Geraci v. Sticht

Filing 15

DECISION AND ORDER denying and dismissing Petition for Writ of Habeas Corpus filed by Sammy Geraci. Signed by Hon. Michael A. Telesca on 11/16/2017. (CDH) (A copy of this decision was mailed to plaintiff on 11/16/17)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

SAMMY GERACI,
Petitioner,
No. 15-CV-01015(MAT)
DECISION AND ORDER

-vsTHOMAS STICHT, Superintendent,
Wyoming Correctional Facility,
Respondent.

I.

Introduction
Pro se petitioner Sammy Geraci (“petitioner”) seeks a writ of

habeas corpus pursuant to 28 U.S.C. § 2254.
hearing,

petitioner,

who

was

then

After a disciplinary

confined

at

the

Fishkill

Correctional Facility, was found guilty of assaulting fellow inmate
Jose

Rodriguez.

Petitioner

was

penalized

with

four

months

confinement in the Special Housing Unit (the “SHU”) including a
corresponding

loss

of

packages,

telephone,

and

commissary

privileges (of which two months were suspended and deferred), and
loss of two months good-time credits.

In the instant petition,

petitioner alleges various due process violations in connection
with

the

disciplinary

punishment.

hearing

underlying

the

aforementioned

In particular, he alleges that the hearing officer

improperly refused to permit him to call Mr. Rodriguez as a
witness,

failed

to

explain

why

confidential

testimony

was

necessary, and failed to provide a copy of an unusual incident

report.

For the reasons discussed at length below, the Court

determines that petitioner is not entitled to habeas relief and
therefore denies the petition.
II.

Factual Background and Procedural History
Petitioner is currently serving an aggregate term of 40 years

in prison, having been convicted of manslaughter in the first
degree and two counts of assault in the first degree.

On April 23,

2013, while he was incarcerated at the Fishkill Correctional
Facility (“Fishkill”), petitioner was served with a misbehavior
reported dated April 22, 2013, charging him with violating rule
100.10 of the rules governing inmate behavior by committing assault
on another inmate (the “Misbehavior Report”).
Report,

which

Corrections

was
and

authored
Community

by

New

York

State

Supervision

The Misbehavior
Department

(“DOCCS”)

of

Sergeant

Wassweiler, stated that on April 16, 2013, DOCCS Correction Officer
Buchman found inmate Jose Rodriguez in his room covered with blood.
Mr. Rodriguez was treated at Putnam Hospital for a fractured nose
and received five sutures over his left eye.

The report further

stated that a confidential source informed Sergeant Wassweiler that
petitioner had struck Mr. Rodriguez in the face, either with his
fist or with another object.
DOCCS Captain Webbe, the hearing officer, conducted a Tier III
disciplinary hearing on April 25, 2013.

Captain Webbe advised

petitioner of his rights and read the Misbehavior Report into the

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record.

Petitioner pled not guilty to the charge and requested

that Mr. Rodriguez testify. The hearing officer explained that Mr.
Rodriguez had signed a refusal to testify form.
Petitioner testified that on the date at issue, he and Mr.
Rodriguez bumped shoulders as they were passing each other in the
hallway.

Petitioner further testified that Mr. Rodriguez brought

his arm up and made a swinging move, that petitioner struck Mr.
Rodriguez’s hand, causing him to fall down, and that petitioner
then walked away.
Petitioner requested a copy of the unusual incident report
setting forth what Mr. Rodriguez had told prison officials when
asked how he sustained his injuries. The hearing officer agreed to
this request and adjourned the hearing to obtain a copy of the
report.

However, when the hearing resumed, petitioner complained

that he had never received such a copy.
Sergeant Wassweiler testified at the disciplinary hearing that
a confidential informant, who had provided reliable information in
the past, had told him that petitioner struck Mr. Rodriguez in the
heard during the incident in question. Sergeant Wassweiler further
testified that, when questioned immediately following the incident,
Mr. Rodriguez claimed that he had fallen and hit his head on a door
jam.
The hearing officer informed petitioner on the record that he
had heard confidential testimony from an informant.

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Petitioner

stated that if the confidential informant was Mr. Rodriguez, he
should be required to testify.
The hearing officer also read into the record a portion of the
unusual incident report.

