The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge
Pro se petitioner James Wesolowski ("Petitioner" or "Wesolowski") has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that he is being held in state custody in violation of his federal constitutional rights. Petitioner currently is incarcerated at Mohawk Correctional Facility as the result of a judgment entered September 16, 2008, in Allegany County Court of New York State revoking his probationary status and imposing a determinate sentence of five years imprisonment along with three years of post-release supervision. Wesolowski's underlying judgment of conviction was entered on August 31, 2006, in Allegany County Court, following a guilty plea to Sexual Abuse in the First Degree (N.Y. Penal Law § 130.65(3)), for which he was sentenced to ten years probation. Petitioner now challenges the revocation of his probation, but not his underlying conviction.
II. Factual Background and Procedural History
By Violation of Probation Application, dated May 16, 2008, the Allegany Probation Department alleged that Wesolowski had violated the conditions of his probation by (1) failing to report to three group sessions in the Probation Department's Sex Offender Treatment Program on December 26, 2007; January 9, 2008; and January 16, 2008, resulting in his discharge from the program for failure to comply with treatment; (2) failing to report to scheduled probation appointments on February 27, 2008; and April 4, 2008; and (3) violating his 9:00 p.m. curfew by not being home when a probation officer visited on April 17, 2008, at 10:15 p.m.
On July 11, 2008, the County Court held a violation of probation hearing. Robert Starks ("Starks"), the Supervisor of the Allegany County of Probation, testified in support of the Violation of Probation Application. Starks was familiar with Petitioner, having supervised him for almost two years. Starks also served as co-facilitator of the Sex Offender Treatment Program group to which Petitioner had been assigned. Petitioner signed a contract when he entered the Treatment Program which required all participants to attend their group session every week, unless they were incarcerated or in the hospital. Individuals who had three unexcused absences within a year's period were subject to dismissal.
Starks testified that Petitioner entered the group in November or December 2007, but his attendance was not regular. Within the first four to five weeks of the program, Petitioner missed three of the scheduled groups and was notified that he was dismissed from the program.
In addition to missing three group sessions, Petitioner failed to report to two scheduled Probation Department appointments. The first missed appointment was on February 27, 2008. When Petitioner called the next day, he simply left a voice mail message for Starks, claiming that his truck was in the shop and that his telephone had "died". A.23-24.*fn1 Starks stated that he "had [his] doubts" about this explanation. A.24-25. On April 4, 2008, Petitioner again failed to appear for a scheduled appointment. Although Starks acknowledged that it was possible that Petitioner had called him regarding that missed appointment, his case notes did not reflect such a call.
The third infraction was Petitioner's failure to abide by his 9:00 p.m. curfew. On April 17, 2008, between 10:00 and 10:30 p.m., Starks stopped by Petitioner's home and found that all the lights were off. Starks knocked on the door loudly, but there did not appear to be any activity in the house, and no one answered the door. Accordingly, Starks concluded, Petitioner was not at home.
On July 9, 2008, two days before Petitioner's violation of probation hearing, Starks received a telephone call from a woman who stated that Petitioner had been dating her daughter, that her daughter had broken up with Petitioner, and that Petitioner had been calling her home leaving and threatening messages. When Starks followed up with the woman's daughter, she stated that Petitioner had been to her home in Pennsylvania.
Petitioner presented no evidence at the hearing.
At the conclusion of the hearing, the hearing court found that Starks' testimony had established, by a fair preponderance of the evidence, that Petitioner had committed three violations of the conditions of his probation, as alleged in the Violation of Probation Application. The hearing court ordered an updated probation report and adjourned the matter until September 16, 2008, for sentencing.
Based upon Petitioner's current and previous parole violations, the hearing court concluded that Petitioner's participation in community-based treatment and his return to probation were inappropriate. Accordingly, the court entered a judgment of conviction sentencing Petitioner to a determinate term of five years in prison, plus three years post-release supervision.
Represented by counsel, Petitioner appealed to the Appellate Division, Fourth Department, of New York State Supreme Court, arguing that (1) there was insufficient evidence to support the probation violation; and (2) his sentence was harsh and excessive. Neither the Probation Department nor the Allegany County District Attorney's Office filed an appearance or a brief in the Appellate Division.
In a summary order dated February 11, 2010, the Appellate Division unanimously affirmed the hearing court's judgment. People v. Wesolowski, 70 A.D.3d 1302 (Table) (4th Dept. 2010). Petitioner filed a pro se application for leave to appeal to the New York Court of Appeals, contending that (1) there was insufficient evidence to support the probation violation; (2) his sentence was excessive; (3) he was denied his right to confront and cross-examine the witnesses against him at the probation violation hearing; and (4) he was denied ...