United States District Court, N.D. New York
February 9, 2005.
PETER GRAZIANO, Petitioner,
WILLIAM LAPE, Superintendent of Marcy Correctional Facility, Respondent.
The opinion of the court was delivered by: LAWRENCE KAHN, District Judge
MEMORANDUM-DECISION AND ORDER*fn1
Peter Graziano ("Petitioner") appeals Magistrate Judge Gustave J.
DiBianco's Order dated July 27, 2004, (Dkt. No. 12), which denied
Petitioner's motion to amend his habeas petition.
On May 9, 1986, a jury found Petitioner guilty of murder in the second
degree, and he was sentenced to a minimum of fifteen years and a maximum
of life in prison. (Dkt. No. 10). On February 27, 2001, Petitioner
appeared before the Parole Board for his first parole interview. (Id.). In
March 2001, Petitioner received the Board's decision denying him release
to parole supervision. (Id.). Petitioner filed an administrative appeal
with the Board's Appeals Unit. (Id.). The Appeals Unit informed
Petitioner that it was unable to render any findings and denied his
appeal. (Id.). On or about December 14, 2001, Petitioner filed a petition
for a state writ of habeas corpus with the Supreme Court of the State of
New York. (Id.). The Supreme Court dismissed the petition for
failure to exhaust administrative remedies. (Id.). Petitioner filed a
motion to reargue, and the Supreme Court denied his petition on the
merits. (Id.). Petitioner appealed to the Appellate Division, Fourth
Department, which affirmed the Supreme Court's decision on June 13,
2003. (Dkt. No. 12). Petitioner sought, but was denied, leave to appeal
to the New York State Court of Appeals. (Dkt. No. 10).
In July 2003, Petitioner reappeared before the Parole Board and was
again denied parole. (Dkt. No. 12). Petitioner filed an administrative
appeal from this denial in August 2003, claiming that the panel did not
make a decision within the allotted four months. (Id.). On January 23,
2004, Petitioner brought this federal habeas proceeding challenging the
Parole Board's first decision from March 2001 denying him early release
to parole supervision. (Dkt. No. 14). Petitioner then filed a CPLR
Article 78 proceeding in the Albany County Supreme Court, based upon his
second denial of parole, but his claim was denied on the merits in May
2004. (Dkt. No. 12). Petitioner filed a notice of appeal of that decision
pursuant to CPLR § 2221, and that appeal is still pending. (Id.). Prior to
a decision being rendered on that state court appeal, Petitioner moved to
amend this federal habeas petition to include the second parole denial.
(Dkt. No. 14). In an Order dated July 27, 2004, Magistrate Judge DiBianco
denied Petitioner's request as premature. (Dkt. No. 11). Currently before
the Court is Petitioner's appeal of that order.
I. Standard for Reconsideration of a Magistrate Judge's Ruling
on a Non-Dispositive Matter
The standard of review for reconsideration of a Magistrate's ruling
depends on whether the matter is dispositive or non-dispositive. The
issue currently before the Court is non-dispositive
because the decision would "not dispose of the litigation." McAllan v.
Von Essen, 2004 WL 2998510 (S.D.N.Y. Dec. 27, 2004). A district judge may
reconsider any non-dispositive matter determined by a magistrate judge
under a "clearly erroneous or contrary to law" standard of review. See
28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a). A party seeking to overturn
a ruling under the clearly erroneous standard generally bears a "heavy
burden." See Com-Tech Assocs. v. Computer Assocs., Int'l, Inc.,
753 F. Supp. 1078, 1099 (E.D.N.Y. 1990), aff'd, 938 F.2d 1574 (2d
Cir. 1991). The Supreme Court has stated that "[a] finding is `clearly
erroneous' when although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed." United States v. United
States Gypsum Co., 333 U.S. 364, 395 (1948) (quoted in Derthick v.