The portion of the report read into the

record stated that Mr. Rodriguez had been uncooperative when
interviewed, had stated only that he got hit and then fell on the
floor, and had refused to testify at any disciplinary hearing.
The hearing officer issued a written disposition dated May 2,
2013, finding petitioner guilty of assault based on the Misbehavior
Report and the testimony of petitioner, Sergeant Wassweiler, and
the confidential informant.

The hearing officer imposed a penalty

of four months confinement in the SHU with a corresponding loss of
packages, telephone, and commissary privileges (of which two months
were suspended and deferred), and recommended two months loss of
good-time

credits.

The

recommended

penalty

was

affirmed

on

administrative review.
Petitioner subsequently commenced a proceeding in Albany
County Supreme Court pursuant to Article 78 of New York’s Civil
Practice Law and Rules (“Article 78"). In his Article 78 petition,
petitioner contended that the hearing officer denied him due
process by failing to provide him with a copy of Mr. Rodriguez’s
refusal to testify form or ascertain the basis for Mr. Rodriguez’s
refusal to testify, and that the hearing officer failed to follow

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established

procedures

and

notice

requirements

for

hearing

confidential testimony.
On

February

21,

2014,

the

Albany

County

Supreme

Court

dismissed petitioner’s Article 78 proceeding, finding that the
record supported the conclusion that Mr. Rodriguez’s refusal to
testify was authentic and that petitioner had in any event waived
his objection by failing to timely object to the authenticity of
the refusal to testify.

The Albany County Supreme Court further

found that although the hearing officer had failed to properly
inform petitioner as to why confidential testimony was taken and
why petitioner was not allowed to review it, the error was harmless
because the other proof at the hearing was sufficient to sustain
the charge.
Petitioner

appealed

to

the

Appellate

Division,

Third

Department (the “Appellate Division”), arguing that the hearing
officer improperly denied him his constitutional right to call Mr.
Rodriguez, failed to properly inform him of why confidential
testimony was taken in violation of New York regulatory law, and
denied his right to documentary evidence (namely, the unusual
incident report).

On August 13, 2015, the Appellate Division

issued a Memorandum and Order finding that all of petitioner’s
claims were unpreserved and dismissing his appeal.
Petitioner sought leave to appeal to the New York Court of
Appeals, asserting that the hearing officer improperly refused to

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permit

him

to

call

Mr.

Rodriguez

and

failed

to

explain

why

confidential testimony was required. Petitioner did not seek leave
to appeal his claim that the hearing officer improperly failed to
provide

him

with

a

copy

of

the

unusual

incident

report.

Petitioner’s request for leave to appeal was denied on November 9,
2015.
Petitioner commenced the instant proceeding on November 30,
2015.

Petitioner asserts in his petition that the hearing officer

violated his constitutional rights by not allowing him to call Mr.
Rodriguez

as

a

witness,

by

not

explaining

why

confidential

testimony was necessary, and by not providing a copy of the unusual
incident report.
III. Discussion
A.

Cognizability of Petitioner’s Claims

Title 28, Section 2254 “is explicit that a federal court is to
entertain an application for a writ of habeas corpus ‘only on the
ground that [the petitioner] is in custody in violation of the
Constitution

or

laws

or

treaties

of

the

United

States.’”

Wainwright v. Goode, 464 U.S. 78, 83-84 (1983) (quoting 28 U.S.C.
§ 2254(a)), reh’g denied, 423 U.S. 1092 (1984).

Challenges to the

validity of prison administrative actions that affect the fact or
length of the prisoner’s confinement are properly brought under 28
U.S.C. § 2254. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)
(holding that “when a state prisoner is challenging the very fact
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or duration of his physical imprisonment, and the relief he seeks
is a determination that he is entitled to immediate release or a
speedier release from that imprisonment, his sole federal remedy is
a writ of habeas corpus”); see also Poventud v. City of N.Y., 750
F.3d 121, 128 (2d Cir. 2014) (noting that Preiser “declined to
recognize a distinction where the [prisoner’s] challenge [to his
imprisonment] was to a final administrative decision”) (citing
Preiser, 411 U.S. at 489).
However,

as

the

Second

Circuit

has

observed,

“many

intra-prison administrative or disciplinary decisions that could
result in deprivations in violation of the Constitution do not
affect the fact or length of a prisoner’s confinement[,]” Jenkins
v.

Haubert,

179

F.3d

19,

23

(2d

Cir.

1999).

