained entirely reasonable.       Following the denial of rehearing in Earley II,

Judge Korman did not issue his opinion granting the writ of habeas corpus until almost a year later,

on May 1, 2007, after having referred the question of the petition’s timeliness to a magistrate judge

for a report and recommendation.            See Earley v. Murray, 3-cv-3104, 

(E.D.N.Y. May 1, 2007).       Even at that point, the writ was not yet in effect; instead, Judge Korman

stayed the writ for twenty-eight days to permit the sentencing court to conduct a resentencing.

  Six days later, on request of the District Attorney, who represented that he would not seek

resentencing but would instead seek a stay pending appeal of the Second Circuit’s decision in

Earley I to the Supreme Court, Judge Korman replaced that twenty-eight day stay with a temporary

stay permitting the District Attorney to apply for a stay pending appeal in the Second Circuit.

This Court denied that stay on June 13, 2007, marking the first date on which an active writ of

habeas corpus existed directing the excision of PRS from Earley’s sentence.           Earley was released

from custody without any term of PRS merely fourteen days later, on June 27, two days after the

Supreme Court’s denial of certiorari in the case. 3       See Burhlre v. Earley, 

(2007).

This context makes clear that none of the remedial steps referenced in Betances, such as a review

of files to identify inmates with administratively imposed PRS and a referral of such cases to

district attorneys and sentencing courts, 

, would have had any impact in

Earley’s case, where the District Attorney was already intimately involved at each step of the

aftermath of the Second Circuit’s decision.




3
  While Earley could conceivably have been released in fewer than fourteen days following this Court’s
denial of a continued stay, that modest delay is within the bounds of reasonableness and is not sufficient to
subvert Annucci’s entitlement to qualified immunity for his conduct in this case.


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       In sum, Annucci’s failure to unilaterally seek release of Earley while the judicial process

took its course was not unreasonable. While our prior cases have properly placed on Annucci the

obligation of beginning efforts to expeditiously implement the holding of Earley I as soon as

rehearing of that case was denied, he had no comparable duty to intervene in an ongoing case to

seek a remedy that had not yet been officially granted and made effective by the district court.

Accordingly, Annucci is entitled to qualified immunity for the entire time period referenced in

Earley’s Second Amended Complaint.

       We have considered Earley’s remaining arguments and find them to be without merit.

Accordingly, we REVERSE the judgment of the district court and REMAND with instructions

to enter judgment for the defendant.

                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk




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