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Thurman v. Allard

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


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 Division denying a motion for a writ of error coram nobis." People ex rel. Thurman v. Williams, 97 N.Y.2d 748, 748 (2002) (citations omitted).

J. Thurman's Federal Habeas Petition

On September 26, 2001, Thurman filed in this Court a federal petition for writ of habeas corpus and an amended petition shortly thereafter. After Thurman filed a traverse to the respondents' opposition papers, see Traverse, filed September 12, 2002 (Docket #21), it became plain that he was attempting to amend his petition once again by adding new claims. Accordingly, by Order dated December 16, 2002, the Court required Thurman to "provide a listing of each ground for his habeas corpus petition." Order, filed December 17, 2002 (Docket #25), at 1. The Court further directed:

Following each ground, [Thurman] shall state what provision of the U.S. Constitution or federal law was violated. He shall then state what efforts, if any, he has undertaken to seek review or otherwise raise the ground in a state proceeding. (If he has not sought review or raised the ground in a state proceeding, he shall so indicate.) Finally, he shall state what efforts, if any, he made to seek review of the ground in a New York State court or other body to which review might be had. He shall also state the result of that effort and whether any additional review is available in the New York State courts.

Id.

On February 14, 2003, Thurman filed the listing required by the December 16 Order in the form of an affidavit. See Second Amended Petition. The Court then added numbers to each ground contained therein, numbering them from "I" through "XXI." The grounds are as follows:

I. "The Parole Board was collaterally estopped from re-litigating the identical issues and parties privy to the same issues that were presented before the grand jury."

II. "The prosecutorial tactics were improper." Thurman alleges that because the grand jury declined to indict him for the alleged sexual assault, the prosecutor's disclosure of testimony before the grand jury to Parole Officer ("PO") Steven Ippolito -- who testified at the parole revocation hearing -- violated the Fifth and Fourteenth Amendments.

III. "The parole revocation hearing did not comport to a full and fair hearing."

This claim is that the Fifth and Fourteenth Amendments were violated because the ALJ at the parole revocation hearing "would not assess [Thurman's] documentary evidence" -- referring to the minutes of his testimony before the grand jury because Thurman "chose to invoke his right to remain silent."

IV. "Counsel did not render meaningful representation at the state writ of habeas corpus hearing." This claim is brought under the Fifth, Sixth, and Fourteenth Amendments and states that the attorney who submitted his first state habeas petition in the State Supreme Court "plagiarized" Thurman's former counsel's "Proposed Memorandum of Law."

V. "[Thurman] was not afforded a full and fair hearing." The claim is that Thurman's "Fifth and Fourteenth amendment rights were violated because the state writ of habeas corpus court should have held a hearing on the merits of my claims." No more details are provided, however Thurman does reference the index number for his second state habeas petition. His claim would thus appear to be that the state court that was presented with his second habeas petition should have held a hearing on the merits of his petition.

VI. "[Thurman's] right to confrontation of an adverse witness and right to cross examination was improperly denied without showing good cause." This claim is that Thurman's due process rights were violated at his parole revocation hearing because a medical report was admitted into evidence without a proper foundation.

VII. "The evidence introduced at the parole revocation hearing was improper to violate parole." Thurman's claim here is that the Fourth, Fifth, and Fourteenth Amendments were violated because he was subjected to an illegal search and seizure without probable cause and without search and arrest warrants when he was arrested in his mother's house.

VIII. "The parole warrant is defective and the parole officer Steven Ippolito [who] issued and executed the parole warrant rendered misconduct that was improper." Thurman alleges that the parole violation warrant was defective because PO Ippolito -- who allegedly forged Senior Parole Officer ("SPO") Rochelle Orman's signature on the warrant -- did not hold the rank of "Senior Parole Officer or above." He also states that the state habeas court did not afford him a hearing, denying him his "right to be heard."

IX. "The right to a timely notice of a preliminary parole hearing was violated." Thurman argues that his due process rights were violated because he did not receive timely notice of a preliminary parole hearing conducted in May 1996. Thurman also states that he was not afforded a "full and fair hearing" on this claim by the state habeas court.

X. "State writ of habeas corpus was the proper remedy for review of the parole revocation hearing." It is difficult to ascertain from his petition but it would appear Thurman is arguing that he was not required to exhaust his administrative appeals (in contesting the decision of the parole board) in order to maintain a state habeas corpus proceeding. Thurman cites the Fifth and Fourteenth Amendments.

XI. "The Appellate Division should have held my appeal in abeyance to get the required signature for stipulation from the respondents [sic] counsel as to the correctness as to the record on appeal as to the supplemental record on appeal pursuant to CPLR Section 5532 or granted permission to dispense with the certification requirement of the Appellate Division, Fourth Department rules of the court." Thurman states that the Fifth and Fourteenth Amendments were violated because he "needed to file a record on appeal with exhibits to support my claims in my Supplemental Brief." But when he submitted a "stipulation to the correctness of the record to the respondents [sic] counsel," counsel "refused to sign" it.

