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Geraci v. Sticht

United States District Court, W.D. New York

November 16, 2017

SAMMY GERACI, Petitioner,
v.
THOMAS STICHT, Superintendent, Wyoming Correctional Facility, Respondent.

          DECISION AND ORDER

          HONORABLE MICHAEL A. TELESCA United States District Judge

         I. Introduction

         Pro se petitioner Sammy Geraci (“petitioner”) seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. After a disciplinary hearing, petitioner, who was then confined at the Fishkill Correctional Facility, was found guilty of assaulting fellow inmate Jose Rodriguez. Petitioner was penalized with four months confinement in the Special Housing Unit (the “SHU”) including a corresponding loss of packages, telephone, and commissary privileges (of which two months were suspended and deferred), and loss of two months good-time credits. In the instant petition, petitioner alleges various due process violations in connection with the disciplinary hearing underlying the aforementioned punishment. In particular, he alleges that the hearing officer improperly refused to permit him to call Mr. Rodriguez as a witness, failed to explain why confidential testimony was necessary, and failed to provide a copy of an unusual incident report. For the reasons discussed at length below, the Court determines that petitioner is not entitled to habeas relief and therefore denies the petition.

         II. Factual Background and Procedural History

         Petitioner is currently serving an aggregate term of 40 years in prison, having been convicted of manslaughter in the first degree and two counts of assault in the first degree. On April 23, 2013, while he was incarcerated at the Fishkill Correctional Facility (“Fishkill”), petitioner was served with a misbehavior reported dated April 22, 2013, charging him with violating rule 100.10 of the rules governing inmate behavior by committing assault on another inmate (the “Misbehavior Report”). The Misbehavior Report, which was authored by New York State Department of Corrections and Community Supervision (“DOCCS”) Sergeant Wassweiler, stated that on April 16, 2013, DOCCS Correction Officer Buchman found inmate Jose Rodriguez in his room covered with blood. Mr. Rodriguez was treated at Putnam Hospital for a fractured nose and received five sutures over his left eye. The report further stated that a confidential source informed Sergeant Wassweiler that petitioner had struck Mr. Rodriguez in the face, either with his fist or with another object.

         DOCCS Captain Webbe, the hearing officer, conducted a Tier III disciplinary hearing on April 25, 2013. Captain Webbe advised petitioner of his rights and read the Misbehavior Report into the record. Petitioner pled not guilty to the charge and requested that Mr. Rodriguez testify. The hearing officer explained that Mr. Rodriguez had signed a refusal to testify form.

         Petitioner testified that on the date at issue, he and Mr. Rodriguez bumped shoulders as they were passing each other in the hallway. Petitioner further testified that Mr. Rodriguez brought his arm up and made a swinging move, that petitioner struck Mr. Rodriguez's hand, causing him to fall down, and that petitioner then walked away.

         Petitioner requested a copy of the unusual incident report setting forth what Mr. Rodriguez had told prison officials when asked how he sustained his injuries. The hearing officer agreed to this request and adjourned the hearing to obtain a copy of the report. However, when the hearing resumed, petitioner complained that he had never received such a copy.

         Sergeant Wassweiler testified at the disciplinary hearing that a confidential informant, who had provided reliable information in the past, had told him that petitioner struck Mr. Rodriguez in the heard during the incident in question. Sergeant Wassweiler further testified that, when questioned immediately following the incident, Mr. Rodriguez claimed that he had fallen and hit his head on a door jam.

         The hearing officer informed petitioner on the record that he had heard confidential testimony from an informant. Petitioner stated that if the confidential informant was Mr. Rodriguez, he should be required to testify.

         The hearing officer also read into the record a portion of the unusual incident report. The portion of the report read into the record stated that Mr. Rodriguez had been uncooperative when interviewed, had stated only that he got hit and then fell on the floor, and had refused to testify at any disciplinary hearing.

         The hearing officer issued a written disposition dated May 2, 2013, finding petitioner guilty of assault based on the Misbehavior Report and the testimony of petitioner, Sergeant Wassweiler, and the confidential informant. The hearing officer imposed a penalty of four months confinement in the SHU with a corresponding loss of packages, telephone, and commissary privileges (of which two months were suspended and deferred), and recommended two months loss of good-time credits. The recommended penalty was affirmed on administrative review.

         Petitioner subsequently commenced a proceeding in Albany County Supreme Court pursuant to Article 78 of New York's Civil Practice Law and Rules (“Article 78"). In his Article 78 petition, petitioner contended that the hearing officer denied him due process by failing to provide him with a copy of Mr. Rodriguez's refusal to testify form or ascertain the basis for Mr. Rodriguez's refusal to testify, and that the hearing officer failed to follow established procedures and notice requirements for hearing confidential testimony.

         On February 21, 2014, the Albany County Supreme Court dismissed petitioner's Article 78 proceeding, finding that the record supported the conclusion that Mr. Rodriguez's refusal to testify was authentic and that petitioner had in any event waived his objection by failing to timely object to the authenticity of the refusal to testify. The Albany County Supreme Court further found that although the hearing officer had failed to properly inform petitioner as to why confidential testimony was taken and why petitioner was not allowed to review it, the error was harmless because the other proof at the hearing was sufficient to sustain the charge.

         Petitioner appealed to the Appellate Division, Third Department (the “Appellate Division”), arguing that the hearing officer improperly denied him his constitutional right to call Mr. Rodriguez, failed to properly inform him of why confidential testimony was taken in violation of New York regulatory law, and denied his right to documentary evidence (namely, the unusual incident report). On August 13, 2015, the Appellate Division issued a Memorandum and Order finding that all of petitioner's claims were unpreserved and dismissing his appeal.

         Petitioner sought leave to appeal to the New York Court of Appeals, asserting that the hearing officer improperly refused to permit him to call Mr. Rodriguez and failed to explain why confidential testimony was required. Petitioner did not seek leave to appeal his claim that the hearing officer improperly failed to provide him with a copy of the unusual incident report. Petitioner's request for leave to appeal was denied on November 9, 2015.

         Petitioner commenced the instant proceeding on November 30, 2015. Petitioner asserts in his petition that the hearing officer violated his constitutional rights by not allowing him to call Mr. Rodriguez as a witness, by not explaining why confidential ...


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