United States District Court, E.D. New York
September 10, 2004.
RONALD CURTIS, Petitioner,
BRIAN FISCHER, Superintendent, Sing Sing Correctional Facility, Respondent.
The opinion of the court was delivered by: JOHN GLEESON, District Judge
MEMORANDUM AND ORDER
Petitioner Ronald Curtis, an inmate at the Sing Sing
Correctional Facility, seeks habeas relief from a judgment of
conviction entered on a plea of guilty in state court. I held
oral argument today and now, for the reasons set forth below,
deny the petition.
Curtis was indicted on myriad burglaries of commercial
establishments and private residences, the details of which are
set out at length in the affidavit submitted by respondent in opposition to Curtis's petition. It is enough to
say here that the indictment alleged seven burglaries committed
between August and November 2000. Curtis was charged with two
counts of burglary in the second degree, seven counts of burglary
in the third degree, one count of grand larceny in the second
degree, two counts of grand larceny in the third degree, four
counts of grand larceny in the fourth degree, seven counts of
petit larceny, two counts of criminal trespass in the second
degree, seven counts of criminal trespass in the third degree,
and four count of criminal mischief in the fourth degree.
On March 28, 2001, Curtis, represented by counsel, pleaded
guilty to two counts of burglary in the second degree in full
satisfaction of the indictment:
THE COURT: Now, by withdrawing your . . . plea [of
not guilty], you understand one of two things will
ultimately happen here. If you successfully complete
the DTAP*fn1 program, which is 18 to 24 months
in duration, if you comply with all the conditions
they impose and the Court imposes and you're not
rearrested for anything, then you will be able to
take your felony plea back and all the charges on the
indictment will be dismissed outright; is that your
THE DEFENDANT: Yes.
THE COURT: The second thing that may happen, and
everybody knows that I will not hesitate to do this
given the charges and your record, I will impose
fifteen years if you violate these conditions, you
will not be allowed to take your plea back and go to
trial, I will impose the fifteen years incarceration.
Do you understand that?
THE DEFENDANT: Yes.
THE COURT: Do you have any questions about this
THE DEFENDANT: No.
THE COURT: Have you had enough time to discuss it
fully with your attorney?
THE DEFENDANT: Yes. (Plea Tr. at 3-4.) Curtis also waived his right to
appeal. After being advised of the rights he was
waiving, Curtis allocuted to the two burglary counts,
entered a plea of guilty, and was adjudicated a
second felony offender.
On April 4, 2001, Curtis was released from incarceration and
placed in the Samaritan Village residential drug treatment
program. On June 4, 2001, Curtis was allowed to leave that
facility to visit his child. He did not return, thereby violating
the terms of his release and plea. The next day, the court was
informed that Curtis had absconded and issued a warrant for his
arrest. On July 3, 2001, Curtis was involuntarily returned to
court on the warrant and remanded.
Despite the violation, the state agreed to have Treatment
Alternatives to Street Crime ("TASC") arrange for Curtis to
enroll in another drug treatment program. Therefore, on September
17, 2001, Curtis was again released to TASC and assigned to the
J-Cap residential drug treatment program. That same day, however,
Curtis left the program without permission and against clinical
advice, thereby violating the terms of his release and plea a
second time. Curtis was arrested on September 24, 2001,
independent of his criminal case, as a result of an altercation
with a drug dealer. On September 26, 2001, Curtis was returned to
court and remanded to await sentencing. The court also ordered
that a presentence report be prepared.
When Curtis appeared for sentencing on January 9, 2002, the
state asked the court to impose the maximum sentence of fifteen
years in prison. Curtis's counsel requested that Curtis be given
another chance to participate in a drug treatment program. The
The defendant pled guilty before me; at the time
there w[ere] seven separate incidents charged on the
indictment, seven burglary charges, two [of] which
were residential burglaries it seems and the balance
of them were commercial burglaries. The Defendant does have a
number of contacts with the criminal justice system
and the People's policy is to offer maximum time when
there is more than two violent felony offenses on an
We worked very hard with you[,] Mr. Curtis[,] to try
to get you on the right path and you violated the
terms of the program on two occasions; you were given
[an] opportunity to go back because nobody really
wanted to impose a very stiff jail sentence; so
everything was done to see you were given every
opportunity to work the program.
