petition should be dismissed because petitioner failed to
exhaust his available administrative remedies, and because his
claims have no merit.
I. Failure to Exhaust Administrative Remedies
A petitioner must exhaust all available administrative
remedies before filing a petition for habeas corpus relief,
including in the parole context. See Carmona v. United States
Bureau of Prisons, 243 F.3d 629, 634 (2d Cir. 2001); Guida v.
Nelson, 603 F.2d 261, 262 (2d Cir. 1979) (per curiam);
Stinchfield v. Menifee, 119 F. Supp.2d 381, 385 (S.D.N.Y.
2000). In this case, King was notified expressly that he could
appeal the NOA to the National Appeals Board pursuant to
28 C.F.R. § 2.26, and he did not appeal.
Although a petitioner might be able to avoid the need to
exhaust his administrative remedies if the available procedures
are "incompetent to provide adequate redress," Hall, 1998 WL
397850, at *3 (quoting Gonzalez v. Perrill, 919 F.2d 1, 2 (2d
Cir. 1990)), petitioner here fails to make any showing that an
appeal to the National Appeals Board was "unavailable or
inadequate." Id.; see also Russo v. Reish, No. 97 Civ. 3607,
1997 WL 401821, at *2 (S.D.N.Y. July 17, 1997).
Moreover, since King failed to file an appeal within the
applicable 30-day period, he is now procedurally barred from
raising his challenges to the NOA in this petition. See
Maldonado v. Hasty, No. 98 Civ. 2462, 1999 WL 216649, at *2
(S.D.N.Y. Apr. 14, 1999); Hall v. United States Parole Comm'n,
No. 97 Civ. 7814, 1998 WL 397850, at *2 (S.D.N.Y. July 15,
1998); Johnson v. Morton, 97 CV 957, 1997 WL 470878, at *1
(E.D.N.Y. June 26, 1997). Accordingly, as petitioner fails to
make the requisite showing of "cause and prejudice" to be
excused from his failure to timely appeal the Parole
Commission's determination, Carmona, 243 F.3d at 634, his
petition must be denied.
II. Revocation Hearing
Petitioner's claims that he was denied due process in
connection with his revocation hearing are in any event
meritless. The Supreme Court in Morrissey v. Brewer,
408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) outlined what due
process required in the parole revocation setting. As a general
matter, the Court held that a parolee must have the opportunity
to be heard at a revocation hearing "within a reasonable time
after the parolee is taken into custody," and "prior to the
final decision on revocation." Id. at 487-88, 92 S.Ct. 2593.
must be the basis for more than determining probable
cause; it must lead 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 the circumstances in
mitigation suggest that the violation does not
Id. at 438, 92 S.Ct. 2593. Petitioner was not denied due
process in this case.