date of February 9, 1999, he refused to appear for either of them.
Therefore, on February 9, 1999, the ALJ held an in absentia hearing where
it was determined that petitioner violated his parole based on the fact
that he was "directed to report and did not report, no record of contact
made between him and the division for four years." On February 10, 1999,
the ALJ revoked petitioner's release and sentenced him to reincarnation
for seven years, ten months and four days; the remaining sentence time as
of the date of delinquency, December 14, 1994.
B. Procedural History
On April 14, 1999, petitioner perfected his appeal to the New York
State Division of Parole, Appeals Unit (hereinafter the "Appeals Unit"),
which failed to issue its findings and recommendations within four months
thereof As a result, on or about December 6, 1999, petitioner sought
judicial review and filed an appeal with the Appellate Division, Third
Department alleging that the application of the more severe parole
regulations, enacted subsequent to the offense, violated the Ex Post
Facto Clause. This claim was grounded on the fact that the time
assessment was based upon parole guidelines in effect at the time of the
parole revocation hearing, see N.Y. COMP. CODES R. & REGS. tit. 9, §
8005.20(c) (the "1997 Amendments"), rather than the original regulations
that were in effect at the time of the underlying conviction, March 29,
1990 (the "1990 Guidelines"). Specifically, petitioner alleged that
pursuant to the more severe 1997 Amendments, his offense constituted a
"Category 1" violation which resulted in an excessive time assessment
relative to that which would not have been made under the 1990
Guidelines. This appeal was denied on January 27, 2000.
On February 3, 2000, petitioner filed a motion for leave to appeal to
the New York Court of Appeals on the above mentioned grounds as well as
the failure of the Appeals Unit to provide him with a "meaningful appeal
in a timely fashion." On April 6, 2000, the motion was denied. See People
ex rel Jones v. New York State Div. of Parole, 94 N.Y.2d 763,
708 N.Y.S.2d 52, 729 N.E.2d 709 (2000). On or about August 19, 1999,
petitioner filed a claim in the Court of Claims against the State based
upon the unlawful imprisonment that resulted from the improper application
of the 1997 Amendments. On July 5, 2000, the Honorable Thomas J. McNamara
granted defendant's motion for summary judgment. Judge McNamara held that
the application of the 1997 Amendments was not unconstitutional because
section 8005.20(c) was not a law within the meaning of the Ex Post Facto
Clause. Accordingly, there was neither a claim for false imprisonment nor
a constitutional violation.
On July 19, 2000, petitioner filed this habeas petition alleging that
application of the 1997 Amendments, rather than the 1990 Guidelines
violated the Ex Post Facto Clause. Petitioner also claims that his
procedural due process rights were violated as a result of a racial
conspiracy, the Appeals Unit failed to issue its findings and
recommendations within four months of his perfected appeal.
I. Applicable Law
A petition for habeas corpus will not be granted "with respect to any
claim that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United
States." 28 U.S.C. § 2254(d)(1) (Supp. 2000).
II. 1990 Guidelines Versus 1997 Amendments
The 1990 Guidelines, provided inter alia, that upon violation of
parole, the presiding officer may:
(1) direct the violator's reincarnation and fix a date
for consideration by the board for rerelease on parole
or conditional release, as the case may be; or
(2) direct that the violator be restored to
supervision under the same or such other conditions of
release as the board may deem appropriate; or
(3) direct that the violator be placed in a parole
transition facility for a period not to exceed 180
N Y COMP. CODES R. & REGS. tit. 9, § 8005.20(c) (amended Jan. 13,
1992, Mar. 17, 1992, Apr. 20, 1993, June 22, 1993, Nov. 20, 1995, Jan.
29, 1996, and Dec. 24, 1996).
The 1997 Amendments, currently in effect and the focus of the instant
controversy, grant the hearing officer the power to distinguish between
"Category 1, 2, and 3" violators and suggest a minimum time assessment
for each category of violator.*fn1 See N.Y. COMP. CODES R. & REGS. tit.