These

include

“placement in solitary confinement or keeplock, . . . or some other
form of confinement more restrictive than that imposed on the
general

prison

decisions

do

population.”

not

affect

the

Id.
fact

Because
or

length

such
of

disciplinary
a

prisoner’s

confinement, they are not cognizable under § 2254.
The Second Circuit did acknowledge in Jenkins that Preiser
“left open the question

of whether federal habeas corpus is

available to prisoners who challenge decisions imposing restrictive
conditions

of

confinement."

Jenkins,

179

F.3d

at

23

(citing

Preiser, 411 U.S. at 499 ("When a prisoner is put under additional
and unconstitutional restraints during his lawful custody, it is
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arguable that habeas corpus will lie to remove the restraints
making

the

custody

illegal.")).

Although

this

dictum

has

engendered much discussion in the circuit courts, see id. (citing
cases), the law governing a habeas petitioner's claims is limited
to the holdings, not dicta, of the Supreme Court. See Tueros v.
Greiner, 343 F.3d 587, 593-94 (2d Cir. 2003) (dicta in Supreme
Court decision was not clearly established federal law that could
form basis for habeas relief under Antiterrorism and Effective
Death Penalty Act, 28 U.S.C. § 2254(d)(1)) (citing Williams v.
Taylor, 529 U.S. 362, 412 (2000)).
Here, the punishment imposed on petitioner following the
adverse disciplinary hearing was four months confinement in the SHU
with a corresponding loss of packages, telephone, and commissary
privileges (of which two months were suspended and deferred), and
two months loss of good-time credits.

The loss of good-time

credits may impact the fact or overall length of petitioner’s
confinement, and, to the extent he seeks to restore those good-time
credits, his claim is cognizable under § 2254.

However, to the

extent that petitioner’s claims are based on his confinement to the
SHU or his loss of associated privileges, challenges to the
imposition of those punishments are not cognizable as a habeas
claim.

See, e.g., Green v. Bradt, 2012 WL 130274 (W.D.N.Y. Jan.

17, 2012) (dismissing as not cognizable habeas claims regarding
prison disciplinary hearing that resulted in keeplock confinement

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because

punishment

did

not

affect

the

overall

length

of

petitioner’s confinement); see also Welch v. Mukasey, 589 F.
Supp.2d 178, 183 n.3 (N.D.N.Y. 2008) (SHU confinement); Green v.
Duncan, 2007 WL 781927, at *2-3 (N.D.N.Y. Mar. 13, 2007) (keeplock
and loss of privileges); H’Shaka v. Conway, 2006 WL 1418601, at *2
(S.D.N.Y.

May

22,

2006)

(SHU

confinement).

Accordingly,

petitioner’s challenges to the imposition of any punishment other
than the loss of good-time credits are denied.
B.

Analysis of Petitioner’s Claims
1.

Standard of Review

“Under the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), 28 U.S.C. § 2254(d)(1), a federal court may not grant
a

state

prisoner’s

habeas

application

unless

the

relevant

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.”

Knowles v. Mirzayance,

556 U.S. 111, 121 (2009) (internal quotation omitted).

“The

question is ‘not whether the state court was incorrect or erroneous
in rejecting petitioner’s claim, but whether it was objectively
unreasonable in doing so.’”

Edwards v. Superintendent, Southport

C.F., 991 F. Supp. 2d 348, 367 (E.D.N.Y. 2013) (quoting Ryan v.
Miller, 303 F.3d 231, 245 (2d Cir. 2002)).

“The petition may be

granted only if ‘there is no possibility fairminded jurists could
disagree that the state court’s decision conflicts with [the
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Supreme] Court’s precedents.’” Id. (quoting Harrington v. Richter,
562 U.S. 86, 102 (2011)).
2.

Procedural Bars to Petitioner’s Claims

As a threshold issue, respondent argues that petitioner’s
claims are procedurally barred from federal habeas review.

First,

with respect to petitioner’s claims that the hearing officer
violated

his

constitutional

rights

by

not

explaining

why

confidential testimony was necessary and by not providing a copy of
the unusual incident report, respondent contends that petitioner
failed to exhaust these claims in state court, and that the time
for doing so has now expired.

Second, with respect to all of

petitioner’s claims, respondent contends that they are procedurally
barred on adequate and independent state law grounds.
a.