XII. "[Thurman's] counsel's conduct was below the standards of meaningful representation and rendered a conflict of interest." This claim is that appellate counsel who submitted Thurman's application to the Court of Appeals for leave to appeal the denial of Thurman's third habeas petition was ineffective for failing to file the "supplemental" brief that had been prepared by Thurman and which had been filed with the Appellate Division.

XIII. "Ineffective assistance of parole revocation hearing counsel." In this ground, Thurman claims that Hausknecht was ineffective for "submitt[ing] the grand jury minutes as documentary evidence which showed that [Thurman] committed a drug sale which was in violation of my right to not be compelled to be a witness against myself." Thurman also states that Hausknecht "should have known the definition of a drug sale" and that her actions "could have lead [sic] me to be criminally charged with intent to sell a controlled substance."

XIV. "Ineffective assistance of counsel." Here, Thurman argues that Hausknecht was ineffective for failing to "review and investigate the case summary portion of the parole documents, page -3- showing similarity of the signature on the case summary." Thurman apparently contends that PO Ippolito forged SPO Orman's signature on certain of the parole documents and that Hausknecht "should have contacted [SPO Orman] to ascertain the signature."

XV. "Ineffective assistance of counsel." In this ground, Thurman argues that Hausknecht should have known that even if the parole violation warrant was not forged by PO Ippolito, SPO Orman nevertheless lacked the requisite authority to issue the warrant.

XVI. "The parole board relied upon improper evidence, acted arbitrary and capricious and outside its authority." Thurman's claim is that the February 2000 denial of his parole violated his due process rights "because when I appeared before the parole board, the Commissioner 'opened the door' concerning the alleged criminal charges in the parole revocation determination in which the grand jury voted 'no true bill.'"

XVII. "The Assistant District Attorney's prosecutorial tactics were improper." Here, Thurman is arguing that the prosecutor's disclosure to PO Ippolito of Thurman's testimony before the grand jury violated his due process rights. This ground mirrors Ground II.

XVIII. "The Board of Parole demonstrated conduct that was irrational bordering on impropriety." This claim appears to be that the parole board lacked the authority to consider the April 17, 1996 alleged sexual assault in denying Thurman parole in February 2000 because Thurman was not indicted by the grand jury or convicted of any crime.

XIX. "[Thurman] was never served with notification of the required signature from commissioner(s) on the Board of Parole." Thurman appears to argue that his due process rights were violated because he did not timely receive the Parole Revocation Decision Notice, in which the ALJ imposed a 48-month time assessment.

XX. "The Board of Parole violated their own rules and regulations." This claim is that because the parole board personally interviewed Thurman in February 2000, it violated its own rules and regulations, which resulted in Thurman being incarcerated for an additional 24 months. Thurman cites the Fifth and Fourteenth Amendments.

XXI. "The Board of Parole improperly held [Thurman] to a sex offender program." Thurman claims that his due process rights were violated when the parole board apparently stated during its February 2000 interview of Thurman that one of its reasons for denying parole was the fact that Thurman had not enrolled in a sex offender program. Thurman states that he had never been notified that his enrollment in such a program was a requirement.

See id. at 1-23.

After receiving Thurman's second amended petition, the Court became concerned that Thurman had not yet exhausted grounds XIII, XIV, and XV. See Thurman Feb. 12, 2003 Ltr. at 1 (reflecting that Thurman learned only on February 10, 2003 that his fourth state habeas petition had been denied by the State Supreme Court on December 3, 2001). Accordingly, by Order dated February 25, 2003, the Court stayed Thurman's federal petition to allow him the opportunity to exhaust these grounds through an appeal to the Appellate Division under N.Y. C.P.L.R. 5701(a) and by applying for leave to appeal to the Court of Appeals under N.Y. C.P.L.R. 5602(a). See Order, filed February 25, 2003 (Docket #28), at 1-2.

On March 27, 2003, Thurman filed a Notice of Appeal to the Appellate Division, Fourth Department. See Notice of Appeal, dated March 27, 2003 (reproduced as Ex. I to Supplemental Declaration II of Luke Martland in Opposition to Petition for a Writ of Habeas Corpus, filed March 31, 2004 (Docket #33) ("Martland Decl.")), at 1. Thurman challenged both the June 27, 2001 state court decision, in which the court converted Thurman's petition to an Article 78 proceeding and ordered an evidentiary hearing on the issue of service of the Parole Revocation Decision Notice, and the December 3, 2001 state court decision, in which the court determined that Thurman had been timely served with the Notice and then dismissed Thurman's petition for failure to exhaust administrative remedies and on statute-of-limitations grounds. See id.

