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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


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 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. 2000)).

  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 case determinations.
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 haircut requirement.

  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 issue.

  So Ordered.

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