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Armando Colon v. Superintendent

April 25, 2013

ARMANDO COLON, PETITIONER,
v.
SUPERINTENDENT, WENDE CORRECTIONAL FACILITY, RESPONDENT



The opinion of the court was delivered by: Mae A. D'agostino, United States District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Armando Colon ("Petitioner") has filed this pro se petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. See Dkt. No. 5. Petitioner challenges the constitutionality of a decision rendered in a prison disciplinary hearing held at the Great Meadow Correctional Facility on November 16, 1995. See id. at 2. His administrative appeal of this decision was denied in 1996, and the Appellate Division, Third Department denied his Petition for a Writ of Mandamus on December 4, 1997. See Colon v. Goord, 245 A.D.2d 582 (3d Dept. 1997). Petitioner did not file his petition for habeas corpus relief until February 24, 2012. In a Report and Recommendation, Magistrate Judge Andrew T. Baxter recommended dismissal of Petitioner's petition as barred by the applicable one-year statute of limitations. See Dkt. No. 11.

Currently before this Court are Petitioner's objections to the Report and Recommendation, in which he objects to Magistrate Judge Baxter's recommendations on the following grounds: (1) the petition is not untimely; and (2) Magistrate Judge Baxter did not fully consider Petitioner's actual innocence claims.*fn1 See Dkt. No. 20 at 1. This Court finds that habeas relief is inappropriate because Petitioner is currently serving a sentence of 25 years to life, thus the disciplinary action had no impact on the fact of his conviction or the duration of his sentence. Moreover, this Court also finds that the petition is untimely and Petitioner is not entitled to equitable tolling based on a finding of actually innocence. Therefore, the petition is dismissed.

II. BACKGROUND

In 1995, Petitioner was charged with conspiring to escape and smuggling while he was an inmate at Great Meadow Correctional Facility. See Colon, 245 A.D.2d at 582. Following a disciplinary hearing on November 16, 1995, Petitioner was found guilty of both charges. See Dkt. No. 20-1 at 4. He was sentenced to 1,825 days in the Special Housing Unit ("SHU") and 60 months loss of good time credits. See id.

Petitioner filed an administrative appeal, which was denied on January 4, 1996. See id. at 9. Petitioner then filed a petition for a Writ of Mandamus in New York State Supreme Court, Albany County, pursuant to Article 78 of the N.Y.C.P.L.R., which was transferred to the Appellate Division, Third Department. See Colon, 245 A.D.2d at 582. On December 4, 1997, the Appellate Division denied the petition. See id. On July 30, 1998, Petitioner filed a federal civil rights lawsuit pursuant to 42 U.S.C. § 1983 alleging damages from the disciplinary action. See Colon v. Goord, No. 9:98-CV-1302, 2009 WL 890554 (N.D.N.Y. Mar. 30, 2009). On March 30, 2009, the court dismissed the lawsuit as untimely. See id.

Petitioner filed this application for habeas corpus relief on February 24, 2012. See Dkt. No. 1. Petitioner originally brought this action pursuant to 28 U.S.C. § 2241. See Dkt. No. 1 at 5; Dkt. No 1-2. On April 26, 2012, the court found that the petition should have been brought under 28 U.S.C. § 2254. See Dkt. No. 3 at 2-3; see also Jenkins v. Duncan, No. 9:02-CV-0673, 2003 WL 22139796, *3 & n.3 (N.D.N.Y. Sept. 16, 2003) (holding that a petition challenging a disposition rendered at a state disciplinary hearing is "considered under, and is necessarily subject to, the laws governing habeas petitions brought under 28 U.S.C. § 2254"). Moreover, the petition as written did not meet the requirements of Fed. R. Civ. P. 8(a)(2). See id. The court denied Petitioner's request for in forma pauperis status, directed him to pay the filing fee, and ordered him to file an amended petition if he wished the action to proceed. See id. at 3-4.

On June 6, 2012, Petitioner filed his amended petition, raising the following issues with respect to the 1995 disciplinary proceeding: (1) his employee assistant was ineffective because she failed to interview the requested witnesses and did not provide important evidence to him; (2) he was denied his right to due process when the hearing officer failed to ascertain why Petitioner's witness refused to testify and failed to provide him with exculpatory evidence; and (3) the hearing officer denied him due process when he failed to properly ascertain the credibility of the confidential informant. See Dkt. No. 5 at 9-10.