On August 20, 2003, in two separate decisions, the Appellate Division denied Thurman's appeal. First, with respect to the June 27, 2001 state court decision, the court held that it was "no longer reviewable" because "a full evidentiary hearing was held" on July 26, 2001 and "final judgment [was] entered" on December 3, 2001. Memorandum Order, dated August 20, 2003 (reproduced as Ex. I to Martland Decl.), at 1. Concerning the December 3, 2001 decision, the Appellate Division held that relief was unavailable because the decision with notice of entry had been served upon Thurman's attorney on December 12, 2001 and Thurman "neither filed nor served a notice of appeal within the time limit set forth in [N.Y. C.P.L.R.] 5513." Memorandum Order, dated August 20, 2003 (reproduced as Ex. I to Martland Decl.), at 1. Thurman's application to the Court of Appeals for leave to appeal was dismissed on December 2, 2003 "upon the ground that the orders sought to be appealed from do not finally determine the proceeding within the meaning of the Constitution." People ex rel. Thurman v. Hodges, 1 N.Y.3d 543, 543-44 (2003).

The stay on Thurman's federal habeas petition has now been lifted. The respondents report that on February 10, 2004, while his petition was pending, Thurman was afforded another parole eligibility hearing. See Second Supplemental Memorandum of Law in Opposition to Petitioner's Second Amended Petition for a Writ of Habeas Corpus, filed March 31, 2004 (Docket #34) ("Resp. Mem."), at 3, 25-26. Thurman was denied discretionary release by the parole board. See id. The respondents have indicated that, "absent any loss of 'good time' credits," Thurman would have been "conditionally released to parole supervision on or about July 3, 2004." Id. at 3; accord Martland Decl. ¶ 1; see also Resp. Mem. at 26 n.7 (noting that this information was supplied by a parole officer with the New York State Division of Parole). The Court has received no update from either side as to whether Thurman has in fact been paroled. However, the New York State Department of Correctional Services's website indicates that Thurman is still incarcerated at Groveland Correctional Facility and that his new "earliest release date" is April 3, 2005. See http://nysdocs.docs.state.ny.us (last visited September 21, 2004).*fn6

II. GOVERNING LAW

A. The Legal Standard for Habeas Petitions Brought Pursuant to 28 U.S.C. § 2254

The federal habeas corpus statute provides:

[A] district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

28 U.S.C. § 2254(a). Errors of state law are thus not subject to federal habeas review. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("[I]t is not the province of a federal habeas court to re-examine state-court determinations on state-law questions."). Rather, a petitioner must demonstrate that his conviction resulted from a state court decision that violated federal law. See, e.g., id. at 68.

Not every violation of federal law will suffice for habeas purposes, however. Where a state court has decided an issue "on the merits," a habeas court may grant relief only if that decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); accord Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001). For a decision to be "on the merits" within the meaning of 28 U.S.C. § 2254(d), it must "finally resolv[e] the parties' claims, with res judicata effect," and be "based on the substance of the claim advanced, rather than on a procedural, or other, ground." Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001) (citation omitted). As long as "there is nothing in its decision to indicate that the claims were decided on anything but substantive grounds," a state court decision will be considered "on the merits" even if it fails to mention the federal claim and even if no relevant federal case law is cited. Aparicio, 269 F.3d at 93-94; accord Sellan, 261 F.3d at 311-12.

In Williams v. Taylor, the Supreme Court held that a state court decision is "contrary to" clearly established federal law only "if the state court applies a rule that contradicts the governing law set forth" in Supreme Court precedent or "if the state court confronts a set of facts that are materially indistinguishable from a decision [of the Supreme Court] and nevertheless arrives" at a different result. 529 U.S. 362, 405-06 (2000). A state court decision involves an "unreasonable application" of Supreme Court precedent if the state court unreasonably applied a governing legal rule to the particular facts of a case. Id. at 409, 413. Thus, if the state court decision is "on the merits," a federal court may not grant relief "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. Rather, the state court's application must have been "objectively unreasonable." Id. at 409.

B. Due Process Requirements of Parole Revocation Hearings

The Supreme Court has held that the revocation of parole implicates the Due Process Clause of the 14th Amendment. See, e.g., Greenholtz v. Inmates of the Neb. Penal & Corr. Complex, 442 U.S. 1, 9 (1979); Morrissey v. Brewer, 408 U.S. 471, 481-82 (1972). However, given the "overwhelming" state interest in being able to return to prison a parolee who has violated his conditions of parole "without the burden of a new adversary criminal trial," the Due Process Clause requires only that an "informal hearing" be held "to assure that the finding of a parole violation will be based on verified facts and that the exercise of discretion will be informed by an accurate knowledge of the parolee's behavior." Morrissey, 408 U.S. at 483-84. The "minimum requirements of due process" include:

(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a "neutral and detached" hearing body such as a traditional parole board...; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.