9, § 8005.20(c)(1)-(3). The minimum time assessment for "Category 1"
violators, which included petitioner, was increased to a lesser of 15
months or the maximum expiration of the sentence. See id. §
8005.20(c)(1). However, a mitigating reduction of up to three months can
be applied if: the violator accepts responsibility for his actions. See
id. If the violator and New York State Division of Parole (the
"Division") both consent, the violator may be restored to a drug
treatment facility. See id. Furthermore, under the current version, the
hearing officer may "deviate from its prescribed time assessments" if the
violator fits into certain categories under subsection (c)(4) or
"recommend a disposition other than reincarnation" pursuant to subsection
(g).*fn2 People ex rel Johnson v. Russi, 258 A.D.2d 346, 685 N.Y.S.2d 661,
662 (1999), leave denied, 93 N.Y.2d 945, 693 N.Y.S.2d 504, 715 N.E.2d 506
(1999) (dismissing appeal based upon lack of substantial constitutional
question); see N.Y. COMP. CODES R. & REGS. tit. 9, § 8005.20(c)(4),
In this case, it is clear that the time assessment was based upon the
1997 Amendments rather than the 1990 Guidelines. The ALJ referred to the
fact that petitioner was a "Category 1" violator.*fn3 Furthermore, in
this case, the ALJ made
the assessment himself; pursuant to the 1990 Guidelines, the presiding
officer was required to make a written recommendation of findings of
fact to the Board of Parole with respect to any disposition made pursuant
to subsection (c)(1) or (c)(2). See N.Y. COMP. CODES. R. & REGS. tit. 9,
§ 8005.20(d) (amended Jan. 13, 1992, Mar. 17, 1992, Apr. 20, 1993,
June 22, 1993, Nov. 20, 1995, Jan. 29, 1996, and Dec. 24, 1996).
Therefore, the issue before this Court is whether the application of
the 1997 Amendments was "contrary to" or "involved an unreasonable
application" of established Supreme Court precedents involving ex post
A. Clearly Established Supreme Court Precedent re Ex Post Facto
"The threshold question . . . is whether [petitioner] seeks to apply a
rule of law that was clearly established at the time his state-court
conviction became final." Vasquez v. Strack, 228 F.3d 143, 148 (2d Cir.
2000) (quoting Williams v. Taylor, 529 U.S. 362, 389, 120 S.Ct. 1495,
1511, 146 L.Ed.2d 389 (2000)).
Aimed at preventing both state and federal legislative abuses, see
Miller v. Florida, 482 U.S. 423, 429-30, 107 S.Ct. 2446, 2450-51, 96
L.Ed.2d 351 (1987), the Ex Post Facto Clause, see U.S. CONST. art. I,
§ 9, cl. 3; art. I, § 10, cl. 1, forbids both federal and state
governments from passing any law "which imposes a punishment for an act
which was not punishable at the time it was committed; or imposes
additional punishment to that then prescribed." Weaver v. Graham,
450 U.S. 24, 28, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981) (citations
omitted); DiNapali v. Northeast Regional Parole Comm'n, 764 F.2d 143 (2d
Cir. 1985), cert. denied, 474 U.S. 1020, 106 S.Ct. 568, 88 L.Ed.2d 553
(1985). The Ex Post Facto Clause protects different rights from those
covered under the Due Process Clause. Therefore, it is irrelevant to the
initial inquiry whether the right to parole is "tested," "affirmative" or
"pre-existing." Weaver, 450 U.S. at 29-30, 101 S.Ct. at 964-65. An ex post
facto violation occurs if the law is both "`retrospective . . . [and]
disadvantage[s] the offender affected by it'" Miller, 482 U.S. at 430,
107 S.Ct. at 2451 (quoting Weaver, 450 U.S. at 29, 101 S.Ct. at 964). "A
law is retrospective if it `changes the legal consequences of acts
completed before its effective date.'" Miller 482 U.S. at 430, 107 S.Ct.
at 2451 (quoting Weaver, 450 U.S. at 31, 101 S.Ct. at 965). It works to
the disadvantage of the offender if the subsequently enacted law changes
the definition of a crime or increases the penalty by which a crime is
punishable. See Weaver, 450 U.S. at 28, 101 S.Ct. at 960.
