Grefer v. Frank

Filing 37

ORDER: The Court hereby ORDERS that Magistrate Judge Dancks' Report-Recommendation and Order (Dkt. No. 35 ) is ADOPTED in its entirety for the reasons set forth herein; and the Court further ORDERS that the petition for a writ of habeas corpus (Dkt. No. 1 ) is DENIED and DISMISSED; and the Court further ORDERS that no certificate of appealability shall be issued with respect to any claims set forth in the petition because Petitioner has not made "a substantial showing of the denial o f a constitutional right" pursuant to 28 U.S.C. § 2253(c)(2); and the Court further ORDERS that the Clerk of the Court shall enter judgment in Respondent's favor and close this case. Signed by U.S. District Judge Mae A. D'Agostino on 3/30/2021. (Copy served via regular mail)(meb)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
CHARLES GREFER,
Petitioner,
vs.

9:17-cv-1299
(MAD/TWD)

LARRY FRANK, Superintendent, Ogdensburg
Correctional Facility,
Respondent.
____________________________________________
APPEARANCES:

OF COUNSEL:

CHARLES GREFER
Open Door Mission
210 West Main Street
Rochester, New York 14614
Petitioner pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
28 Liberty Street
New York, New York 10005
Attorneys for Respondent

MATTHEW B. KELLER, AAG

Mae A. D'Agostino, U.S. District Judge:
ORDER
Petitioner Charles Grefer, formerly incarcerated at Ogdensburg Correctional Facility,
commenced this action pursuant to 28 U.S.C. § 2254, seeking a writ of habeas corpus challenging
the revocation of his parole and re-incarceration for a term of fifteen (15) months, following a
hearing before an administrative law judge. See Dkt. No. 1. Respondent sought and received
permission to limit his answer to the issue of exhaustion. See Dkt. Nos. 17 & 18.

In a March 3, 2021, Magistrate Judge Dancks issued a Report-Recommendation and Order
recommending that the Court deny and dismiss the petition. See Dkt. No. 35. Specifically,
Magistrate Judge Dancks found that Petitioner failed to exhaust his claims prior to bringing this
suit. See id. at 8-14. Magistrate Judge Dancks noted that Petitioner was actively litigating parallel
actions in this Court and the Appellate Division, in addition to "perfecting" his administrative
appeal with DOCCS' Division of Parole, Appeals Unit. See id. at 8. Further, Magistrate Judge
Dancks found that Petitioner failed to establish (or even allege) circumstances which would
excuse him from the exhaustion requirement. See id. at 8-10. Magistrate Judge Dancks rejected
Petitioner's claim that administrative remedies were unavailable to him at the time he commenced
this action because he would be released from custody before he could complete the exhaustion
process. See id. at 9-10. Finally, Magistrate Judge Dancks found that Petitioner's unexhausted
claims are not procedurally defaulted and are not subject to habeas review because Petitioner has
failed to establish cause for the default and actual prejudice resulting therefrom. See id. at 12-13.
Neither party objected to the Report-Recommendation and Order.
When a party files specific objections to a magistrate judge's report-recommendation, the
district court makes a "de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). However,
when a party files "[g]eneral or conclusory objections or objections which merely recite the same
arguments [that he presented] to the magistrate judge," the court reviews those recommendations
for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16,
2011) (citations and footnote omitted). After the appropriate review, "the court may accept,
reject, or modify, in whole or in part, the findings or recommendations made by the magistrate
judge." 28 U.S.C. § 636(b)(1).
2

