Marvin White v. John P. Keane, Superintendent, Sing Sing Corr. Facility & Robert Abrams, Attorney Gen., State of New York, 969 F.2d 1381 (2d Cir. 1992). · Go Syfert
Marvin White v. John P. Keane, Superintendent, Sing Sing Corr. Facility & Robert Abrams, Attorney Gen., State of New York, 969 F.2d 1381 (2d Cir. 1992). Cases Citing This Book View Copy Cite
Quick Summary

No federal constitutional issue is presented when a sentence falls within the range prescribed by state law.

A state prisoner petitions for federal habeas corpus relief, arguing that a retrial after a mistrial violated the Double Jeopardy Clause and that his sentence was unconstitutionally harsh due to ineffective assistance of counsel. The court applies the manifest necessity standard to the mistrial and the exhaustion requirement to the sentencing claims. It finds that the trial judge properly declared a mistrial due to a genuine jury deadlock and that the prisoner failed to exhaust state remedies regarding the sentence. The court further holds that no federal constitutional issue is presented where the sentence is within the range prescribed by state law. The court affirms the dismissal of the petition.

334 citation events (315 in the last 25 years) across 8 distinct courts.
Treatment trajectory · 1993 → 2026 · click a year to view as-of
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Cited for
At page 1383 Discharge of deadlocked jury and sentencing range260 citing cases“no federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law.”54 citing courts quote it · 200 listed here
  • Knighton, No. 9:23-cv-01012 (N.D.N.Y. Aug. 20, 2026). 3 cites
    (No federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law.)
  • Hall, No. 1:24-cv-04647 (E.D.N.Y. July 23, 2026).
    (No federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law.)
  • Grant-Byas v. Superintendent of Coxsackie Corr. Facility, No. 1:23-cv-03628 (S.D.N.Y. Apr. 1, 2025).
    (No federal constitutional issue is presented where . . . the sentence is within the range prescribed by state law.)
  • Gil v. Dotson, No. 1:23-cv-00747 (E.D. Va. Jan. 15, 2025).
    (No federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law.)
  • Reyes v. Superintendent LaManna, No. 1:18-cv-08724 (S.D.N.Y. Oct. 23, 2024).
    (No federal constitutional issue is presented where . . . the sentence is within the range prescribed by state law.)
  • Vera v. State of New York, No. 2:20-cv-04299 (E.D.N.Y. Aug. 21, 2024).
    (No federal constitutional issue is presented where . . . the sentence is within the range prescribed by state law.)
  • Miller v. LaClair, No. 2:20-cv-01546 (E.D.N.Y. Apr. 25, 2024). 2 cites
    (No federal constitutional issue is presented where . . . the sentence is within the range prescribed by state law.)
  • Green-Faulkner v. Lowerre, No. 1:22-cv-00624, 2024 WL 1769316 (E.D.N.Y. Apr. 24, 2024). 2 cites
    (No federal constitutional issue is presented where . . . the sentence is within the range prescribed by state law.)
  • Williams v. Clarke, No. 1:22-cv-01108 (E.D. Va. Mar. 28, 2023).
    (No federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law.)
  • Hubert v. Miller, No. 1:22-cv-04565 (E.D.N.Y. Feb. 17, 2023).
    (No federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law.)
Show 190 more citing cases
  • Fick v. Rich, No. 6:21-cv-06337 (W.D.N.Y. Oct. 4, 2022).
    (No federal constitutional issue is presented where ... the sentence is within the range prescribed by state law)
  • Cobb v. Lee, No. 1:14-cv-02442 (E.D.N.Y. Mar. 28, 2022).
    (No federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law.)
  • Fulcher v. Graham, No. 1:14-cv-03910 (E.D.N.Y. Feb. 22, 2022).
    ([N]o federal constitutional issue is presented where . . . the sentence [provided was] within the range prescribed by state law.)
  • Wright v. Lee, No. 2:10-cv-05127 (E.D.N.Y. July 2, 2021).
    (No federal constitutional issue is presented where . . . the sentence is within the range prescribed by state law.)
  • Chrisostome v. Field, No. 1:19-cv-01890 (E.D.N.Y. May 13, 2021). 2 cites
    (No federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law.)
  • Esguerra v. Cronin, No. 1:21-cv-00449 (E.D.N.Y. Feb. 22, 2021).
    (No federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law.)
  • Truman v. P.A. White, No. 1:20-cv-00602 (E.D. Va. Jan. 14, 2021).
    (No federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law.)
  • Smith v. Keyser, No. 1:17-cv-00557 (E.D.N.Y. Jan. 11, 2021). 2 cites
    (No federal constitutional issue is presented where … the sentence is within the range prescribed by state law.)
  • Rivera v. Griffin, No. 1:15-cv-02657 (E.D.N.Y. Sept. 30, 2020).
    (No federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law.)
  • Coleman v. Noeth, No. 1:18-cv-04498 (E.D.N.Y. Aug. 14, 2020).
    (No federal constitutional issues is presented where, as here, the sentence is within the range prescribed by state law.)
