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McCullough v. NYS Division of Parole

United States District Court, N.D. New York

March 23, 2015

DAVID McCULLOUGH, Petitioner,
v.
NYS DIVISION OF PAROLE, Respondent.

DAVID McCULLOUGH, Pro Se, Syracuse, NY, for Petitioner.

HON. ERIC T. SCHNEIDERMAN, New York State Attorney General, THOMAS B. LITSKY, ESQ., Assistant Attorney General, New York, NY, for Respondent.

REPORT AND RECOMMENDATION

DAVID E. PEEBLES, Magistrate Judge.

Pro se petitioner David McCullough, a New York State prisoner, has commenced this proceeding pursuant to 28 U.S.C. § 2254 seeking habeas relief.[1] McCullough's petition centers upon a parole revocation proceeding that resulted in an additional two-year period of incarceration, following his initial release on parole. McCullough contends that during the revocation hearing, he was deprived of the effective assistance of counsel and his due process rights were violated.

In opposition to the petition, the respondent, the New York State Division of Parole, argues that (1) McCullough has forfeited the right to pursue either ground based upon his failure to exhaust those claims by first presenting them to the highest court in New York State, and is now procedurally barred from raising his claims in state court; and (2) all of petitioner's claims lack merit. For the reasons set forth below, I concur on both counts and recommend that McCullough's petition be dismissed.

I. BACKGROUND

Following a jury trial in Onondaga County, petitioner was convicted in 1995 of rape, sodomy, unlawful imprisonment, and assault. Dkt. No. 12-1 at 61-62.[2] As a result of his criminal history, which included prior felony convictions, petitioner was sentenced to concurrent prison terms of between ten and twenty years on the rape and sodomy charges, and one year each with respect to the unlawful imprisonment and assault counts. Id. Following a remand for an evidentiary hearing to address issues raised by the petitioner, McCullough's conviction was affirmed on appeal, and leave to appeal was subsequently denied by the New York State Court of Appeals, both initially and on request for reconsideration. See People v. McCullough, 248 A.D.2d 938 (4th Dep't 1998), aff'd following remand, People v. McCullough, 254 A.D.2d 750 (4th Dep't 1998), lv. denied, 92 N.Y.2d 1035 (1998), reconsideration denied, 92 N.Y.2d 1035 (1998). An application for a writ of error coram nobis was subsequently denied by the New York State Supreme Court, Fourth Department. People v. McCullough, 261 A.D.2d 975 (4th Dep't 1999), lv. to appeal dismissed, 93 N.Y.2d 1004 (1999).[3]

McCullough was released to parole supervision on April 28, 2009. Dkt. No. 12-1 at 65. Petitioner's release conditions included electronic monitoring and a requirement that he obtain permission before leaving Onondaga County or being out of his residence between 9:00 p.m. and 7:00 a.m. Id. at 69-70.

On May 13, 2009, petitioner was accused of committing four separate violations of those two conditions of supervised release. Id. at 65. After being served with the notice of violation, petitioner executed a written waiver of his right to a preliminary hearing concerning the charges on that same date. Dkt. No. 12-1 at 64. The Frank H. Hiscock Legal Aid Society ("Legal Aid") was subsequently assigned on May 20, 2009 to represent McCullough in the matter. Id. at 135. A notice of appearance on petitioner's behalf was filed by Lawrence J. Young, Esq., an attorney with Legal Aid, on May 22, 2009. Id. at 136. On that same date, Attorney Young corresponded by letter with the petitioner, informing him that he would be representing him in connection with the matter. Id. at 20.

On May 26, 2009, Parole Revocation Specialist Mary Hotaling forwarded a notice to petitioner's counsel advising that a parole revocation hearing in the matter had been scheduled for June 2, 2009. Dkt. No. 12-1 at 21. The hearing was subsequently convened on that date before Administrative Law Judge ("ALJ") Gerald Hamill. Id. at 22-32. During the hearing, ALJ Hamill established that petitioner had received a copy of the violation report and inquired as to whether petitioner's counsel had received adequate notice of the hearing, to which he replied, "Yes, I did." Id. at 25. ALJ Hamill then asked petitioner's counsel, "Are there any issues outstanding as to the notice?", and counsel responded, "There are not." Id. After confirming that Attorney Young had advised petitioner concerning his rights and available options, ALJ Hamill placed on the record an agreement that was reached between the Division of Parole and petitioner, whereby, in return for McCullough's guilty plea, the ALJ would recommend that the parole board impose a twenty-four month period of incarceration as a sanction for the violations. Id. at 25, 26-27. Based upon that agreement, petitioner entered a plea of guilty to two of the four counts charged in the violation notice. Id. at 28. After acknowledging he had made "bad decisions" and needed "to be able to do the right thing by following the rules and regulations of parole, " petitioner was advised of the ALJ's recommendation that he receive a "time assessment" of twenty-four months, and counts one and three of the violation notice were dismissed. Id. at 28-30.

II. PROCEDURAL HISTORY

A. State Court Proceedings

On November 1, 2009, petitioner, acting pro se, filed a petition seeking a writ of habeas corpus pursuant to New York Civil Practice Law and Rules ("CPLR") Article 70 in New York State Supreme Court, Orleans County, challenging certain aspects of the parole revocation hearing. Dkt. No. 12-1 at 13-18. In support of his application for state court habeas relief, McCullough argued that he was not provided with at least fourteen days' notice of the revocation hearing, as required by N.Y. Executive Law § 259-i(f)(iii), and that he received ineffective assistance of counsel in connection with his revocation hearing. Id. Specifically, in that petition McCullough argued that Attorney Young (1) never visited him to discuss the violation charges, (2) spoke only briefly with him prior to commencement of the hearing, (3) did not argue for or suggest a twelve-month assessment, and (4) failed to object to the untimely hearing notice. Id. at 16. McCullough's state court habeas petition was denied by Acting Supreme Court Justice James P. Punch on February 18, 2010. Dkt. No. 12-1 at 7-12. In his decision, Justice Punch rejected both claims and specifically found that the petitioner's counsel had provided adequate representation and had sufficient time to prepare for the hearing. Id. at 11-12. That determination was upheld on appeal to the New York State Supreme Court Appellate Division, Fourth Department, on March 25, 2011.[4] See People ex rel. McCullough v. N.Y. State Div. of Parole, 82 A.D.3d 1640 (4th Dep't 2011). In its decision, the Fourth Department concluded that petitioner had waived any issue concerning the allegedly untimely notice of the revocation hearing and his ineffective assistance of counsel claim could not be raised in an Article 70 proceeding, and the court declined to convert the petition to one seeking relief under Article 78 of the CPLR. People ex rel. McCullough, 82 A.3d at 1640. Leave to appeal to the New York Court of Appeals was subsequently denied. People ex rel. McCullough v. N.Y. State Div. of Parole, 17 N.Y.3d 704 (2011).