Bassett-Walker Inc., 1992 WL 249951, at *8 (S.D.N.Y. Sept. 23, 1992)).
Pursuant to this highly deferential standard of review, magistrate judges
are afforded broad discretion and reversal is only appropriate if there
is an abuse of discretion. See Derthick, 1992 WL 249951, at *8.
II. Petitioner's Motion
Petitioner requests a stay in this proceeding so he may amend his
habeas corpus petition to include his second parole denial in July 2003.
(Dkt. No. 11). However, "[a]n application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment of a State court
shall not be granted unless it appears that the applicant has exhausted
the remedies available in the courts of the State." 28 U.S.C. § 2254
(2004); See also, Priester v. Senkowski, 2002 WL 1448303, at *3
(S.D.N.Y. July 3, 2002); See, e.g., Daye v. Attorney General of New
York, 696 F.2d 186, 190 (2d Cir. 1982). "In order for a claim to be
exhausted, a petitioner is required to have presented the same claim
presented in the habeas petition to each level of the state courts to
which the right of appeal
lies." Senkowski, 2002 WL 1448303, at *3.
Petitioner administratively appealed the July 2003 parole denial and is
currently litigating this parole denial in the New York State courts.
(Dkt. No. 14). Prior to a decision being rendered in state court,
Petitioner moved to amend his petition to include the July 2003 parole
denial. (Id.). However, before presenting his claim to this Court in a
habeas petition, Petitioner must "utilize all available mechanisms to
secure state appellate review of denial of that claim." Lugo v.
Kuhlmann, 68 F. Supp. 2d 347, 360-61 (S.D.N.Y 1999). Because a
decision on his state court appeal has not yet been issued, Petitioner
has not fully utilized each level of the state courts to which the right
of appeal lies, and therefore has not exhausted his state court
The exhaustion requirement may be excused if Petitioner can demonstrate
that "there is an absence of available State corrective process" or
"circumstances exist that render such process ineffective to protect the
rights of the applicant." 28 U.S.C. § 2254(b)(1)(B)(I), (ii). Petitioner
does not claim that there is no state corrective process, and further, he
is currently utilizing that state process.
However, Petitioner claims that his circumstances render the state
process ineffective. First, Petitioner seeks to bypass the state court
appeals process because he anticipates an adverse ruling. (Dkt. No. 11).
Mere anticipation of an adverse ruling is not enough to establish the
insufficiency of the state court process. Petitioner's "argument is
rejected because it is inconsistent with the doctrine of comity which
assumes State courts will perform their assigned review function and
because it is inconsistent with the explicit exhaustion requirement
contained in 28 U.S.C. § 2254(b)(1)(A)." Senkowski, 2002 WL 1448303, at
Second, Petitioner states that his appeal of the July 2003 parole
denial will be rendered moot
once the February 2005 parole hearing arrives. Petitioner alleges that by
the time his challenge to the 2003 parole denial would make its way
through the New York court system, so that he could present it to this
Court, the 2001 parole denial would have been litigated in this Court and
he would have again reappeared before the Board in 2005. (Dkt. No. 15).
However, the appeal of the decision in Petitioner's Article 78
proceeding has not yet been rendered moot by the occurrence of another
parole hearing. Even though the February 2005 parole hearing may later
render the appeal moot, that does not make the state process
ineffective. See, Defino v. Thomas, 2003 WL 40502, at *3 (S.D.N.Y. Jan.
2, 2003). Because Petitioner has not exhausted all available remedies in
state court, and no exceptions to that requirement apply, the Magistrate
Judge's determination that Petitioner's motion was premature was not
erroneous or contrary to law.
Based on the foregoing discussion, it is hereby
ORDERED, that Magistrate Judge Gustave J. DiBianco's Order, dated July
27, 2004, which denied Petitioner's motion to amend his habeas petition,
is AFFIRMED; and it is further
ORDERED, that the Clerk serve a copy of this order on all parties.