Santiago v. Unger
Filing
17
-CLERK TO FOLLOW UP- DECISION AND ORDER denying the petition for a writ of habeas corpus and dismissing the petition. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 1/22/13. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
JOHN SANTIAGO,
DECISION AND ORDER
No. 12-CV-00133MAT
Petitioner,
-vsDAVID UNGER,
SUPERINTENDENT
Respondent.
________________________________
I.
Introduction
Pro se Petitioner John Santiago (“Petitioner”) has filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
challenging
the
constitutionality
of
certain
administrative
decisions made by the New York State Division of Parole with
respect to the revocation of his parole.
II.
Factual Background and Procedural History
A.
Petitioner’s State Court Convictions and Sentencing
On March 18, 1992, Petitioner was sentenced in Bronx County
Supreme Court to an aggregate indeterminate sentence of 8 to
24
years
upon
his
convictions
for
first-degree
manslaughter,
second-degree criminal possession of a weapon, and second-degree
assault.
See Pet., Attach.1 at p 1;
Resp’t Ex. A at p 14;2 Resp’t
1
In between pages 5 and 6 of the pre-printed form habeas petition,
Petitioner inserts a seven page typed document entitled “Statement of Facts,
Procedural History & Grounds One and Two.” This document is separately paginated
with the numbers 1-7. To avoid confusing the page numbers of the form habeas
petition with those of the attached document, the Court hereinafter refers to the
document entitled “Statement of Facts, Procedural History & Grounds One and Two”
Ex. E at Aff. ¶ 5.
He was released from New York State Department
of Correctional Services (“DOCS”)3 custody to parole supervision on
September 6, 2000, having served over eight years, the minimum term
of his indeterminate sentence.
On
July
8,
2006,
while
See Resp’t Ex. A at p 14.
still on parole,
Petitioner
was
arrested in connection with new criminal charges. See Resp’t Ex. A
at p 14; Resp’t Ex. E at Ex. A.
In February 2007, he pleaded
guilty in Rockland County Court to second-degree attempted criminal
possession of a forged instrument, a felony, and on March 22, 2007,
he was sentenced, as a second felony offender, to an indeterminate
term of 1 ½ to 3 years imprisonment.
See Pet., Attach. at 1;
Resp’t Ex. A at p 14; Resp’t Ex. E at Aff. ¶¶ 3-4.
The Rockland
County Court directed that Petitioner’s 2007 sentence be served
“consecutive
sentence.”
to
any
undischarged
determinate
or
indeterminate
See Resp’t Ex. A at p 14; Resp’t Ex. E at Ex. H
(Sentencing Mins. at p 4).
Petitioner’s parole was automatically
revoked by operation of law as a result of his 2007 conviction.
See Resp’t Ex. E at Aff. ¶ 5; see also New York Executive Law
(“Executive Law”) § 259-i(3)(d)(iii).
as the “attachment” to the habeas petition.
2
The Court refers to the CM/ECF pagination for this Exhibit, as it is
comprised of numerous numbered and unnumbered documents.
3
DOCS and the New York State Division of Parole have since been merged to
form the Department of Corrections and Community Services.
-2-
Petitioner was received back into DOCS custody on March 29,
2007, and was certified as entitled to 264 days of jail time
credit.
See Pet., Attach. at 1;
Resp’t Ex. E at Ex. A.
At the
time Petitioner was received back into custody, DOCS determined
that Petitioner still owed 8 years, 2 months, and 20 days against
the undischarged maximum term of his 1992 indeterminate sentence.
That undischarged term was aggregated with the maximum term of
Petitioner’s 2007 indeterminate sentence pursuant to Penal Law
§ 70.30(1)(b).
See Resp’t Ex. A at p 14.
Accordingly, on or about
April 9, 2007, DOCS calculated Petitioner’s parole eligibility,
conditional release, and maximum expiration dated with respect to
his multiple sentences as January 4, 2008, December 27, 2013, and
September 24, 2017, respectively.
See Resp’t Ex. A at p 14 and
attached Ex. B (DOCS Legal Date Computations).
On June 1, 2007,
the Division of Parole issued a Notice of Final Declaration of
Delinquency stating that Petitioner had been found delinquent on
his conditions of parole as of July 8, 2006 (in connection with his
arrest and conviction for a felony while on parole) and that his
maximum expiration date had been extended, pursuant to Executive
Law § 259-i(3)(d)(iii), based on the undischarged indeterminate
sentence from his prior conviction.
See Resp’t Ex. A at attached
Ex. J (Notice of Final Declaration of Delinquency by Board of
Parole).
-3-
On October 31, 2007, Petitioner appeared before the Parole
Board in anticipation of his January 4, 2008 parole eligibility
date.
At the conclusion of the hearing, parole was denied and
Petitioner was directed to be held for an additional 24 months,
with his next Parole Board appearance scheduled for November 2009.
See Pet., Attach. at 1;
Resp’t Ex. A at p 14-15 and attached
Exs. C (Parole Board decision), K (transcript of 10/31/07 parole
board hearing).
Petitioner
then
filed
an
administrative
appeal
with
the
Division of Parole Appeals Unit (hereinafter “Appeals Unit”).
