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January 3, 2001


The opinion of the court was delivered by: Conner, Judge


Petitioner pro se Etoile D'Joy a/k/a David Jones, an inmate at Gouverneur Correctional Facility, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 et seq. Petitioner alleges that the parole revocation decision rendered on February 10, 1999, by Administrative Law Judge ("ALJ") John F. Casey, violated the Ex Post Facto Clause of the United States Constitution and that, as a result of a racial conspiracy, he was denied a meaningful appeal in violation of his procedural due process rights. For the reasons stated hereinafter, the petition is denied.


On March 29, 1990, a Manhattan jury found petitioner guilty of robbery in the Second Degree, see N.Y. PENAL LAW § 160.10 (McKinney 1999), Resisting Arrest, see N.Y. PENAL LAW § 205.30 (McKinney 1999), and Attempted Assault in the Third Degree, see N.Y. PENAL LAW §§ 110; 120.00 (McKinney 1998). Petitioner was sentenced to an indeterminate sentence of four to twelve years of imprisonment for the robbery charge, two determinate sentences of one year for the resisting arrest charge and ninety days for the attempted assault charge. All sentences were to run concurrently.

A. Underlying Facts

Petitioner, in the possession of a handgun and with the aid of an unidentified male accomplice, stole an unspecified amount of money from the victim. During the initial attack, petitioner placed the victim in a "headlock" and repeatedly punched him in the head while his accomplice took the victim's money. Approximately three months later, petitioner physically attacked the victim again and was subsequently arrested.

On November 2, 1994, petitioner was released to parole supervision upon his agreement to special terms and conditions, including rule #2, which specified that he make "office/and or written reports as directed." During his parole supervision petitioner appeared for his arrival report and two subsequent office reports. However on November 23, 1994 petitioner failed to report to his parole officer, which led to a declaration of delinquency on December 14, 1994. Petitioner could not be located at the house of his girlfriend, with whom he initially proposed to reside, or at the alternative residence given by him during his arrival report. Accordingly, on January 6, 1995, a parole warrant was issued against petitioner.

On October 10, 1998, petitioner was served with a Notice of Violation, which stated that a voluntary and knowing waiver of the right to appear could result from the voluntary failure to appear and lead to a "hearing in absentia . . . and a final determination [can] be made regarding the charges pending against you." Although petitioner received notice of the parole revocation hearings, initially to be held on November 23, 1998, and the postponed 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 ...

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