The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner Robert I. Reed, a state prisoner appearing pro se, has petitioned for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner is currently in the custody of the New York State Department of Correctional Services incarcerated at the Altona Correctional Facility.
I. BACKGROUND/PRIOR PROCEEDINGS
Because Reed is specifically not challenging his state court convictions or the underlying judgment, the records before this Court do not include the records of the proceedings leading to his conviction. The Court, however, was readily able to obtain the history of the proceedings leading to his conviction from the decision of the Western District of New York denying his first federal habeas petition challenging his conviction, Reed v. Great Meadow Correctional Facility, 981 F.Supp. 184, 186 (W.D.N.Y. 1997).*fn3
A Niagara County Court tried petitioner on four counts of first-degree rape in March 1993 (Item 18, pp. 1-2). The four counts of rape were contained in two separate indictments (Id., p. 1). The first indictment alleged that petitioner raped both Wanica Wilson on February 4, 1992 (count one) and Sonya Sealey on June 7, 1992 (count two) (Id.). The second indictment alleged that petitioner raped Teresa Knowles twice on December 6, 1992 (counts three and four) (Id.). The Niagara County Court permitted the respondent to join the indictments and try all four counts together (Id., pp. 1-2).
A jury convicted petitioner on two of the four counts on March 25, 1993 (Id., p. 2). On April 29, 1993, Niagara County Judge Hannigan sentenced petitioner to two consecutive sentences of 8 1/3 to 25 years (Id.). Petitioner filed a motion to vacate the judgment, which was denied on October 29, 1993 (Id. p. 3). Petitioner also appealed his conviction to the Supreme Court Appellate Division's Fourth Department. On February 3, 1995, the Fourth Department affirmed petitioner's conviction, but modified his sentences to run concurrently rather than consecutively. People v. Reed, 212 A.D.2d 962, 624 N.Y.S.2d 693 (4th Dep't 1995). The New York State Court of Appeals denied petitioner's motion for leave to appeal on June 28, 1995. People v. Reed, 86 N.Y.2d 739, 631 N.Y.S.2d 620, 655 N.E.2d 717 (1995).
In April 2002, Reed filed a petition for a writ of habeas corpus in the Western District of New York challenging the loss of 120 days good time following a Tier III prison disciplinary hearing, which the District Court denied on August 8, 2007. [Western District of New York, Case. No. 1:02-cv-00286-RJA-VEB] A review of the docket in that case reveals that no appeal was taken.*fn4
In April 2003, Reed made his initial appearance before the New York Parole Board. On April 28, 2003, the Parole Board denied Reed's application for parole and placed a 24-month hold for his next appearance date, April 2005. Reed administratively appealed, and the decision was affirmed January 8, 2004.
In September 2003, Reed filed a petition for a writ of habeas corpus in the Cayuga County Supreme Court, which dismissed his petition on December 17, 2003. The Appellate Division, Fourth Department, affirmed the dismissal on November 19, 2004, and the New York Court of Appeals denied leave to appeal on February 10, 2005. People ex rel. Reed v. Travis, 784 N.Y.S.2d 403 (N.Y.A.D. 2004), lv. denied, 825 N.E.2d 1092 (N.Y. 2005) (Table).
On January 15, 2004, Reed filed a petition under article 78 of the New York Civil Practice Law and Rules in the Cayuga County Supreme Court, which dismissed his petition on June 15, 2004. The Appellate Division affirmed the dismissal on June 16, 2005, and the New York Court of Appeals denied leave to appeal on September 13, 2005. Reed v. Travis, 797 N.Y.S.2d 597 (N.Y.A.D.), lv. denied, 836 N.E.2d 1152 (N.Y. 2005) (Table).
Reed timely filed his petition in this Court on February 22, 2005
Reed seeks immediate release to parole contending he is being illegally confined on an invalid commitment in violation of his constitutional due process rights.*fn5 Respondent raises as his sole defense ...