See
Resp’t Ex. A at p 15 and attached Ex. D (Letter from Appeals Unit);
Resp’t Ex. E at Ex. G.
In a letter to Petitioner dated November
13, 2007, the Appeals Unit acknowledged that it had received
Petitioner’s notice of appeal on that date and that the latest date
for
submitting
March 13, 2008.
Unit).
documentation
for
perfecting
his
appeal
was
See Resp’t Ex. A at Ex. D (Letter from Appeals
On appeal,4 Petitioner did not challenge “the parole denial
itself,” but rather sought modification of the “excessive” 24-month
hold imposed by the Parole Board.
See Resp’t Ex. E at Ex. G, ¶ 1.
The Appeals Unit failed to issue a determination on Petitioner’s
appeal.
See Pet., Attach. at 1-2; Resp’t Ex. A at p 15 and
attached Ex. F.
4
The cover page of Petitioner’s appeal is date-stamped by the Appeals Unit,
indicating that it was “[r]eceived March 13, 2008.” See Resp’t Ex. E at Ex. D
(cover page).
-4-
B.
The Article 78 Proceeding
Petitioner subsequently filed in Franklin County Supreme Court
a pro se petition dated December 23, 2008, pursuant to Article 78
of the New York Civil Practice Law and Rules (“CPLR”), challenging
“the decision by the division of parole at [his] parole eligibility
hearing on October 31, 2007 which denied parole[] and scheduled a
re-appearance parole eligibility date for Nov. 2009.”
See Resp’t
Ex. A at p 9, ¶ 3.
In
the
Article
approximately
8-year
78
petition,
undischarged
Petitioner
maximum
argued
term
from
that
the
his
1992
indeterminate sentence was entirely separate from his 2007 sentence
of 1 ½ to 3 years, such that he would “not commence the undischarged
[8-year]
term
[from
the
1992
sentence]
until
complete[d] the 3 year maximum on the new [2007] sentence.”
Resp’t Ex. A at p 19-20.
Parole
Board
properly
he
See
Petitioner argued that, although the
calculated
his
January
4,
2008
parole
eligibility date based on the 1 ½ year minimum term under his 2007
sentence, the Board improperly scheduled his next Parole Board
hearing for November of 2009, even though that was approximately
six months after his 2007 sentence had already expired on July 4,
2009.
See Resp’t Ex. A at p 20.
Petitioner argued further that
when he completed the maximum term of his 2007 sentence on July 4,
2009, the Division of Parole should hold a final revocation hearing
-5-
under Executive Law § 259-i(3)(f)(x) with respect to the 8-year
undischarged term of his 1992 sentence, at which hearing he would
be given a “delinquent time assessment.” See Resp’t Ex. A at p 2021.
Petitioner also claimed that his equal protection rights were
violated because of the different parole revocation procedures
afforded a parolee convicted of a new felony, depending on whether
the new conviction was in New York or in another state.
See Resp’t
Ex. A at p 21-25.
Respondent, the Division of Parole, moved to dismiss the
petition on the ground that Petitioner had failed to exhaust his
administrative remedies.
See Resp’t Ex. B.
On June 23, 2009, the
Franklin County Supreme Court denied Respondent’s motion, finding
that the issues raised in Petitioner’s Article 78 proceeding “were
not cognizable in the context of an administrative appeal from a
parole denial determination.”
Resp’t Ex. D.
The Division of
Parole then filed its answer to the petition, and Petitioner filed
a Reply.
See Resp’t Exs. E, F.
On November 4, 2009, the county
court directed the Division of Parole to address Petitioner’s equal
protection claim.
an
affirmation
See Resp’t Ex. G.
in
response,
and
The Division of Parole filed
also
asserted
that
all
of
Petitioner’s claims were moot in light of Petitioner’s second
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appearance before the Parole Board in 2009.5
By Order dated
February 24, 2010, the Franklin County Supreme Court dismissed the
Article 78 proceeding.
reargument,
which
See Resp’t Ex. J.
was
denied
on
July
Petitioner moved for
22,
2010.
See
Resp’t
Exs. K, M.
C.
Appeal of the Article 78 Petition
Petitioner filed a pro se appeal with the Appellate Division,
Third Department, asserting the same two claims that he raised in
his Article 78 petition.
See Resp’t Ex. N.
On January 27, 2011,
the Appellate Division unanimously affirmed the judgment dismissing
Petitioner’s Article 78 proceeding.
Alexander,
80
A.D.3d
1105
(3d
See Matter of Santiago v.
Dep’t
2011)
(Resp’t
Ex.
Q).
Petitioner applied to the Appellate Division for permission to
appeal to the Court of Appeals (Resp’t Ex. R), and Petitioner’s
motion was denied on March 25, 2011 (Resp’t Ex. S).
Petitioner
then applied directly to the Court of Appeals for leave to appeal,
which was denied on June 28, 2011.
See Santiago, 17 N.Y.3d 705
(2011) (Resp’t Ex. V).
D.