However, not every law that "may work to the disadvantage of a
defendant' is violative of the Ex Post Facto Clause. Portley v.
Grossman, 444 U.S. 1311, 1312, 100 S.Ct. 714, 715, 62 L.Ed.2d 723 (1980)
(Rehnquist, Circuit Justice 1980) (quoting Dobbert v. Florida,
432 U.S. 282, 293, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977)); see
Miller, 482 U.S. at 430-31, 107 S.Ct. at 2451. The Ex Post Facto Clause
does not "`limit the legislative control of remedies and modes of
procedure which do not affect matters of substance.'" Portley, 444 U.S. at
1312, 100 S.Ct. at 715 (quoting Dabbert, 432 U.S. at 293, 97 S.Ct. at
2298). Although the Supreme Court has acknowledged that the distinction
of substantive versus procedural law "might sometimes prove elusive," it
has stated that procedural law "does not increase the punishment, nor
change the ingredients of the offence [sic] or the ultimate facts
necessary to establish guilt.' Miller, 482 U.S. at 433, 107 S.Ct. at
2452-53 (quoting Hopt v. Utah, 110 U.S. 574, 590, 4 S.Ct. 202, 210, 28
L.Ed. 262 (1884)).
In Portley, Justice Rehnquist denied the application for a stay of
execution of the Court of Appeal's denial of the applicant's writ of
habeas corpus. He held that the application of federal guidelines in
effect at the time of the revocation of parole which provided that the
"determination to grant
or deny parole is "committed to agency discretion'" did not violate the
Ex Post Facto Clause. 444 U.S. at 1312, 100 S.Ct. at 715 (citations
omitted). The regulations in effect at the time of the original
sentencing stated that a parole violator "may be required to serve all or
any part of the remainder of the term for which he was sentenced." Id.,
100 S.Ct. at 715. Justice Rehnquist held that the federal guidelines at
issue in the case were merely a framework for the Commissions exercise of
discretion and that the terms of the sentence had not been altered in any
way. "The guidelines, therefore, neither deprive applicant of any
pre-existing right nor enhance the punishment imposed." id. at 1312-13,
100 S.Ct. 714. They were in the nature of a procedural change because
they assisted the Commission in the exercise of its discretion and were
therefore permissible under Dobbert.
However, the Supreme Court has not determined whether
administrative policies or regulations are laws subject to ex post facto
regulation. See Hamm v. Latessa, 72 F.3d 947, 956 n. 14 (1st Cir. 1995).
Courts of Appeals have based their decisions on whether the regulations
remove the discretion of the hearing officer. If the hearing officer has
discretion in the decision-making and the regulations are can be
categorized as mere guidelines used in aid of such decision-making, there
is no constitutional violation. See id. However, if the regulations are
binding and remove the discretion of the hearing officer, their
retroactive application can be considered a violation of the Ex Post
Facto Clause. See id. (citing Akins v. Snow, 922 F.2d 1558, 1561 (11th
Cir. 1991), cert. denied; 501 U.S. 1260, 111 S.Ct. 2915, 115 L.Ed.2d 1079
(1991)); Rodriguez v. United States Parole Comm'n, 594 F.2d 170, 174 (7th
Cir. 1979); Love v. Fitzharris, 460 F.2d 382, 385 (9th Cir. 1972),
vacated as moot, 409 U.S. 1100, 93 S.Ct. 896, 34 L.Ed.2d 682 (1973).
B. "Contrary To"
A state court's decision is contrary to established Supreme Court
precedent if it is "substantially different." Williams, 529 U.S. at
404-05, 120 S.Ct. at 1519. The Supreme Court has identified two scenarios
in which a state court's decision may be considered established
precedent: first, if it applies a rule that contradicts the governing
law; and second, in light of "materially indistinguishable" facts set
forth from a decision from the Court, the state court reaches a different
conclusion. Id. at 406-07, 120 S.Ct. at 1519-20.
