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Strauss v. Yelich

May 17, 2010

CHARLES STRAUSS, PETITIONER,
v.
BRUCE YELICH, NYS DIVISION OF PAROLE, RESPONDENT.



DECISION and ORDER

I. BACKGROUND

On April 22, 1991, Petitioner pro se Charles Strauss was sentenced in Madison County Court to concurrent, indeterminate prison terms of three to nine years and two and one-third to seven years after being convicted in that court of two counts of second degree burglary and two counts of third degree burglary. See, e.g., People ex rel. Strauss v. New York State Div. of Parole, 55 A.D.3d 1198, 1198 (3d Dept. 2008), leave denied, 12 N.Y.3d 702 (2009). On July 27, 1993, Strauss was released to parole supervision. Dkt. No. 21-3 at ¶ 4. On March 15, 1994, he was charged in a "Violation of Release Report" ("Violation Report") with four violations relating to his conditions of parole. Id. That Violation Report arose out of Strauss' claimed participation in a February 23, 1994, robbery of a convenience store in Kirkville, New York, and his failure to notify his parole officer of his arrest on charges related to that incident. Id.; see also Dkt. Nos. 21-11, 21-12 and 21-13. A preliminary parole revocation hearing relating to those claimed violations was held before hearing officer L. Pomerleau on March 16, 1994. See Dkt. No. 21-16. At the conclusion of that proceeding, the hearing officer found probable cause to believe that Strauss had committed a parole violation. Id. at pp. 31-32. Thereafter, on April 6, 1994, Senior Parole Officer R. Wozna prepared a "Supplementary Violation Release Report" in which officer Wozna noted that he had received additional information which suggested that Strauss had committed other parole violations. See Dkt. No. 21-14.

On September 6, 1994, Strauss' attorney requested an adjournment of the final revocation hearing, Dkt. No. 21-19, and the hearing was ultimately adjourned to December 6, 1994. Dkt. No. 21-3 at 27-28.

The record further establishes that on November 18, 1994, Strauss was sentenced in Madison County Court after he was convicted of robbery in the second degree arising out of the February 23, 1994 robbery of the Kirkville convenience store. See, e.g., Decision and Judgment of Acting Supreme Court Justice S. Peter Feldstein (3/7/08) (Dkt. No. 21-4) ("March, 2008 Decision") at 2. Strauss was thereafter sentenced, as a predicate felony offender, to concurrent indeterminate sentences of seven and one-half to fifteen years imprisonment, which sentences were ordered to run consecutive to the undischarged portion of the April, 1991 sentences referenced above. See Dkt. No. 21-20 at 2.

The New York State Department of Correctional Services ("DOCS") took Strauss into its custody on December 2, 1994. That same day, the New York State Division of Parole ("Parole Board") issued a Notice of Final Declaration of Delinquency based on Strauss' November 18, 1994 sentencing in Madison County Court. Dkt. No. 21-3 at 32 ("Final Declaration").*fn1 That decision formally revoked Strauss' parole relating to his 1991 convictions. Id.; see, e.g., Woodard v. Johnson, No. 93CV3925, 1995 WL 406132 (E.D.N.Y. June 23, 1995) (Notice of Final Declaration of Delinquency by the Parole Board "informed the plaintiff that his prior parole was being revoked on the basis of his felony convictions").

In October 2007, Strauss commenced a habeas corpus proceeding in New York Supreme Court, Franklin County. See Dkt. No. 21-1. In that application, he claimed that the warrant which contended that he had committed a parole violation in connection with the New York robbery charges was a "nullity," and that his incarceration was illegal, because he had not been afforded a final parole revocation hearing within ninety days of March 16, 1994 -- the date on which hearing officer Pomerleau issued his probable cause determination. Id.*fn2 Acting Supreme Court Justice S. Peter Feldman concluding that "there [was] no basis for habeas corpus relief under the facts and circumstances" of that case because Strauss' "subsequent felony conviction, coupled with the imposition of a new indeterminate sentence of imprisonment, provide[d] an independent basis for the revocation of parole by operation of law pursuant to Executive Law § 259-i(3)(d)(iii)." See March, 2008 Decision at 4 (citation omitted). Judge Feldman therefore dismissed Strauss' petition. Id. Strauss appealed that decision. However, in its order dated October 30, 2008, the New York State, Supreme Court, Appellate Division, Third Department unanimously affirmed that decision of the Supreme Court. Strauss, 55 A.D.3d at 1199. The Appellate Division concluded that: "[r]egardless of the merits of petitioner's claim that he was not afforded a final parole revocation hearing in accordance with the requirements of Executive Law § 259-i(3)(f)(i), he is presently incarcerated due to his 1994 convictions of robbery in the second degree which provide an independent basis for revoking his parole pursuant to Executive Law § 259-i(d)(iii)." Id. Strauss sought leave to appeal that decision to the New York Court of Appeals, however such application was denied by that court on February 12, 2009. People ex rel. Strauss v. New York State Div. of Parole, 12 N.Y.3d 702 (2009).