The Federal Habeas Corpus Petition
On January 10, 2012, Petitioner filed the instant habeas
petition,
wherein
he
seeks
relief
on
what
he
has
termed
a
5
While Petitioner’s Article 78 proceeding was pending, Petitioner reappeared
before the Parole Board on September 15, 2009, and again parole was denied and
Petitioner was ordered held for an additional 24 months, with Petitioner’s next
parole board appearance scheduled for September 2011. See Resp’t Ex. H at Aff.
¶¶ 6-7.
-7-
“constitutional and statutory due process violation” and an “equal
protection violation” related to the revocation of his parole. See
Pet., Grounds One-Two (Dkt. No. 1).
As Petitioner has pled these
claims in the instant proceeding, they appear to be the same two
claims upon which he sought relief in his Article 78 petition.
Respondent filed an Answer and Memorandum in Opposition to the
habeas petition on August 17, 2012 (Dkt. Nos. 7, 8), and Petitioner
filed a Reply thereto on October 1, 2012 (Dkt. No. 11).
At the
request of the Court, Respondent submitted supplemental papers
addressing
the
issue
of
timeliness
(Dkt.
Nos.
13-15),
and
Petitioner submitted a supplemental Reply (Dkt. No. 16).
For the reasons stated below, habeas corpus relief is denied
and the petition is dismissed.
III. Venue
By Order dated May 10, 2012, this Court (John T. Curtin, D.J.)
instructed Respondent, inter alia, to “address whether the Western
District of New York is an appropriate and/or most convenient forum
for this proceeding.”
2-3.
See Order dated 05/10/12 (Dkt. No. 3) at
Respondent submits that venue is appropriate for the instant
proceeding
in
the
Western
District,
appropriate in the Northern District.
but
that
is
also
See Resp’t Mem. of Law at
p 12-13.
28 U.S.C. § 2241(d) provides that:
Where an application for a writ of habeas
corpus is made by a person in custody
-8-
venue
under the judgment and sentence of a
State court of a State which contains two
or more Federal judicial districts, the
application may be filed in the district
court for the district wherein such
person is in custody or in the district
court for the district within which the
State court was held which convicted and
sentenced him and each of such district
courts shall have concurrent jurisdiction
to
entertain
the
application.
The
district court for the district wherein
such an application is filed in the
exercise of its discretion and in
furtherance of justice may transfer the
application to the other district court
for hearing and determination.
28 U.S.C. § 2241(d).
Because Petitioner was in custody at the Wyoming Correctional
Facility, which is located in Wyoming County, at the time he filed
his habeas petition, venue is appropriate in the Western District
of New York.
See 28 U.S.C. § 2241(d);
28 U.S.C. § 112(d).
To the
extent petitioner seeks to challenge the outcome of the parole
proceedings that took place at the Franklin Correctional Facility,
which is located in Franklin County, venue would also be proper in
the Northern District of New York.
See 28 U.S.C. § 112(a);
Brooks
v. Strack, No. 98-CV-6528 (JG), 1999 U.S. Dist. LEXIS 13199, 1999
WL 672949, at *4-5 (E.D.N.Y. Aug. 25, 1999) (where habeas petition
challenged parole hearing procedures, venue was proper where parole
hearing took place and where parole decision was made); see also
Robinson v. Atkinson, No. 03 Civ. 5176, 2004 WL 1798129, at *4-5
(S.D.N.Y. Aug. 5, 2004).
-9-
Although venue is appropriate in both this District and the
Northern District, the Court sees no need to transfer the petition
to
the
Northern
District.
As
Respondent
points
out,
the
convenience of witnesses is not an issue in this case, nor do the
parties dispute that Petitioner’s claims were adjudicated on the
merits in
the
state
court.
See
Resp’t
Mem.
of
Law
at
13.
Although, the parties dispute the timeliness of the petition (see
discussion, infra), the Court is in receipt of the state court
records relevant to the instant habeas proceeding and the parties
have extensively briefed the issues necessary for this Court to
resolve the habeas petition.
Thus, the proximity of the judicial
forum to Franklin County, the location of the parole proceedings,
is not necessary to the adjudication of this petition.
IV.
Timeliness of the Petition
Respondent asserts untimeliness as an affirmative defense to
the petition.
See Resp’t Mem. of Law, Point I.
Petitioner
maintains that the petition is timely, arguing that Respondent
miscalculated the date the statute of limitations began to run.
Petitioner also argues that, even assuming arguendo Respondent’s
calculation is correct, said calculation does not properly take
into account tolling.
See Pet’r Reply at ¶¶ 5-13.
Supplemental
papers were submitted by the parties with respect to the issue of
timeliness, and the issue is ripe for review.
-10-
After having
reviewed
the
parties’
submissions,
the
Court
finds
that
the
petition is timely.
(A)
AEDPA’s One-Year Statute of Limitations
A state prisoner may file a § 2254 petition no later than one
year from the last of
(A) the date on which the judgment became
final by the conclusion of direct review or
the expiration of the time for seeking such
review;
(B) the date on which the impediment to
filing an application created by State action
in violation of the Constitution or laws of
the United States is removed, if the applicant
was prevented from filing by such State
action;
(C) the date on which the constitutional
right asserted was initially recognized by the
Supreme Court, if the right has been newly
recognized by the Supreme Court and made
retroactively
applicable
to
cases
on
collateral review; or
(D) the date on which the factual predicate
of the claim or claims presented could have
been discovered through the exercise of due
diligence.