Id. at 489; accord Calhoun v. N.Y.S. Div. of Parole Officers, 999 F.2d 647, 652 (2d Cir. 1993) ("Where a state provides a system of parole, it may not revoke a person's parole without providing minimum due process protections. The state must provide a preliminary probable cause hearing..., as well as a final revocation hearing, at which a parolee may present evidence and confront witnesses." (citing Morrissey, 408 U.S. at 487-89)). The Supreme Court has not articulated any additional due process requirements and thus, for purposes of federal habeas review, Morrissey represents the "clearly established Federal law" on this point as determined by the Supreme Court, 28 U.S.C. § 2254(d)(1).

III. DISCUSSION

A. Certain of Thurman's Claims Do Not Present Issues of Federal Law

As indicated, errors of state law are not subject to federal habeas review. See, e.g., Estelle, 502 U.S. at 67-68. Because many of Thurman's claims only present matters of state law, they may be disposed of on this basis alone.

1. Ground VIII -- Parole Violation Warrant Was Defective Because It Was Not Signed by a Senior Parole Officer

Thurman's claim that the parole violation warrant was defective because PO Ippolito, who was not a "Senior Parole Officer or above," forged SPO Orman's signature on the warrant, Second Amended Petition at 9-10; see also Second State Habeas Petition at 5, 8-9; Third State Habeas Leave Application ¶¶ 2, 4; Coram Nobis Leave Application ¶ 6, may be disposed of summarily. Not only does this claim not raise any issue of federal law but it appears to be simply untrue. SPO Orman has submitted an affidavit stating unequivocally that she did in fact sign the warrant. See Affidavit of Rochelle Orman, dated October 24, 2000 ("Orman Aff.") (reproduced as Ex. III to Martland Decl.), ¶¶ 2-3. Thurman has presented no evidence to the contrary.

2. Ground IX -- Notice of Preliminary Parole Hearing

Thurman claims that his due process rights were violated because he did not receive timely notice of a preliminary parole hearing conducted in May 1996. Second Amended Petition at 10-11; see also Third State Habeas Leave Application ¶¶ 2, 4; Coram Nobis Leave Application ¶ 6; Memorandum annexed to Letter from Thurman to the Court, dated May 17, 2004 ("Traverse"), at 13-14. Thurman's argument is based entirely upon N.Y. Exec. Law § 259-i(3)(c)(iii), which mandates that, within three days of a warrant's execution, the alleged parole violator must be given notice of a preliminary parole hearing. Because this claim raises only an issue of state law, no habeas relief is available.*fn7

3. Ground X -- Exhaustion of Administrative Appeals

It would appear that Thurman is alleging in Ground X of his petition that he was not required to exhaust his administrative appeals (in contesting the decision of the parole board) in order to maintain state habeas corpus proceedings. Second Amended Petition at 11-12; see also Third State Habeas Leave Application ¶¶ 2, 4; Coram Nobis Leave Application ¶ 6; Traverse at 14-15. He also appears to take issue with the fact that some of his state habeas petitions were converted to Article 78 proceedings. See First State Habeas Supp. App. Brief at 13-15. Again, neither claim presents a federal constitutional issue. Moreover, it appears that an Article 78 proceeding was in fact the appropriate means of instituting the challenge. See, e.g., People ex rel. Scott v. Babbie, 248 A.D.2d 909, 910 (3d Dep't 1998).

4. Ground XI -- Signature on Stipulation as to Correctness of the Record

Thurman argues that opposing counsel on the appeal of his first state habeas denial improperly declined to sign a stipulation as to the correctness of a "supplemental record on appeal" and that the Appellate Division refused to hold his appeal in abeyance to allow him to obtain the signature. See Second Amended Petition at 12-13; Traverse at 15. At most, this raises a claim concerning New York State's requirements for certifying a record on appeal and thus no federal habeas review is available.

5. Ground XX -- Personal Interview with Parole Board Member

Thurman alleges that "[t]he Board of Parole violated their own rules and regulations" when Thurman was personally interviewed in February 2000 by a member of the parole board. Second Amended Petition at 21-22; see also Amended Petition ¶ 7, at 10-11; Traverse at 19. This is a claim based entirely on New York State law -- specifically, 9 N.Y.C.R.R. § 8002.6and thus is not cognizable on federal habeas review.

B. Thurman's Remaining Claims Are Meritless

1. Grounds I and XVIII -- Collateral Estoppel

Thurman claims that the parole board -- both in February 1997 when it originally revoked his parole and in February 2000 when it denied him re-release -- was collaterally estopped from considering the testimony of MM because the grand jury had declined to indict him based upon her testimony. Second Amended Petition at 1-3 (Ground I), 19-20 (Ground XVIII); see also First State Habeas Petition at 35-40; First State Habeas App. Brief at 8-12; First State Habeas Supp. App. Brief at 1-2, 5-6, 11; Amended Petition ¶ 7, at 10; Traverse at 7-8, 19. Thurman raised this claim in his first and fifth state habeas petitions. On the appeal of the first habeas denial, the Appellate Division concluded 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." Thurman, 275 A.D.2d at 1022 (citing cases). On the appeal of the fifth habeas denial, the Appellate Division concluded that the parole board "considered the appropriate factors." Thurman, 292 A.D.2d at 873.