  • Gordon v. Colin, No. 1:16-cv-05280 (E.D.N.Y. Aug. 5, 2020).
    (No federal constitutional issues is presented where, as here, the sentence is within the range prescribed by state law.)
  • Lara v. Keyser, No. 1:19-cv-07776, 2020 WL 3127820 (S.D.N.Y. June 12, 2020).
    (No federal constitutional issue is presented where . . . the sentence is within the range prescribed by state law.)
  • Rodriguez v. Bell, No. 1:19-cv-03218 (E.D.N.Y. Mar. 2, 2020).
    ([Petitioner] argues that [his sentence] . . . violated the Eighth Amendment. In prior state court proceedings, however, [petitioner] did not claim his sentence deprived him of any federal constitutional right. Thus, [p…)
  • Rosario v. Colvin, No. 9:18-cv-00988 (N.D.N.Y. Jan. 22, 2020).
    ([N]o federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law.)
  • Dotsenko v. Joseph, No. 1:18-cv-01640, 2019 WL 4917952 (E.D.N.Y. Oct. 4, 2019). 2 cites
    (No federal constitutional issue is presented where . . . the sentence is within the range prescribed by state law.)
  • Smalls v. Morton, No. 1:19-cv-04220 (S.D.N.Y. July 18, 2019).
    (No federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law.)
  • Constant v. Martuscello, 119 F. Supp. 3d 87 (E.D.N.Y. 2015).published
    (No federal constitutional issue is presented where ... the sentence is within the range prescribed by state law.)
  • McClelland v. Kirkpatrick, 778 F. Supp. 2d 316 (W.D.N.Y. 2011).published
    (No federal constitutional issue is presented where ... the sentence is within the range prescribed by state law.)
  • Gonzalez, No. 1:21-cv-02914 (S.D.N.Y. Aug. 4, 2026).
    Further, “[n}o federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law,” White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (citations omitted).
  • Ruiz, No. 1:25-cv-03787 (E.D.N.Y. Feb. 19, 2026).
    It is well settled that “[n]o federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law.” White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992); see also Chambers v. Lilly, 735 F. Supp.…
  • Donadeo, No. 2:24-cv-06093 (E.D.N.Y. Oct. 16, 2025). 2 cites
    Where like here, Donadeo challenges her state sentence, “[i]t is well settled that an excessive sentence claim . . . does not present a federal constitutional issue when the received sentence ‘is within the range prescribed by state law.’”…
  • McClinton v. Collado, No. 1:21-cv-05222 (E.D.N.Y. Aug. 28, 2025).
    “No federal constitutional issue is presented where, as here, the sentence is within the range proscribed by state law.” White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (per curiam).
  • Stephens v. McIntosh, No. 1:22-cv-03313 (E.D.N.Y. June 16, 2025).unpublished
    Mem. 16-18.) This argument fails because the sentences were within the statutory range (see D.E. # 12 (“Opp’n”) 1019-209) and “[n]o federal constitutional issue is presented where, as here, the sentence is within the range prescribed by st…
  • Jones v. Miller, No. 9:22-cv-01203 (N.D.N.Y. May 5, 2025).
    It is well-settled that "[n]o federal constitutional issue is presented where . . . the sentence is within the range prescribed by state law." White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (citation omitted); see also Townsend v. Burk…
  • Correa v. Collins, No. 1:22-cv-02366 (E.D.N.Y. Apr. 28, 2025).
    White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (citing Underwood v. Kelly, 692 F. Supp. 146 (E.D.N.Y. 1988), aff’d, 875 F.2d 857 (2d Cir. 1989)); Chisholm v. Henderson, 736 F. Supp. 444, 449 (E.D.N.Y. 1990).
  • Williams v. McCarthy, No. 9:21-cv-00993 (N.D.N.Y. Mar. 28, 2025).
    The Report-Recommendation went on to find that “[n]o federal constitutional issue is presented where . . . the sentence is within the range prescribed by state law.” Id. (quoting White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992)).
  • Williams v. McCarthy, No. 9:21-cv-00993 (N.D.N.Y. Mar. 11, 2025).
    For excessive sentence habeas claims, the Second Circuit has held that “[n]o federal constitutional issue is presented where . . . the sentence is within the range prescribed by state law.” White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992…
  • Chen v. Miller, No. 1:24-cv-02855 (E.D.N.Y. Jan. 13, 2025).
    Apr. 24, 2024) (alterations in original) (quoting White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992)).
  • Gant v. Miller, No. 6:21-cv-06731 (W.D.N.Y. Nov. 8, 2024).
    “A challenge to the term of a sentence is not a cognizable constitutional issue if the sentence falls within the statutory range.” Jones v. Artus, 615 F. Supp. 2d 77, 87 (W.D.N.Y. 2009) (citing White v. Keane, 969 F.2d 1381, 1383 (2d Cir.…
  • Robinson v. Superintendent, Green Haven Corr. Facility, No. 1:21-cv-07218 (E.D.N.Y. Oct. 21, 2024).
    It is well settled that “an excessive sentence claim may not be raised as grounds for habeas corpus relief if the sentence is within the range prescribed by state law. ‘No federal constitutional issue is presented where, as here, the sente…
