The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
Pursuant to 28 U.S.C. § 636(c), the parties have consented to have the undersigned conduct any and all further proceedings in this case, including entry of final judgment. Dkt. #21.
Petitioner Daniel Jones commenced this action on or about January 5, 2005, pursuant to 28 U.S.C. § 2241 (subsequently re-characterized as filed pursuant to 28 U.S.C. § 2254) maintaining that he remained in the custody of the New York State Department of Correctional Services because of the unconstitutional denials of parole by the New York State Parole Board. Dkt. ##1 and 20. Currently before this Court is respondent's motion (Dkt. #27) for summary judgment seeking dismissal of the amended petition (Dkt. #20) and petitioner's motion for appointment of counsel (Dkt. #40). For the following reasons, respondent's motion for summary judgment is granted and petitioner's motion for appointment of counsel is denied as moot.
Petitioner Daniel Jones (hereinafter "Jones"), proceeding pro se, commenced this action on or about January 5, 2005, pursuant to 28 U.S.C. § 2241. Dkt. #1. In his petition, Jones argued that he remained in the custody of the New York State Department of Correctional Services ("DOCS") by reason of the unconstitutional denials of parole by the New York State Parole Board on or about January 16, 2002 and January 15, 2004. Id. By Decision and Order filed May 18, 2005, United States District Judge William M. Skretny ordered that the petition originally filed pursuant to 28 U.S.C. § 2241 be re-characterized as having been filed pursuant to 28 U.S.C. § 2254.*fn1
On March 18, 2005, plaintiff Daniel Jones (hereinafter "Jones") filed a complaint pursuant to 42 U.S.C. § 1983 (Western District of New York Case No. 05-CV-183) against defendants Glenn S. Goord, Michael Giambruno and an unspecified number of "John Does" (the "Time Allowance Committee"), challenging the denial of his "good time" allowance or credit based on his refusal/failure to participate in a sex offender program. (Case No. 05-CV-183, Dkt. #1). Specifically, Jones alleged that participation in the sex offender treatment program would have required him to acknowledge guilt for a crime which, at the time, he was seeking to have overturned on appeal. Id. By Decision and Order filed August 2, 2005 in Case Nos. 05-CV-0008 and 05-CV-183, District Judge Skretny found that the relief sought in the complaint filed in 05-CV-183 could be sought only in a petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 because it raised the question of the duration of Jones' confinement. Dkt. #8 (in both cases). Consequently, District Judge Skretny ordered that the complaint in 05-CV-183 be construed as a motion to amend the petition for habeas corpus relief filed in 05-CV-0008 and District Judge Skretny provided Jones with the opportunity to address the Court's intention to treat the complaint filed in 05-CV-183 as a motion to amend or supplement the petition filed in 05-CV-0008. Id. Specifically, District Judge Skretny's Order provided Jones until August 23, 2005 to file a response. Id. On August 25, 2008, Jones filed, in both actions, a motion for reconsideration of the Court's Order treating the complaint filed in 05-CV-183 as a motion to amend the habeas corpus petition filed in 05-CV-0008 (05-CV-0008, Dkt. #14 and 05-CV-183, Dkt. #10). Also on August 25, 2008, Jones filed an amended complaint filed in 05-CV-183 (Dkt. #12).
On October 14, 2005, counsel for respondent in 05-CV-0008 filed a motion for an Order: (1) striking the amended complaint filed in 05-CV-183; (2) denying the motion to amend the petition filed in 05-CV-0008 (the complaint filed in 05-CV-183); and (3) enlarging the time within which to respond to the petition. Dkt. #10. Thereafter, Jones filed an affidavit in opposition to respondent's October 14, 2005 motion. Dkt. #12.
On January 23, 2006, District Judge Skretny, by Decision and Order filed in both cases, ordered that counsel for respondent in 05-CV-0008 and counsel for defendants in 05-CV-183 file a response to Jones' motion for reconsideration on or before February 13, 2006 and in such response to specifically address whether the Court properly construed the complaint in 05-CV-183 and whether the Court should have re-characterized the complaint as a motion to amend the habeas corpus petition in 05-CV-0008. (05-CV-0008, Dkt. #13; 05-CV-183, Dkt. #14.) As required and consistent with District Judge Skretny's January 23, 2006 Decision and Order, counsel for respondent and defendants filed memoranda on February 6, 2006 (Dkt. #15 in both cases). Thereafter, Jones filed memoranda on February 21, 2006 (Dkt. #16 in both cases).
