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Edwin Parra v. Brian Fischer

July 27, 2012

EDWIN PARRA, PETITIONER,
v.
BRIAN FISCHER, COMMISSIONER, RESPONDENT.



The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge

DECISION AND ORDER

I. Background

Pro se petitioner Edwin Parra ("Parra" or "Petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the constitutionality of a Tier III prison disciplinary hearing resulting from an inmate misbehavior report issued on January 24, 2009, while Parra was incarcerated at Auburn Correctional Facility.*fn1

On that date, Corrections Officer Ouimette ("CO Ouimette") was performing a frisk of Petitioner's cell when he noticed a large amount of new clear packaging tape on both sides of the toilet. As CO Ouimette removed the tape, he noticed that fresh toilet paper was lodged between the toilet and the wall, and the area was covered in a layer of toothpaste and new paint. Upon removing the paper, CO Ouimette found an eight-inch plexiglass shank. Further inspection of Petitioner's cell yielded eighteen pages of what CO Ouimette believed to be gang-related material. CO Ouimette notified his supervisor, Sergeant Collins, and Petitioner was escorted to the Special Housing Unit ("SHU"). That same day, CO Ouimette filed an inmate misbehavior report, charging Petitioner with violating Department of Correctional Services Institutional Rules 113.10 (7 N.Y. Comp. R. & Regs. ("N.Y.C.R.R.") § 270.2(B)(14)(i)) (possession of a weapon) and 105.13 (7 N.Y.C.R.R. § 270.2(B)(6)(iv)) (possession of gang-related material)).

Following a hearing conducted on January 30, 2009, and February 6, 2009, the hearing officer found Petitioner not guilty of possessing gang material in violation of Prison Rule 105.13 because there was not substantial evidence to support the charge. The hearing officer's independent investigation revealed that the materials were simply historical information. Accordingly, the hearing officer determined that the papers would be returned to Parra. However, the hearing officer did find Parra guilty of possessing a weapon in violation of Prison Rule 113.10. The penalty imposed was ninety days in SHU with loss of packages, commissary and phone privileges. The hearing officer further recommended a six-month loss of good time credits.*fn2

Petitioner filed a pro se administrative appeal, which was rejected on March 10, 2009. Petitioner then instituted a pro se proceeding under Article 78 of New York Civil Practice Law and Rules in New York State Supreme Court (Albany County). This matter was transferred to the Appellate Division, Third Department, of New York State Supreme Court, because Petitioner raised an issue of whether "substantial evidence" supported the disciplinary ruling.*fn3

By decision dated August 5, 2010, the Third Department dismissed the petition, finding that "inasmuch as the petition does raise an issue of substantial evidence, the proceeding was properly transferred to this Court for review." Parra v. Fischer, 76 A.D.3d 724, 725 (3d Dept. 2010) (citations omitted). The Third Department rejected Petitioner's contentions of bias on the part of the hearing officer and held that "the misbehavior report, related documentation and testimony adduced at the hearing provide[d] substantial evidence supporting the determination finding petitioner guilty of possessing a weapon." Id. (citations omitted). With regard to Petitioner's denial that the weapon belonged to him and his argument that the misbehavior report was fabricated, the Third Department concluded that such contentions merely "presented a credibility issue for the Hearing Officer to resolve." Id. (citation omitted). On November 30, 2010, the New York Court of Appeals denied Petitioner's leave application. Parra v. Fischer, 15 N.Y.3d 714 (2010).

On October 19, 2011, Parra filed the instant § 2254 habeas petition, asserting "Violation of Due Process" as ground one. See Petition ("Pet.") at 7A (Dkt. #1). In particular, he contends that the hearing officer's determination violated his due process rights because it was based on false testimony ("Claim 1(a)"); he was denied the right to call witnesses ("Claim 1(b)"); and the clerk of the New York Court of Appeals failed to convert Petitioner's leave application so that it would be properly considered by that court ("Claim 1(c)"). As ground two, Petitioner contends that the hearing officer did not follow the applicable prison rules and regulations inasmuch as the officers with knowledge did not sign all of the incident reports ("Claim 2(a)"). Pet. at 7A-7B. Finally, as ground three, Petitioner asserts that the Albany County Supreme Court erroneously transferred the proceeding to the Appellate Division ("Claim 3(a)").*fn4 Id. at 7B. Petitioner asks that his petition "be accepted" by the Court, "together with whatever else this Court may deem just and proper." Petitioner's Traverse at 16 (Dkt. #10).

Respondent answered the petition, asserting that Petitioner had failed to exhaust his remedies, that the petition is untimely, that the claims are not cognizable on habeas review, and that, in any event, the claims lack merit. See Dkt. #8 (Respondent's Memorandum of Law). Petitioner submitted a Traverse (Dkt. #10) with Exhibits (Dkt. #11) but did not address the untimeliness argument.

For the reasons that follow, the petition is dismissed.

II. Discussion

A. The Court need not address the exhaustion and untimeliness defenses.

"[I]n habeas corpus cases, 'potentially complex and difficult issues about the various obstacles to reaching the merits should not be allowed to obscure the fact that the underlying claims are totally without merit.'" Boddie v. New York State Division of Parole, 288 F. Supp.2d 431, 439 (S.D.N.Y. 2003) (quoting Brown v. Thomas, No. 02 Civ. 9257, 2003 WL 941940, at *1 (S.D.N.Y. Mar. 10, 2003)). Here, Parra's claims may be readily denied on substantive grounds. Therefore, the Court need not resolve either the exhaustion issue or the untimeliness issue, which, as Respondent's attorney thoroughly explains in her brief, presents a novel question of law. See Respondent's Memorandum of Law ("Resp't Mem.") at 15-16 & n.3 (collecting conflicting authorities) (Dkt. #8).

B. The recommended loss of good time credits cannot be challenged in this 28 U.S.C. ยง 2254 proceeding because Petitioner is serving a potential life ...


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