  • Flores v. LaManna, No. 1:18-cv-05946 (E.D.N.Y. Sept. 30, 2024).
    Generally, a federal court is "powerless" to "review a sentence handed down by a state court," Fielding v. LeFevre, 548 F.2d 1102, 1108 (2d Cir. 1977), especially because "[n]o federal constitutional issue is presented where . . . the sent…
  • Barnes v. The People Of The State Of New York, No. 1:20-cv-00516 (E.D.N.Y. Aug. 23, 2024).
    It is well settled that "[n]o federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law." White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (per curiam) (citation omitted); see, e.g…
  • Carillo v. Superintendent of Greenhaven Corr. Facility, No. 1:22-cv-00206 (E.D.N.Y. Aug. 2, 2024). 2 cites
    “Because petitioner ‘did not claim his sentence deprived him of any federal constitutional right’ on direct appeal in state court, he has ‘failed to exhaust the remedies available in state court’ with respect to any claim under the Eighth…
  • Spencer v. Rockwood, No. 9:22-cv-00239 (N.D.N.Y. July 12, 2024).
    It is well-settled that "[n]o federal constitutional issue is presented where . . . the sentence is within the range prescribed by state law." White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (citation omitted); see also Townsend v. Burk…
  • Anonymous v. Miller, No. 1:24-cv-01360 (S.D.N.Y. July 11, 2024).
    “No federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law.” White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (per curiam) (citation omitted); see also Pinero v. Grenier, 519 F.…
  • Zapata v. Yelich, No. 2:18-cv-04207 (E.D.N.Y. June 28, 2024).
    Generally, habeas petitions that raise excessive sentencing claims under the Eighth Amendment fail whenever the sentence imposed “is within the range prescribed by state law.” White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992); see also Da…
  • Holmes v. The People of State of New York, No. 1:22-cv-00870 (E.D.N.Y. Apr. 26, 2024). 2 cites
    “Because petitioner ‘did not claim his sentence deprived him of any federal constitutional right’ on direct appeal in state court, he has ‘failed to exhaust the remedies available in state court’ with respect to any claim under the Eighth…
  • Moore v. Johnson, No. 1:21-cv-03039 (E.D.N.Y. Apr. 19, 2024).
    The modified sentence is not excessive. 21 There is "[n]o federal constitutional issue... presented where . .. the sentence is within the range prescribed by state law.” White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (citation omitted).
  • Perry v. Capra, No. 1:21-cv-00994 (E.D.N.Y. Apr. 8, 2024).
    There is "[n]o federal constitutional issue ... presented where . . . the sentence is within the range prescribed by state law." White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (citation omitted).
  • Horton v. Bell, No. 9:20-cv-01461 (N.D.N.Y. Mar. 29, 2024).
    "No federal constitutional issue is presented where . . . the sentence is within the range prescribed by state law." White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (citation omitted); see also Townsend v. Burke, 334 U.S. 736, 741 (1948…
  • Hernandez v. Conway, 485 F. Supp. 2d 266 (W.D.N.Y. 2007).published
  • Pinero v. Greiner, 519 F. Supp. 2d 360 (S.D.N.Y. 2007).published
  • Knight v. Walsh, 524 F. Supp. 2d 255 (W.D.N.Y. 2007).published
  • Campbell v. Poole, 555 F. Supp. 2d 345 (W.D.N.Y. 2008).published
  • Jones v. Artus, 615 F. Supp. 2d 77 (W.D.N.Y. 2009).published
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  • Ested v. Lee, No. 1:16-cv-07008 (E.D.N.Y. Sept. 6, 2019).
  • Crews v. Miller, No. 2:19-cv-02091 (E.D.N.Y. Sept. 30, 2019).
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  • Willock v. Martuscello, No. 1:17-cv-00454 (E.D.N.Y. May 27, 2020).
  • Wood v. Artus, No. 2:15-cv-04602 (E.D.N.Y. June 15, 2020).
  • Tejada v. Superintendent, No. 2:18-cv-05823 (E.D.N.Y. June 25, 2020).
  • Viera v. Sheahan, No. 1:16-cv-04048 (E.D.N.Y. June 30, 2020).
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At page 1382 Discharging deadlocked juries and declaring mistrials8 citing casesdeadlock after 27 hours of deliberation on a relatively simple case1 citing court put it this way
Retrieving the full opinion text from the archive…
Marvin WHITE, Petitioner-Appellant,
v.
John P. KEANE, Superintendent, Sing Sing Correctional Facility and Robert Abrams, Attorney General, State of New York, Respondents-Appellees
1360, Docket 91-2432.
Court of Appeals for the Second Circuit.
Jun 18, 1992.
Published opinion
969 F.2d 1381
1992 U.S. App. LEXIS 14067
Randolph Z. Volkell, North Merrick, N.Y., for petitioner-appellant., Robert L. Moore, Asst. Dist. Atty., Bronx, N.Y. (Robert T. Johnson, Dist. Atty. for Bronx County, Billie Manning, Asst. Dist. Atty., Bronx, N.Y., of counsel), for respondents-appellees.
Oakes, Lumbard, Walker.
Cited by 266 opinions  |  Published
PER CURIAM:

Marvin White appeals from a judgment of the District Court for the Southern District of New York, Louis L. Stanton, Judge, dismissing his petition for a writ of habeas corpus. White claims his imprisonment after conviction in the New York Supreme Court, Bronx County, for the sale of heroin violates his constitutional rights in two respects: retrial after the declaration of a mistrial violated his fifth amendment right not to be placed in jeopardy twice for the same offense, and his sentence to imprisonment for nine to eighteen years was both unconstitutionally harsh and partially the result of ineffective assistance of trial counsel. We affirm the dismissal of the petition.

On July 10, 1985, Marvin White was arrested for selling heroin to a New York City police officer. White was charged with the criminal sale of a controlled substance in the third degree and tried in the Supreme Court of New York, Joan Sudol-nik, Judge, presiding. The trial began on October 6, 1986, and lasted nine days. White presented no evidence on his own behalf.

After the jury had deliberated for two and one-half days, Judge Sudolnik announced that she would dismiss the jury because they could not reach a verdict and she saw no purpose in continuing the trial. Asked whether they had any different views, all trial counsel requested that the jury be allowed to continue deliberating. After further discussion with the jurors, she discharged the jury and declared a mistrial.

White was retried in March 1987 and convicted of criminal sale of a controlled substance in the third degree. Following his conviction, upon advice of his attorney, White refused to participate in his presen-tence interview with the Probation Department. He was sentenced to imprisonment for nine to eighteen years, though the prosecutor recommended only seven to fourteen years. The Appellate Division affirmed without opinion, People v. White, 150 A.D.2d 992, 542 N.Y.S.2d 1002 (1st Dept.1989), and the Court of Appeals denied leave to appeal, People v. White, 74 N.Y.2d 821, 546 N.Y.S.2d 579, 545 N.E.2d 893 (1989).