. . . .
There is basically no reason whatsoever to impose the
minimum, given two prior contacts, seven charges
here. The first time he left the program he was I
think he was allowed a visit, he didn't return; the
second time he was admonished it would be the last
chance. He was released, left the same day he was
released. . . . Apparently he was arrested on a
felony offense and . . . brought back here on the
Is there anything you wish to say[,] Mr. Curtis[,] at
all on your behalf before I impose sentence?
THE DEFENDANT: Just at the time I was given the
second program I was not aware I would have to cut my
hair until I got on the outside, when [I] got there . . .
they asked me are you going to cut your hair,
said I wasn't sure if going to cut your hair, going
to cut it off or go back to jail. We wasn't sure when
I got there that's when I knew that I was going to
cut my hair off; my religious belief I don't cut my
hair; said they don't care about that, going to cut
your hair or you leave. I said I'll not cut my hair.
I feel probably I made a mistake by not doing that.
Everything came about because of my hair.
THE COURT: You came back here with a new arrest, no
effort for you to reach out to anyone with respect to
[this] issue; this issue was never raised previously
about your hair. Frankly, Mr. Curtis, I don't buy it,
hair cut versus 15 years in jail.
THE DEFENDANT: I was not thinking, your Honor.
THE COURT: Yeah, entered seven locations without
permission or authority to do so as well. I don't see
a whole lot of reason any, real mitigation. Fifteen
years is stiff; so in light of that I'm going to
impose sentence of 12 years on each count Burglary
Second degree, this sentence is to run concurrently
with one another [sic].
(Sent. Tr. at 3-4, 6-8.)
Curtis appealed his conviction and sentence to the Appellate
Division, Second Department, claiming: (1) His right to freedom
of religion was violated when he was forced to choose between participating in a treatment program and adhering
to his religious beliefs; (2) he was not informed prior to
pleading guilty that he would be required to cut his hair as a
condition of drug treatment; and (3) his sentence was excessive.
The Appellate Division affirmed Curtis's conviction and sentence,
holding, "The defendant's contentions are either unpreserved for
appellate review or waived pursuant to the terms of his
negotiated plea agreement. In any event, his contentions are
without merit." People v. Curtis, 766 N.Y.S.2d 891, 891 (2d
Dep't 2003). Leave to appeal was denied. People v. Curtis,
1 N.Y.3d 596 (2004) (Kaye, C.J.).
In the instant petition, Curtis raises a different
freedom-of-religion claim. He argues that the sentencing court
denied him his right to due process by imposing sentence "without
making a determination as to which conditions of the treatment
program violated" his right to freedom of religion. (Pet'r Mem.
Law at 7.)
A. The Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA") has narrowed the scope of federal habeas review of
state convictions where the state court has adjudicated a
petitioner's federal claim on the merits. See
28 U.S.C. § 2254(d). Under the AEDPA standard, which applies to habeas
petitions filed after AEDPA's enactment in 1996, the reviewing
court may grant habeas relief only if the state court's decision
"was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States."*fn2 28 U.S.C. § 2254(d)(1). The
Supreme Court has interpreted the phrase "clearly established Federal law" to mean
"the holdings, as opposed to the dicta, of [the Supreme Court's]
decisions as of the time of the relevant state-court decision."
Williams v. Taylor, 529 U.S. 362, 412 (2000); see also
Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001).
A decision is "contrary to" clearly established federal law, as
determined by the Supreme Court, if "the state court arrives at a
conclusion opposite to that reached by [the Supreme Court] on a
question of law or if the state court decides a case differently
than [the Supreme Court] has on a set of materially
indistinguishable facts." Williams, 529 U.S. at 413. A decision
is an "unreasonable application" of clearly established Supreme
Court law if a state court "identifies the correct governing
legal principle from [the Supreme Court's] decisions but
unreasonably applies that principle to the facts of [a]
prisoner's case." Id. "In other words, a federal court may
grant relief when a state court has misapplied a `governing legal
principle' to `a set of facts different from those of the case in
which the principle was announced.'" Wiggins v. Smith,
539 U.S. 510, 520 (2003) (quoting Lockyer v. Andrade, 538 U.S. 63,
123 S. Ct. 1166, 1175 (2003)).
However, there is "force" to the argument "that if a habeas
court must extend a rationale before it can apply to the facts at
hand then the rationale cannot be clearly established at the time
of the state-court decision"; "[§] 2254(d)(1) would be undermined
if habeas courts introduced rules not clearly established under
the guise of extensions to existing law." Yarborough v.