By Decision and Order filed on March 31, 2006, District Judge Skretny: (1) denied Jones' motion for reconsideration (05-CV-0008, Dkt. #14 and 05-CV-183, Dkt. #10); (2) ordered that the amended complaint initially filed in 05-CV-183 (Dkt. #12) shall be deemed and docketed as a motion to amend the habeas corpus petition in 05-CV-0008; (3) ordered that the motion to amend the habeas corpus petition docketed in 05-CV-0008 (see above) be granted; (4) ordered that Jones file an amended petition in 05-CV-0008 by May 15, 2006; (5) ordered that respondent's motion to strike the complaint filed in 05-CV-183 be denied and ordered that Jones' "putative" motion to amend the petition in 05-CV-0008 be denied; (6) ordered that respondent's motion to enlarge the time in which to respond to the petition filed in 05-CV-0008 be granted and (7) ordered that respondent shall have 45 days from the filing of Jones' amended petition to file an answer and a memorandum of law in response to the amended petition.*fn2 Consistent with District Judge Skretny's March 31, 2006 Decision and Order, an amended petition was filed on May 11, 2006. Dkt. #20. Thereafter, respondent filed the instant motion to dismiss the petition. Dkt. #27.
Jones is presently serving an aggregate sentence of 10 to 20 years after having been convicted in 1992 of: (1) Attempted Rape in the First Degree, Burglary in the Second Degree, Sexual Abuse in the First Degree, and Endangering the Welfare of a Child in connection with breaking into a home and attempting to engage in sexual intercourse with an eight-year-old girl on January 8, 1992; and (2) Burglary in the Second Degree, Sexual Abuse in the First Degree and Endangering the Welfare of a Child in connection with unlawfully entering another home and subjecting a six-year-old girl to illegal sexual contact on February 27, 1991. Dkt. #28, ¶ 1; Dkt. #30, p.1. Jones' convictions were unanimously upheld on direct appeal. People v. Jones, 654 N.Y.S.2d 495 (App. Div.), lv. den., 661 N.Y.S.2d 186(1997). At all times relevant to the allegations in the amended petition, Jones was in the custody of the New York State Department of Correctional Services ("DOCS") and was housed at the Wyoming Correctional Facility ("Wyoming"). Dkt. #5. United States District Judge William M. Skretny previously dismissed Jones' federal habeas challenge to his conviction and denied Jones a certificate of appealability and by mandate dated January 6, 2006, the United States Court of Appeals for the Second Circuit denied leave to appeal. Dkt. #28, ¶ 2; see also, Jones v. Giambruno, 01-CV-0440 (Skretny, J., W.D.N.Y.). Jones' application for state post-conviction review pursuant to New York Criminal Procedure Law § 440.30 was similarly denied. People v. Jones, 761 N.Y.S.2d 928 (App. Div.), lv. den., 775 N.Y.S.2d 791 (2003).
In his Amended Petition, Jones challenges the determinations rendered by the Parole Board in 2002, 2004 and 2006. Dkt. #20. In addition, Jones challenges the alleged withholding of good time credits by the Wyoming Time Allowance Committee. Id.
Jones first became eligible for parole in 2002 and the New York State Division of Parole declined to release Jones, stating, Parole is denied. You are presently serving terms for attempted rape 1st, 2 counts burglary and 2 counts sexual abuse. They relate to you illegally entering homes on 2 separate occasions and sexually molesting 2 little girls. We note a prior conviction for sex abuse 1st. You have a positive institutional program and discipline record, however, you have not been able to adequately benefit from a sex offender treatment program. These factors demonstrate that you present a serious threat to community safety and welfare and belie discretionary release to community supervision.