White filed his petition for a writ of habeas corpus in the Southern District on January 29, 1990. The petition was referred to a magistrate, who recommended dismissal. Judge Stanton issued an opinion and order on June 5, 1991, adopting the magistrate’s recommendation. The district court later granted a certificate of probable cause. On January 9, 1992, following timely appeal, we assigned counsel.

DOUBLE JEOPARDY

When a trial court declares a mistrial over a defendant’s objection, the fifth amendment right not to be placed in jeopardy twice for the same offense precludes retrial unless there was “manifest necessity” for the mistrial. See Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 830, 54 L.Ed.2d 717 (1978). White objects to the district court’s finding that there was manifest necessity to call a mistrial. The record, however, indicates that the jury could not reach a verdict after deliberating for two and one-half days, and there is ample support for the conclusion that the jury was genuinely deadlocked. “[T]he tri[*1383] al judge may discharge a genuinely deadlocked jury and require the defendant to submit to a second trial,” and the judge’s decision regarding deadlock should be “accorded great deference by a reviewing court.” Arizona v. Washington, 434 U.S. at 509-10, 98 S.Ct. at 832.

After approximately 27 hours of deliberation on a relatively simple case dealing with an alleged sale of heroin to an undercover agent, the jury sent a note to the court which stated “We the 12 jurors are still at a stalemate. We cannot reach a unanimous decision.” The day before the judge had given the jurors an Allen charge urging them to resolve their differences and reach a verdict. Before declaring a mistrial, the judge conducted the following inquiry:

The Court: Is there anything further that I can do, can provide you with in terms of a read back of any portion of the testimony or any additional instructions on the law?
Jury Forelady: No, I think you did your best.
The Court: Okay, is there anyone who would like to hear any additional read back or any instructions on the law?
No Response
The Court: Are you saying “no”?
Jurors: No.
The Court: Do any of you think that if you were given an additional period of time to deliberate that there is a possibility that you could resolve your differences and reach a verdict in this ease?
Jury Forelady: No, we are not lying to you, no.
Jurors: No.
The Court: [There are] a couple of gentlemen in the back.
Do you think you could reach a verdict within a reasonable period of time?
Juror Number Twelve: No.
Juror Number Eleven: No.
Juror Number Ten: No.
The Court: Pardon?
Juror Number Ten: No.
At this time, I don’t think any reasonable time would help.
I don’t think it would help.
The Court: Okay, it would appear then that a verdict is not likely to be reached within a reasonable period of time, and I am going to discharge you.

Judge Stanton concluded: “[I]n the light of this conversation [the trial judge’s] conclusion of deadlock was a proper exercise of her sound discretion.” We agree.

THE SENTENCE

Upon his conviction for the sale of heroin to an undercover police officer, White was sentenced to nine to eighteen years’ imprisonment. As a second felony offender, under New York law, he could have received as much as twelve and one-half to twenty-five years’ imprisonment. N.Y.Penal Law §§ 70.06(3)(b), (4)(b) (McKinney 1991). He argues that the lesser sentence he received was “cruel and unusual” and thus violated the Eighth Amendment. In prior state court proceedings, however, he did not claim his sentence deprived him of any federal constitutional right. Thus, White failed to exhaust the remedies available in state court, and federal courts need not consider the claim. See McCleskey v. Zant, — U.S.-, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991); Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).

In any event, there is no merit to White’s allegations. No federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law. Underwood v. Kelly, 692 F.Supp. 146 (E.D.N.Y.1988), aff'd mem,., 875 F.2d 857 (2d Cir.1989). Nor does the fact that the district attorney had recommended a lesser sentence give any support to the complaint.

White also claims that counsel’s advice led him to refuse to cooperate with the probation officer, resulting in an increased sentence. As the record does not disclose White’s circumstances beyond his having been a second felony offender, it may well be that he was properly advised. In any event, the record does not indicate that counsel’s decision was so objectively unreasonable or so prejudicial to the ultimate[*1384] sentence as to constitute ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).

Affirmed.