Failure to Exhaust

It is well-established that a state inmate who seeks federal
habeas

review

remedies.

must

first

exhaust

28 U.S.C. § 2254(b)(1).

his

available

state

court

This is so because “interests

of comity and federalism dictate that state courts must have the
first opportunity to decide a petitioner’s claims.”
Weber, 544 U.S. 269, 273 (2005).

Rhines v.

“In order to satisfy the

exhaustion requirement, a habeas petitioner must give the state
courts a fair opportunity to review the federal claim and correct
any alleged error.”

Ortiz v. Heath, 2011 WL 1331509, at *6

(E.D.N.Y. Apr. 6, 2011).
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A claim may be deemed exhausted where further review is
procedurally barred under state law.

See id. (“[B]ecause the

exhaustion requirement ‘refers only to remedies still available at
the time of the federal petition, it is [also deemed] satisfied if
it

is

clear

procedurally

that
barred

the

habeas

under

petitioner's

state

law.’”)

Netherland, 518 U.S. 152, 161 (1996)).

claims

(quoting

are

Coleman

now
v.

However, “[w]here a

procedural bar gives rise to exhaustion . . . it also ‘provides an
independent and adequate state-law ground for the conviction and
sentence, and thus prevents federal habeas corpus review of the
defaulted claim.’” Id. (quoting Netherland, 518 U.S. at 162). “For
a procedurally defaulted claim to escape this fate, the petitioner
must show cause for the default and prejudice, or demonstrate that
failure to consider the claim will result in a miscarriage of
justice, (i.e., the petitioner is actually innocent).” Aparicio v.
Artuz, 269 F.3d 78, 90 (2d Cir. 2001).
i.

Failure
Report

to

Provide

Unusual

Incident

Petitioner concedes that he did not exhaust his claim that the
hearing officer violated his right to due process by failing to
provide a copy of the unusual incident report and requests that
this claim be withdrawn.

See Docket No. 12 at 4 (petitioner

“respectfully request[s] this Court to allow him to delete his
unexhausted claim that his Right to Due Process was violated when
the Hearing Officer[] failed to provide him with a copy of the
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Unusual Incident Report”).

This Court has the authority to permit

petitioner to delete unexhausted claims, and grants petitioner’s
request to do so here.

See Rhines v. Weber, 544 U.S. 269, 278

(2005) (“[A petitioner] can always amend the petition to delete the
unexhausted claims, rather than returning to state court to exhaust
all of his claims.”) (internal quotation omitted).

Accordingly,

the Court has not considered this claim in the remainder of its
analysis.
ii.

Notice regarding Confidential Testimony

Respondent also argues that petitioner failed to exhaust his
claim that the hearing officer did not properly inform him of why
confidential testimony was being taken.

Specifically, respondent

argues that although petitioner raised this argument in his Article
78 proceeding, when he appealed the denial of his petition to the
Appellate Division, he framed this claim as a violation of state
administrative rules, rather than as a federal constitutional
issue.
“In order to satisfy the exhaustion requirement, a prisoner
must have fairly presented the same legal claim to the state courts
that

he

presents

in

his

federal

habeas

petition.

Because

non-constitutional claims are not cognizable in federal habeas
corpus proceedings, . . . [the petitioner] must put state courts on
notice that they are to decide federal constitutional claims.”
Petrucelli v. Coombe, 735 F.2d 684, 687 (2d Cir. 1984). A prisoner

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may satisfy this requirement in various ways, including: “(a)
reliance

on

pertinent

federal

cases

employing

constitutional

analysis, (b) reliance on state cases employing constitutional
analysis in like fact situations, (c) assertion of the claim in
terms so particular as to call to mind a specific right protected
by the Constitution, and (d) allegation of a pattern of facts that
is well within the mainstream of constitutional litigation.” Grady
v. LeFevre, 846 F.2d 862, 864 (2d Cir. 1988) (internal quotation
omitted).
Here, the Court agrees with respondent that petitioner’s brief
to

the

Appellate

Division

constitutional terms.

failed

to

cast

this

claim

in

In his “Questions Presented,” petitioner

indicated that his claim was that “the hearing officer violated 7
N.Y.C.R.R. § 254.5(B) by failing to provide an explanation for why
the testimony of inmate Rodriguez . . . was taken outside of the
petitioner/appellant’s presence.”

