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Thurman v. Allard

September 22, 2004

EMERSON THURMAN, PETITIONER,
v.
M. ALLARD, ACTING SUPERINTENDENT, GOWANDA CORRECTIONAL FACILITY, AND BRION D. TRAVIS, CHAIRMAN, NYS DIVISION OF PAROLE, RESPONDENTS.



The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge

OPINION AND ORDER

On April 18, 1996, while on parole following convictions in 1981 for robbery and possession of stolen property, Emerson Thurman was arrested for sexually assaulting a woman. A parole revocation hearing was held in February 1997, following which an Administrative Law Judge ("ALJ") revoked Thurman's parole and imposed a 48-month sentence. Thurman is currently incarcerated at the Groveland Correctional Facility in Sonyea, New York. He has now petitioned this Court pro se under 28 U.S.C. § 2254 for writ of habeas corpus. The parties have consented to disposition of this matter by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons stated below, Thurman's petition is denied.

I. BACKGROUND

A. Thurman's Underlying Convictions

In 1981, in the New York State Supreme Court, Bronx County, Thurman was convicted of Robbery in the First Degree, Robbery in the Second Degree, and Criminal Possession of Stolen Property in the Second Degree. See Appellant's Brief, undated ("First State Habeas App.: Brief") (reproduced in Petition Under 28 USC § 2254 for Writ of Habeas Corpus by a Person in State Custody, filed September 26, 2001 (Docket #1) ("Petition")), at 6. He was sentenced to prison terms of 12 ½ to 25 years for the first-degree robbery count, 7 ½ to 15 years for the second-degree robbery count, and 1 ½ to 3 years for the possession count, with the terms to run concurrently. See id. After serving approximately 15 years in prison, he was paroled on September 1, 1994. See id.

B. The Parole Revocation Hearing

On April 18, 1996, while on parole, Thurman was arrested for sexually assaulting a woman. See id. Although a grand jury refused to indict Thurman for this alleged assault, he was served with a parole violation notice on April 24, 1996 and remained incarcerated pending a parole revocation hearing. See id. at 6-7; see also Violation of Release Report, dated April 24, 1996 (reproduced as Ex. C to Affidavit of Beth J. Thomas in Opposition, filed March 8, 2002 (Docket #9) ("Thomas Aff.")). That hearing was held before an ALJ on February 3, 1997. See First State Habeas App. Brief at 7. Thurman was represented at the hearing by Amy Hausknecht of the Legal Aid Society. See Petition ¶ 2.

At the hearing, testimony was heard from two parole officers, from Thurman, and from the woman who was allegedly assaulted by Thurman, who will hereinafter be referred to by her initials, "MM." In addition, at Hausknecht's request, the minutes of Thurman's testimony before the grand jury were admitted into evidence. (See Hr'g Tr. 38-40).*fn1 At the hearing, the following evidence was adduced:

Sometime after his September 1, 1994 parole, Thurman tested positive for cocaine. (Hughes: Hr'g Tr. 44). His parole officer gave him a choice either to enter and complete a drug treatment program or to face a parole violation because of his positive cocaine test. (Hughes: Hr'g Tr. 44-46). In January 1996, Thurman entered the Promesa residential drug rehabilitation program ("Promesa"). (Hughes: Hr'g Tr. 44-46). MM was also a resident of Promesa. (MM: Hr'g Tr. 12-13).