In this case, the state decision was not "contrary to" any
established Supreme Court precedent. There is no definitive law governing
whether administrative policies or regulations violate the Ex Post Facto
Clause and there is no Supreme Court case which presents materially
indistinguishable facts. Therefore, the petition must be denied unless
the state court's determination is considered an "unreasonable
application" of Supreme Court precedent.
C. "Unreasonable Application"
As a result of the fact that "[t]he term `unreasonable' is no doubt
difficult to define," id. at 410, 120 S.Ct. at 1522, this Court
acknowledges that the issue concerning the unreasonable application of
established federal law as determined by the Supreme Court is a
"troublesome" concept. Francis v. Stone, 221 F.3d 100, 109 & n. 12 (2d
Cir. 2000) (illustrating the different contexts in which the term
"unreasonable" has been used). However, the Supreme Court has provided
guidance and "clarified the standard in two ways." See Santorelli v.
Cowhey, 124 F. Supp.2d 853, 857 (S.D.N.Y. 2000).
First, it is clear that in order for habeas relief to be granted,
the state must be more than simply incorrect. An unreasonable application
does not exist if the state court applied merely erroneous or incorrect
federal law; the state court must also have acted "unreasonably" in its
application. Francis, 221 F.3d at 111 ("Some
increment of incorrectness beyond error is required."). This does not
mean that "habeas relief . . . [should] be limited to state court
decisions `so far off the mark as to suggest judicial incompetence.'"
Id. (quoting Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 889 (3d
Cir. 1999) (en banc)). The increment of incorrectness beyond error is
slight. See Francis, 221 F.3d at 111; Santorelli, at 857. Second, the
test is based upon an objectively unreasonable standard. See Williams,
529 U.S. at 408, 120 S.Ct. at 1521.
1. The State Court Did Not Unreasonably Apply Clearly Established
Supreme Court Precedent
In support of its position, respondent relies upon the fact that both
federal and state courts have consistently found that the regulations' at
issue in this case "are not `laws' within the meaning of the Ex Post
Facto Clause, but guidelines which assist the [Division of Parole] in
exercising its discretion in making parole assessments." Flowers v.
Wincelowicz, No. 96 Civ. 3276, 2000 WL 254011, at *2 (S.D.N Y Mar. 6,
2000) (quoting Johnson, 685 N YS.2d at 662); see Matthews v. New York
State Div. of Parole, 714 N.Y.S.2d 118, 119 (2000); People ex rel
Persing, Jr. v. Lacy, 714 N.Y.S.2d 143, 144 (2000); People ex rel Santoro
v. Hollins, 273 A.D.2d 829, 710 N.Y.S.2d 268, 269 (2000); People ex rel.
Gaito v. Couture, 269 A.D.2d 709, 704 N.Y.S.2d 894, 894 (2000), leave
denied; 95 N.Y.2d 754, 711 N.Y.S.2d 156, 733 N.E.2d 228 (2000); People ex
rel Alsaifullah v. New York State Div. of Parole, 269 A.D.2d 550,
703 N.Y.S.2d 740, 740 (2000), leave denied, 95 N.Y.2d 752,
711 N.Y.S.2d 154, 733 N.E.2d 226 (2000); People ex rel Tyler v. Travis,
269 A.D.2d 636, 702 N.Y.S.2d 705, 706-07 (2000); People ex rel Kelly v.
New York State Div. of Parole, 264 A.D.2d 361, 694 N.Y.S.2d 378, 378
(1999); People ex rel. Newland v. Travis, 185 Misc.2d 881,
714 N.Y.S.2d 627, 630 (2000). In opposition to these holdings and in
support of his position, petitioner cites People ex rel Smith v.
Greiner, 176 Misc.2d 931, 674 N.Y.S.2d 588 (1998), the only case which
has held that the 1997 Amendments at issue were violative of the Ex Post
In Smith, the petitioner had been convicted of Robbery in the First
Degree in 1983 and sentenced to an indeterminate term of imprisonment of
eight to sixteen years. See id. at 588. He was released from parole in
1992, but in 1997 was subsequently arrested for being in violation
thereof. The ALJ followed the guidelines set forth in 1997 Amendments and
determined that the petitioner should be reincarcerated until his Maximum
Expiration Date, August 18, 1998. See id. The court held that the 1997
Amendments were violative of the Ex Post Facto Clause because they were
retrospectively applied and disadvantaged the offender. See Miller, 482
U.S. at 430, 107 S.Ct. at 2451.