B. Proceedings Before This Court

Petitioner commenced this proceeding on September 20, 2011. Dkt. No. 1. In his petition, McCullough asserts two grounds for relief, including (1) ineffective assistance of counsel based upon the fact that his attorney did not meet with him until twenty minutes before the scheduled revocation hearing, had no strategy or plan, failed to return his telephone calls or visit him to discuss the case, and did not object to the late hearing notice; and (2) violation of due process based upon the untimely notice. Id. at 4. The petition, which sets forth the grounds in only summary terms, was not augmented by a legal memorandum or briefing providing further elaboration regarding those claims. See generally id. Respondent has since answered the petition, arguing that petitioner's claims are forfeited based upon his failure to properly present them to the state courts and the fact that he is now precluded from doing so, and additionally arguing that the claims lack merit. See generally Dkt. No. 11. McCullough's petition, which is now ripe for determination, has been referred to me for the issuance of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed.R.Civ.P. 72(b).

III. DISCUSSION

A. Exhaustion

Before addressing the merits of petitioner's two habeas claims, the court must first determine whether he is procedurally barred from raising them, as respondent argues, based on his failure to present them to the state courts for determination.

Prior to seeking federal habeas relief, a petitioner must exhaust available state remedies or establish either an absence of available state remedies or that such remedies cannot adequately protect his rights. Aparicio v. Artuz, 269 F.3d 78, 89 (2d Cir. 2001) (quoting 28 U.S.C. § 2254(b)(1)); Ellman v. Davis, 42 F.3d 144, 147 (2d Cir. 1994), cert. denied, 515 U.S. 1118, 115 S.Ct. 2269 (1995). The exhaustion doctrine recognizes "respect for our dual judicial system and concern for harmonious relations between the two adjudicatory institutions." Daye v. Attorney Gen. of N.Y., 696 F.2d 186, 191 (2d Cir. 1982); see also Galdamez v. Keane, 394 F.3d 68, 72 (2d Cir. 2005) ("Comity concerns lie at the core of the exhaustion requirement."). Though both federal and state courts are charged with securing a state criminal defendant's federal rights, the state courts must initially be given the opportunity to consider and correct any violations of federal law. Galdamez, 394 F.3d at 72 (citing O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999)). "The chief purposes of the exhaustion doctrine would be frustrated if the federal habeas court were to rule on a claim whose fundamental legal basis was substantially different from that asserted in state court." Daye, 696 F.2d at 192 (footnote omitted)

This exhaustion requirement is satisfied if the federal claim has been "fairly presented]'" to the state court. Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)). A claim has been "fairly presented" if the state court was apprised of "both the factual and the legal premises of the claim [the petitioner] asserts in federal court." Daye, 696 F.2d at 191. Thus, "the nature or presentation of the claim must have been likely to alert the court to the claim's federal nature." Id. at 192.

Like petitions challenging criminal convictions, those addressing parole revocations are subject to this exhaustion requirement. Blanchard v. West, No. 04-CV-1492, 2008 29429 2949388, at *3 (N.D.N.Y. July 30, 2008) (Sharpe, J., adopting report and recommendation by Treece, M.J.); Scales v. N.Y. State Div. of Parole, 396 F.Supp.2d 423, 428 (S.D.N.Y. 2005).[5] The typical path for exhausting a claim concerning a petitioner's parole revocation proceeding includes both completion of the internal, administrative appeal process within the Division of Parole and, in the event of an adverse determination, commencement of a CPLR Article 78 proceeding. Blanchard, 2008 WL 2949388, at *3; Scales, 396 F.Supp.2d at 428. Alternatively, a parolee may exhaust a constitutional claim by commencing a state court habeas corpus proceeding pursuant to Article 70 of the CPLR. Hall v. N.Y. State Div. of Parole, No. 99-CV-11317, 2000 WL 33952256, at *4 (S.D.N.Y. Nov. 29, 2000).

In this instance, petitioner's ineffective assistance of counsel claim is unexhausted because it was not presented to a court in a manner under which it could have been addressed on the merits - that is, by way of an Article 78 petition. Under New York law, it is well established, as the Fourth Department held in this instance, that Article 70 does not provide relief based upon an alleged denial of effective assistance of counsel in the context of a parole revocation hearing. People ex rel. McCullough v. N. Y. State Div. of Parole, 82 A.D.3d 1640, 1640 (4th Dep't 2011); see also People ex rel. Santoro v. Hollins, 273 A.D.2d 829 (4th Dep't. 2000); People ex rel. Dell v. Walker, 186 A.D.2d 1043, 1043-44 (4th Dep't 1992). Petitioner has therefore failed to exhaust his ineffective assistance of counsel claim.[6]

Petitioner's due process claim is similarly unexhausted. There is nothing in petitioner's state-court briefs suggesting that, by referencing the concept of due process, he intended to set forth a constitutional basis for his claim, especially in light of his reliance on New York Executive Law § 259. Dkt. No. 12-2 at 15-18. The mere incantation of the phrase "due process" is insufficient to give rise to a finding that the state courts were placed on notice that petitioner intended to advance a federal constitutional claim. See Grady v. LeFevre, 846 F.2d 862, 864 (2d Cir. 1988) (finding that the mere reference to "constitutional rights" did not alert the state court to a confrontation clause issue); Petrucelli v. Coombe, 735 F.3d 684, 688 (2d Cir. 1984) (IA] mere statement that due process' rights have been violated does not necessarily give rise to a specific federal constitutional claim. Due process, ' like fair trial, ' can be a catchphrase used by habeas petitioners as part of an allegation about any type of trial court error, including errors in rulings based on state law.").