On April 17, 1996, MM was assigned to escort Thurman from Promesa to his mother's house. (MM: Hr'g Tr. 14, 27). After picking up some money from Thurman's mother's house and making at least three other stops, Thurman and MM went to a crack house. (MM: Hr'g Tr. 14-15, 28). MM stayed in the living room of the house while Thurman went to a bathroom. (MM: Hr'g Tr. 15). Thurman then called for MM. (MM: Hr'g Tr. 15, 29-30). When she went to the bathroom, MM saw that Thurman was injecting himself with cocaine. (MM: Hr'g Tr. 15, 30). As soon as she entered the bathroom, Thurman closed the door to the bathroom and stood against it. (MM: Hr'g Tr. 15-16, 30). Thurman picked up a bathroom plunger, raised it over his head, and told MM to give him oral sex. (MM: Hr'g Tr. 16-17). MM resisted but, because Thurman was blocking the door and because he threatened to hit her with the plunger if she made any noise, she relented and performed oral sex on him. (MM: Hr'g Tr. 16-17, 31). Thurman then proceeded to tear off MM's stockings and insert his fingers into her vagina. (MM: Hr'g Tr. 17-18). At some point Thurman opened the bathroom door "a little." (MM: Hr'g Tr. 18). When he tried to close the door, MM "pushed with all [her] might and was able to get through the door." (MM: Hr'g Tr. 18). She ran out of the house and onto the street, naked from the waist down, and managed to get a ride to her sister's house. (MM: Hr'g Tr. 18-19, 33). From her sister's house, MM took a cab to Promesa, where she told administrators what had happened and was then taken to a hospital. (MM: Hr'g Tr. 19-20).

After the attack on that same day, Thurman returned to his mother's house and received a call from his drug counselor at Promesa, who told him that he was not allowed to come back. (Thurman: Hr'g Tr. 57-58). Thurman was arrested the next day by two detectives from the Bronx Sex Squad and a number of parole officers, who found Thurman sleeping in a bed in his mother's house. (Ippolito: Hr'g Tr. 54).

C. The Parole Revocation Decision

On February 13, 1997, the ALJ issued a written decision finding that MM's testimony was credible and that "Thurman sodomized, sexual[ly] abused, and menaced [MM]." Parole Revocation Decision Notice, dated February 13, 1997 ("Parole Revocation Decision Notice") (reproduced as Ex. D to Thomas Aff.), §§ IV.H, VI. The ALJ revoked Thurman's parole and imposed a delinquent time assessment of 48 months. Id. § VI.*fn2

D. Thurman's First State Habeas Petition

Represented by counsel, on June 20, 1997 Thurman filed a petition for writ of habeas corpus in the New York State Supreme Court, Erie County. See First State Habeas App. Brief at 5. In his brief, Thurman raised the following two issues:

1. Whether or not the failure of the Grand Jury to indict [Thurman] on all criminal charges, where testimony of witnesses were [sic] essentially the same, collaterally estopped the Parole Board from revoking parole on basis of the same testimony.

2. Whether or not the evidence presented at the Parole Board Revocation hearing rose to the level of Preponderance of the Evidence.

Brief for the Relator, stamped January 6, 1998 ("First State Habeas Petition") (reproduced in Petition), at 34.*fn3 The state court denied the petition on January 21, 1998, holding that the parole board was not collaterally estopped from revoking Thurman's parole and that Thurman was not denied due process. See First State Habeas App. Brief at 7.*fn4

Represented by new counsel, Thurman appealed the decision to the Appellate Division, Fourth Department. In his brief, he raised the following issue: "Did the court commit error when it decided that the Division of Parole was not collaterally estopped after [Thurman] had been no billed by the grand jury?" Id. at 3. He also submitted a "supplemental" brief, prepared pro se but filed by counsel, raising the following additional issues:

1. Whether the Assistant District Attorney's prosectorial [sic] tactics violated [Thurman's] U.S. Constitutional rights and due process rights and equal protection rights as to the law?

2. Whether or not [Thurman was] afforded a final revocation hearing that comported to the statutory commands of the executive law?

