The opinion of the court was delivered by: Gary L. Sharpe United States District Judge
Petitioner Joseph Wilson Plater ("Plater" or "Petitioner") is currently an inmate in the custody of the New York State Department of Correctional Services at Cayuga Correctional Facility as a result of a 1995 conviction for first degree burglary and second degree assault (two counts). Petitioner is serving a concurrent indeterminate term of five to fifteen years in prison. See Dkt. No. 6, Respondent's Answer in Opposition to the Petition for a Writ of Habeas Corpus ("Answer"), at 1-2; Respondent's Memorandum of Law ("Resp't Mem."), at 1. He commenced this proceeding seeking habeas review of the Cayuga Correctional Facility's Time Allowance Committee ("TAC")'s decision to withhold five years of good time credit based upon Petitioner's failure to complete the prison's Alcohol and Substance Abuse Treatment ("ASAT") program. For the reasons that follow, the petition is DENIED.
On or about September 28, 2004, the TAC scheduled a hearing concerning the possibility of withholding Petitioner's available good time credits based upon his refusal to participate in the prison's ASAT program. Resp't Mem. at 2; Dkt. No. 9, Ex. B, Verified Article 78 petition, at 10; Ex. C, Verified Answer, at 2 (and attached exhibit captioned "Cayuga Correctional Facility, Time Allowance Committee Formal Notice", dated September 28, 2004 and signed by Petitioner). The hearing was held on or about September 30, 2004. Dkt. No. 9, Ex. C, at 2.
At the hearing, Petitioner explained that he would not participate in the ASAT program because the program was voluntary and not "the result of any mandatory Directives or Court order." Dkt. No. 1 at Ground One, attached pages at ¶ 2. See also Dkt. No. 9, Ex. B at 10. According to Petitioner, he was informed by one of the TAC committee members that because he was "sentenced to the Department of Corrections", he was "State property" and must comply with the prison's directives. Dkt. No. 9, Ex. B at 11.
The TAC recommended to the facility Superintendent that five years of good time credits be withheld based upon Petitioner's refusal to participate in the ASAT program. Dkt. No. 1, attached pages at ¶ 2; Resp't Mem. at 2. The TAC noted that it would reconsider its decision "upon completion" of the recommended treatment programs. Dkt. No. 9, Ex. A. The Superintendent affirmed the TAC's decision on October 1, 2004, and the decision was further affirmed by the Commissioner on October 19, 2004. Pet. at attached pages, ¶ 2; Resp't Mem. at 2; Dkt. No. 9, Ex. A; Ex. C at 2.
B. State Court Proceedings
Petitioner brought an Article 78 proceeding in Supreme Court, Cayuga County, seeking the restoration of his good time credits. See Dkt. No. 9, Ex. B. Petitioner argued that the withholding of his good time credits violated due process under the New York and the United States Constitutions, and also violated the United States Supreme Court's decision in Wolff v. McDonnell, 418 U.S. 539 (1974), because the prison failed to: (1) provide him with an employee assistant at his hearing; (2) provide advanced written notice of the claimed violations leading to the possible withholding of good time credits; (3) provide a written report to the Superintendent; (4) allow him a brief period not exceeding twenty-four hours to prepare for his appearance before the TAC committee; and (5) allow him to call witnesses and present documentary evidence in his defense. See Dkt. No. 9, Ex. B, Affidavit, at 4-6. Petitioner further asserted that participation in a substance abuse program was voluntary under New York's Mental Hygiene Law. Dkt. No. 9, Ex. B at Verified Petition, 12-13; Ex. C at 3-4.
In a decision and order dated January 12, 2006, the Cayuga County Supreme Court denied Petitioner's Article 78 petition. Dkt. No. 9, Ex. D, at 2. The court noted that the decision whether to grant good time credit "is discretionary." Id. It further found that good time credits were "a privilege and not a right," and that "[a]n inmate's failure to participate in treatment programs provides a rational basis to withhold petitioner's good time." Id. Finally, the court concluded that since the "discretionary decision of the Board of Parole was made in accordance with the law, it is not subject to judicial review", and that Petitioner's claims were "without merit." Id.
Petitioner appealed the denial of his Article 78 petition to the New York State Supreme Court, Appellate Division, Fourth Department on or about January 23, 2006. Pet. at Ground One ¶ 8; Dkt. No. 9, Ex. E. In his brief, Petitioner argued that his due process rights were violated when (1) he was not provided with a list of counselors he could choose from to assist him at the TAC hearing; and (2) his due process rights were violated when substance abuse treatment programs, voluntary under the Mental Hygiene Law, were "used against him" to justify withholding of his good time credits. Dkt. No. 9, Ex. E at 1 (Questions Presented); 6-10. Petitioner also claimed that a form captioned "Time Allowance Notice Assistance Form," indicating that Petitioner declined assistance by a counselor at the hearing, was a forgery. Id. at 7.
Respondent argued that Petitioner's claim that he was not provided with a list of counselors he could choose from to assist at the TAC hearing was unpreserved for appellate review because although Petitioner raised the claim in his affidavit in support of an order to show cause, he failed to raise it in his Article 78 petition. Dkt. No. 9, Ex. F, at 5-6. Respondent further asserted that Petitioner failed to object to the lack of assistance at the TAC hearing and, in any event, assistance was unnecesary because Petitioner admitted his failure to participate in the ASAT program based upon his belief that it was voluntary. Id. at 6-7. Respondent also argued that although an inmate cannot be forced or coerced into participation in a treatment program, it was "appropriate and rational for DOCS to conclude than an inmate who refuses to take a counselor's recommendation to improve or rehabilitate himself by taking certain programs is not exhibiting good behavior and, therefore, is not entitled to receive a good behavior time allowance." Id. at 5.
On July 6, 2007, the Appellate Division "unanimously affirmed" the dismissal of Petitioner's Article 78 petition without further opinion. Dkt. No. 9, Ex. G; Plater v. Goord, 838 N.Y.S.2d 456 (N.Y. App. Div., 4th Dep't. 2007). The New York Court of Appeals denied leave to appeal on ...