Alvarado, 124 S. Ct. 2140, 2150-51 (2004). The Supreme Court has
concluded, however, that while "the difference between applying a
rule and extending it is not always clear," "[c]ertain principles are fundamental enough that when new
factual permutations arise, the necessity to apply the earlier
rule will be beyond doubt." Id. at 2151.
Under the "unreasonable application" standard set forth in
Williams, "a federal habeas court may not issue the writ simply
because that court concludes in its independent judgment that the
relevant state-court decision applied clearly established federal
law erroneously or incorrectly. Rather, that application must
also be unreasonable." Gilchrist, 260 F.3d at 93 (citing
Williams, 529 U.S. at 411); see also Yarborough v. Gentry,
124 S. Ct. 1, 4 (2003) (per curiam) ("Where . . . the state
court's application of governing federal law is challenged, it
must be shown to be not only erroneous, but objectively
unreasonable."); Wiggins, 539 U.S. at 520-21 (same).
Interpreting Williams, the Second Circuit has added that
although "[s]ome increment of incorrectness beyond error is
required . . . the increment need not be great; otherwise, habeas
relief would be limited to state court decisions so far off the
mark as to suggest judicial incompetence." Gilchrist,
260 F.3d at 93 (citing Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir.
The Supreme Court recently explained that the specificity with
which the rule of law at issue is defined may affect whether the
state court's determination was "unreasonable":
[T]he range of reasonable judgment can depend in part
on the nature of the relevant rule. If a legal rule
is specific, the range may be narrow. Applications of
the rule may be plainly correct or incorrect. Other
rules are more general, and their meaning must emerge
in application over the course of time. Applying a
general standard to a specific case can demand a
substantial element of judgment. As a result,
evaluating whether a rule application was
unreasonable requires considering the rule's
specificity. The more general the rule, the more
leeway courts have in reaching outcomes in case by
Alvarado, 124 S. Ct. at 2149. This standard of review applies whenever the state court has
adjudicated the federal claim on the merits, regardless of
whether it has alluded to federal law in its decision. As the
Second Circuit stated in Sellan v. Kuhlman:
For the purposes of AEDPA deference, a state court
"adjudicate[s]" a state prisoner's federal claim on
the merits when it (1) disposes of the claim "on the
merits," and (2) reduces its disposition to judgment.
When a state court does so, a federal habeas court
must defer in the manner prescribed by
28 U.S.C. § 2254(d)(1) to the state court's decision on the
federal claim even if the state court does not
explicitly refer to either the federal claim or to
relevant federal case law.
261 F.3d 303
, 312 (2d Cir. 2001).
In addition, a state court's determination of a factual issue
is presumed to be correct, and is unreasonable only where the
petitioner meets the burden of "rebutting the presumption of
correctness by clear and convincing evidence."
28 U.S.C. § 2254(e)(1).
However, "even in the context of federal habeas,
deference does not imply abandonment or abdication of
judicial review. . . . A federal court can disagree
with a state court's credibility determination and,
when guided by AEDPA, conclude the decision was
unreasonable or that the factual premise was
incorrect by clear and convincing evidence."
Shabazz v. Artuz, 336 F.3d 154
, 161 (2d Cir. 2003) (ellipsis in
original) (quoting Miller-El v. Cockrell, 537 U.S. 322
123 S. Ct. 1029
, 1041 (2003)).
B. Curtis's Claim
1. Exhaustion and Procedural Default
Before a federal court may consider a state prisoner's petition
for a writ of habeas corpus, the petitioner must have exhausted
all available state judicial remedies. 28 U.S.C. § 2254(b);
Picard v. Connor, 404 U.S. 270, 275 (1971). In order to exhaust
his state remedies, a petitioner must have fairly presented his
federal constitutional claims to the highest state court. Daye v. Attorney Gen., 696 F.2d 186, 191 (2d Cir. 1982) (in
banc). A petitioner has fairly presented a claim if he or she
apprised the state courts of "both the factual and the legal
premises of the claim [the petitioner] asserts in federal court."
