United States District Court, E.D. New York
MEMORANDUM & ORDER
KIYO A. MATSUMOTO, District Judge.
Petitioner David Vittor seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging respondents violated his rights under the Due Process Clause and various New York state statutes. (ECF No. 1, Petition for Writ of Habeas Corpus ("Pet."), 05/29/2013.). Respondents, the New York State Department of Corrections and Community Supervision, Gowanda Facility, John Lempke (superintendent), and the New York State Division of Parole, filed a motion to dismiss the petition pursuant to Federal Rule of Civil Procedure 12(b)(6) on October 2, 2013. (ECF No. 10, Motion to Dismiss ("Mot."), 10/2/13.) For the reasons set forth below, respondents' motion to dismiss the case without prejudice is granted.
On August 5, 2010, petitioner pleaded guilty to charges of driving while intoxicated and endangering the welfare of a child and was sentenced to six months imprisonment and five years of probation. (Pet. ¶¶ 4-5.) Petitioner appeared in Queens Supreme Court on June 26, 2012, in response to a declaration of delinquency alleging probation violations, and was remanded to custody. ( Id. ¶ 6.) On October 25, 2012, petitioner pleaded guilty to violation of probation and was sentenced to an indeterminate term of imprisonment of between 13 to 39 months with credit for time served. ( Id. ¶ 7.)
An initial parole hearing for petitioner, who was then incarcerated at the Ulster Correctional Facility, was scheduled for April 10, 2013, but the parole board stated at the beginning of that proceeding that it was adjourning the hearing because it did not have a copy of petitioner's sentencing minutes. (ECF No. 10-2, Exhibit ("Ex.") E, Parole Board Interview, 4/10/13.) When petitioner was asked if he had a copy of the sentencing minutes, he replied "No." ( Id. ) On June 4, 2013, the parole board interviewed petitioner and denied parole. (ECF No. 10-2, Ex. G, Parole Board Minutes, 6/4/13.)
Since his October 25, 2012, sentencing for parole violation, petitioner has filed or attempted to file five petitions for writs of habeas corpus in New York state courts, none of which have been adjudicated on the merits. (Pet. ¶ 16.) First, petitioner attempted to file a habeas petition on February 6, 2013, in the state supreme court for Queens County, but this filing was rejected because a clerk informed petitioner "that the proceeding should have been brought in Bronx County." ( Id. ) Next, petitioner attempted to file another habeas petition in the state supreme court for Bronx County on February 8, 2013, but a clerk rejected this petition as improperly filed and informed petitioner to file the petition in a "writ court" for the New York City Department of Corrections. ( Id. ) Petitioner proceeded to file his habeas petition yet again in a writ court for the New York City Department of Corrections on February 13, 2013, but petitioner was transferred from the custody of the New York City Department of Corrections to the Ulster Facility on February 26, 2013, before the return date of March 13, 2013 on the petition, rendering the proceeding moot. ( Id. )
On April 24, 2013, petitioner attempted to file another habeas petition in the appellate division for the Second Department, but this petition was allegedly rejected because petitioner had never filed a notice of appeal. ( Id. ) Finally, petitioner filed a petition for a writ of habeas corpus on May 3, 2014, in the state supreme court for Queens County but withdrew the petition on May 24, 2013, after learning that respondents intended to move for a change of venue. ( Id. )
Petitioner filed the instant petition for habeas corpus on May 29, 2013, and sought relief on seven grounds. Petitioner seeks relief under Ground One because the New York State Division of Parole allegedly failed to conduct a personal interview of petitioner at least one month prior to his parole eligibility date, under Ground Six because petitioner allegedly was not interviewed at his initial parole hearing on April 10, 2013 and the hearing was adjourned, and under Ground Seven because he alleges that the New York State Division of Parole failed "to furnish a statement of its reasons for denying parole" on April 10, 2013. (Pet. at 6-8.) Petitioner seeks relief under Grounds Two through Five because he alleges that he was not transferred to a state facility within 10 days of becoming "state ready, " thereby allegedly delaying his adjourned initial parole hearing and depriving him of the chance to shorten his sentence through "merit time" reductions, presumptive release programs, and earned eligibility programs. ( Id. at 6-7.)
Petitioner concedes that he has not exhausted available state court remedies but claims he "is unable to exhaust available state-court remedies on the ground that recourse to state remedies has been futile and resulted in inordinate delay by state officials and state courts." ( Id. ¶ 19.)
I. Standard of Review
To survive a Rule 12(b)(6) motion to dismiss, "a complaint must plead enough facts to state a claim to relief that is plausible on its face.'" Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.... While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. at 678-79.
Finally, "[o]n a petition for habeas corpus relief, it is the petitioner's burden of proving that he has fully exhausted his state court remedies." Colon v. Johnson, 19 F.Supp.2d 112, 119-120 (S.D.N.Y. 1998) (citing United ...