28 U.S.C. § 2244(d)(1).
In cases such as this where a habeas petition challenges a
decision of the state Parole Board, or challenges an allegedly
unauthorized action by DOCS, the applicable start-date is found in
28 U.S.C. § 2244(d)(1)(D), “the date on which the factual predicate
of the claim or claims presented could have been discovered through
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the exercise of due diligence.”
Cook v. N.Y. State Div. of
Parole, 321 F.3d 274, 280-81 (2d Cir. 2003) (quotations omitted);
accord Jenkins v. Farrell, No. 07 Civ. 6937, 2009 WL 1616008, at
*2-3 (S.D.N.Y. June 9, 2009) (applying § 2244(d)(1)(D) to habeas
claim regarding an alleged unauthorized action by DOCS).
The
Second Circuit held in Cook that the “factual predicate” for a
petitioner challenging a parole revocation “is the revocation of
his parole.”
Id. (finding that “[t]he limitations time therefore
did commence at a time set by the statute, when that ‘factual
predicate [for his] claim . . . could’ reasonably have been
discovered, i.e., when Cook was notified that the administrative
decision to revoke his parole had become final”) (ellipsis and
alteration in original).
Here,
the
Division
of
Parole
issued
a
Notice
of
Final
Declaration of Delinquency on June 1, 2007, stating that Petitioner
had been found to be delinquent on his conditions of parole and
that his maximum expiration date had been extended.
Ex. A attaching Ex. J.
See Resp’t
On October 31, 2007, Petitioner appeared
before the Parole Board, and his parole was denied and his next
parole board appearance scheduled for November 2009.
On November
13, 2007, Petitioner filed a notice of appeal with the Appeals
Unit, and timely perfected that appeal on March 13, 2008.
Resp’t Ex. A attaching Exs. D, E.
See
The Appeals Unit failed to issue
a determination within the four-month time period set forth in
-12-
9 N.Y.C.R.R. § 8006.4[c].
Thus, July 13, 2008 –- four months after
the Appeals Unit failed to act on Petitioner’s appeal –- was the
last possible date on which Petitioner could have been notified
that
the
Parole
Board’s
administrative appeal.
decision
had
been
affirmed
on
Petitioner had one year from that date, or
until July 13, 2009, to file his habeas petition.
In opposition to the petition, Respondent submits that the
statute of limitations commenced four months after November 13,
2007 (the date Petitioner filed his notice of appeal with the
Appeals Unit), or on March 13, 2008.
The
Court
rejects
this
argument
See Resp’t Mem. of Law at 18.
insofar
as
9
N.Y.C.R.R.
§ 8006.4[c], which governs the determination of administration
appeals, provides, in pertinent part, that, “[s]hould the appeals
unit fail to issue its findings and recommendation within four
months of the date that the perfected appeal was received, the
appellant
may
deem
this
administrative
remedy
to
have
been
exhausted, and thereupon seek judicial review of the underlying
determination from which the appeal was taken.”
§ 8006.4[c] (emphasis added).
9 N.Y.C.R.R.
In this case, the perfected appeal
was received by the Appeals Unit on March 13, 2008, and the appeal
was therefore deemed exhausted four months after that on July 13,
2008 when the Appeals Unit failed to act on the appeal.6
6
The Court notes that, although Respondent has not alleged so, June 1, 2007
or October 31, 2007, could also be considered as the date when Petitioner was
notified that the administrative decision(s) relating to the revocation of his
-13-
Turning to Petitioner’s argument, he offers a different start
date altogether, and maintains that the statute of limitations
began to run on June 28, 2011, the date the New York Court of
Appeals denied leave to appeal the dismissal of his Article 78
petition.
See Pet’r Reply at p 4-12.
Petitioner reasons that June
28, 2011 is the appropriate start date for the limitations period
because
the
claims
raised
in
the
Article
78
petition
are
“completely unrelated to the parole board’s discretionary release
appeal of October 2007.”
Supplemental Reply at p 3, ¶ 8.
The
Court finds Petitioner’s argument unavailing and his position
curious, given that the record clearly reflects that he challenged
the Parole Board’s October 31, 2007 determination in his Article 78
proceeding,
proceeding
and
given
brought
specifically
that, as
pursuant
allows
to
a
CPLR
plaintiffs
administrative determinations.
conceptual
in
Section
New
matter,
78 is
York
to
a
state
one
which
challenge
See Resp’t Ex. A at p 9, ¶ 3.
Accordingly, the Court rejects Petitioner’s argument and finds no
basis to conclude that the statute of limitations commenced on
June 28, 2011.
(B)
Statutory Tolling
Title 28, Section 2244(d) provides that the limitations period
is tolled in “[t]he time during which a properly filed application
parole became final. Nonetheless, given the complex factual background of this
case, the Court gives Petitioner the benefit of the later date, and finds that
July 13, 2008, is the appropriate date that the statute of limitations began to
run.