Petitioner cited two cases in

support of this claim - Matter of Trapani v. Annucci, 117 A.D.3d
1473 (4th Dep’t 2014) and Matter of Janis v. Prack, 106 A.D.3d 1297
(3d Dep’t 2013) - both of which are state law cases and neither of
which applies a constitutional analysis to a similar fact pattern.
Petitioner made no mention of any constitutional claim with respect
to this issue.
There is nothing in petitioner’s brief to the Appellate
Division to fairly put that court on notice that petitioner’s claim

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was of a constitutional dimension.

Accordingly the Court finds

that petitioner has failed to exhaust this claim and that, because
he cannot now do so1, it is procedurally barred.

See, e.g., Young

v. Conway, 761 F. Supp. 2d 59, 78 (W.D.N.Y. 2011), aff’d, 698 F.3d
69 (2d Cir. 2012) (finding claim procedurally barred where, in
appellate brief, petitioner cited only New York State cases that
did not employ any constitutional analyses).
The Court further finds that petitioner cannot overcome the
procedural bar with respect to this claim.

As an initial matter,

petitioner has not identified any cognizable cause for having
failed to cast this claim in constitutional terms in his appellate
brief.
Moreover, petitioner cannot show prejudice, because his claim
lacks merit.

“Courts have long recognized . . . that the right

to know evidence supporting prison disciplinary rulings is not
absolute.

As the Supreme Court has observed, prison disciplinary

proceedings take place in tightly controlled environments peopled
by those who have been unable to conduct themselves properly in a
free society. The risks of violence or intimidation directed at
either other inmates or staff are real. Thus, when the disclosure
of evidence presents such risks, hearing officers may properly

1

Under New York law, challenges to disciplinary hearings must be brought in
an Article 78 proceeding, and the statute of limitations to commence such a
proceeding is four months. This deadline has long since expired in petitioner’s
case.

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decline to inform an inmate of the adverse evidence.”

Sira v.

Morton, 380 F.3d 57, 74–75 (2d Cir. 2004) (internal citations and
quotations

omitted).

As

such,

“[a]n

inmate

involved

in

a

disciplinary hearing does not enjoy the same right to confront
witnesses that a defendant in a criminal trial does” and “[a]
hearing officer has substantial discretion to receive evidence ex
parte outside of the presence of the inmate.”

Sowell v. Chappius,

2010 WL 1404004, at *2 (W.D.N.Y. Mar. 31, 2010). A hearing officer
who takes confidential testimony is required only to “offer a
reasonable

justification

if

not

contemporaneously, then when challenged in a court action.”

Sira,

380 F.3d at 75.

for

their

actions,

In this case, while the hearing officer did not

contemporaneously explain the reasons for keeping the testimony
confidential,
testimony
explaining

to

DOCCS
the

that

institutional

subsequently

Albany

it

was

safety.

County

submitted
Court

confidential
DOCCS

has

testimony to this Court under seal.

for

the
in

because

submitted

confidential

camera
of

the

review,

concerns

for

confidential

The Court has reviewed this

testimony and finds the explanation that it was not revealed to
petitioner out of institutional safety concerns reasonable.

As

such, petitioner cannot show any prejudice related to the hearing
officer’s failure to provide a contemporaneous explanation.
Finally,

petitioner

has

not

argued

that

he

is

actually

innocent, nor is there any evidence in the record to support that

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conclusion. Accordingly, petitioner cannot overcome the procedural
bar related to this claim, and it cannot form the basis for federal
habeas relief.
b.

Independent and Adequate State Law Grounds

The sole exhausted claim in the instant petition is that the
hearing officer violated petitioner’s conditional constitutional
right to call Mr. Rodriguez as a witness. Respondent contends that
this claim is procedurally barred because it was dismissed by the
Appellate Division on independent and adequate state law grounds namely, that it was unpreserved.
“The independent and adequate state ground doctrine first
arose in the context of direct appeals to the Supreme Court from
final judgments of the state courts. Under that doctrine the
Supreme Court ‘will not review a question of federal law decided by
a state court if the decision of that court rests on a state law
ground that is independent of the federal question and adequate to
support the judgment.’”

Garcia v. Lewis, 188 F.3d 71, 76 (2d Cir.

1999) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)).
“The doctrine also applies in the context of federal courts
reviewing applications for a writ of habeas corpus” and “applies
whether the state law ground is substantive or procedural.”
(internal quotation omitted).

Id.

