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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


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 understanding?
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 COURT: Do you have any questions about this agreement?
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 court stated:
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 indictment.
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 warrant.
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 ...

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