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for State post-conviction or other collateral review with respect
to
the
pertinent
judgment
or
claim
is
pending.”
28
U.S.C.
2244(d)(2); see also Fernandez v. Artuz, 402 F.3d 111, 116 (2d Cir.
2005).
Here, Petitioner filed an Article 78 petition on December 23,
2008, 163 days after the statute of limitations had begun to run on
July 13, 2008, which tolled the statute of limitations.
See e.g.,
McPherson v. Burge, No. 9:06 Civ. 1076 (GTS/VEB), 2009 U.S. Dist.
LEXIS 126805, 2009 WL 1293342, at *7 (N.D.N.Y. January 27, 2009)
(one-year statute of limitations statutorily tolled during pendency
of habeas petitioner’s filed Article 78 proceeding).
In other
words, at the time he filed the Article 78 petition, Petitioner had
202 days remaining in the one-year limitations period.
The limitations period was tolled during the pendency of the
Article 78 petition, or until June 28, 2011, when the New York
court of appeals denied leave to appeal the dismissal of the
Article 78 petition.
The limitations period then ran for another
196 days, from June 28, 2011, until January 10, 2012, the date of
Petitioner’s federal habeas petition.
Accordingly, because the
limitations period ran for an additional 196 days, and Petitioner
had 202 days remaining in the limitations period, the habeas
petition was timely filed.
-15-
Petitioner maintains that, in addition to the Article 78
petition, a motion to vacate, filed on or about November 30, 2007,7
in Rockland County Court challenging his 2007 conviction also
tolled the statute of limitations.
See Pet’r Reply at p 11-12;
Pet’r Supplemental Reply at p 1-2. Respondent counters, and argues
that said motion, which challenged solely Petitioner’s underlying
conviction in Rockland County for second-degree attempted criminal
possession of a forged instrument on the basis that he received
ineffective assistance of counsel in conjunction with his guilty
plea, did not work to toll the limitations period because it did
not challenge the administrative decisions of the Division of
Parole revoking Petitioner’s parole.
of Law.
See Resp’t Supplemental Mem.
The Court agrees.
Section
2244(d)(2)
“by
its
plain
language”
tolls
“the
limitations period only for those applications that seek review of
part or all of the pertinent judgment.”
Collins v. Ercole, 667
F.3d 247, 251 (2d Cir. 2012); see also Hodge v. Greiner, 269 F.3d
104, 107 (2d Cir. 2001).
Division
of
Parole’s
Here, the “pertinent judgment” is the
administrative
revocation of Petitioner’s parole.
decisions
related
to
the
Petitioner did not directly
challenge said decisions in his motion to vacate.
Rather, in his
motion, Petitioner sought to vacate his 2007 judgment of conviction
7
The supplemental records submitted by Respondent (Dkt. No. 15) reflect that
the county court denied motion and Petitioner sought leave to appeal, which was
denied on August 25, 2008.
-16-
on the basis that he received ineffective assistance of counsel
with respect to his guilty plea.
In short, Petitioner’s motion to
vacate
application
did
“pertinent
not
constitute
judgment”
within
an
the
meaning
for
of
§
review
of
2244(d)(2).
Respondent points out, Collins is instructive on this issue.
Resp’t Supplemental Mem. of Law at 3-4.
the
As
See
In Collins, the habeas
petitioner argued that his Article 78 petition -- which asserted
that the DOCS had wrongly determined that his most recent sentence
should run consecutively, rather than concurrently, to a separate
previous sentence -- tolled the AEDPA statute of limitations.
Collins, 667 F.3d at 250.
See
The Court of Appeals rejected this
argument, finding that the “Petitioner did not challenge any aspect
of his 2001 conviction or sentence.
Rather, he argued that DOCS .
. . wrongly determined that his unchallenged 2001 sentence should
run
consecutively,
rather
than
concurrently,
to
a
previous
unchallenged sentence imposed pursuant to a separate conviction for
robbery.”
Id.
“An application seeking such relief,” the Court
concluded, “is not an application for review of the judgment
itself” within the meaning of § 2254(d)(2). Id. at 251.
Here,
Petitioner’s motion to vacate challenging his 2007 judgment of
conviction on the basis of ineffective assistance of counsel did
not seek review or reconsideration of the pertinent judgment so as
to toll the statute of limitations under § 2254(d)(2).
-17-
The Court now turns to the merits of the petition, and finds
that habeas corpus relief is not warranted.
V.
Exhaustion
“An application for a writ of habeas corpus on behalf of a
person in custody pursuant to a judgment of a State court shall not
be granted unless it appears that . . . the applicant has exhausted
the remedies available in the courts of the State. . . .”
28
U.S.C. § 2254(b)(1)(A);
see, e.g., O’Sullivan v. Boerckel, 526
U.S. 838, 843-44 (1999);
accord, e.g., Bossett v. Walker, 41 F.3d
825, 828 (2d Cir.1994), cert. denied, 514 U.S. 1054 (1995).
In order to exhaust claims stemming from a denial of parole
under
New
York
law,
a
habeas
petitioner
must
first
file
an
administrative appeal with the Division of Parole’s Appeals Unit.