This claim fails because there is simply no federal constitutional requirement barring revocation or denial of parole based upon conduct upon which a grand jury has refused to indict. In addition, contrary to Thurman's claim, see Second Amended Petition at 19-20, there is no federal requirement that a person be convicted of a new crime before his parole may be revoked. Thurman received all the due process to which he was entitled: a hearing "to assure that the finding of a parole violation will be based on verified facts and that the exercise of discretion will be informed by an accurate knowledge of the parolee's behavior," Morrissey, 408 U.S. at 483-84. Accordingly, Thurman's collateral estoppel claims are meritless under federal law. Notably, even under New York State law, these claims would fail as the grand jury's decision not to indict did not involve a "final decision on the merits" -- a prerequisite to the application of collateral estoppel. See, e.g., People ex rel. Pickett v. Ruffo, 96 A.D.2d 128, 130 (3d Dep't 1983).

2. Grounds II and XVII -- Prosecutor's Disclosure of Grand Jury Testimony

Thurman claims that because the grand jury declined to indict him for the alleged sexual assault, the prosecutor's disclosure of testimony before the grand jury to PO Ippolito -- who testified at the parole revocation hearing -- violated his due process rights. Second Amended Petition at 3-4 (Ground II), 18-19 (Ground XVII); see also First State Habeas Supp. App. Brief at 2-3; Amended Petition ¶ 7, at 10; Traverse at 8-9, 18-19.

It is not necessary to reach the question of whether such a disclosure would violate federal due process guarantees, however, because the record provides no support for the factual basis underlying the claim. Rather, the hearing transcript clearly shows that Thurman - not the prosecutor -- offered the minutes of his testimony before the grand jury into evidence. (See Hr'g Tr. 38-40, 68).

3. Ground III -- ALJ's Failure to Consider Thurman's Grand Jury Testimony

Thurman claims that because the ALJ "would not assess [his] documentary evidence"referring to the minutes of his testimony before the grand jury -- his due process rights were violated. Second Amended Petition at 4-5; see also First State Habeas Petition at 40-41; First State Habeas Supp. App. Brief at 6-7; Traverse at 9. This claim was raised by Thurman in his first state habeas petition. See First State Habeas Petition at 40-41; see also First State Habeas Supp. App. Brief at 6-7. The state court held that Thurman was not denied due process. See First State Habeas App. Brief at 7.

An examination of the minutes of the parole revocation hearing again reveals that Thurman's claim is based on a false premise. Although the ALJ seemed hesitant at first to admit the minutes in lieu of Thurman testifying because of the fact that Thurman was not crossexamined in the grand jury and was available to testify at the hearing (see Hr'g Tr. 38-39), ultimately the ALJ admitted the minutes (Hr'g Tr. 39-40). Indeed, in her decision revoking Thurman's parole the ALJ specifically noted that "[Thurman's] version of events as set forth in the grand jury minutes is not credible in light of the very credible testimony of [MM]." Parole Revocation Decision Notice § VI. Therefore, the ALJ did in fact "assess" Thurman's grand jury testimony.

4. Ineffective Assistance of Counsel Claims

Grounds IV, XII, XIII, XIV, and XV raise claims of ineffective assistance of counsel. The claims are that (1) Thurman was deprived of effective assistance of counsel because the attorney who submitted his first state habeas petition in the Supreme Court, Erie County "plagiarized" Thurman's former counsel's "Proposed Memorandum of Law," Second Amended Petition at 5-6 (Ground IV); see also Traverse at 9-10; (2) appellate counsel who submitted Thurman's application to the Court of Appeals for leave to appeal the denial of Thurman's third habeas petition was ineffective for failing to file the "supplemental" brief that had been prepared by Thurman and which had been filed with the Appellate Division, Second Amended Petition at 13-14 (Ground XII); see also Coram Nobis Application ¶ 8; Traverse at 15; (3) counsel at his parole revocation hearing, Hausknecht, was ineffective for offering as evidence the minutes of Thurman's testimony before the grand jury, Second Amended Petition at 14-15 (Ground XIII); see also Fourth State Habeas Petition at 2-4, 6-7; Traverse at 15-16; (4) Hausknecht was ineffective for failing to investigate Thurman's claim that the signature on the "case summary" portion of the parole violation warrant was forged, Second Amended Petition at 15-16 (Ground XIV); see also Fourth State Habeas Petition at 3-7; Traverse at 16; and (5) Hausknecht was ineffective for failing to argue before the parole board that SPO Orman did not have the requisite authority to issue the parole violation warrant, Second Amended Petition at 16-17 (Ground XV); see also Fourth State Habeas Petition at 3-7; Traverse at 17.

