The opinion of the court was delivered by: Gary L. Sharpe, United States District Judge
Petitioner Roman Kevilly is a New York State prison inmate as a result of a 1996 conviction in Nassau County Court of first degree robbery and second degree kidnapping. He seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in which he challenges a determination made by the Oneida Correctional Facility's Time Allowance Committee ("TAC") on or about February 14, 2008, to withhold six years of good time credits. See Dkt. No. 1 at 2-7.
Upon review of the petition, it appeared that Petitioner's direct appeal was still pending in state court and, accordingly, Petitioner had not properly exhausted his claims in state court. In an Order dated March 30, 2009, the Court directed Respondent to file a response to the petition, limited to whether Petitioner properly exhausted his claims. Dkt. No. 4 at 4-7. On May 29, 2009, Respondent submitted the required response and relevant state court records. For the reasons set forth below, the petition is dismissed without prejudice.
According to the record, the TAC required Petitioner to appear before it on February 8, 2008. At the hearing, the TAC recommended that six years of good time credits be withheld because Petitioner failed to successfully complete the Aggression Replacement Training program ("ART"). See Dkt. No. 1, Ex. C. The Superintendent confirmed the TAC's recommendation on February 28, 2008, and the decision was affirmed by the Commissioner's designee on March 3, 2008. Id.*fn1
Petitioner filed a state pro se petition for a writ on habeas corpus in Oneida County Supreme Court dated July 23, 2008. See Dkt. No. 1, Ex. A. Petitioner alleged that he was denied due process and equal protection because the TAC recommended that his good time credits be withheld without conducting a hearing, and without bringing any charges of misconduct against him. Id. at 2-4. Petitioner also stated that his failure to complete the ART program should not have resulted in the loss of good time credits because (1) participation in the program violated Petitioner's right against self-incrimination under the Fifth Amendment, and (2) the ART program was optional, not court-mandated. Id. at 5-6.
The respondent answered the petition and argued that the TAC's decision to withhold good time credits was made in accordance with the law, and that under Correction Law § 803(1)(a), good time credits could properly be withheld based upon an inmate's failure to complete assigned programs. Resp't. Mem. at 6. Petitioner filed a Reply. See Dkt. No. 1, Ex. A; Dkt. No. 7, Ex. A.
Petitioner's pro se habeas corpus petition was apparently converted into an Article 78 proceeding. See Dkt. No. 1, Ex. B. In an Order dated October 7, 2008, the Oneida County Supreme Court denied the petition. Id.
Petitioner filed a Notice of Appeal in the Appellate Division, Fourth Department, dated October 15, 2008. Id. In an Order dated December 23, 2008, the Fourth Department granted Petitioner's motion to "proceed as a poor person," and ordered the Clerk of Oneida County to provide him with a stenographic copy of the minutes upon which the appeal is based. Id.
By letter dated February 3, 2009, Principal Appellate Court Attorney Lawrence X. Dalton, of the Fourth Department, returned Petitioner's appellate briefs to him. See Dkt. No 7, Ex. B. Petitioner was advised in the letter that to perfect his appeal, he must "file the original stipulated or settled record, 10 copies of a brief and proof of service of one copy of the record and brief." Id. (citing N.Y. COMP.CODES R. & REGS tit. 22, §1000.3(c)(2)).*fn2
In a letter dated February 8, 2009, Petitioner wrote to the Respondent and enclosed a copy of a stipulation of the record. Dkt. No. 5, Ex. 1. Petitioner asked that the Respondent sign the stipulation and return it to him. Id.
In a letter dated February 12, 2009, Assistant Solicitor General Robert M. Goldfarb acknowledged receipt of Petitioner's February 8, 2009 letter and stipulation. Dkt. No. 5, Ex. 2. Goldfarb informed Petitioner that in order for him to stipulate to the record on appeal, he needed Petitioner to provide him with a "complete copy of the proposed record that [he] can review for completeness." Id.
On February 14, 2009, Petitioner sent to the Fourth Department "copies of the Settled Record, i.e., (Notice of Entry), and proof of service dated January 29, 2009., and 10 copies of Appellants Brief, (One Original, and 9 copies as directed by ...