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Hill v. Mance

February 23, 2009


The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge


I. Introduction

Petitioner pro se Duane Hill ("Hill") filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on June 12, 2007. (Docket No. 1). Hill pleaded guilty in Erie County Court to one count of criminal possession of a weapon in the second degree (N.Y. Penal Law § 265.03(2)) and one count of criminal possession of a weapon in the third degree (N.Y. Penal Law § 265.02(4)). He was sentenced on May 9, 2000, to concurrent terms of three and one-half years on the second degree weapons conviction, and two years on the third degree weapons conviction. Hill did not pursue a direct of appeal of his conviction. Indeed, Hill does not attack the conviction itself or the length of the sentence imposed by the trial court. Rather, Hill's only ground for habeas relief is that the administrative imposition of five years of post-release supervision by the New York State Department of Correctional Services ("NYSDOCS") is unconstitutional:

Petitioner, after pleading guilty under two Erie County indictments, was sentenced to two determinate sentences. Neither in the sentencing minutes, nor the commitment document did the judge issue a five (5) year period of post-release supervision. In February of 2003, petitioner was notified and required to sign documents of the Division of Parole that indicated that he would serve an additional period of five (5) years post-release Petitioner [was] coerced into signing these documents [and] was released on April 8, 2003.

On May 12, 2006, petitioner's parole was violated and he was assessed to an additional twenty-four months incarceration.*fn1 The administrative addition of five (5) years to petitioner's sentence by the Department of Correctional Services and carried out by the Division of Parole, neither indicated in the sentencing minutes, nor found in the commitment documents, and the additional incarceration of petitioner is illegal and petitioner was therefore denied due process of law.

Petition, ¶7 (Docket No. 1); see also Petitioner's Memorandum of Law (Docket No. 2). Along with his accompanying memorandum of law, Hill has submitted copies of the sentence and commitment orders, the sentencing minutes, the parole violation documents, "legal computation data", his state writ of habeas corpus, the County Court decision denying the writ; the appellate court's dismissal of appeal, and "copy of 28 U.S.C. § 2242 and Judge Weinstein's analogy."

In his memorandum of law, Hill provides additional facts concerning the addition of post-release supervision to his sentence. According to Hill, it was not until February 2003, after he had been incarcerated for nearly three years and was first eligible for parole, that he was "notified by Mohawk Facility Parole Officer that he was required to sign documents indicating that he was to serve and additional five (5) years of PRS or else he would not be released from custody." Pet'r Mem., ¶7. On April 8, 2003, Hill was released to parole supervision, having completed three and one-half years of incarceration, the maximum term imposed by the sentencing judge..

On May 12, 2006, Hill states, he "was re-incarcerated by the Division of Parole ("DOP") for an alleged violation of PRS and on June 7, 2006, petitioner was assessed for an additional twenty-four (24) months of incarceration by the DOP." Id., ¶8. At that time, Hill made a document request under the Freedom of Information Law ("FOIL"), and received a copy of his "Reception/Classification System Legal Date Computation" pertaining to his time spent in NYSDOCS custody. Hill indicates that his receipt of the Legal Date Computation on June 22, 2006, "was the first time petitioner ever saw an indication of PRS in a record of any kind (EXH. E), outside of his release papers." Pet'r Mem., ¶8 (emphasis supplied) (Docket No. 2).

Hill indicates that about three months later, on September 20, 2006, he filed a petition for a writ of habeas corpus in Oneida County Supreme Court pursuant to New York Civil Practice Law and Rules ("C.P.L.R.") § 7001 "demanding his immediate release from confinement based on the due process violation of DOCS administratively adding an additional five year period of PRS to his sentence (EXH. F)." Pet'r Mem., ¶9 (Docket No. 2). Hill cited to, inter alia, Earley v. Murray, 451 F.3d 71, 74 (2d Cir. 2006), a case whose facts were squarely on point with his.

However, on November 1, 2007, a justice of Oneida County Supreme Court denied the writ in a summary decision, stating as follows:

Petitioner was sentenced as a violent felony offender. He is, accordingly, automatically subject to five years' post-release supervision by operation of Penal Law § 70.45(2), regardless of the absence of a direction thereof from the sentencing judge. Accordingly, the poor person application is moot, the underlying application has no merit, and the application is DENIED.

Pet'r Ex. G, attached to Pet'r Mem. (Docket No. 2).

Hill filed a motion to take a late notice of appeal to the Appellate Division, Fourth Department, which was dismissed as "unnecessary inasmuch as no appeal lies from a decision of the court (see People ex rel. Aguilar v. Kelly, 143 AD2d 535) (emphasis supplied).*fn2 " Pet'r Ex. H, attached to Pet'r Mem. (Docket No. 2). Therefore, Hill stated, he had exhausted his state-court remedies.

On August 6, 2007, respondent filed an answer and memorandum of law in opposition to the petition (Docket Nos. 5 & 6). The only argument asserted by respondent pertained to Hill's alleged failure to exhaust his state-court remedies.

On April 21, 2008, a consent order was entered (Docket No. 7) in this matter, reflecting the parties' consent to jurisdiction by a magistrate judge under 28 U.S.C. § 636(c). The case was transferred from District Judge Larimer to Magistrate Judge Payson.

On May 12, 2008, based on the information on the NYSDOCS Inmate Lookup site, Hill released to parole, following his re-incarceration for 24 ...

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