Strauss commenced the present action by filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this District on May 17, 2009. See Dkt. No. 1. On June 15, 2009, Strauss filed an amended habeas application in this matter. See Dkt. No. 6 ("Amended Petition"). In that application, petitioner argues that: i) he was denied his right to a final parole revocation hearing within ninety days of the hearing officer's probable cause finding, as required by Executive Law § 259-i(3)(f)(i); ii) because he was not afforded a final revocation hearing, he was denied his right to confront adverse witnesses and to present mitigating evidence in his defense to the parole violation charge, as provided by Executive Law § 259-i(3)(f); iii) by failing to conduct a final revocation hearing, he was denied his right to appeal the revocation decision; and iv) as a result of the foregoing, his current term of imprisonment has been impermissibly extended beyond his maximum sentence. See Amended Petition, Ground One through Four.

On December 3, 2009, the Office of the Attorney General of the State of New York, acting on respondent's behalf, filed an answer and memorandum of law in opposition to Strauss' Amended Petition. See Dkt. Nos. 19-20. In opposing that petition, respondent argues that, inter alia, that this action was not commenced within the one year statute of limitations applicable to § 2254 habeas corpus petitions, and that therefore this Court must dismiss Strauss' amended pleading on this basis. See Respondent's Memorandum of Law in Opposition to Petition (Dkt. No. 20), Point I. Strauss thereafter filed a Traverse in which he reiterates his claim that he is entitled habeas intervention in this action. See Dkt. No. 23 ("Traverse"). This matter is currently before this Court for disposition.

II. DISCUSSION

A. Applicable Statute of Limitations

Enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996), brought about significant new limitations on the power of a federal court to grant habeas relief to a state court prisoner under 28 U.S.C. § 2254. One of those limitations was the imposition of a one-year window of time for the filing of such habeas petitions.*fn3 28 U.S.C. § 2244(d)(1); Cook v. New York State Div. of Parole, 321 F.3d 274, 279-80 (2d Cir. 2003). As the Supreme Court noted in Duncan v. Walker, 533 U.S. 167 (2001), the AEDPA's statute of limitations "reduces the potential for delay on the road to finality by restricting the time that a prospective federal habeas petitioner has in which to seek federal habeas review." Duncan, 533 U.S. at 179.

The Second Circuit Court of Appeals has held that the "factual predicate" of a claim challenging the revocation of one's parole is the date on which the petitioner is "notified that the administrative decision to revoke his parole had become final." Cook, 321 F.3d at 280. Thus, in light of the AEDPA statute of limitations, a habeas corpus challenge concerning the revocation of one's parole must be commenced within one year of that notice. Id. at 280-81; see also Jackson v. Morrisey, No. 08-CV-029S, 2009 WL 3300259, at *5 (W.D.N.Y. Sept. 27, 2009) (citing Cook).

In the case sub judice, the Parole Board notified Strauss that the decision to revoke his parole had become final on December 2, 1994. See Final Declaration. Because that date was prior to the enactment of the AEDPA's statute of limitations, Strauss had until April 24, 1997 -- or one year after the enactment of the AEDPA -- within which to timely file his application seeking federal habeas relief challenging the December, 1994 revocation of his parole. Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998).

In the present case, Strauss' first challenge to the revocation of parole, on which the present habeas application is based, appears to be the state habeas corpus action filed by him in the Supreme Court, Franklin County, on October 6, 2007. See Dkt. No. 21-1 at 7 (Strauss signing his state habeas application on October 6, 2007). That date was more than ten years after the April 24, 1997 deadline applicable to Strauss' federal habeas petition under the AEDPA had expired. Since that state court action did not reset the applicable ...


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