Walker v. Artus, 15-2775-pr

In 2006 Walker was convicted of felony murder, kidnapping, robbery, and weapons offenses and sentenced mainly to 25 years-to-life plus additional concurrent and consecutive terms.
On a pro se CPL § 440.20 motion, the trial court (Oct. 3, 2011) found that imposing two sentences consecutively was unlawful and ordered one kidnapping count to run concurrently with the murder sentence.
The trial judge amended Walker’s sentence in open court on Oct. 6, 2011 without Walker or his counsel present.
Walker raised a Sixth Amendment claim (right to be present/represented) and a Fifth Amendment claim in state and federal proceedings; state appellate courts declined relief or found some issues not properly before them.
The federal district court denied habeas relief, holding Walker failed to exhaust the Fifth Amendment claim and that the Sixth Amendment claim was procedurally barred.
The Second Circuit granted a certificate of appealability on whether the Sixth Amendment requires a defendant’s presence at resentencing after a collateral correction, but affirmed on the merits that any Sixth Amendment violation was harmless.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Sixth Amendment requires a defendant to be present at resentencing after a collateral sentence correction	Walker: resentencing (the October 6, 2011 amendment) occurred outside his and his counsel’s presence, violating the Sixth Amendment	Artus: the change corrected an illegal sentence under state law and was ministerial; Walker suffered no prejudice	Even assuming a Sixth Amendment violation, the error was harmless because the court merely corrected an illegal consecutive sentence and Walker’s presence could not have affected the outcome
Whether Walker’s Fifth Amendment claim was exhausted in state court	Walker: his Fifth Amendment rights were violated by the resentencing process	Artus: claim not exhausted; district court properly rejected it	District court’s exhaustion ruling affirmed (appellate decision rests on harmless-error ground for Sixth Amendment claim)

Corby v. Artus, 699 F.3d 159 (2d Cir. 2012) (standard: de novo review of district court’s habeas ruling)
United States v. Arrous, 320 F.3d 355 (2d Cir. 2003) (harmless-error doctrine for constitutional errors)
United States v. Hasting, 461 U.S. 499 (U.S. 1983) (some constitutional errors may be harmless)
United States v. DeMott, 513 F.3d 55 (2d Cir. 2008) (resentencing absence analyzed under harmless-error review)
United States v. Pagan, 785 F.2d 378 (2d Cir. 1986) (ministerial sentencing acts render defendant’s absence harmless)
Hall v. Moore, 253 F.3d 624 (11th Cir. 2001) (absence at ministerial sentencing cannot be prejudicial)