The Smith court also based its decision on the Second Circuit's holding
in United States v. Meeks, 25 F.3d 1117 (2d Cir. 1994). See Smith, 674
N YS.2d at 589-90. In Meeks, the application of a sentencing statute,
which was enacted after the underlying offense was committed and which
imposed a mandatory minimum sentence that did not exist at the time of
the conviction, was held to be in violation the Ex Post Facto Clause. The
Smith court rationalized that the case was "practically `on all fours'"
with Meeks because the 1997 Amendments imposed a mandatory time
assessment of 15 months. Id. at 589. It argued that the "previously
non-existent `mandatory minimum' penalty removes discretion and is thus,
. . . subject to ex post facto rejection." Id. at 590. Consequentially,
the Smith court found the guidelines unconstitutional.
Even if Smith were the only state court precedent, rather than a
solitary departure from the prevailing authority, we would not consider
it binding, or even persuasive, in determining whether to grant a writ
for habeas corpus. "Section 2254(d) requires us to give state courts'
opinions a respectful
reading, and to listen carefully to their conclusions, but when the state
court addresses a legal question, it is the law `as determined by the
Supreme Court of the United States' that prevails.'" Williams, 529 U.S.
at 387, 120 S.Ct. at 1510. We find that the analysis set forth by
Johnson is much more compelling. Because the 1997 Amendments do not
impose a mandatory minimum sentence, see infra, petitioner's reliance on
Smith is misplaced. Likewise, Meeks does not apply to this case, because
it dealt with sentencing statutes and not parole guidelines. See
generally Newland, 714 N.Y.S.2d at 631-32 (holding that the extension of
Meeks by the Smith court was inappropriate).
We agree that it is reasonable to interpret the 1997 Amendments as
being procedural, rather than affecting matters of substance and
therefore as not violative of the Ex Post Facto Clause because they are
not laws within the meaning of the Clause. See Miller, 482 U.S. at 430,
107 S.Ct. 2446; see also DiNapoli, 764 F.2d at 146 (holding that the
federal parole guidelines at issue were not "laws" within meaning of Ex
Post Facto Clause); Shepard v. Taylor, 556 F.2d 648, 654 (2d Cir. 1977)
(stating in dictum that the federal parole "guidelines do not constitute
impermissible ex post facto laws . . . they merely clarify the exercise
of administrative discretion without altering any existing considerations
for parole release."); Lawary v. United States Parole Comm'n, No. 99
Civ. 2417, 2000 WL 1277306, at *1 (S.D.N Y Sept. 8, 2000).*fn4 They
merely assist the Division in exercising its discretion. As stated
above, the 1997 Amendments do not impose a mandatory minimum time
assessment of 15 months, but rather allow the hearing officer either to
recommend alternatives to reincarnation or to mitigate the time
assessment if the circumstances permit. See N.Y. COMP. CODES R. & REGS.
tit. 9, § 8005.20(c)(1), (4), (g); see also Johnson, 685 N.Y.S.2d at
In this case, the ALJ did not mechanically apply a 15-month time
assessment. He requested and received the Divisions recommendation to
reincarcerate petitioner based upon his long absence and the violent
underlying crime. The delay of his decision until the next day, suggests
that he did take such recommendation under advisement. Finally, the ALJ
set forth the basis for his determination by listing the factors that
controlled his decision: (1) the length of petitioner's absconder; (2)
petitioner's involuntary return to custody; and (3) the fact that the
violation occurred within a short period after parole.
