The opinion of the court was delivered by: SCOTT
The petitioner has filed an application to this Court for habeas corpus relief pursuant to 28 U.S.C. § 2254. On January 31, 1997, the parties filed a consent to have this matter adjudicated before a United States Magistrate Judge.
The petitioner has filed an application to this Court for habeas corpus relief pursuant to 28 U.S.C. § 2254 challenging his confinement based upon violations of his conditions of parole. The petitioner also challenges the state's right to impose various conditions to his release. The petitioner is not challenging his original conviction.
The record reflects that petitioner was released on parole on three prior occasions. Petitioner initially was released on parole in July 1988, and was revoked and returned to prison on October 22, 1989 for a six month hold (R. 262, 279, 291). Thereafter, petitioner was released on parole for the second time on May 24, 1990. Almost immediately, the petitioner violated the conditions of his parole by failing to report to his parole officer as required (R. 262, 279, 291). Petitioner was returned to prison on August 22, 1990 for a twelve month hold (R. 262, 279, 291). Petitioner was released on parole for a third time on June 17, 1991. Less than two months later, on August 7, 1991, he once again violated the conditions of his parole (R. 262, 279, 291). Petitioner was returned to prison on December 24, 1991, with a twenty-four month hold (R. 262, 279, 291).
During the petitioner's previous parole releases, his conditions of parole included: (1) that petitioner was prohibited from having contact with minor girls; (2) that he was required to undergo periodic drug testing; (3) that he was prohibiting petitioner from ingesting alcohol; and (4) the imposition of a curfew and travel restrictions (R. 373, 374, 375, 379, 380, 393, 404, 408). Petitioner appeared before the Parole Board numerous times during his subsequent incarceration (R. 217-363). Ultimately, petitioner was scheduled to appear before the Parole Board in November 1995 and refused to attend, and failed to give a reason for that failure (R. 259, 276, 277). Thereafter, petitioner did appear before the Parole Board on December 12, 1995 and was given an open date for parole release on February 7, 1996, pending the designation of an approved residence. Subsequently, the Parole Office at Attica obtained and approved the petitioner's release to reside at Traveler's Aid, 200 Green Street, Albany, New York.
(See Affidavit of Anthony Molik, dated January 22, 1997 ("the Molik Affidavit") at PP 3-5, attached as Exhibit A to respondent's Answer.)
On February 5, 1996, a parole supervisor met with the petitioner to explain the conditions of his parole, provide him instructions for reporting to his field Parole Officer and to have the petitioner sign the Certificate of Release to Parole Supervision. At that time, Bressette refused to sign the Certificate of Release to Parole Supervision stating that he did not want to leave until he received orthopedic shoes previously ordered by the medical staff at the Attica Correctional Facility. (Molik Affidavit at PP7-8). Later, the petitioner advised the Parole Office that he did not want to go back to Albany, and instead wanted to go to an address in Florida. The Florida address was investigated and rejected by Florida authorities. (Molik Affidavit at P14). The petitioner then advised the Parole Office that he wanted to be released in the Buffalo area and that he was working on a Williamsville, New York address. Apparently unable to come up with a Buffalo area address, the petitioner then proposed the Salvation Army, Men's Emergency Housing in Rochester, New York. This was determined not to be an acceptable, stable residence and was rejected by the Parole Office. (Molik Affidavit at P19). Subsequently, the petitioner again advised the Parole Office that he wanted to be released either to the Rochester address or to some place in the Buffalo area, but has not submitted any other proposed addresses. (Molik Affidavit at PP20-25).
The respondent contends that, at this point, the petitioner is in custody only because he has refused to sign the Certificate of Release to Parole Supervision which includes the conditions imposed, he refuses to be released to the approved residence in Albany and he has failed to provide an appropriate alternate residence upon release.
In the interest of comity and in keeping with the requirements of 28 U.S.C. § 2254(b), federal courts will not consider a constitutional challenge that has not first been "fairly presented" to the state courts.
See Ayala v. Speckard, 89 F.3d 91 (2d Cir. 1996) citing Picard v. Connor, 404 U.S. 270, 275, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971); Daye v. Attorney General of New York, 696 F.2d 186, 191 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048, 79 L. Ed. 2d 184, 104 S. Ct. 723 (1984). A state prisoner seeking federal habeas corpus review must first exhaust his available state remedies with respect to the issues raised in the federal habeas petition. Rose v. Lundy, 455 U.S. 509, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982). To meet this requirement, the petitioner must have raised the question in a state court and put the state appellate court on notice that a federal constitutional claim was at issue. See Grady v. Le Fevre, 846 F.2d 862, 864 (2d Cir.1988); Petrucelli v. Coombe, 735 F.2d 684, 688-89 (2d Cir. 1984).
Petitioner has filed several state habeas corpus petitions and Article 78 petitions. Based upon the language in the instant petition, it is difficult to discern whether all of the claims asserted herein have been included in his various state court filings.
Notwithstanding the questions as whether all of the claims asserted in the instant petition have in fact been exhausted by the petitioner, the Court will review the merits of the ...