While the petitioner has failed to exhaust both of the claims now before this court, it is clear that he is no longer in a position to do so and his claims therefore should be considered to have been both exhausted and procedurally defaulted. See Aparicio, 269 F.3d at 90 ("When a claim has never been presented to a state court, a federal court may theoretically find that there is an absence of available State corrective process under § 2254(b)(1)(B)(i) if it is clear that the unexhausted claim is procedurally barred by state law and, as such, its presentation in the state forum would be futile."). The dismissal of petitioner's Article 70 state court habeas petition was the subject of both an appeal to the Appellate Division and an application for leave to appeal to the New York Court of Appeals, and he is now foreclosed from further state court appeals with regard to that petition. Id. at 91. While it is true that petitioner could have presented at least certain portions of his ineffective assistance of counsel claim in an Article 78 proceeding, he is now precluded from doing so because the time for the commencing such a proceeding is four months from the date of the accrual of the claim, a deadline that has long since passed. 9 N.Y.C.R.R. § 8006.2(a); see also Matter of Sumpter v. Supreme Court of Bronx Cnty., 76 A.D.3d 1155, 1156 (3d Dep't 2010) (dismissing the petitioner's request for a writ of habeas corpus because he failed to perfect his administrative appeal).

Based upon petitioner's procedural default, this court may not engage in habeas review of his claims unless he demonstrates either (1) good cause for and actual prejudice resulting from his procedural default, or (2) that "he is actually innocent."[7] Bousley v. United States, 523 U.S. 614, 622 (1998); accord, Clark v. Perez, 510 F.3d 382, 393 (2d Cir. 2008). To establish "cause" sufficient to excuse a procedural default, a petitioner must show that some objective external factor impeded his ability to comply with the relevant procedural rule. Coleman v. Thompson, 501 U.S. 722, 753 (1991) (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)). Examples of such external mitigating circumstances can include ineffective assistance of counsel, "a showing that the factual or legal basis for a claim was not reasonably available to counsel, or that some interference by officials made compliance impracticable."[8] Murray, 477 U.S. at 488 (quotation marks and citations omitted); Coleman, 501 U.S. at 753. When a petitioner has failed to establish adequate cause for his procedural default, the court need not proceed to examine the issue of prejudice because federal habeas relief is generally unavailable as to procedurally defaulted claims unless both cause and prejudice are demonstrated. Stepney v. Lopes, 760 F.2d 40, 45 (2d Cir. 1985); accord, Long v. Lord, No. 03-CV-0461, 2006 WL 1977435, at *6 (N.D.N.Y. March 21, 2006) (McCurn, J.).

In this case, petitioner has failed to establish adequate cause for his procedural default, thereby obviating the need to examine the issue of prejudice. Accordingly, I recommend a finding that petitioner has procedurally forfeited the right to pursue both of the claims set forth in his petition.[9]

B. AEDPA Standard of Review on the Merits

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant habeas corpus relief with respect to a claim adjudicated on the merits in state court only if, based upon the record before the state court, the adjudication of the claim (1) was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1398, 1400 (2011) (citing 28 U.S.C. § 2254(d)); Premo v. Moore, ___ U.S. ___, 131 S.Ct. 733, 739 (2011); Thibodeau v. Portuondo, 486 F.3d 61 (2d Cir. 2007) (Sotomayor, J.). The AEDPA "imposes a highly deferential standard for evaluating state-court rulings' and demands that state-court decisions be given the benefit of the doubt.'" Felkner v. Jackson, ___ U.S. ___, 131 S.Ct. 1305, 1307 (2011) ( per curiam ) (quoting Renico v. Lett, 559 U.S. 766, 773 (2010)); accord, Cullen, 131 S.Ct. at 1398. Federal habeas courts must presume that the state court's factual findings are correct "unless applicants rebut this presumption with clear and convincing evidence.' Schriro v. Landrigan, 550 U.S. 465, 473-74 (2007) (quoting § 2254(e)(1)); see also Boyette v. Lefevre, 246 F.3d 76, 88 (2d Cir. 2001). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable - a substantially higher threshold." Schriro, 550 U.S. at 473 (citing Williams v. Taylor, 529 U.S. 362, 410 (2000)).

As required by section 2254, on federal habeas review, a court may only consider claims that have been adjudicated on the merits by the state courts. 28 U.S.C. § 2254(d); Cullen, 131 S.Ct. at 1398; Wash. v. Schriver, 255 F.3d 45, 52-55 (2d Cir. 2001). The Second Circuit has held that, when a state court adjudicates a claim on the merits, "a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim - even if the state court does not explicitly refer to either the federal claim or to relevant federal case law." Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001).

C. Ineffective Assistance of Counsel

In his first habeas claim, McCullough argues that he did not receive effective assistance of counsel from Attorney Young, the attorney assigned to represent him at the revocation hearing. Dkt. No. 1 at 4.

1. Clearly Established Supreme Court Precedent

Under the well-established standard governing ineffective assistance of counsel claims,

the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland v. Wash., 466 U.S. 668, 687 (1984); accord, Murden v. Artuz, 497 F.3d 178, 198 (2d Cir. 2007).

To be constitutionally deficient, the attorney's conduct must fall "outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690; accord, Rivas v. Fischer, ___ F.3d ___, No. 13-2974, 2015 WL 1036047, at *15 (2d Cir. Mar. 11, 2015). An attorney's performance is judged against this standard in light of the totality of the circumstances and from the perspective of counsel at the time of trial, with every effort made to "eliminate the distorting effects of hindsight[.]" Strickland, 466 U.S. at 689; see also Rivas, 2015 WL 1036047, at *15 (noting the court's "scrutiny of counsel's performance must be highly deferential' (quoting Strickland, 466 U.S. at 689)).

Addressing the second prong of the Strickland test, courts have generally held that prejudice is established by showing that there is a "reasonable probability" that, but for the attorney's deficient conduct, "the result of the proceeding would have been different." Strickland, 466 U.S. at 694; see also Murden, 497 F.3d at 198 ("Under Strickland, a defendant must show that... there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (quotation marks omitted))

2. State Court Determination

In his determination in connection with McCullough's state court habeas petition, Acting Supreme Court Justice James P. Punch concluded that petitioner's ineffective assistance of counsel claim was without merit because, based on his review of the plea agreement and statements made at the parole revocation hearing, petitioner's attorney provided "adequate representation." Dkt. No. 12-1 at 12.