Morel v. Thomas, No. 02 CV 9622(HB), 2003 U.S. Dist. LEXIS 10935,
2003 WL 21488017, at *2 n.3 (S.D.N.Y. June 26, 2003) (citing N.Y.
Comp. Codes. R. & Regs. tit. 9, § 8006.1).
If that appeal is
denied, he must seek relief in New York State Supreme Court
pursuant to CPLR Article 78.
Id. (citing Desire v. New York
Division of Parole, 2001 U.S. Dist. LEXIS 13784, at *6 (S.D.N.Y.
Aug. 22, 2001)).
Assuming his Article 78 petition is denied, the
inmate must then appeal the denial to New York’s intermediate
appellate court, the Appellate Division. See Morel, 2003 U.S. Dist.
LEXIS 10935, 2003 WL 21488017, at *2 n. 3 (“Morel did appeal his
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denial to the Appeals Unit, and he also filed an appeal in New York
Supreme Court pursuant to Article 78.).
Here, Petitioner properly raised his habeas claims in the
state courts.
Petitioner filed an administrative appeal with the
Division of Parole's Appeals Unit, which was timely perfected on
March 13, 2008.
See Resp’t Ex. A at attached D, E.
The Appeals
Unit did not rule on the appeal, and the appeal was therefore
deemed exhausted after four months.
Petitioner
filed
an
Article
78
See 9 N.Y.C.R.R. § 8006.4[c].
petition,
which
was
Petitioner then appealed the denial, which was denied.
denied.
He sought
leave to appeal, which was denied by the New York Court of Appeals
on June 28, 2011.
See Resp’t Exs. N, Q, R, S, V.
Accordingly,
Petitioner’s claims are exhausted and are properly before this
Court.
VI.
The AEDPA Standard of Review
For federal constitutional claims adjudicated on the merits by
a state court, the deferential standard of review codified in the
Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) applies.
A habeas petitioner can only obtain habeas corpus relief by showing
that the state court decision was “contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” or was based
on “an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.”
-19-
28 U.S.C.
§
2254(d)(1)-(2).
In
this
case,
Petitioner’s
claims
were
adjudicated on the merits in the state court, and the AEDPA
standard
of
review
therefore
applies.
Under
that
standard,
Petitioner’s claims are meritless.
VII. Analysis of the Petition
1.
Due Process Claim
At ground one of the petition, Petitioner claims that he is
entitled to habeas relief on the basis of a “constitutional and
statutory due process violation.”
In support of this claim, he
sets forth various arguments all of which revolve around and/or
involve
the
allegedly
improper
revocation
of
his
parole.
Specifically, he argues that the process afforded him by the State
of New York did not comport with the requirements of due process
set forth in Morrissey v. Brewer, 408 U.S. 471 (1972), insofar as
he was deprived of a final parole revocation hearing.
See Pet.,
Attach. at 3-5; Pet’r Reply at p 13-33; see also Pet’r Supplemental
Reply.
As discussed below, this claim is meritless.
Initially, to the extent Petitioner’s “due process” claim is
based upon and/or derived from perceived violations of state law -namely particular sections of New York’s Executive Law -- the claim
is not cognizable on federal habeas review and is denied on that
basis.
See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)
(“federal habeas corpus relief does not lie for errors of state
law”);
Vasquez v. Walker, 2004 U.S. Dist. LEXIS 4830, 2004 WL
-20-
594646, at *4 (S.D.N.Y. Mar. 25, 2004) (“[v]iolations of state
statutory rights are not reviewable by federal habeas courts”).
Similarly, Petitioner’s claim that the State’s failure to
comply with the two-step process set forth in Morrissey violates
his federal due process rights, said claim is also meritless and
provides no basis for habeas relief.
In Morrissey v. Brewer, 408
U.S. at 482, the Supreme Court held that the requirements of due
process apply to the revocation of parole.
The Court established
two criteria with regard to the process that is due.
First, there
must be a preliminary hearing “to determine whether there is
probable cause or reasonable ground to believe that the arrested
parolee has committed acts that would constitute a violation of
parole
conditions.”
Id.
at
485.
Second,
there
must
be
a
revocation hearing, if desired by the parolee, that “lead[s] to a
final evaluation of any contested relevant facts and consideration
of whether the facts as determined warrant revocation. The parolee
must have an opportunity to be heard and to show, if he can, that
he
did
not
violate
the
conditions,
or,
if
he
did,
that
circumstances in mitigation suggest that the violation does not
warrant revocation.”
In
the
instant
Id. at 488.
case,
Petitioner
claims
that he
was
not
provided with a final hearing in violation of the second-step of
the process set forth in Morrissey.
provided
a
final
hearing
because,
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Petitioner, however, was not
under
New
York
law,
his
conviction on a new felony charge automatically required revocation
of his parole.
See Executive Law § 259-i(3)(d)(iii) (“when a
parolee . . . has been convicted of a new felony committed while
under his present parole . . . and a new indeterminate sentence has
been
imposed,
the
board’s
rules
declaration of delinquency.”).
shall
provide
for
a
final
Under such circumstances, due
process does not require a final hearing.