Furthermore, we agree that the 1997 Amendments do not necessarily
work to the disadvantage of petitioner. "It is axiomatic that for a law
to be ex post facto it must be more onerous than the prior law." Miller,
482 U.S. at 431, 107 S.Ct. at 2452 (quoting Dobbert, 432 U.S. at 294, 97
S.Ct. at 2299). In this case, petitioner could likewise have been
reincarcerated for the remainder of the term under the 1990 Guidelines.
The 1990 Guidelines expressly gave the presiding offer the right to
"direct the violator's reincarnation and fix a date for consideration by
the board for rerelease." Therefore, the 1997
Amendments, which imposed the revocation of parole and suggested a
15-month time assessment, do not necessarily affect petitioner
The guidelines at issue do not affect the underlying crime, the
prescribed punishment, or the proof necessary to establish petitioner's
guilt. See Miller, 482 U.S. at 434, 107 S.Ct. at 2454 (citing Dobbert,
432 U.S. at 294, 97 S.Ct. at 2298); see also Portley, 444 U.S. at 1312,
100 S.Ct. at 715 ("[T]he terms of the sentence originally imposed have no
way been altered. Applicant cannot be held in confinement beyond the
terms imposed by the judge, and at the time of his sentence he knew that
parole violations would put him at risk of serving the balance of his
sentence in . . . custody."). Petitioner's remaining sentence was greater
than 15 months. Therefore, he was not reincarcerated for a time greater
than his original sentence.
In conclusion, the time assessment made pursuant to 1997 Amendments was
not an unreasonable application of Supreme Court precedent. It is more
than reasonable to interpret the 1997 Amendments as being procedural and
therefore not "laws" within the meaning of the Ex Post Facto Clause of
the United States Constitution. The 1997 Amendments did not necessarily
work to the disadvantage of petitioner as he could have been
reincarcerated for the remainder of his term pursuant to either 1997
Amendments or the 1990 Guidelines. They do not change the definition of
the underlying crime, nor increase the punishment. The petition is
III. Denial of Due Process as a Result of Racial Conspiracy
On April 14, 1999, petitioner perfected his appeal of the ALJ's
February 10, 1999 time assessment to the Appeals Unit. He alleges that
the failure of the Appeals Unit to issue its findings or recommendations
within four months of this perfected appeal was a result of a racial
conspiracy on the part of the government. Therefore, he claims that he
was denied a fair appeal, which violated his rights of procedural due
process. This Court disagrees.
Section 8006.4(c) states that: Should 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. In that circumstance, the
division will not raise the doctrine of administrative
remedy as a defense to such litigation.
N Y COMP. CODES. R. & REGS. tit. 9, § 8006.4(c).
The exhaustion doctrine which finds its roots in the rule of
comity between federal and state courts, prohibits a federal court from
granting a state prisoner habeas relief, until the prisoner has exhausted
his remedies in state court. See O'Sullivan v. Boerckel, 526 U.S. 838,
842, 119 S.Ct. 1728, 1731, 144 L.Ed.2d 1 (1999); Cowan v. Artuz,
96 F. Supp.2d 298, 302-03 (S.D.N.Y. 2000) (Conner, J.). It allows state
courts the "opportunity to review this claim and provide any necessary
relief' and `resolve any constitutional issues." Cowan, 96 F. Supp.2d at
302 (quoting O'Sullivan, 526 U.S. at 844, 845, 119 S.Ct. at 1732).
The failure of the Appeals Unit to act on his appeal, did not prejudice
petitioner in any way. Petitioner subsequently appealed the decision to
the New York State Courts. Accordingly, there was no denial of procedural
Finally, petitioner does not allege that the failure of the Appeals
Unit to render its findings and recommendations within four months was a
result of a racial conspiracy. Indeed, he makes no reference to his
race; nor does he allege that he was treated differently from people of
another race. The conclusory allegations are insufficient as a matter of
For the foregoing reasons, the petition for writ of habeas corpus is
denied. This Court declines to issue a certificate of appealability, as
petitioner has not presented a "substantial showing of the denial of a
constitutional right." 28 U.S.C. § 2253(2) (Supp. 2000); see United
States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997), cert. denied,
525 U.S. 953, 119 S.Ct. 384, 142 L.Ed.2d 318 (1998).