There is case law to support the proposition that federal habeas review is not available for Thurman's ineffective assistance claims because the Sixth Amendment right to effective assistance of counsel does not apply to parole revocation proceedings. See, e.g., Riley v. Myers, 2002 WL 31845865, at *7 (E.D. Pa. Dec. 18, 2002); Johnson v. Pa. Bd. of Prob. & Parole, 2003 WL 22845415, at *8 (E.D. Pa. Nov. 26, 2003) (Report and Recommendation); Wallace v. Tex. Bd. of Pardons & Paroles, 2001 WL 360999, at *6 (N.D. Tex. Feb. 14, 2001) (Report and Recommendation). The Court need not reach this issue, however, because Thurman has not even shown that he received ineffective assistance with respect to any of the claims.

a. Law Governing Ineffective Assistance of Counsel Claims.

"In order to prove ineffective assistance, [a petitioner] must show (1) 'that counsel's representation fell below an objective standard of reasonableness'; and (2) 'that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Pham v. United States, 317 F.3d 178, 182 (2d Cir. 2003) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)); accord United States v. Guevara, 277 F.3d 111, 127 (2d Cir. 2001); see also Massaro v. United States, 538 U.S. 500, 505 (2003) ("[A] defendant claiming ineffective counsel must show that counsel's actions were not supported by a reasonable strategy and that the error was prejudicial.").

In evaluating the first prong -- whether counsel's performance fell below an objective standard of reasonableness -- "'[j]udicial scrutiny... must be highly deferential'" and "'every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.'" Bell v. Cone, 535 U.S. 685, 698 (2002) (alterations in original) (quoting Strickland, 466 U.S. at 689); see Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) (according counsel a presumption of competence); Guevara, 277 F.3d at 127 (same). Concerning the second prong -- whether there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different -- the Second Circuit generally "requires some objective evidence other than defendant's assertions to establish prejudice." Pham, 317 F.3d at 182 (citing United States v. Gordon, 156 F.3d 376, 380-81 (2d Cir. 1998) (per curiam)).

b. Discussion of Ineffective Assistance Claims.

i. "Plagiarized" brief.

In Ground IV, Thurman claims that the attorney who submitted his first state habeas petition in the State Supreme Court "plagiarized" Thurman's former counsel's "Proposed Memorandum of Law." Second Amended Petition at 5-6; see also Traverse at 9-10. A comparison of the filed brief and the "proposed" brief prepared by Thurman's former counsel reveals that they are identical. Compare First State Habeas Petition at 31-41 with Memorandum of Law Submitted in Support of Realtor Writ of Habeas Corpus, undated (reproduced in Petition), at 20-30. However, this fact in no way demonstrates ineffective assistance in and of itself. New counsel would have been ineffective only had he failed to raise "significant and obvious issues while pursing issues that were clearly and significantly weaker," Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.), cert. denied, 513 U.S. 820 (1994). Thus, the mere fact that the brief was "plagiarized" does not entitle Thurman to habeas relief.

ii. Failing to file "supplemental" brief.

In Ground XII, Thurman claims that appellate counsel who submitted Thurman's application to the Court of Appeals for leave to appeal the denial of his third habeas petition was ineffective for failing to file the "supplemental" brief that had been prepared by Thurman and which counsel had filed with the Appellate Division. Second Amended Petition at 13-14; see also Coram Nobis Application ¶ 8; Traverse at 15.*fn8 The brief prepared by counsel raised the arguments that the parole violation warrant was defective, that Thurman's 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 Third State Habeas Leave Application ¶ 4; accord Coram Nobis Leave Application ¶ 6. The "supplemental" brief raised the additional argument that the lower court erred in not holding an evidentiary hearing. See Third State Habeas Supp. App. Brief at 1-6. Thurman's argument is that counsel was deficient for failing to raise this issue in his leave application. Second Amended Petition at 13-14; see also Coram Nobis Application ¶ 8; Traverse at 15.

Because this claim is not "significant and obvious," Mayo, 13 F.3d at 533 -- and, moreover, entirely meritless - appellate counsel cannot have been ineffective for failing to raise it. Under New York law, a state court is not required to hold a hearing "[i]f it appears from the petition or the documents annexed thereto that the person is not illegally detained." N.Y. C.P.L.R. 7003(a); accord People v. Murray, 289 A.D.2d 1089, 1089 (4th Dep't 2001). There is no basis for concluding that these materials showed that Thurman was illegally detained. Thus, because Thurman had no right to a hearing, appellate counsel cannot have been ineffective for failing to raise the claim that he had such a right. See, e.g., Aparicio, 269 F.3d at 99 n.10 (where claim is meritless, counsel is not ineffective for failing to raise it).

iii. Introduction of grand jury minutes.