3. Whether the court below rendered a judgment that was clearly erroneous and unlawful?

4. Should [Thurman's] writ of habeas corpus [have] been converted to a CPLR Article 78 proceeding?

Supplemental Brief on Appeal, dated March 7, 2000 ("First State Habeas Supp. App. Brief") (reproduced in Petition), at iii.*fn5

On September 29, 2000, the Appellate Division unanimously affirmed. People ex rel. Thurman v. Williams, 275 A.D.2d 1022 (4th Dep't 2000). Concerning Thurman's collateral estoppel argument, the court held that "the Grand Jury's determination not to indict with respect to those crimes [referring to the alleged sexual assault of MM] did not collaterally estop the Parole Board from proceeding against [Thurman] based on those crimes." Id. at 1022 (citations omitted). The court stated that Thurman's remaining contentions were "without merit." Id.

Thurman sought leave to appeal to the Court of Appeals of New York, raising the same arguments as he had raised with the Appellate Division in his original and "supplemental" briefs. See Petition ¶ 10(f)(5). On December 21, 2000, leave was denied. People ex rel. Thurman v. Williams, 95 N.Y.2d 770 (2000).

E. Thurman's Second State Habeas Petition

While the appeal of his first petition was pending, Thurman, proceeding pro se, filed a second petition for writ of habeas corpus in the New York State Supreme Court, Erie County. See Appellant's Brief, undated ("Second State Habeas App. Brief") (reproduced as Ex. D to Motion to File Amended Petition and as Ex. 3 to Supplemental Affidavit of Beth J. Thomas in Opposition to Amended Petition for a Writ of Habeas Corpus, filed June 27, 2002 (Docket #16) ("Thomas Supp. Aff.")), at 5; see also Petition for Writ of Habeas Corpus, dated May 28, 1998 ("Second State Habeas Petition") (reproduced as Ex. C to Motion to File Amended Petition and as Ex. 3 to Thomas Supp. Aff.). In this petition, Thurman raised the following "new facts" which had "not previously [been] shown" in his first state habeas petition, Second State Habeas Petition at 8: (1) that the parole violation warrant was defective, see id. at 4-6, 8-9; (2) that he was denied due process at the parole revocation hearing because medical records were admitted into evidence without a proper foundation, see id. at 6-9; and (3) that he was subjected to an illegal search and seizure because he was arrested in his mother's house without probable cause and without search and arrest warrants, see id. at 1-4, 7-8. Accord Second State Habeas App. Brief at 5. The state court denied the petition on October 22, 1998. See id.

Represented by counsel, Thurman appealed this decision to the Appellate Division, Fourth Department. In his brief, he raised the three issues listed above. See id. at 7-11. On September 28, 2001, the Appellate Division affirmed. People ex rel. Thurman v. Williams, 286 A.D.2d 1009 (4th Dep't 2001). Thurman's application for leave to appeal to the Court of Appeals of New York was denied on January 8, 2002. People ex rel. Thurman v. Williams, 97 N.Y.2d 608 (2002).

F. Thurman's Third State Habeas Petition

While the appeal of Thurman's second state habeas petition was pending, he filed a third state petition for writ of habeas corpus. In this petition, Thurman argued that the parole violation warrant was defective, that his due process rights were violated because he did not receive timely notice of the parole revocation hearing, and that he was not required to exhaust his administrative remedies. See Affirmation of Salvatore C. Adamo, dated January 8, 2001 ("Third State Habeas Leave Application") (reproduced as Ex. 4 to Thomas Supp. Aff.), ¶ 2. The State Supreme Court denied Thurman's petition on July 6, 1999. See id. at 2.

Represented by counsel, Thurman appealed the decision to the Appellate Division, Fourth Department. In a brief prepared by counsel, Thurman raised the same three issues that had been raised in the petition. See Affidavit of Emerson Thurman in Support of Motion for Permission to Appeal, dated October 4, 2001 ("Coram Nobis Leave Application") (reproduced as Ex. F to Motion to File Amended Petition), ¶ 6. Counsel also filed a "supplemental" brief prepared by Thurman that raised an additional ground: "Whether the court below erred when [Thurman] was not afforded an evidentiary hearing that comported with the commands of Article 70 of the Civil Pratice [sic] Law and Rules?" Supplemental Brief on Appeal, undated ("Third State Habeas Supp. App. Brief") (reproduced in Ex. C to Second Amended Petition), at 1; accord Coram Nobis Leave Application ¶ 6. The Appellate Division affirmed on December 27, 2000. People ex rel. Thurman v. Hodges, 278 A.D.2d 952 (4th Dep't 2000).

