Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Canty v. Rock

United States District Court, Second Circuit

December 13, 2013

MOSHE CINQUE CANTY, Petitioner,
v.
DAVID ROCK, Superintendent of Upstate, Respondent.

DECISION AND ORDER

MICHAEL A. TELESCA, District Judge.

I. Introduction

Pro se petitioner Moshe Cinque Canty ("Canty" or "Petitioner"), a prisoner in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the constitutionality of a prison disciplinary hearing which resulted in the imposition of segregated confinement and the recommended loss of good time credits.

II. Factual Background and Procedural History

Petitioner is incarcerated pursuant to a November 18, 1999 judgment of the New York State Supreme Court, Kings County, following a jury verdict convicting him of Attempted Murder in the Second Degree and lesser charges. See People v. Canty , 305 A.D.2d 612 (2d Dept. 2003), lv. denied, 100 N.Y.2d 579 (2003). Canty was sentenced to an aggregate prison term of twenty years, to be followed by five years of post-release supervision. Canty does not challenge the constitutionality of these underlying convictions.

The subject of the instant habeas petition is a Tier III prison disciplinary hearing held at Southport Correctional Facility on January 1, 2010, following which Canty was found guilty of possessing gang-related material, namely, a document entitled "Blood Hound Brim Prison Chapter Structure, " which was found in a Bible in Canty's cell. Canty was sentenced to 18 months in the Special Housing Unit, with six months of the sentence suspended and deferred, and twelve months recommended loss of good time credits.

Petitioner appealed the decision, arguing that (1) he was denied his right to be present during a portion of the hearing; (2) he was denied adequate assistance in preparing for the hearing; (3) he was denied his right to call a witness; (4) the hearing officer failed to explain in writing why the witness request was denied; and (5) the punishment was excessive. On March 31, 2010, the determination was affirmed on administrative appeal. SHU Director Norman Bezio denied Petitioner's request for reconsideration on April 14, 2010.

Petitioner filed an action in New York State Supreme Court, Chemung County pursuant to New York Civil Practice Law and Rules ("C.P.L.R.") Article 78, challenging the adverse disciplinary finding. The Article 78 petition was denied on March 10, 2011. On February 9, 2012, the Appellate Division, Third Department affirmed the denial, and on May 3, 2012 the New York Court of Appeals denied leave to appeal. Canty v. Fischer , 92 A.D.3d 1055 (3d Dept.), lv. denied, 19 N.Y.3d 802 (2012).

In his pro se habeas petition dated April 21, 2013, Canty claims that (1) he was denied his right to be present at the hearing; and (2) he was denied his right to call witnesses. Respondent has moved to dismiss the petition as untimely. Canty has not responded to Respondent's motion to dismiss.

For the reasons discussed below, Respondent's motion to dismiss the petition is granted, and the petition is dismissed as untimely.

III. Timeliness

Canty, a prisoner in state custody whose habeas petition challenges an administrative decision by DOCCS, properly brought his petition pursuant to 28 U.S.C. § 2254. See Cook v. New York State Div. of Parole , 321 F.3d 274, 278-79 (2d Cir. 2003) (holding that petition challenging administrative decision revoking state prisoner's parole was an "application... in behalf of... a person in custody pursuant to the judgment of a State court... on the ground that [the applicant] is in custody in violation of the Constitution... of the United States[, ]" 28 U.S.C. § 2254(a)). A one-year statute of limitations, see 28 U.S.C. § 2244(d)(1), is applicable to habeas petitions brought pursuant to 28 U.S.C. § 2254. In Cook, the Second Circuit applied § 2244(d)(1) to the petition challenging a parole revocation. There is no reason why § 2244 should not apply in Canty's case. See Walker v. O'Brien , 216 F.3d 626, 632-33 (7th Cir.) ("[W]e have held in numerous cases that § 2254 was the correct vehicle for contesting loss of good time credit in prison disciplinary proceedings, and we adhere to those decisions today.") (citations omitted), cert. denied sub nom. Hanks v. Finfrock , 531 U.S. 1029 (2000).

Respondent argues that Canty's petition is untimely because it was not filed with in the applicable one-year statute of limitations period set forth in 28 U.S.C. § 2244(d)(1), which provides that a§ 2254 petition must be filed no more than one year from the latest of the following events:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.