In Alevras v. Neubert,
727 F. Supp. 852 (S.D.N.Y. 1990), the court discussed the import of
the Morrissey
decision
in
light
of
New
York’s
Executive Law
provisions. Speaking of the requirements in Morrissey, the court
held:
Those requirements were set forth in the
context of parolees suffering revocation based
on charges made by their parole officers, and
theretofore not established as true by any
court or administrative body. In Black v.
Romano, 471 U.S. 606, 105 S. Ct. 2254, 85 L.
Ed. 2d 636 (1985), . . . the Court stated that
Morrissey did not consider the hearing
requirements of “a revocation proceeding in
which the fact finder was required by law to
order incarceration upon finding that the
defendant had violated a condition of . . .
parole . . . . Thus, the Court’s discussion
of the importance of the informed exercise of
discretion did not amount to a holding that
the factfinder in a revocation proceeding
must, as a matter of due process, be granted
discretion to continue . . . parole.
Alevras, 727 F.Supp. at 853.
Because revocation is based upon a conviction on new felony
charges, “the requirements of establishing probable cause and then
an
actual
violation
of
parole
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have
been
satisfied
by
the
[individual’s] convictions.
The requirement that [he] have an
opportunity to show ‘that circumstances in mitigation suggest that
the
violation
Morrissey]
does
has
been
not
warrant
made
revocation,’
unnecessary
by
the
[as
set
New
York
out
in
State
Legislature’s determination that revocation should be automatic
when the parolee is convicted of a felony while on conditional
release.”
Id.
Under these circumstances, there is no need to
conduct a final hearing. Keyes v. Juul, 270 F.Supp.2d 327, 329
(E.D.N.Y.
2003)
(Where,
as
here,
a
parolee
is
arrested
and
convicted of a new crime, the need for a final hearing to protect
a parolee’s due process rights by determining if the parolee has in
fact “violated one or more of the conditions of release in an
important respect” evaporates because the requirements of due
process are satisfied either by the trial underlying the parolee’s
conviction or waived by his plea of guilty).
These statutory
provisions have withstood constitutional challenge.
See Alevras,
727 F.Supp. at 853 (“[t]here is nothing constitutionally improper
in the Legislature's determination.”);
People ex rel. Maggio v.
Casscles, 28 N.Y.2d 415, 418 (1971) (“The conviction of another
crime . . . is adequate, in and of itself, to support a revocation,
and, in such cases, a new inquiry is hardly necessary.”); Pickens
v. Butler, 814 F.2d 237, 239 (5th Cir.1987) (“Morrissey did not
hold that a state is prohibited from declaring that parole will be
automatically revoked for serious violations such as conviction of
-23-
a felony.”)); People ex rel. Harris v. Sullivan, 74 N.Y.2d 305, 308
(1989)(Under New York Law, a parolee convicted of committing a new
felony and sentenced to an indeterminate term of imprisonment is
not entitled to a final revocation hearing because they are subject
to revocation of parole by operation of law without any hearing.).
In this case, Petitioner’s federal due process rights under
Morrissey were not violated when the Division of Parole failed to
conduct a final parole revocation hearing subsequent to his 2007
conviction. The record clearly demonstrates –- and Petitioner does
not dispute –- that he was convicted of a new felony in 2007 and
was
sentenced
to
an
indeterminate
term
of
1½
to
3
years
imprisonment. The 2007 felony was committed while he was on parole
stemming from his 1992 conviction, and his parole was therefore
revoked by operation of law.
Since Petitioner was therefore not
entitled to a final revocation hearing, his claim that his parole
was not properly revoked because he never had such a final hearing
is necessarily without merit.
Accordingly, Petitioner’s claim is meritless and does not
warrant habeas relief.
It cannot be said therefore that the state
court’s adjudication of this claim contravened or unreasonably
applied clearly established Supreme Court law. The claim is denied
in its entirety.
-24-
2.
Equal Protection Claim
At ground two of the petition, Petitioner claims that his
equal protection rights were violated.
Specifically, he claims
that New York parolees who are convicted of a new felony in
New York (such as himself) do not receive a final parole revocation
hearing, while New York parolees who are convicted of a new felony
in another state are given a parole revocation hearing to determine
whether and for how long they should be returned to prison.
Pet., Attach. at 5-7; Pet’r Reply at p 34-37.
See
As discussed below,
this claim is meritless.
As an initial matter, the Court notes that Petitioner frames
this claim in the habeas petition as an equal protection violation
and expressly refers to it as such in paragraph 33 of his Reply.
However,
in
the
section
of
his
Reply
entitled
“Reply
to
Respondent’s Opposition - Point II” (paragraphs 33-36), he appears
to be raising several of the same arguments that he raised in his
due process claim, namely, that the State’s failure to conduct a
final parole revocation hearing violated his constitutional rights
under the second-step set forth in Morrissey.
To the extent he is
raising the same issues/arguments he raised in his due process
claim, but has simply “repackaged” them under the guise of an
alleged equal protection violation, said issues/arguments have
already been addressed (see discussion supra) and found to be
-25-
meritless.
To the extent he is raising a Fourteenth Amendment
equal protection claim, that claim is meritless.