3. Contrary to or Unreasonable Application of Controlling Supreme Court Precedent

As was discussed above, to establish the denial of effective assistance of counsel as guaranteed by the Constitution and judged according to the standard set forth in Strickland, a petitioner must show that his counsel's conduct fell below an objective standard of reasonableness, and that, but for they attorney's substandard performance, the outcome would have been different. Petitioner in this matter has made neither of these showings. Although it is true that New York Executive Law § 259-i(3)(f)(iii) provides that both the alleged parole violator and counsel "shall be given written notice of the date, place and time of the hearing... at least fourteen days prior to the scheduled date, " a requirement that was not satisfied in this case, petitioner has failed to demonstrate how he was prejudiced by Attorney Young's failure to object to the untimely notice. As respondent argues, even assuming Attorney Young did interpose an objection on this ground, the appropriate remedy would have been adjournment of the hearing. See People ex rel. Smith v. N.Y. State Bd. of Parole, 131 A.D.2d 401, 403 (1st Dep't 1987) (finding that, where the petitioner was not provided adequate notice pursuant to Executive Law § 259-i, adjournment of the hearing was required, notwithstanding that the hearing would then have been deemed untimely). By regulation, final revocation hearings must be held within ninety days of a waiver of the preliminary hearing. 9 N.Y.C.R.R. § 8005.17(a). Because the preliminary waiver hearing occurred on May 13, 2009, a revocation hearing could have been adjourned until, at the latest, August 11, 2009. Petitioner has not demonstrated, or even suggested, how an adjournment would have produced a different result.

Similarly, petitioner has not demonstrated any prejudice with respect to his claim that Attorney Young attended the parole revocation hearing without a "strategy or plan." Dkt. No. 1 at 4. A review of the strategy employed by petitioner's counsel, encouraging McCullough to plead guilty, reveals no departure from the norm. With the assistance of Attorney Young, petitioner was able to enter into a plea bargain whereby the ALJ would recommend an additional two-year period of incarceration in exchange for petitioner's plea of guilty to the two charges accusing him of violating the parole restrictions concerning curfew and movement outside of Onondaga County. Dkt. No. 12-1 at 26-27. Given the nature of petitioner's underlying conviction and his prior criminal history, I am unable to conclude that the plea agreement was unreasonable or that Attorney Young's counseling petitioner to enter into that agreement was objectively unreasonable.

Petitioner has also failed to provide any indication as to an alternative strategy that could have been employed, had Attorney Young met with him prior to the day of the revocation hearing. As was discussed above, to prevail on his ineffective assistance of counsel claim, petitioner must demonstrate that a different result was attainable absent Attorney Young's conduct.

In sum, the state court's finding that petitioner was not denied effective assistance of counsel was neither contrary to nor an unreasonable application of the Supreme Court's Strickland standard.

D. Due Process Claim

The second claim raised by the petitioner asserts a deprivation of process, based upon the Division of Parole's failure to provide him with adequate notice of the revocation hearing. Dkt. No. 1 at 4.

1. Clearly Established Supreme Court Precedent

The Supreme Court has held that the Due Process Clause of the Fourteenth Amendment applies to the revocation of parole. Morrissey v. Brewer, 408 U.S. 471, 481-82 (1972); see also Greenholtz v. Inmates of the Neb. Penal & Corr. Complex, 442 U.S. 1, 9 (1979). Individuals in parole revocation proceedings, however, are not entitled to "the full panoply of rights" that are accorded in a criminal prosecution. Morrissey, 408 U.S. at 480 (citing Mempa v. Rhay, 389 U.S. 128 (1967)). Rather, given that the state has an "overwhelming" interest in being able to return parole violators to prison "without the burden of a new adversary criminal trial, " the Due Process Clause merely requires that an "informal hearing" be held "to assure that the finding of a parole violation will be based on verified facts and that the exercise of discretion will be informed by an accurate knowledge of the parolee's behavior." Id. at 483-84. Thus, the Supreme Court has delineated the following "minimum requirements of due process" to include

(a) written notice of the claimed violations of parole;
(b) disclosure to the parolee of evidence against him;
(c) opportunity to be heard in person and to present witnesses and documentary evidence;
(d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation);
(e) a neutral and detached' hearing body; and
(f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.

Id. at 489; accord, Calhoun v. N.Y. State Div. of Parole Officers, 999 F.2d 647, 652 (2d Cir.1993) (holding that the state may not revoke a person's parole without providing minimum due process protections which include "a preliminary probable cause hearing..., as well as a final revocation hearing, at which a parolee may present evidence and confront witnesses"). Morrissey represents the "clearly established Federal law" for purposes of federal habeas review. 28 U.S.C. § 2254(d)(1). Further, the Second Circuit has determined that the procedures set forth in New York Executive Law § 259-i generally satisfy due process. Calhoun, 999 F.2d at 652 (citing N.Y. Exec. Law § 259-i(3)(f)).

2. State Court Determination

In his decision in connection with McCullough's state court habeas petition, Acting Supreme Court Justice Punch found, in essence, that the question of whether petitioner's counsel received timely notice was "irrelevant" based upon statements by the attorney that he had in fact received adequate notice of the hearing and there were no outstanding issues concerning the notice. Dkt. No. 12-1 at 11-12. On appeal, the Fourth Department concluded that any argument regarding the alleged untimeliness of the revocation hearing notice was waived. People ex rel. McCullough, 82 A.D.3d at 1640.

3. Contrary to or Unreasonable Application of Controlling Supreme Court Precedent

In this case it is unnecessary to address the question of whether the state courts' determination regarding the due process claim was either contrary to or an unreasonable application of clearly established Supreme Court precedent. Regardless of whether the notice received by petitioner of his hearing was constitutionally adequate, petitioner waived any defect by his guilty plea during the revocation hearing. See Johnson v. Carlsen, No. 09-CV-0066, 2010 WL 1817343, at *7 (N.D.N.Y. Mar. 29, 2010) (Homer, M.J.), report and recommendation adopted by 2010 WL 1837779 (N.D.N.Y. May 5, 2010) (Suddaby, J.), (concluding that, even assuming the petitioner's constitutional rights were violated by an untimely final parole revocation hearing, the petitioner "waived all hearing defects by pleading guilty") (citing Tollett v. Henderson, 411 U.S. 258, 267 (1973); United States v. Coffin, 76 F.3d 494, 498 (2d Cir. 1996)). Absent a basis to conclude that the plea was not knowing and voluntary, Johnson, 2010 WL 1817343, at *7, - and none has been presented - McCullough's plea of guilty waived any claim that he was deprived of due process by the short notice of the revocation hearing. Having carefully reviewed the transcript of the revocation hearing and petitioner's plea allocution, I find no basis to conclude that his counselled plea was not knowing and voluntary. In this regard, it is worth noting that petitioner took full responsibility for the parole violations during the revocation hearing. Dkt. No. 12-1 at 28-29. Indeed, he admitted to making "bad decision[s]" and acknowledged his need to "follow[] the guidelines and regulations established by parole." Id. Accordingly, I recommend a finding that petitioner has waived his right to raise a due process claim with regard to the notice of the revocation hearing.

D. Certificate of Appealability

To appeal a final order denying a request for habeas relief by a state prisoner, a petitioner must obtain from the court a certificate of appealability ("COA"). 28 U.S.C. § 2253(c)(1)(A); see also Fed. R. App. P. 22(b)(1) ("[T]he applicant cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c)."). In the absence of a COA, a federal court of appeals lacks jurisdiction to entertain an appeal from the denial of a habeas petition. Hoffler v. Bezio, 726 F.3d 144, 152 (2d Cir. 2013). A COA may issue only "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); Hoffler, 726 F.3d at 154. A petitioner may demonstrate a "substantial showing" if "the issues are debatable among jurists of reason;... a court could resolve the issues in a different manner; or... the questions are adequate to deserve encouragement to proceed further." Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983) (quotation marks and alterations omitted); see also Slack v. McDaniel, 529 U.S. 473, 478 (2000) ("[A] COA should issue... if the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling."). In this instance, I conclude that the petitioner has not made a substantial showing of the denial of a constitutional right and therefore recommend against the issuance of a COA.

IV. SUMMARY AND RECOMMENDATION

Because the two claims raised by the petitioner in this matter are both unexhausted and procedurally barred based upon his failure to properly present those claims to the highest court in New York State prior to commencing this proceeding, they are subject to dismissal in this procedural basis. Addressing the merits, and applying the deferential standard required under the AEDPA, I conclude that petitioner has failed to establish a basis to conclude he received constitutionally deficient representation during the course of the revocation hearing, and further that, by his plea of guilty, he waived the procedural defects associated with the revocation hearing, including any claim of inadequacy of the notice provided to him. Accordingly, it is hereby respectfully

RECOMMENDED that the petition in this matter be DENIED and DISMISSED in all respects; and it is hereby further

RECOMMENDED, based upon my finding that McCullough has not made a "substantial showing of the denial of a constitutional right" pursuant to 28 U.S.C. § 2253(c)(2), that a certificate of appealability not issue with respect to any of the claims set forth in his petition.

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).

It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.

Attorneys and Law Firms

Wayne Blanchard, Elmira, NY, pro se. Hon. Andrew M. Cuomo, Attorney General of the State of New York, Gerald J. Rock, Esq., Asst. Attorney General, of Counsel, Albany, NY, for Respondent.

ORDER

Hon. DAVID N. HURD, District Judge.

*1 Petitioner, Wayne Blanchard, brought a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. By Report-Recommendation dated June 23, 2008, the Honorable Randolph F. Treece, United States Magistrate Judge, recommended that the petition be denied and that because he has made no "substantial showing of the denial of a constitutional right, " no certificate of appealability should issue with respect to any of petitioner's claims. There have been no objections made to the Report-Recommendation, and further, it is noted that mail to the petitioner has been returned as undeliverable.

Accordingly, it is

ORDERED that

1. The petition for a writ of habeas corpus is DENIED;

2. The petition is DISMISSED in all respects; and

3. No certificate of appealability will be issued with respect to any of petitioner's claims.

The Clerk is directed to enter judgment accordingly.

IT IS SO ORDERED.

REPORT-RECOMMENDATION AND ORDER

RANDOLPH F. TREECE, United States Magistrate Judge. Presently before the Court is Wayne Blanchard's Petition for a Writ of Habeas Corpus brought pursuant to 28 U.S.C. § 2254.[1] Dkt. No. 1, Pet. By his Petition, Blanchard asserts that his due process and equal protection rights were violated when, after being released on parole, he was subsequently retaken and reincarcerated. Pet. at ¶ 2. Specifically, Blanchard claims that the warrant issued for his retaking was defective because the official who issued the warrant also created and issued the report upon which it was based. Id. For the reasons that follow, it is recommended that the Petition be denied.

I. BACKGROUND

On June 15, 1982, Blanchard was convicted on three counts of robbery in the first degree and sentenced to concurrent terms of twelve and a half (12½) to twenty-five (25) years on each count. People v. Blanchard, 481 N.Y.S.2d 774 (N.Y.App. Div., 3rd Dep't 1984). On December 11, 2003, Petitioner was released on parole only to be declared delinquent on the very next day after he absconded from parole supervision. Supp. Parole Violation Rep., dated Feb. 17, 2004, at R3;[2] Parole Revocation Decision Notice, dated Jan. 4, 2004, at R6; Violation of Release Rep., dated Jan. 12, 2004, at R11. Pursuant to a warrant issued on December 24, 2003, Petitioner was arrested on February 12, 2004, in Albany, New York. Warrant, dated Dec. 24, 2003, at R1; Supp. Parole Violation Rep., dated Feb. 17, 2004, at R3; Violation of Release Rep., dated Jan. 12, 2004, at R13. Petitioner waived his right to a preliminary parole revocation hearing. A final parole revocation hearing was heard on April 12, April 26, and May 17, 2004, at the conclusion of which Petitioner's parole was revoked and he was sentenced to thirty-six (36) months incarceration. Notice of Violation, dated Feb. 17, 2004, at R2; Parole Revocation Decision Notice, dated Jan. 4, 2004, at R5-9; Final Parole Revocation Hr'g Tr., dated Apr. 12, Apr. 26, & May 17, 2004, at R21-102. Petitioner filed a notice of appeal, but failed to submit a petition to the Appeals Unit of the Division of Parole and therefore did not perfect the appeal. Pet. at ¶ 1.

*2 During the pendency of his final revocation hearing, Blanchard filed a petition for a writ of habeas corpus before the New York State Supreme Court of Albany County on April 27, 2004, which was subsequently denied. Judgment, dated May 25, 2004, at R108-09. On September 7, 2004, Petitioner filed another writ of habeas corpus in the Chemung County Supreme Court, which was also denied.[3] Pet., Ex. H, Decision and Order, dated Oct. 22, 2004. Petitioner has made no indication that he appealed either of his state court habeas applications, nor does the record reflect that he did. See generally Pet. & State Ct. R.

On November 19, 2004, Petitioner filed the instant Petition for a Writ of Habeas Corpus. For the reasons that follow, it is recommended that Blanchard's Petition be denied.

II. DISCUSSION

A. Standard of Review

Under the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA"), a federal court may not grant habeas relief to a state prisoner on a claim unless the state court adjudicated the merits of the claim and such adjudication either

1) resulted in a decision that was contrary to, or involved an unreasonable application, of, clearly established Federal law, as determined by the Supreme Court of the United States; or
2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d); Hawkins v. Costello, 460 F.3d 238 (2d Cir.2006); DeBerry v. Portuondo, 403 F.3d 57, 66 (2d Cir.2005); Miranda v. Bennett, 322 F.3d 171, 177-78 (2d Cir.2003); Boyette v. Lefevre, 246 F.3d 76, 88 (2d Cir.2001).

The petitioner bears the burden of proving by a preponderance of the evidence that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Jones v. Vacco, 126 F.3d 408, 415 (2d Cir.1997); Rivera v. New York, 2003 WL 22234679, at *3 (S.D.N.Y. Aug. 28, 2003). The AEDPA also requires that "a determination of a factual issue made by a State court shall be presumed to be correct [and t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e) (1); see also DeBerry v. Portuondo, 403 F.3d at 66; Boyette v. LeFevre, 246 F.3d at 88 (quoting § 2254(e)(1)) (internal quotations omitted).

The Second Circuit has provided additional guidance concerning application of this test, noting that:

[u]nder AEDPA, we ask three questions to determine whether a federal court may grant habeas relief: 1) Was the principle of Supreme Court case law relied upon in the habeas petition "clearly established" when the state court ruled? 2) If so, was the state court's decision "contrary to" that established Supreme Court precedent? 3) If not, did the state court's decision constitute an "unreasonable application" of that principle?

*3 Williams v. Artuz, 237 F.3d 147, 152 (2d Cir.2001) (citing Williams and Francis S. v. Stone, 221 F.3d 100, 108-09 (2d Cir.2000)).

B. Exhaustion

A state prisoner must normally exhaust available state judicial remedies before a federal court will entertain his petition for writ of habeas corpus. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). To satisfy the exhaustion requirement with respect to a claim, a defendant must "present the substance of the same federal constitutional claim[s]" to the state courts "that he now urges upon the federal courts[.]" Aparicio v. Artuz, 269 F.3d 78, 89 (2d Cir.2001) (internal quotation marks omitted) (citing Turner v. Artuz, 262 F.3d 118, 123-24 (2d Cir.2001)). As the Supreme Court noted in O'Sullivan, "[c]omity... dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief." O'Sullivan v. Boerckel, 526 U.S. at 844 (citations omitted).

"A federal constitutional claim has not been fairly presented to the State courts unless the petitioner has informed those courts of all the essential factual allegations' and essentially the same legal doctrine he asserts in his federal petition.'" Strogov v. Attorney Gen. of State of New York, 191 F.3d 188, 191(2d Cir.1999) (citing Daye v. Attorney Gen. of the State of New York, 696 F.2d 186, 191 (2d Cir.1982) (further citing Picard v. Connor, 404 U.S. 270, 276-77 (1971)).

In order to properly exhaust a challenge to a parole revocation, a habeas petitioner must "first file an administrative appeal with the Division of Parole's Appeals Unit. If that appeal is denied, he must seek relief in state court pursuant to Article 78." Medina v. Berbary, 2008 WL 312762, at *2 (N.D.N.Y. Feb. 1, 2008) (internal citations and quotation marks omitted).

In the case at bar, Petitioner filed a notice of appeal to the Division of Parole but failed to perfect that appeal by filing a petition with the Appeals Unit. See Pet. at ¶ 1; see also N.Y. COMP.CODES R. & REGS. tit. 9 § 8006.2(a) & (b) ("An appeal is perfected by the filing [of a written appeal] with the appeals unit... [that] shall explain the basis for the appeal."). Similarly, Petitioner failed to appeal both denials of his state court habeas petitions. Therefore, Petitioner's claims have not been properly exhausted in the state courts.

Since a request for an extension to appeal, or an appeal of a parole revocation decision must be filed within four months of the decision, N.Y. COMP.CODES R. & REGS. tit. 9 § 8006.2(a), Petitioner cannot now re-enter the administrative appellate process in order to exhaust his claims. When "it is clear that the unexhausted claim is procedurally barred by state law and its presentation in the state forum would be futile [, ]" Aparicio v. Artuz, 269 F.3d at 90, a district court may deem such claim exhausted but also procedurally defaulted, Bossett v. Walker, 41 F.3d 825, 828-29 (2d Cir.1994). Therefore, Petitioner's claims are deemed exhausted but procedurally defaulted.

*4 Where a prisoner has defaulted on his federal claims at the state level, a district court may reach the merits of such claim only upon a demonstration of "cause for the default and actual prejudice, " or that a "failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991). To establish "cause" sufficient to excuse a procedural default, a petitioner must show that some objective external factor impeded his or her ability to comply with the relevant procedural rule. Id. at 753; Restrepo v. Kelly, 178 F.3d 634, 639 (2d Cir.1999). Examples of external factors include "interference by [an]official, " ineffective assistance of counsel, or that "the factual or legal basis for a claim was not reasonably available" at trial or on direct appeal. Murray v. Carrier, 477 U.S. 478, 488 (1986); Bossett v. Walker, 41 F.3d at 829 (citing Murray ); United States v. Helmsley, 985 F.2d 1202, 1206 (2d Cir.1992).

In the case at bar, Petitioner states that he did not appeal the Parole Board's decision because "he was not made aware of the procedural errors and statutory violations until after the revocation process." Pet. at ¶ 1. However, Petitioner submitted a writ of habeas corpus in state court on the same grounds raised in this Petition within three months of the issuance of the decision revoking his parole. See Parole Revocation Decision Notice, dated June 4, 2004, at R5-9; Pet., Attach., Statement of the Case at 5 (stating he filed a petition for a writ of habeas corpus before the Supreme Court of Dutchess County on August 17, 2004) & Ex. H, Decision and Order, dated Oct. 22, 2004. Therefore, it appears that Petitioner was aware of the alleged defects in the warrant issued for his retaking and could have properly raised them in a timely appeal to the Appeals Unit of the Division of Parole; he merely failed to do so. Petitioner offers no other cause for his failure to appeal the Parole Board's decision.

When, as here, a petitioner has failed to establish adequate cause for his procedural default, the court need not determine whether he suffered prejudice, since federal habeas relief is generally unavailable as to procedurally defaulted claims unless both cause and prejudice are demonstrated. Stepney v. Lopes, 760 F.2d 40, 45 (2d Cir.1985); Long v. Lord, 2006 WL 1977435, at *6 (N.D.N.Y. Mar. 21, 2006).

Finally, Petitioner has proffered no argument that failure to consider these claims would result in a fundamental miscarriage of justice, which "occurs only in those extraordinary instances when a constitutional violation probably has caused the conviction of one innocent of the crime.'" Rodriguez v. Mitchell, 252 F.3d 191, 203 (2d Cir.2001) (quoting McCleskey v. Zant, 499 U.S. 467, 494 (1991). There is nothing in the record before us that suggests Petitioner's innocence. In fact, Petitioner admitted to violating his parole during his final parole revocation hearing. Final Parole Revocation Hr'g Tr., dated May 17, 2004, at R88-89 & R96-97.

*5 For all these reasons, it is recommended that the Petition be dismissed.

III. CONCLUSION

For the reasons stated herein, it is hereby

RECOMMENDED, that the Petition for a Writ of Habeas Corpus be DENIED; and it is further

RECOMMENDED, that because the Court finds Petitioner has not made a "substantial showing of the denial of a constitutional right" pursuant to 28 U.S.C. § 2253(c)(2), no certificate of appealability should issue with respect to any of Petitioner's claims. See 28 U.S.C. § 2253(c)(2) ("A certificate of appealability may issue... only if the applicant has made a substantial showing of the denial of a constitutional right."); see also Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir.2000); and it is further

ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation and Order upon the parties to this action.

Pursuant to 28 U.S.C. § 636(b)(1), the parties have ten (10) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN (10) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir.1989)); see also 28 U.S.C. § 636(b) (1); FED. R. CIV. P. 72, 6(a), & 6(e).

Attorneys and Law Firms

Ralph Hall (N.Y., NY), for petitioner, pro se.

Lee Adlerstein, Office of the Attorney General (N.Y., NY), for respondents.

Before Judge RICHARD M. BERMAN.

ORDER

BERMAN, J.

I. Introduction

*1 On November 15, 1999, Ralph Hall ("Petitioner" or "Hall"), a pro se litigant, filed a petition ("Petition") for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his Petition, Hall challenged a decision of the New York State Division of Parole to revoke his parole and incarcerate him.

On October 11, 2000, the Honorable James C. Francis IV, United States Magistrate Judge, to whom the matter had been referred, issued a report and recommendation ("Report") recommending that the Petition be denied. Magistrate Francis determined, among other things, that Hall's Petition should be dismissed because he "has not exhausted all state remedies." (Report p. 4). Hall filed written objections to the Report on or about November 14, 2000, i.e. after the ten-day filing deadline required by 28 U.S.C. § 636(b)(1). Respondents do not protest the timeliness of Hall's objections (and they have been considered by the Court). Respondents have filed no objections of their own. For the reasons set forth below, the Court adopts the Magistrate's Report in its entirety and denies Hall's Petition.

II. Background

On April 10, 1972, after being convicted of first degree murder in New York State Supreme Court, New York County, Hall was sentenced to a term of imprisonment of twenty years to life. See Report p. 2. After having been released on parole (in December of 1992), Hall was rearrested on September 13, 1998 for allegedly assaulting his girlfriend. See id. Hall's parole was revoked following a hearing on January 28, 1999 before Administrative Law Judge Brigitte Fortune, N.Y.S. Division of Parole. See id.; Adlerstein Affidavit in Opposition to Petition for Habeas Corpus Relief, Exh. I (hereinafter "Adlerstein Aff."). Hall was reincarcerated for a term of twenty-four months. See Report p. 2. Hall filed an administrative appeal with the Appeals Unit of the New York State Board of Parole. See id.; Adlerstein Aff., Exh. K. In addition, Hall filed a petition in New York State Supreme Court pursuant to Article 70 of the Civil Practice Law and Rules ("CPLR") arguing, among other things, that the 1997 guidelines upon which his parole revocation was presumably based were allegedly retroactively applied to him in violation of the ex post facto clause in Article I, Section 9, Clause 3 of the United States Constitution. See id.; Adlerstein Aff., Exh. L. On January 22, 1999, the New York State Supreme Court, Bronx County, dismissed Hall's Article 70 petition on the grounds that "[b]efore [the] court may review the actions of the Board of Parole under a habeas corpus proceeding, the challenged action or decision itself must be completed.... The [Petitioner's] claim is therefore denied at this time as premature." (Adlerstein Aff., Exh. M.); Report p. 2. Hall's appeal from the New York State Supreme Court's decision was denied by the Appellate Division, Second Department. See Report p. 2-3. Thereafter, Hall filed the instant habeas petition on November 15, 1999.

III. Standard of Review

*2 A district court evaluating a Magistrate's report may adopt those portions of the report to which no "specific, written objection" is made, as long as those sections are not clearly erroneous. Fed.R.Civ.P. 72(b); Thomas v. Am, 474 U.S. 140, 149 (1985); Greene v. WCI Holdings Corp., 956 F.Supp. 509, 513 (S.D.N.Y.1997). The Court conducts a de novo review of those portions of the Report to which objections have been made. See Cespedes v. Coughlin, 956 F.Supp. 454, 463 (S.D.N.Y.1997); East River Say. Bank v. Secretary of Hous. and Urban Dev., 702 F.Supp. 448, 453 (S.D.N.Y.1988). The Court is not required, however, to conduct a de novo hearing as to the objections raised. See East River Say. Bank, 702 F.Supp. at 453. Thereafter, a district judge may accept, reject, or modify, in whole or in part, the findings and recommendations of the Magistrate. See DeLuca v. Lord, 858 F.Supp. 1330, 1345 (S.D.N.Y.1994); Walker v. Hood, 679 F.Supp. 372, 374 (S.D.N.Y.1988).

IV. Analysis

The Court has conducted a review of the underlying record herein, the Report, applicable law and Hall's objections. In reviewing the objections, the Court is mindful that Hall is proceeding pro se and that his "submissions should be held to less stringent standards than formal pleadings drafted by lawyers." Miller v. First Sec. Inv., Inc., 30 F.Supp.2d 347, 349 (E.D.N.Y.1998) (citation omitted). Hall claims that the Magistrate's determination that he did not satisfy the exhaustion requirement is "obvious error." (Petitioner's objections p. 2).

The Court finds that the record and case law support the Magistrate's findings of fact and his conclusions of law. Magistrate Francis was correct in recommending dismissal of Hall's Petition. A petitioner must exhaust all available state remedies before obtaining habeas corpus review under 28 U.S.C. § 2254. See 28 U.S.C. § 2254(b)(1); Report p. 3. "This includes completing all appeals through the highest state court." (Report p. 3). See also O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) ("Because the exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts, we conclude that state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process. Comity, in these circumstances, dictates that [the plaintiff] use the State's established appellate review procedures before he presents his claims to a federal court."). In the instant case, Hall did not exhaust his available state remedies. See Report p. 3; People ex. rel . Woods v. McGreevy, 594 N.Y.S.2d 906, 907 (3d Dept.1993) ("Judicial review of alleged errors in the parole revocation process is precluded prior to the exhaustion of [administrative] remedies....").[1]

*3 Additionally, Hall's Petition should be dismissed as moot in light of the fact that he apparently was released from Gouverneur Correctional Facility on October 18, 2000. See People ex. rel. Brown v. New York State Div. of Parole, 691 N.Y.S.2d 162 (2d Dept.1999) ("While on parole from a prior conviction, the petitioner was found to be in violation of the terms of his release and was reimprisoned. The petitioner thereafter commenced this habeas corpus proceeding asserting that his parole had been improperly revoked.... The Supreme Court denied the... writ... [and] [d]uring the pendency of the petitioner's appeal to this Court, he was returned to parole supervision. Accordingly, ... this appeal has been rendered academic.").

V. Conclusion

Accordingly, the Court incorporates the Report by reference and, for the reasons set forth herein and therein, denies Hall's Petition. The Clerk is respectfully directed to dismiss the action with prejudice.

REPORT AND RECOMMENDATION

FRANCIS, Magistrate J.

Ralph Hall brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging revocation of his parole. He argues that the regulation under which the revocation decision was made constitutes an ex post facto law in violation of Article I, Section 9, Clause 3 of the United States Constitution.[1] Because Mr. Hall has not properly exhausted all state law remedies with respect to this claim, I recommend that the petition be dismissed.

Background

On April 10, 1972, the petitioner was sentenced to a term of imprisonment of twenty years to life after being convicted of first degree murder. (Adlerstein Aff., Exh. M, at 1). He was released on parole on December 21, 1992. (Adlerstein Aff., Exh. M, at 1). However, on September 13, 1998, Mr. Hall was arrested for assaulting his girlfriend. (Adlerstein Aff., Exh. J). Following a hearing, his parole was revoked. (Adlerstein Aff., Exh. J). On the basis of guidelines that had apparently been promulgated in 1997, the petitioner was reincarcerated for a term of twenty-four months. (Adlerstein Aff., Exh. J).

Mr. Hall then appealed this determination to the Appeals Unit of the New York State Board of Parole. (Adlerstein Aff., Exh. K). While that administrative appeal was still pending, however, he also filed a petition in New York State Supreme Court pursuant to Article 70 of the Civil Practice Law and Rules (the "CPLR"), arguing that the 1997 guidelines were retroactively applied to him in violation of the ex post facto clause. (Adlerstein Aff., Exh. L). The court dismissed that petition on the ground that it was premature since there had been no final determination of Mr. Hall's administrative appeal. (Adlerstein Aff., Exh. M). Subsequently, the Appellate Division, Second Department, dismissed Mr. Hall's appeal of the Supreme Court's decision. (Adlerstein Aff., Exh. M). He then filed the instant petition.

Discussion

*4 Prior to obtaining habeas corpus review under 28 U.S.C. § 2254, a petitioner must exhaust all available state remedies. 28 U.S.C. § 2254(b)-(c); see Duckworth v. Serrano, 454 U.S. 1, 3 (1981); Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir.1990). This includes completing all appeals through the highest state court. See O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999). The exhaustion requirement is fully applicable to petitioners, like Mr. Hall, who challenge revocation of their parole release status. See Hall v. N.Y.S. Division of Parole, No. 00-0053, 2000 WL 1186256, at *2 (2d Cir. Aug. 21, 2000) (unpublished opinion in related case); Hili v. Sciarrotta, 140 F.3d 210, 216 (2d Cir.1998).

Although the petitioner filed an administrative appeal, he has not fully exhausted his available state remedies. Under New York State law, once an appeal from a parole revocation decision has been rejected by the Board of Parole, the inmate is entitled to bring a petition in state court pursuant to Article 70 or Article 78 of the CPLR. See People ex rd. Washington v. Irvin, 201 A.D.2d 907, 907, 607 N.Y.S.2d 804, 805 (4th Dep't 1994); People ex rel. Woods v. McGreevy, 191 A.D.2d 938, 938, 594 N.Y.S.2d 906, 907 (3d Dep't 1993). Although Mr. Hall did commence an Article 70 proceeding in this case, he did so before any decision was rendered on his administrative ...


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