In Ground XIII, Thurman alleges that Hausknecht was ineffective for offering as evidence in the parole revocation hearing the minutes of Thurman's testimony before the grand jury. Second Amended Petition at 14-15; see also Fourth State Habeas Petition at 2-4, 6-7; Traverse at 15-16. This claim is somewhat at odds with Ground III of his petition, in which Thurman argues that the ALJ improperly did not consider the grand jury minutes. See Second Amended Petition at 4-5. In any event, the claim is meritless because the strategy was sound: by submitting the minutes, rather than having Thurman testify, counsel offered the ALJ evidence of Thurman's side of the story -- upon which the grand jury refused to indict -- without subjecting him to cross-examination. Moreover, Thurman explicitly endorsed Hausknecht's strategy. (See Hr'g Tr. 68 ("I don't want to testify about what happened because you're going to use the Grand Jury minutes [in] making your decision, hopefully.")). Counsel's choice to pursue this strategy -- even if it meant revealing that Thurman had engaged in a drug sale -- did not demonstrate conduct that fell below an objective standard of reasonableness.

iv. Failing to investigate forgery claim and claim that SPO Orman did not have authority to issue the parole violation warrant.

In Ground XIV, Thurman argues that Hausknecht was ineffective for failing to investigate Thurman's claim that SPO Orman's signature on the "case summary" portion of the parole violation warrant was forged. Second Amended Petition at 15-16; see also Fourth State Habeas Petition at 3-7; Traverse at 16. He then goes on to argue in Ground XV that Hausknecht was ineffective for not recognizing that SPO Orman did not have the requisite authority to issue the warrant. Second Amended Petition at 16-17; see also Fourth State Habeas Petition at 3-7; Traverse at 17.

These claims fail for a number of reasons. First, it hardly represented ineffective assistance to forgo any argument regarding the validity of the signature or authority regarding the warrant inasmuch as no reasonable counsel could have believed that such a defect would have had any bearing on the State's ability to prosecute Thurman for the parole violation. In any event, the record does not even suggest that SPO Orman's signature on the "case summary" was forged. The "case summary" document shows two signatures, one by PO Ippolito and one by SPO Orman. See Case Summary, dated April 25, 1996 (reproduced as Ex. C to Thomas Aff.). PO Ippolito has affirmed that these signatures are genuine. See Ippolito Aff. ¶ 5.

In addition, there is nothing to indicate that SPO Orman was not a Senior Parole Officer and thus would not have had the authority to issue the warrant. Her affidavit confirms that she issued the warrant in her capacity as Senior Parole Officer. See Orman Aff. ¶ 5. Thurman may be arguing that the fact that the warrant was later certified by PO Ippolito was somehow unlawful. See Certified Copy of Warrant for Retaking and Detaining a Paroled or Conditionally Released Prisoner, dated April 24, 1996 (reproduced as Ex. I to Motion to File Amended Petition). However, while PO Ippolito may not have been authorized to issue the warrant, he was authorized to certify a copy of it. See Orman Aff. ¶ 5.

Accordingly, all of Thurman's ineffective assistance of counsel claims are meritless.

5. State Habeas Courts' Failure to Hold Hearings

Thurman claims that his due process rights were violated when the state courts that were presented with his state habeas petitions did not hold evidentiary hearings. Second Amended Petition at 6-7 (Ground V), 9-10 (Ground VIII), 10-11 (Ground IX). But, even assuming arguendo that New York State law requires that a hearing be held on a prisoner's habeas petition, there is no federal constitutional right to such a hearing. See, e.g., Guzman v. Couture, 2003 WL 165746, at *13-*14 (S.D.N.Y. Jan. 22, 2003) (federal habeas review not available for claimed procedural errors in state post-conviction proceedings); Diaz v. Greiner, 110 F. Supp. 2d 225, 235-36 (S.D.N.Y. 2000) (same); Lugo v. Kuhlmann, 68 F. Supp. 2d 347, 376 n.15 (S.D.N.Y. 1999) (same). Accordingly, Thurman has shown no violation of federal law.

6. Ground VI -- Admission of Medical Records

This claim is that Thurman's rights "to confrontation of an adverse witness" and "to cross examination" were violated when the ALJ at his parole revocation hearing admitted a medical report into evidence "without showing cause for the unavailability of the person who wrote the medical report." Second Amended Petition at 7-8; see also Second State Habeas Petition at 6-9; Second State Habeas App. Brief at 7-11; Traverse at 6-7, 11. The medical report at issue showed the results of a vaginal examination performed on MM shortly after the alleged assault. (See Hr'g Tr. 37).

Due process, however, does not bar the admission of hearsay evidence at parole hearings, see Morrissey, 408 U.S. at 489 ("[T]he process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.") -- although "the admission of entirely unsubstantiated double and triple hearsay as the sole foundation for a finding of parole violations crosses the line which separates informality from irrationality." Rastelli v. Warden, Metro. Corr. Ctr., 622 F. Supp. 1387, 1395 (S.D.N.Y. 1985); accord Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 364, 366 (1998) (because a parole revocation proceeding is a "flexible, administrative" hearing, "traditional rules of evidence generally do not apply"). There was nothing irrational or unfair about the admission of the medical report as such a report has sufficient indicia of reliability so as to render it appropriately considered in the informal context of a parole revocation hearing.