Under the Equal Protection Clause of the Fourteenth Amendment,
“all persons similarly situated should be treated alike.”
City of
Cleburne, Texas v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985).
However,
“[a]
legislature
must
have
substantial
latitude
to
establish classifications that roughly approximate the nature of
the problem perceived, that accommodate competing concerns both
public and
private,
and
that
account
for
limitations
practical ability of the State to remedy every ill.”
Doe, 457 U.S. 202, 216 (1982).
on
the
Plyler v.
“Thus, the Supreme Court has held
that – unless the legislature utilizes a classification that is
inherently invidious because it disadvantages a suspect class, or
because it infringes upon the exercise of a fundamental right –
[courts must] exercise only a limited review power over the acts of
legislatures.”
Hayden v. Paterson, 594 F.3d 150, 169 (2d Cir.
2010) (citing Plyler, 457 U.S. at 216-17).
“Under this limited
review power, [courts] will uphold forms of state action under the
Equal Protection Clause so long as the classification at issue
bears some rational relationship to a legitimate state interest.”
Id. (citing Plyler, 457 U.S. at 216).
Here, the rational basis
standard applies, because Petitioner does not allege purposeful
discriminatory treatment based on his membership in a suspect class
or an infringement upon the exercise of his fundamental rights.
-26-
Thus,
the
relevant
legislation
“is
presumed
to
be
valid.”
Cleburne, 473 U.S. at 440.
Petitioner has not rebutted that presumption of rationality.
Moreover, in People v. ex rel. Harris v. Sullivan, 74 N.Y.2d 305
(1989), the New York Court of Appeals found a rational basis for
the particular parole revocation statute at issue here. The Harris
court explained that, “[a]s a general rule, a parolee detained in
New
York
for
allegedly
violating
parole
is
entitled
to
a
preliminary hearing within 15 days of the execution of the parole
warrant (Executive Law § 259-i[3][c][i]) and to a final revocation
hearing within 90 days of the preliminary hearing (Executive Law
§ 259-i[3][f][i]).” Harris, 74 N.Y.2d at 308. However, “a parolee
convicted
of
committing
a
new
felony
and
sentenced
to
an
indeterminate term is not even entitled to a final revocation
hearing,”
but is
rather “subject
to revocation
of
parole
by
operation of law without any hearing.” Id. “The dispensation from
hearing is the exception from the general requirement and cannot,
under
its
enacted
wording,
be
applicable
against
parolees
subsequently convicted and sentenced from an out-of-State felony.
Unlike a parolee convicted for a new felony and serving a new
New York indeterminate sentence, the parolee who served a felony
sentence outside New York still needs a new release consideration
date to be set by the Parole Board by way of the timely final
parole revocation hearing procedural mechanism.”
-27-
Id. at 309.
Indeed, the Harris court explained the legislative basis for this
exception:
The
legislative
history
of
subdivision
(3)(d)(iii) of Executive Law § 259-i – the
revocation hearing exemption – confirms that
the exception was intended to dispense with
the requirement of a final revocation hearing
in only the one instance where the hearing
served no apparent purpose – that is, where
the parolee has been convicted of a new felony
and has been sentenced to a new indeterminate
sentence.
In those circumstances, a final
parole revocation hearing would be a vain
gesture because no fact finding by the Board
of Parole would be necessary to ascertain that
the
parolee
has
in fact
violated
the
conditions of his parole. The court of
conviction and sentence would have already
indisputably established that reality.
Additionally, when a parolee is convicted of a
new New York felony and a new indeterminate
sentence is imposed, a final parole revocation
hearing is not needed to fix the parolee’s
reappearance before the Board because the
violator’s reappearance date is automatically
fixed by law at the time of sentencing for the
new felony (Penal Law § 70.00[3]; § 70.25[2a]; Executive Law § 259-i[3][d]).
Harris, 74 N.Y.2d at 310.
Given
the
rational
basis
of
the
statute
challenged
by
Petitioner, the state court’s adjudication of this claim was
neither contrary to nor an unreasonable application of clearly
established Supreme Court law.
The claim is therefore denied in
its entirety.
VI.
Conclusion
For the reasons stated above, the petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. No. 1) is denied
-28-
and the petition is dismissed. Because Petitioner has failed to
make “a substantial showing of a denial of a constitutional right,”
28 U.S.C. § 2253(c)(2), the Court declines to issue a certificate
of appealability. See, e.g., Lucidore v. New York State Div. of
Parole, 209 F.3d 107, 111-113 (2d Cir. 2000).
The Court also
hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any
appeal from this judgment would not be taken in good faith and
therefore denies leave to appeal as a poor person.
Coppedge v.
United States, 369 U.S. 438 (1962).
Petitioner must file any notice of appeal with the Clerk’s
Office, United States District Court, Western District of New York,
within thirty (30) days of the date of judgment in this action.
Requests to proceed on appeal as a poor person must be filed with
United States Court of Appeals for the Second Circuit in accordance
with the requirements of Rule 24 of the Federal Rules of Appellate
Procedure.
IT IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
January 22, 2013
Rochester, New York
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