Dkt. #1 Exhibits, p.12. The Division of Parole further ordered that Jones be held for 24 months. Id. Division of Parole regulations provide a prisoner eligible for parole four months to appeal a parole determination by filing an appeal with the Division's Appeals Unit. Dkt. #28, ¶ 4, citing 9 N.Y.C.R.R. § 8006.2(a) and (b). Jones filed an administrative appeal on January 24, 2002, but did not file his administrative briefs until May 2, 2002, just two weeks prior to the four-month deadline. Dkt. #28, ¶ 5, citing Dkt. #20, ¶ 2. The Division's Appeals Unit then had four months to issue a determination. Dkt. #28, ¶ 6. Because the Appeals Unit failed to issue a determination, Jones' administrative remedies were deemed to have been exhausted pursuant to 9 N.Y.C.R.R. § 8006.4(c). Id. at ¶ 7.
Jones filed an Article 78 proceeding pursuant to New York's Civil Practice Law & Rules challenging the Parole Board's denial of parole. Dkt. #28, ¶ 8. Jones alleges in his amended petition that "[o]n January 2003, Erie County Supreme Court Judge (Tills, J.) denied the Article 78 petition." Dkt. #20, ¶ 3. Jones filed a Notice of Appeal and re-submitted his application to proceed on appeal as a poor person; Jones' application to proceed as a poor person was granted on May 2, 2003. Id. at ¶ 4. A dispute concerning the record on appeal ensued, causing a further three month delay. Dkt. #28, ¶ 11. In addition, Jones' failure to timely file his appellate brief in connection with his appeal resulted in his appeal being dismissed. Id. at ¶ 12. Jones succeeded in vacating the dismissal and filed his appellate brief on December 23, 2003. Id. at ¶ 13. Thereafter, the Appellate Division, Fourth Department dismissed Jones' appeal holding,
This appeal must be dismissed as moot because the determination expired during the pendency of this appeal, and the Parole Board denied petitioner's subsequent request for parole release ... In any event, [sic] Supreme Court properly dismissed the petition. Contrary to the contention of petitioner, the Parole Board properly considered his failure to participate in a sex offender treatment program and the seriousness of the offenses in making its determination.
Jones v. NYS Div. of Parole, 8 A.D.3d 1098, 1099 (4th Dept. 2004) (internal citations omitted). The New York Court of Appeals denied Jones' leave to appeal. Jones v. NYS Div. of Parole, 3 N.Y.3d 609 (2004).
On January 15, 2004, the New York State Division of Parole again declined to release Jones, stating Parole is once again denied. Your interview and record have been duly considered and accordingly we decline to grant you a release at this time. The instant offenses demonstrate that you are a dangerous sexual predator. You were involved in two sets of criminal transactions wherein two different little girls were victimized and sexually assaulted. Your record includes similar conduct, again involving sexual contact to [sic] a young female. In light of the foregoing this panel concludes that if released you would pose a clear and present danger to community safety. Accordingly, we decline to assume that risk.
Dkt. #1 Exhibits, p.38. The New York State Appellate Division, Third Department, affirmed the 2004 denial of parole holding that,
Our review of the record reveals that the Board complied with the requirements of Executive Law § 259-I, thus its determination is not subject to further judicial review. While the Board's decision emphasizes the seriousness of the crimes and petitioner's criminal history, the hearing transcript demonstrates that the Board also considered petitioner's institutional record, educational accomplishments and release plans. Contrary to petitioner's contention, the record does not indicate that the Board used his refusal-on the basis that it would require him to admit his guilt-to participate in a sex offender counseling program against him in reaching its determination. In any event, the Board may consider a petitioner's continued lack of remorse when making a parole determination, even where the petitioner has maintained his or her innocence following conviction. Nor does the record support petitioner's contention that the Board's decision was affected by "irrationality bordering on impropriety" because certain documents in the record erroneously reflect that petitioner was convicted of attempted rape in the first degree pursuant to subdivision (1) rather than subdivision (3) of Penal Law § 130.35. Other documents upon which the Board relied contain the correct information and petitioner was able to address and resolve any misconception at the hearing.
Finally, in light of petitioner's criminal history of committing sex crimes against children and the fact that his present convictions are violent felony offenses, we conclude that each of the challenged special conditions imposed by the Board in the event that petitioner is granted conditional ...