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October 18, 2005.

NEW YORK STATE DIVISION OF PAROLE and JOHN BURGE, Superintendent, Auburn Correctional Facility, Respondents.

The opinion of the court was delivered by: VICTOR MARRERO, District Judge


Pro se petitioner Anthony Scales ("Scales"), an inmate at the Auburn Correctional Facility in New York ("Auburn"), filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("§ 2254"). Scales claims that the New York State Division of Parole (the "Division of Parole") violated his right to due process under the Fourteenth Amendment to the United States Constitution by revoking his parole without affording him an opportunity for an evidentiary hearing. The Division of Parole and respondent John Burge, Superintendent at Auburn, (collectively, "Respondents"), have filed a motion to dismiss Scales's petition on the grounds that it is procedurally barred and has no merit. For the reasons set forth below, the Court grants Respondents' motion and dismisses Scales's petition. I. BACKGROUND*fn1

On January 8, 1980, while on parole supervision related to a 1976 robbery conviction, Scales was arrested for his alleged role in three armed robberies. On March 26, 1981, after a jury trial in New York State Supreme Court, Kings County, Scales was convicted of various offenses involving robbery, weapon possession, and reckless endangerment. On the basis of that conviction, Scales was sentenced to an aggregated, indeterminate term of imprisonment of from twelve and one-half to twenty-five years. Scales was released on parole on April 4, 2000.

  On July 20, 2001, Administrative Law Judge Luis Meringolo ("Judge Meringolo") presided over a parole revocation hearing (the "Revocation Hearing" or the "Hearing") on charges that Scales committed four violations of the terms of his parole. Scales, represented by counsel, pleaded guilty pursuant to a plea agreement to one charge of failing to report to his parole officer. Under the terms of the plea agreement, Scales agreed to assist the New York City Police Department Gang Intelligence Unit (the "Gang Intelligence Unit") in investigating criminal activity. As a result of Scales's assistance to the Gang Intelligence Unit, he is now incarcerated in protective custody. The obligations that the Division of Parole incurred pursuant to the plea agreement are disputed and form the subject matter of Scales's petition. Scales claims that the Division of Parole promised him that if he pleaded guilty to one of the parole violation charges, he would be released from custody and restored to parole. Respondents contend that the plea agreement bound the Division of Parole following the Revocation Hearing only to recommend, rather than ensure, that Scales be restored to parole.

  At the conclusion of the Hearing, Judge Meringolo issued such a recommendation. (Transcript of Parole Revocation Hearing ("Tr.") (attached as Ex. D to Morgan Decl.) at 7.) However, on August 10, 2001, Parole Board Commissioner Robert Dennison ("Commissioner Dennison") modified Judge Meringolo's "revoke and restore" recommendation and instead issued a "hold" of thirty-six months. (Parole Revocation Decision Notice (attached as Ex. B to Morgan Decl.).) Commissioner Dennison provided the following reasons for modifying Judge Meringolo's recommendation: "Subject has an extremely lengthy and violent criminal history. He has been given numerous opportunities on parole. This is his 5th violation on this sentence." (Id.)

  Scales first attempted to challenge his parole revocation by filing a habeas petition in state court (the "State Court") pursuant to New York Civil Practice Law and Rules ("C.P.L.R.") Article 70 on September 21, 2001. The State Court dismissed Scales's petition on the ground that Scales had not exhausted his administrative remedies.

  While his state habeas petition was pending Scales, through counsel, filed an administrative appeal of the parole revocation with the Appeals Unit of the Parole Board (the "Appeals Unit"). In that appeal, Scales argued that the decision to modify his parole was arbitrary, capricious and shocking to the sense of fairness. The Appeals Unit affirmed Commissioner Dennison's decision, finding that "the time assessment imposed [was] clearly permissible." (Administrative Appeal Decision Notice, dated September 6, 2002 (attached as Ex. E to Morgan Decl.).)