Proceeding through counsel, Thurman applied to the Court of Appeals for leave to appeal, raising the same three issues as raised in the Appellate Division brief prepared by counsel. See Third State Habeas Leave Application ¶ 4. However, in spite of Thurman's request, counsel refused to file the "supplemental" brief raising the additional issue. See Coram Nobis Leave Application ¶¶ 5, 8. Thurman's leave application was denied on March 29, 2001. People ex rel. Thurman v. Hodges, 96 N.Y.2d 708 (2001).

G. Thurman's Fourth State Habeas Petition

While the appeal of his third petition was pending, Thurman, proceeding pro se, filed a fourth state petition for writ of habeas corpus. See Verified Petition for Writ of Habeas Corpus, dated October 16, 1999 ("Fourth State Habeas Petition") (reproduced as Ex. G to Motion to File Amended Petition and as Ex. 5 to Thomas Supp. Aff.). In this petition, Thurman alleged that he received ineffective assistance of counsel at his parole revocation hearing. Specifically, Thurman alleged the following instances of ineffective assistance by Hausknecht: (1) her failure to investigate alleged deficiencies in the parole violation warrant and the "case summary" portion of the warrant, see id. at 3-7; (2) her failure to object to the admission of the minutes of Thurman's testimony before the grand jury, which indicated that Thurman had committed a drug sale, see id. at 2-4, 6-7; and (3) her presentation of both collateral estoppel and consent defenses, see id. at 3, 6-7. Thurman also argued that the parole violation warrant was invalid. See id. at 3-6. In response, the People argued, inter alia, that since Thurman was not eligible to be released even if the state court were to find in his favor -- because his 1981 sentences had not yet expired and were still valid -- the habeas action should be converted to a proceeding under N.Y. C.P.L.R. Article 78. See Affirmation & Return, dated December 21, 1999 (reproduced as Ex. 5 to Thomas Supp. Aff.), ¶¶ 9, 17-19, 26. In such event, the People argued, Thurman's proceeding would be untimely because it would not have been filed within four months of service of the Parole Revocation Decision Notice -- the limitations period for Article 78 proceedings. See id. ¶¶ 19, 26; see also N.Y. C.P.L.R. 217.

On June 27, 2001, the New York State Supreme Court, Erie County converted Thurman's petition to an Article 78 proceeding. Memorandum Decision, dated June 27, 2001 (reproduced as Ex. 5 to Thomas Supp. Aff.), at 3. The court then indicated that Thurman "would have had four (4) months from the date on which he was served with the Parole Revocation Decision Notice to commence this Article 78 proceeding." Id. (citing N.Y. C.P.L.R. 217). However, because Thurman argued that he was never served with the Parole Revocation Decision Notice, the court ordered an evidentiary hearing on the issue of service. See id. at 2-3.

On July 26, 2001, the hearing was held. See Judgment, dated December 3, 2001 ("Fourth State Habeas Denial") (reproduced in Letter from Thurman to the Court, dated February 12, 2003 ("Thurman Feb. 12, 2003 Ltr.")), at 1. Thurman testified at the hearing. See id. at 2. On December 3, 2001, the State Supreme Court issued a written decision finding that "[Thurman] was timely served with a copy of the Parole Revocation Decision Notice" and dismissing Thurman's petition "for failure on [Thurman's] part to exhaust his administrative remedies and on the basis that the petition is barred by the statute of limitations." Id.