Having carefully reviewed the March 3, 2021 Report-Recommendation and Order, the
parties' submissions and the applicable law, the Court finds that Magistrate Judge Dancks
correctly determined that the petition must be denied and dismissed. Prior to seeking federal
habeas relief, a petitioner must exhaust available state remedies or establish either an absence of
available state remedies or that such remedies cannot adequately protect his rights. See Aparicio
v. Artuz, 269 F.3d 78, 89 (2d Cir. 2001) (quoting 28 U.S.C. § 2254(b)(1)). "A petitioner seeking
habeas review of his parole revocation is subject to the exhaustion doctrine." Lebron v. Annucci,
No. 9:15-cv-829, 2016 WL 1312564, *2 (N.D.N.Y. Apr. 4, 2016) (citing Cook v. N.Y.S. Div. of
Parole, 321 F.3d 274, 278 (2d Cir. 2003)) (other citation omitted); see also McQueen v.
Superintendent, Franklin Corr. Facility, No. 9:15-cv-77, 2015 WL 6449138, *4 (N.D.N.Y. Oct.
23, 2015) ("Like petitions challenging criminal convictions, habeas petitions addressing parole
revocations are subject to the aforementioned exhaustion requirements").
"The typical path for exhausting a claim concerning a petitioner's parole revocation
proceeding includes both completion of the internal, administrative appeal process within the
Division of Parole and, in the event of an adverse determination, commencement of a C.P.L.R.
Article 78 proceeding." Smith v. Smith, No. 9:17-cv-258, 2018 WL 557877, *4 (N.D.N.Y. Jan.
22, 2019) (quotation omitted). If the Article 78 proceeding is denied, the petitioner must then
appeal that denial to the "highest state court capable of reviewing it." Scales v. N.Y.S. Div. of
Parole, 396 F. Supp. 2d 423, 428 (S.D.N.Y. 2005) (citing Cotto v. Herbert, 331 F.3d 217, 237 (2d
Cir. 2003)). As an alternative to commencing an Article 78 proceeding, a petitioner may also
exhaust by filing a state habeas corpus proceeding pursuant to Article 70, and then appeal a denial
of that petition to the highest state court capable of reviewing it before it will be deemed
exhausted. See Lebron, 2016 WL 1312564, at *2.
3

In the present matter, as Magistrate Judge Dancks correctly found, Petitioner's claims are
plainly unexhausted. Petitioner failed to provide the state courts with a complete opportunity to
consider any of his claims. Rather, Petitioner was actively litigating parallel actions in this Court
and in the Appellate Division, in addition to "perfecting" his administrative appeal with DOCCS'
Division of Parole Appeals Unit. See Dkt. No. 17. Further, Magistrate Judge Dancks also
correctly found that Petitioner failed to establish, or even allege, circumstances that would excuse
him from the exhaustion requirement. See Dkt. No. 20 at 8-11. At the time Petitioner
commenced this action, he had state court remedies available to him and, in fact, he was in the
process of exhausting those remedies. See Dkt. No. 1 at 1-2; Dkt. No. 20 at 8-20. To the extent
that Petitioner claims that administrative remedies were unavailable to him because he would be
released before he could complete the process, courts in this Circuit have routinely rejected that
argument. See Mothersell v. Hanna, No. 9:17-cv-771, 2017 WL 4444040, *2-3 (N.D.N.Y. Oct. 4,
2017); Jumpp v. Cournoyer, No. 3:15-cv-892, 2016 WL 3647146, *4 (D. Conn. June 30, 2016).
As such, the Court finds that the petition is unexhausted and the Section 2254(b)(1)(B) exceptions
do not apply.
Accordingly, the Court hereby
ORDERS that Magistrate Judge Dancks' Report-Recommendation and Order (Dkt. No.
35) is ADOPTED in its entirety for the reasons set forth herein; and the Court further
ORDERS that the petition for a writ of habeas corpus (Dkt. No. 1) is DENIED and
DISMISSED; and the Court further
ORDERS that no certificate of appealability shall be issued with respect to any claims set
forth in the petition because Petitioner has not made "a substantial showing of the denial of a
constitutional right" pursuant to 28 U.S.C. § 2253(c)(2); and the Court further
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ORDERS that the Clerk of the Court shall enter judgment in Respondent's favor and close
this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in
accordance with the Local Rules.
IT IS SO ORDERED.
Dated: March 30, 2021
Albany, New York

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