  The record before the Court reflects that Scales subsequently filed another state court petition, in this instance pursuant to Article 78 of the C.P.L.R. ("Article 78") in New York State Supreme Court, Albany County on January 15, 2003. In support of his Article 78 petition, Scales argued, inter alia, that Commissioner Dennison's modification of Judge Meringolo's recommended sentence unlawfully deprived him of a liberty interest that was created by his plea agreement and constituted a breach of contract. (See Affidavit in Support of Order to Show Cause dated January 9, 2003 (attached as Ex. F to Morgan Decl.) ¶¶ 4, 12.) On September 15, 2003, the court dismissed Scales's petition on the grounds that it had not been filed within the four-month limitation period prescribed for actions brought pursuant to Article 78. As explained further below, there is no clear indication in the record of the instant action that Scales appealed the state court's dismissal of his Article 78 petition.

  Scales filed the instant petition for habeas corpus (the "Petition") in the United States District Court, Northern District of New York*fn2 on May 25, 2004.*fn3 In the Petition, Scales claims that his plea agreement "was broken, and the sentence deal as made between the parties . . . was reneged on by the Division of Parole, thereby violating the liberty interest of the petitioner." (Pet. ¶ 9.) Scales further claims that he should have been afforded the opportunity to withdraw his plea on the grounds that the Division of Parole did not honor the plea agreement. He argues that "petitioner's agreed sentence based upon a pre-determined . . . plea was modified to a three year hit by the Division of Parole in direct violation of the agreed upon sentence, without prior warning, or the chance to retract his plea as required by law, and that . . . petitioner is still incarcerated as a result of this violation of his right to procedural due process." (Pet. ¶ 10.) In addition, Scales claims that he did not receive timely notice of the Commissioner's modification and that the Appeals Unit's decision was improperly delayed.


  As a preliminary matter, the Court notes that because Scales is a pro se litigant, his submissions must be held "to less stringent standards than formal pleadings drafted by lawyers," Hughes v. Rowe, 449 U.S. 5, 9 (1980) (citation omitted), and that the Court must read his submissions "liberally and interpret them to raise the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (citation omitted).

  A petitioner in custody pursuant to a state court judgment is entitled to habeas relief only if he can show that his detention violates the United States Constitution or federal law or treaties of the United States. See 28 U.S.C. § 2254(a). Generally, habeas corpus petitioners must exhaust the remedies available to them in state court before seeking federal relief, unless state corrective process is unavailable or the process that is available would be ineffective. See 28 U.S.C. § 2254(b) (1). In order to exhaust available state remedies, a habeas petitioner must present "the essential factual and legal premises of his federal constitutional claim to the highest state court capable of reviewing it." Cotto v. Herbert, 331 F.3d 217, 237 (2d Cir. 2003).

  The doctrine of exhaustion applies to habeas petitions challenging parole revocations. See Cook v. New York State Div. of Parole, 321 F.3d 274, 278 (2d Cir. 2003). "To exhaust a denial of parole under New York law, the inmate must first file an administrative appeal with the Division of Parole's Appeals Unit. If that appeal is denied, he must seek relief in state court pursuant to Article 78." Desire v. New York State Div. of Parole, No. 00 Civ. 5514, 2001 U.S. Dist. LEXIS 13784, *6 (S.D.N.Y. Aug. 22, 2001) (citing N.Y. Comp. Codes. R. & Regs. tit. 9, § 8006.1). If the Article 78 petition is denied, the petitioner must appeal that denial to the "highest state court capable of reviewing it." Cotto, 331 F.3d at 237.

  Respondents do not dispute that Scales completed the first two steps necessary to challenge a parole revocation by filing an administrative appeal and an Article 78 petition. They claim, however, that Scales did not appeal the denial of his Article 78 petition and hence did not present his claims to the highest state court capable of reviewing them. Scales does not clearly claim to have filed such an appeal*fn4 nor has he submitted any documentary evidence of having done so.*fn5 ...

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