Id. Even if a petitioner raises precisely the same legal claims
in state and federal proceedings, reliance in the two proceedings
upon different factual grounds that fundamentally alter the legal
claim will foreclose a conclusion that the claim is exhausted.
Vasquez v. Hillery, 474 U.S. 254, 260 (1986); see also Jones
v. Keane, 329 F.3d 290, 294-95 (2d Cir. 2003) ("A petitioner has
`fairly presented' his claim only if he has informed the state
court of both the factual and the legal premises of the claim he
asserts in federal court." (quotation marks omitted)). In other
words, the claim presented to the state court "must be the
substantial equivalent of the claim raised in the federal habeas
petition." Id. at 295 (quotation marks omitted). Furthermore,
"the basic requirement remains that `the nature or presentation
of the claim must have been likely to alert the court to the
claim's federal nature.'" Jones v. Vacco, 126 F.3d 408, 413 (2d
Cir. 1997) (quoting Daye, 696 F.2d at 192).*fn3
Here, Curtis's state court freedom-of-religion argument was not
premised on the same allegations as the argument here, i.e., the
denial of a hearing. Nor did Curtis ever request a hearing on the
issue of his true motive for absconding from the programs.
Furthermore, were Curtis to raise this claim in state court now,
it would be procedurally barred, like the freedom of religion
claim he did raise. In any event, his claim is meritless, as
discussed below. 2. The Merits
In support of his claim that the trial court should have held a
hearing, Curtis cites Torres v. Berbary, 340 F.3d 63 (2d Cir.
2003). Torres had entered a plea of guilty pursuant to an
agreement providing for his conditional release to Phoenix House,
a drug treatment facility. Id. at 64. At sentencing, Torres was
admonished that if he did not "work out," i.e., successfully
complete the treatment program, he would be sentenced to
four-and-one-half to nine years in prison. Id. at 64-65. Less
than one month after entering the program, Torres was discharged
from the program. Id. at 65. Phoenix House alleged that Torres
had distributed illicit drugs within the facility, and though
Torres indicated that he wanted his discharge reviewed (an option
provided for on the discharge form), no review was provided.
Id. Upon being returned to the court for further proceedings,
Torres strenuously denied Phoenix House's allegations. Id. at
65-66. The court, however, without benefit of a hearing, credited
Phoenix House's allegations and sentenced Torres to
four-and-one-half to nine years in prison. Id. at 66.
In his petition for a writ of habeas corpus, Torres alleged
that his due process rights had been violated because he had been
denied an evidentiary hearing in connection with his discharge
from Phoenix House. The Second Circuit held that due process
requires "`some kind of hearing' before a person is deprived of a
liberty interest." Id. at 71 (quoting Wolff v. McDonnell,
418 U.S. 539, 558 (1974)).
The facts of Torres, however, are significantly different
than those in the case at bar. Curtis was not discharged from his
programs based on unsubstantiated allegations; indeed, Curtis did
not dispute that he had absconded from the programs, nor could he
have. Furthermore, Curtis's motive for absconding was irrelevant.
First, Curtis never claimed, nor does he here, that he absconded from the first drug treatment
program because he was required to cut his hair. As set forth
above, prior to being sentenced, Curtis stated, "Just at the time
I was given the second program I was not aware I would have to
cut my hair until I got on the outside. . . ." (Sent. Tr. at 7
(emphasis added).) Curtis makes no excuse for leaving the first
program, and this act alone was a sufficient ground for the court
to sentence him to fifteen years imprisonment (though the court
sentenced him to only twelve).
Second, if Curtis truly did have a religious objection to
cutting his hair, absconding from the second program (on the day
he was to enter it) was not the proper response. He could have
challenged, on First Amendment or other grounds, the alleged
Third, not only did Curtis abscond from the second program, he
was soon arrested for robbery, stemming from the altercation with
a drug dealer. Curtis offers no excuse for this violation of the
terms of his conditional sentence. In short, given the multiple
and undisputed violations of the conditions of Curtis's release,
the court was well within its discretion to sentence him to a
twelve-year term of imprisonment. A hearing was unnecessary.
For the foregoing reasons, the petition is denied. As Curtis
has failed to make a substantial showing of a denial of a
constitutional right, no certificate of appealability shall