7. Ground VII -- Improper Arrest in and Search of Mother's House Without Probable Cause and Without Warrants

Thurman claims that he was subject to an illegal search and seizure when he was arrested without probable cause in his mother's house without search and arrest warrants. Second Amended Petition at 8-9; see also Second State Habeas Petition at 1-4, 7-8; Second State Habeas App. Brief at 11; Traverse at 3, 11-12. But regardless of whether this is true, there was no bar to the introduction of evidence resulting from any illegal searches or seizures inasmuch as the federal exclusionary rule does not apply to parole revocation hearings. See, e.g., Scott, 524 U.S. at 359, 364-65. Nor can any illegal searches and seizures result in a due process violation as they have absolutely no bearing on the process that was afforded to Thurman -- that is, notice, opportunity to be heard, a neutral hearing body, and so forth. See generally Morrissey, 408 U.S. at 489. Accordingly, all of the claims in Ground VII fail.

8. Ground XVI -- February 2000 Parole Denial

Thurman argues that the February 2000 parole denial violated due process because it was based upon "improper evidence" and because the parole board acted "arbitrary and capricious and outside its authority." Second Amended Petition at 17-18; see also Amended Petition ¶ 7, at 10-12; Traverse at 17-18. The alleged "improper evidence" in Thurman's view apparently consists of any evidence that had been presented to the grand jury. See Second Amended Petition at 17-18.

The respondents argue that because Thurman has since been afforded a new parole eligibility hearing, any claim regarding the February 2000 hearing is moot. See Resp. Mem. at 26 (citing Rodriguez v. Greenfield, 2002 WL 48440 (S.D.N.Y. Jan. 10, 2002)). While case law suggests the issue in fact may not be moot, see Boddie v. N.Y.S. Div. of Parole, 285 F. Supp. 2d 421, 427-28 (S.D.N.Y. 2003), the Court need not reach this question for the simple reason that Thurman articulates no due process violation. There was nothing improper about the court's reliance on the grand jury testimony even under the standard applied to parole revocation hearings. See Section III.B.1 above.

Moreover, a decision whether to grant or deny parole has few due process restrictions. Indeed, "all that the Board must do is (a) afford the inmate an opportunity to be heard and (b) if parole is denied, advise him of the reasons for its decision." Blackett v. Thomas, 293 F. Supp. 2d 317, 319 (S.D.N.Y. 2003) (internal quotation marks and citation omitted). See generally Greenholtz, 442 U.S. at 15. Any reliance on the grand jury minutes obviously did not contravene these two minimal requirements.

9. Ground XIX -- Service of Parole Revocation Decision Notice

Thurman claims that he was not timely served with a copy of the ALJ's Parole Revocation Decision Notice. Second Amended Petition at 20-21; see also Amended Petition ¶ 7, at 11; Traverse at 19. This claim lacks any support. The Chief of the Parole Violation Unit has submitted an affidavit stating that she mailed a copy of the Parole Revocation Decision Notice to Thurman's attorney and that Hausknecht then forwarded a copy to Thurman on March 7, 1997. See Affidavit of Maria Walton, dated July 20, 2001 (reproduced as Ex. V to Martland Decl.), ¶ 9. Moreover, this exact issue was raised in Thurman's fourth state habeas petition and the state court held that "[Thurman] was timely served with a copy of the Parole Revocation Decision Notice." Fourth State Habeas Denial at 2. This factual finding is accorded great deference on federal habeas review, see 28 U.S.C. § 2254(e)(1), and thus must be accepted by this Court.

10. Ground XXI -- Enrollment in Sex Offender Program

Thurman's final habeas claim is that the February 2000 denial of his parole was a violation of due process because the parole board apparently referenced the fact that Thurman had not participated in a sex offender program. Second Amended Petition at 22-23; see also Amended Petition ¶ 7, at 11; Traverse at 18-21. Thurman claims that he was never notified that he had to enroll in such a program in order to be paroled. See, e.g., Second Amended Petition at 22.

This argument was considered by the Appellate Division on Thurman's fifth state habeas petition and the court rejected the claim because the "Parole Board considered the relevant statutory" and "appropriate factors." Thurman, 292 A.D.2d at 873. This decision did not represent an unreasonable application of any Supreme Court law, see 28 U.S.C. § 2254(d)(1), as any alleged failure to announce in advance the factors the parole board might rely upon in granting or denying parole did not deny Thurman "an opportunity to be heard" or deny him the right to be advised of the reasons for the board's decision, Blackett, 293 F. Supp. 2d at 319. Conclusion

For the foregoing reasons, Thurman's petition is denied. The Court will not issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c) as Thurman has not made a substantial showing of the denial of a federal right. See Tankleff v. Senkowski, 135 F.3d 235, 241-42 (2d Cir. 1998). In addition, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from the judgment would not be taken in good faith. The Clerk is requested to enter judgment denying the petition and to close this case.

Dated: September 22, 2004

GABRIEL W. GORENSTEIN United States Magistrate Judge


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