United States District Court, W.D. New York
DECISION AND ORDER
MICHAEL A. TELESCA, District Judge.
Petitioner pro se Luis Rosales ("Petitioner") is serving an aggregate prison term of 25 years to life as the result of an April 19, 1991 judgment entered in the New York State Supreme Court, New York County, following a jury verdict convicting him of second degree murder and lesser charges. He now seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the basis that he was confined unconstitutionally in a prison Special Housing Unit ("SHU") as the result of an adverse disciplinary ruling at Southport Correctional Facility ("Southport) on September 20, 2010, finding him guilty of violating several prison rules. The claims in the instant habeas petition pertain only to the September 20, 2010 hearing and not to Petitioner's underlying criminal convictions and sentence.
II. Factual Background and Procedural History
During a random cell-search on August 28, 2010, a Southport corrections officer confiscated from Petitioner's cell a state-owned pillow that had been ripped open and then re-sewn. Inside the pillow, the officer found three packages containing tobacco and one package containing what was later determined to be marijuana. Petitioner was issued two misbehavior reports, charging him with violating rules of inmate behavior 113.23 (possession of contraband), 113.25 (drug possession), and 116.10 (destruction of state property).
On September 3, 2010, a Tier III disciplinary hearing was conducted by hearing officer James Esgrow. The theory of Petitioner's defense was that the corrections officers who searched his cell planted the contraband there in order to retaliate against him for filing grievances. The following witnesses testified at the hearing: inmate Mike Morton, Sergeant Daniel Chapman, Correction Officers Byron Potter and Matthew Matwiejow, and Prison Nurse Karen Weaver. Inmate Morton, who was called by Petitioner, testified that he did not see the cell-search, but he heard officers, whom he could not identify, enter the cell. Sergeant Chapman and Corrections Officers Potter and Matwiejow testified that the search of Petitioner's cell was conducted at random pursuant to state policy and they denied retaliating against him or being aware of any other prison staff who had discussed such retaliation.
When the hearing continued on September 13, 2011, Nurse Weaver was called to testify as to hearing test results indicating that Petitioner's hearing was "adequate for reception of speech and most environmental sounds" and thus he was able to hear a videotape of the cell search played during the hearing. Transcript of Hearing at 27 ("Tr."), Respondent's Exhibit ("Resp't Ex.") B.
Inmate Malik Olivera appeared at the hearing but changed his mind about testifying; the hearing officer asked him if anyone was "pushing up on" him or "offering any rewards not to testify", and Olivera replied in the negative. Id . at 12-13.
The hearing officer declined Petitioner's request to call his attorney, William G. Bauer, Esq., Inmate Grievance Investigator Guessner, and Superintendent Griffin, who allegedly had "knowledge of what [he's] been going through" in terms of harassment by prison staff. See Tr. at 9-11. The hearing officer also declined Petitioner's request to present evidence regarding a cell search that had occurred on August 26th, two days before the incident at issue. E.g., id. at 17-18, 21-22. Petitioner stated that the search on the 26th of August lasted over 25 minutes, and the officers did not find any contraband. Then, on the 28th, the same officers found contraband in his pillow in a very short amount of time. According to Petitioner, this was circumstantial evidence that the officers planted the contraband and framed him.
The hearing officer found Petitioner guilty as charged in the misbehavior reports and sentenced him to a period of 18 months confinement in the SHU, of which six months were suspended and deferred for 180 days. Restitution in the amount of $8.40 was imposed for the pillow. Id . at 30-31.
Petitioner administratively appealed the result of the disciplinary hearing, claiming that (1) he was denied meaningful assistance in the preparation of his defense; (2) he was denied the right to present certain testimonial and documentary evidence in support of his retaliation defense; and (3) the hearing officer was not impartial. On November 12, 2010, the hearing officer's determination was affirmed.
On November 29, 2010, Petitioner filed a pro se petition pursuant to Article 78 of New York's Civil Practice Law and Rules ("C.P.L.R.") in the Supreme Court, Chemung County, challenging the adverse disciplinary hearing. Petitioner raised the same grounds asserted in connection with his administrative appeal. On July 18, 2011, the Supreme Court dismissed the petition on the merits, and on August 2, 2011, Petitioner appealed to the Appellate Division, Third Department.
On August 2, 2012, the Appellate Division affirmed the Supreme Court's dismissal of Petitioner's Article 78 application. Rosales v. Pratt , 98 A.D.3d 764 (3d Dep't 2012). Petitioner filed a pro se request for leave to appeal in the New York Court of Appeals, raising the same claims that he had raised in his Appellate Division brief. On October 30, 2012, the Court of Appeals denied leave to appeal. Rosales v. Pratt , 19 N.Y.3d 816 (2012).
On October 16, 2011, while his Article 78 petition was pending, Petitioner was released from SHU and placed in the general prison population. Petitioner has completed his term of SHU confinement in ...