Accordingly, “[i]f a state court

clearly and expressly states that its judgment rests on a state
procedural bar[,] this constitutes an independent and adequate

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state ground, and the federal court must deny habeas relief.”
Green v. Keyser, 2017 WL 5125533, at *6 (S.D.N.Y. Nov. 1, 2017)
(internal quotation omitted).
In this case, the Appellate Division (which was the last state
court to render judgment), expressly stated that petitioner’s
claims were properly dismissed because he had failed to object
during the course of the disciplinary hearing, rendering his
arguments unpreserved.

“Generally, a party’s failure to make a

timely objection in compliance with an applicable contemporaneous
objection rule constitutes an independent and adequate state ground
for denying review.”

Golson v. Griffin, 2017 WL 1176049, at *5

(W.D.N.Y. Mar. 30, 2017).

As such, if the Appellate Division were

correct that petitioner’s objection was unpreserved, this would
serve as an independent and adequate state law basis for denial of
his claim.
However,
disciplinary

the

Court

hearing

and

has

reviewed

finds

that

the
the

transcript

Appellate

of

the

Division’s

determination that petitioner’s objection was unpreserved has no
basis in the record.

At the disciplinary hearing, petitioner

specifically argued that Mr. Rodriguez should be called as a
witness “so that he can be questioned . . . and [petitioner] can
properly defend [himself].”

The hearing officer responded that

“Inmate Rodriguez was questioned about attending this hearing and
he refused.

He has the right to do so.

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Your objection is once

again noted.” In other words, the hearing officer told petitioner,
on the record, that his objection related to the failure to call
Mr. Rodriguez as a witness had been preserved.

The Appellate

Division’s decision made no mention whatsoever of these facts, and
this

Court

therefore

cannot

find

that

its

determination

was

appropriately based on an independent and adequate state law
ground.

See, e.g., Kindred v. Colvin, 2014 WL 5662858, at *14 n.19

(N.D.N.Y. Nov. 4, 2014) (finding no procedural bar where state
court inaccurately relied on New York Criminal Law in denying
petitioner’s motion to vacate). The Court has therefore considered
petitioner’s claim on the merits.
3. Denial of Request to Call Mr. Rodriguez
An inmate faced with a disciplinary hearing has a due process
right to call and present witnesses.
491, 496 (1985).

See Ponte v. Real, 471 U.S.

However, “[i]t is settled that an inmate in a

prison disciplinary hearing does not enjoy the same absolute right
to call and confront witnesses as a defendant in a criminal trial,
but

that

this

right

is

instead

qualified

by

the

special

circumstances of prison life, so that an inmate may not call
witnesses when doing so would impinge on legitimate correctional
goals.”

Finney v. Coughlin, 2 F. App’x 186, 190 (2d Cir. 2001).

“Furthermore, a lack of necessity for a witness’s testimony counts
as a valid basis for refusing to call a witness, and if a witness

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will not testify if called, it cannot be a necessity to call him.”
Id. (internal quotations and citations omitted).
In this case, it is undisputed that Mr. Rodriguez completed a
refusal to testify form.

Accordingly, because Mr. Rodriguez had

refused to testify, it was not a due process violation for the
hearing office to fail to call him.
Petitioner has argued that the hearing officer should have
made further inquiry into the basis for Mr. Rodriguez’s refusal.
However, courts in this Circuit have concluded that “[a] hearing
officer does not have to conduct an independent investigation
before accepting an inmate-witness’s refusal to testify.”

Johnson

v. Doling, 2007 WL 3046701, at *7 (N.D.N.Y. Oct. 17, 2007); see
also Jamison v. Fischer, 2013 WL 5231457, at *3 (S.D.N.Y. July 11,
2013), aff’d, 617 F. App’x 25 (2d Cir. 2015) (“an inmate has no
constitutional claim simply because the hearing officer chooses not
to inquire into a witness’s reasons for refusing to testify”).
Petitioner has failed to demonstrate that the hearing officer
violated his due process rights by failing to call Mr. Rodriguez as
a witness.
IV.

Accordingly, habeas relief is not warranted.

Conclusion
For the foregoing reasons, Petitioner’s application for a writ

of habeas corpus is denied, and the petition is dismissed. Because
Petitioner has not “made a substantial showing of the denial of a
constitutional right,” 28 U.S.C. § 2253(c)(2), the Court declines
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to issue a certificate of appealability. The Clerk of the Court is
instructed to close this case.
ALL OF THE ABOVE IS SO ORDERED.

s/Michael A. Telesca
__________________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

Rochester, New York
November 16, 2017

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