Kevin SAXON, Petitioner-Appellant, v. John B. LEMPKE, Respondent-Appellee, 618 F. App'x 10

SUMMARY ORDER Petitioner-appellant Kevin Saxon appeals from the district court’s denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Saxon contends that his due process rights were violated at sentencing because the judge was influenced by the prosecutor’s inaccurate assertions that this was Saxon’s third murder conviction, when it was his first. We assume the parties’ familiarity with the underlying facts, procedural history of the case, and issues on appeal. We review de novo the denial of a petition for a writ of habeas corpus. Grayton v. Ercole, 691 F.3d 165, 169 (2d Cir.2012).

We have conducted an independent review of the record, and wé affirm for substantially the reasons set forth by the district court in its Memorandum Opinion and Order filed March 21, 2014, adopting a May 23, 2011 Report and Recommendation of the magistrate judge. Saxon was convicted, on a plea of guilty in the Supreme Court of New York, New York County, of eleven counts, including second degree murder. After breaching a cooperation agreement with the New York County District Attorney’s Office, he was sentenced to a term of imprisonment of 109 years to life.

At the sentencing, both the Assistant District Attorney and the judge made reference to the death in the instant case as Saxon’s third “murder.” App. at 35-44, 52-56. In fact, though Saxon was charged in connection with two prior deaths, he had pled guilty in the two prior cases to second degree criminal possession of a weapon and first degree manslaughter — he had no prior convictions for murder. On appeal, Saxon argues that because the sentencing judge relied on these purported misstatements of his criminal record, his habeas petition must be granted under Townsend v.

Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948), a case where the trial judge mistakenly relied at sentencing on an uncounseled defendant’s three prior felony convictions, which in fact had been dismissed or adjudicated as not guilty. Because the assumptions about Townsend’s criminal record were “materially untrue,” the Supreme Court held that “[s]uch a result, whether caused by carelessness or design, is inconsistent with due process of law, and such a conviction cannot stand.” Id. at 741, 68 S.Ct. 1252; see also Roberts v.

United States, 445 U.S. 552, 563, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980) (Brennan, J., concurring) (“As a matter of due process, an offender may not be sentenced on the basis of mistaken facts or unfounded assumptions.”); United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct 589, 30 L.Ed.2d 592 (1972) (“The record in the present case makes evident that the sentencing judge gave specific consideration to the respondent’s previous convictions before imposing sentence upon him. Yet it is now clear that two of those convictions were wholly unconstitutional _” (footnote omitted)). We disagree.

This case is not Townsend, and the sentencing judge was not misled in any way. Saxon was represented by counsel. At his sentencing he admitted to the convictions in the information that charged him with being a predicate violent felon, and he was adjudicated a violent felony offender. And although the prosecutor’s pre-sentencing memorandum did refer to the two prior deaths as murders, the submission’s criminal 'history

section accurately outlined the prior convictions and- the clerk of court correctly announced the criminal record at the commencement of sentencing. Finally, there is nothing in the record to suggest that the judge thought the two prior deaths resulted in murder convictions, or that she relied on any misstatements in her sentencing decision. To the contrary, the sentencing court explained that it had “examined [Saxon’s] record carefully,” and that it had “read the case file, the pre-sentence record,” and “all the documents.” App. at 53.

The sentence here was not “founded ... upon misinformation of constitutional magnitude”; rather, it was “imposed in the informed discretion of a trial judge.” Tucker, 404 U.S. at 447, 92 S.Ct. 589. For the foregoing reasons, we AFFIRM the order of the district court. . The certificate of appealability was granted solely on the question of “whether the sentencing court’s alleged reliance on the State's alleged misstatement of Appellant's criminal record violated due process.” Docket No. 39.

The other questions addressed by the district court are not properly before us on review, and those portions of the appeal were dismissed.