H. Thurman's Fifth State Habeas Petition

While Thurman's fourth state habeas petition was pending, Thurman became eligible for discretionary release from prison. In February 2000, he was interviewed by the parole board, which denied his release. See Statement of Appeals Unit Findings, dated June 26, 2000 (reproduced as Ex. M to Motion to File Amended Petition), at 1. The Appeals Unit of the parole board affirmed in June 2000. See id. The Appeals Unit concluded that the parole board had "provided a rational basis for release denial, based upon the factual and evaluative data in the case record and the information developed during the interview." Id. In addition, the Appeals Unit concluded that Thurman's "argument that the Board relied on erroneous information" was meritless because "[a] review of the record reveals a parole violation relating to specific behavior and the Board is obligated to view that information as factually accurate." Id.

On September 14, 2000, Thurman filed a fifth state petition for writ of habeas corpus. In this petition, Thurman apparently challenged the 2000 parole denial and the original 1997 parole revocation on various grounds. See Amended Petition ¶ 10, at 5, ¶ 7, at 10-12. On January 8, 2001, the New York State Supreme Court, Erie County granted Thurman's petition on the ground that the original revocation of parole had been "arbitrary and capricious," though no further explanation was given. Order, dated January 8, 2001 (reproduced as Ex. 6 to Thomas Supp. Aff.), at 2. The court ordered that Thurman be returned to his parole status prior to the date of his arrest and that he be given full credit for his four years served predicated on the parole violation. Id.

The People appealed and the matter was converted to an Article 78 proceeding. See In re Thurman, 292 A.D.2d 872, 873 (4th Dep't 2002). On March 15, 2002, the Appellate Division, Fourth Department reversed and denied the petition. Id. The court held that "[t]he record demonstrates that the Parole Board considered the relevant statutory factors, including [Thurman's] record in prison and postrelease plans, before concluding in its discretion that, due to the serious and violent nature of the crime and [Thurman's] other violent conduct, [Thurman] is not an acceptable candidate for release on parole." Id. (citations omitted). Because the parole board "considered the appropriate factors and there is no showing of irrationality bordering on impropriety, there is no basis for judicial intervention." Id. (internal quotation marks and citations omitted). Thurman's application for leave to appeal was denied on June 4, 2002. In re Thurman, 98 N.Y.2d 604 (2002).

I. Thurman's Application for Writ of Error Coram Nobis

While the People's appeal of the granting of Thurman's fifth state habeas petition was pending, Thurman submitted a pro se application to the Appellate Division, Fourth Department for writ of error coram nobis. See Notice of Petition for Writ of Error Coram Nobis, dated July 15, 2001 (reproduced as Ex. F to Motion to File Amended Petition and as Ex. 2 to Thomas Supp. Aff.). In this application, Thurman claimed that his two attorneys on the appeals of his first and third state habeas petition denials were ineffective for failing to file the "supplemental" briefs Thurman had prepared. See Affidavit of Emerson Thurman in Support of Petition for Writ of Error Coram Nobis, undated ("Coram Nobis Application") (reproduced as Ex. F to Motion to File Amended Petition and as Ex. 2 to Thomas Supp. Aff.), ¶¶ 7-8. Thurman argued that their failure to submit these briefs violated his due process and equal protection rights. See id. ¶ 9. Thurman has since conceded, however, that appellate counsel in his first state habeas proceeding did in fact file the "supplemental" brief. See Second Amended Petition at 13.

On September 20, 2001, the Appellate Division denied Thurman's application as to both the first state habeas petition, see Order, dated September 20, 2001 (reproduced as Ex. 2 to Thomas Supp. Aff.), and the third state habeas petition, see Order, dated September 20, 2001 (reproduced as Ex. 2 to Thomas Supp. Aff.). Thurman's application for leave to appeal to the Court of Appeals, see Coram Nobis Leave Application, was denied on March 26, 2002 on the ground that "no appeal lies to the Court of Appeals from an order of the Appellate ...


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