MATTHEW PITT Mohawk Correctional Facility Rome, NY, Petitioner, Pro Se.
HON. ERIC T. SCHNEIDERMAN, Assistant Attorney General, PAUL M. TARR, ESQ., Attorney General of the State of New York New York, NY, Attorney for Respondent.
REPORT-RECOMMENDATION and ORDER
RANDOLPH F. TREECE, Magistrate Judge.
Pro se Petitioner Matthew Pitt brings this Petition for a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, challenging, on due process grounds, the validity of a superintendent's hearing decision sentencing him to two years confinement in a special housing unit ("SHU") and recommending the loss of eighteen months of good time credit. Dkt. No. 1, Pet. However, because the Petition was not filed within the statutory limitation period prescribed by 28 U.S.C. § 2244(d)(1)(D), we recommend that the Petition be DENIED.
On April 6, 2007, Petitioner, while an inmate at Marcy Correctional Facility ("MCF"), was charged in a misbehavior report with having violated prison rules 121.11, for the making of third-party phone calls, 121.12, for failing to follow MCF's telephone program rules, and 180.11 for violating MCF's correspondence regulations. State Ct. R. (hereinafter "R"), Dkt. Nos. 12-1, Ex. A, Inmate Misbehavior Report, dated Apr. 6, 2007, & 12-3, Ex. C, Portions of Pet'r's Tier III Disciplinary Hr'g Tr. (hereinafter "Hr'g Tr."), dated Apr. 11 & Apr. 24, at pp. 6-7. Subsequently, at a superintendent's hearing, Petitioner was found guilty of all three charges and received, inter alia, two years of SHU confinement and a recommended loss of eighteen months of good time credit. Hr'g Tr. at p. 55; Dkt. No. 12-4, Ex. D, Superintendent's Hr'g Disposition Form.
Petitioner appealed that determination to the Commissioner on May 22, 2007. Dkt. No. 12-5, Ex. E, Lt., dated May 22, 2007. On July 6, 2007, the Commissioner reviewed and modified the determination, reducing the period of SHU confinement and loss of good time credits to one year each, but otherwise upheld the hearing officer's determination of guilt. Dkt. 12-6, Ex. F, Review of Superintendent's Hr'g, dated July 6, 2007. On August 15, Petitioner, through counsel, requested reconsideration of the Commissioner's decision, which was denied on January 18, 2008. Dkt. Nos. 12-7, Ex. G, Lt., dated Aug. 15, 2007, & 12-8, Ex. H, Lt., dated Jan. 18, 2008.
In the interim, on October 31, 2007, Petitioner filed an Article 78 Petition in New York State Supreme Court, which was ultimately transferred to the New York State Appellate Division, Third Department. Dkt. Nos. 12-9, Ex. I, State Art. 78 Pet., & 12-11, Ex. K, Order, dated April 18, 2008. Upon review, the Appellate Division upheld the Commissioner's decision as to two of the charges, but remanded the decision back to the Commissioner ordering that the finding of guilt as to the correspondence procedure violation (Rule 180.11) be annulled, and the penalty imposed adjusted accordingly. Pitt v. Dubray, 62 A.D.3d 1101 (N.Y.App.Div. 3d Dep't 2009). Accordingly, Petitioner's penalties were subsequently reduced to nine months confinement in SHU and a recommended loss of nine months of good time credit. Dkt. No. 12-16, Ex. P, Comm'r Review of Superintendent's Hr'g, dated May 15, 2009. On May 25, 2009, Petitioner sought leave to appeal to the New York State Court of Appeals, which was denied on September 17, 2009. Dkt. No. 12-17, Ex. Q, Request for Leave to Appeal; Pitt v. Dubray, 13 N.Y.3d 815 (N.Y. Ct. App. 2009).
Petitioner filed the instant Petition on October 12, 2010. Pet.
In accordance with the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"),  federal habeas petitions challenging administrative recommendations to withhold good time credit are subject to a one-year statute of limitations. McPherson v. Burge, 2009 WL 1293342, at *4 (N.D.N.Y. May 5, 2009). Specifically, 28 U.S.C. § 2244(d) provides:
(1) A one year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State Court. The limitation period shall run from the latest of -
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant ...