United States District Court, S.D. New York
ORDER ADOPTING R&R
KENNETH M. KARAS, District Judge.
Pro se Petitioner Eric Clark ("Clark") filed a Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, on December 8, 2010, challenging the constitutionality of his 2007 parole revocation. (Pet. ¶¶ 3, 5 (Dkt. No. 1).)
On August 9, 2013, Magistrate Judge Lisa Margaret Smith issued a Report and Recommendation ("R&R"), ( see Dkt. No. 31), recommending that the Court dismiss Clark's Petition as moot. Clark timely filed objections to the R&R on August 20, 2013. ( See Dkt. No. 34.) For the reasons stated herein, the Court denies Clark's objections, adopts the R&R in its entirety, and dismisses Clark's Petition.
A. Factual Background
Although the Court assumes the Parties' general familiarity with the factual and procedural background of this case as set forth in the R&R, the Court will briefly summarize the facts most salient to the Petition.
Clark pleaded guilty to Rape in the Frist Degree, in violation of New York Penal Law § 130.35, and Kidnapping in the Second Degree, in violation of New York Penal Law § 135.20, on May 17, 1985, and was sentenced to concurrent and indeterminate terms of eight and one-third to twenty-five years' imprisonment. (Resp't's Decl. ¶ 3 (Dkt. No. 19); id. Ex. A (Commitment to the State Department of Correctional Services).) Although Clark was released on parole on June 3, 2003, an Administrative Law Judge ("ALJ") recommended, on December 5, 2007, that Clark's parole be revoked because he was found in possession of "children's paraphernalia, " namely a child-sized, pink hat decorated with a "Hello Kitty" logo and related cartoon characters, in violation of his parole conditions. ( See Pet. I; Resp't's Decl. ¶ 4; id. Ex. C (parole conditions) at unnumbered 2; id. Ex. L (ALJ Decision); see also Resp't's Mem. of Law in Opp'n to Pet. for Writ of Habeas Corpus ("Resp't's Mem.") 4-5 (Dkt. No. 18) (describing parole violation).) The Commissioner of the Division of Parole affirmed the ALJ's recommendation and revoked Clark's parole in December 2007; he was remanded for the duration of his sentence. ( See Resp't's Mem. 2, 6; Resp't's Supplemental Mem. of Law in Opp'n to Pet. for Writ of Habeas Corpus ("Resp't's Supplemental Mem.") 1-2 (Dkt. No. 29).) Clark's subsequent Petition for state habeas corpus, challenging the revocation of parole, was denied in New York State Supreme Court, Sullivan County on April 22, 2009, ( see Resp't's Decl. ¶ 5; id. Ex. V (New York State Supreme Court decision)), which denial was affirmed by the New York State Appellate Division, Third Department, on May 27, 2010, see People ex rel. Clark v. Walsh, 903 N.Y.S.2d 170 (App. Div. 2010), and which appeal was dismissed by the New York State Court of Appeals on September 21, 2010, see People ex rel. Clark v. Walsh, 935 N.E.2d 806 (N.Y. 2010). ( See also Pet. 3.)
While Clark's sentence expired on May 31, 2013, the New York State Supreme Court, Westchester County determined that there was probable cause to believe that Clark would be subject to civil management measures as a sex offender under Article 10 of the New York Mental Hygiene Law. (Resp't's Supplemental Decl. Ex. HH (consent to remain in custody) (Dkt. No. 30).) Accordingly, Clark consented to remain incarcerated, rather than be transferred to a mental health treatment facility, pending a determination of what civil management measures, if any, he would be subject to. ( See Resp't's Supplemental Mem. 2; Resp't's Supplemental Decl. Ex. HH (consent to remain in custody); Pet'r's Answer to Supplemental Mem. ("Pet'r's Supplemental Mem.") 2 (Dkt. No. 32).) Here, Clark again challenges his parole revocation.
B. Procedural Background
Clark timely filed the instant Petition on December 8, 2010. ( See Dkt. No. 1.) In his Petition, Clark alleges that his parole revocation was unconstitutionally obtained in the following six ways:
(1) The [ALJ's] recommendation... that [Clark] be detained was against the weight of the evidence and based on insufficient evidence;
(2) [Clark's] Sixth Amendment right to confront the witnesses against him was violated when hearsay statements made by a "store clerk" were admitted at the parole revocation hearing;
(3) The parole condition prohibiting [Clark's] possession of children's paraphernalia was ...