On June 25, 2012, the Court ordered service of the petition and requested a limited answer from the respondent. See Dkt. No. 6. In this order, the Court discussed the one-year statute of limitations for habeas corpus petitions and instructed Respondent to limit his response to the timeliness issue. See id. at 4. Petitioner was given the opportunity to file a reply memorandum addressing Respondent's arguments, as well as raising any arguments in support of equitable tolling or in support of a claim of actual innocence. See id.

On September 17, 2012, Petitioner filed a memorandum in support of his petition, arguing that habeas relief is warranted upon a finding of actual innocence. See Dkt. No. 10 at 5. Petitioner claims that the evidence presented at the disciplinary hearing was insufficient to support the hearing officer's decision. See id. Petitioner contends that the hearing officer based his decision solely on a note allegedly written by John Maier, a fellow inmate who did not testify at trial, and who may have had an improper interest in implicating Petitioner. See id. at 4-6.

John Maier, Jeffrey Emery, and Christopher Irequi were inmates who were also involved with the conspiracy. See Dkt. No 20-1 at 4. Initially, Maier agreed to testify at Petitioner's hearing, however, during the hearing, Petitioner learned that Maier refused to testify. See id. at 5. Petitioner was not informed of the reason for Maier's refusal to testify, and the hearing officer did not personally ascertain the reason. See id. At the hearing, confidential information from Maier was relayed to the hearing officer by Sergeant Kevin Smith. See id. at 6. The hearing officer never interviewed Maier personally. See id. According to Sergeant Smith, Maier stated that cell bars were cut on three cells. See id. at 6. Based on this information, corrections officers found cell bars cut in Emery's, Irequi's, and Maier's cells, as well as cut gallery and window bars. See id. They did not, however, find that any of the bars in Petitioner's cell were cut. See id. Maier further stated that Petitioner smuggled the blades used to cut the bars into the facility and that Petitioner told other inmates that an outside person would mail him the blades used for the escape plot. See id. at 7. Maier also stated that because of a disagreement between himself and Petitioner, the three others then construed their own plan to escape excluding Petitioner. See id. There was no other physical evidence linking Petitioner to the blades, no blades were found on Petitioner's person, and no packages that potentially contained blades were linked to Petitioner. See id.

At the hearing, Irequi testified that he himself made the arrangements to have the blades mailed to Great Meadow, addressed to inmate Burrs, and that Petitioner was not involved in the smuggling plan. See id. Emery also testified that the escape plan only involved Emery, Irequi, and Maier. See id. Additionally, Petitioner offered the testimony of Thomas O'Sullivan, a fellow inmate who was aware of racial tension between Maier and Petitioner. See id. at 8. O'Sullivan described a conversation he had with Maier just a day or two before the incident in which Maier stated the following in reference to his dislike for Petitioner: "now don't worry about it, in a couple days I'm gonna fix his spic ass." See id.

Petitioner contends that the hearing officer did not test Maier's credibility and there is no proof that Maier actually wrote the note that was admitted into evidence. See Dkt. No. 10 at 4-6. Petitioner further contends that because Maier was a coconspirator who was also charged in the escape plot, the hearing officer should have considered Maier's own personal interest in implicating Petitioner. See id. at 5. Petitioner asserts that the hearing officer's failure to question Maier's credibility, the overall insufficiency of the evidence, and the failure to authenticate the note containing Maier's version of events violated his due process right to a fair and impartial hearing officer and are sufficient to support a claim of "actual innocence," which would allow this Court to hear the merits of Petitioner's claim notwithstanding an otherwise applicable procedural bar. See id. at 6.

In 2001, inmates Edwin Hannon and Robert Cahill prepared affidavits in support of Petitioner's claim of actual innocence. See Dkt. No. 20-1 at 2-3. Hannon states that he refused to testify at the administrative hearing because he feared retaliation by inmate Maier. See id. at 2. Hannon states that Maier bragged to him about his plans to "get even" with Petitioner as well as how prison guards at Great Meadow shared Maier's white supremacist views and disliked Petitioner. See id. Hannon's affidavit is dated January 9, 2001. See id. Cahill's affidavit, which is dated February 8, 2001, states that Maier was well known within the facility for harboring racist views against "blacks and latinos." See id. at 3. Cahill states that Maier also informed him that "he hated that 'spic' Armando Colon . . . because he told inmates he [Maier] was a snitch and that [he] will one day get even with Armando." See id.

While the affidavits were prepared in 2001, Petitioner acknowledges that the information provided by inmates Cahill and Hannon was provided to the hearing officer prior to the hearing. See Dkt. No. 20 at 4. Additionally, Petitioner did not proffer this evidence in support of his claim of actual innocence until ...


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