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Smith v. Smith

United States District Court, N.D. New York

January 22, 2018

ROBERT F. SMITH, Petitioner,
v.
BRANDON SMITH, Superintendent, Greene Correctional Facility, DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, and BOARD OF PAROLE Respondents.

          ROBERT F. SMITH PETITIONER, PRO SE

          HON. ERIC T. SCHNEIDERMAN ATTORNEYS FOR RESPONDENTS

          PAUL B. LYONS, ESQ. ASS'T ATTORNEY GENERAL

          DECISION AND ORDER

          DAVID N. HURD UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Petitioner Robert Smith ("Smith" or "petitioner") has filed a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging a parole revocation determination. Dkt. No. 1, Petition ("Pet."). Respondents initially filed a motion to dismiss the petition without prejudice for a lack of exhaustion or, in the alternative, permission to limit their answer solely to the issue of exhaustion. Dkt. No. 3, Respondents' Motion to Dismiss.

         On June 22, 2017, respondents' motion to dismiss was denied but their request to file a limited response to the petition was granted. Dkt. No. 7. Thereafter, respondents filed an answer, memorandum of law, and pertinent records from the state court proceedings related to the limited issue of exhaustion. Dkt. No. 13, Respondents' Answer; Dkt. No. 14, Respondents' Memorandum of Law in Opposition to the Petition for a Writ of Habeas Corpus ("R. Mem."); Dkt. No. 15, State Court Records ("SCR").[1] Petitioner filed a reply. Dkt. No. 17, Traverse; Dkt. No. 17-1, Petitioner's Memorandum of Law (Pet. Mem.).

         For the reasons that follow, Smith's petition is denied and dismissed.

         II. BACKGROUND

         A. Prior Conviction

         On May 10, 1993, Smith was convicted in Orange County Supreme Court of rape in the first degree in violation of N.Y. Penal Law § 130.35 and of criminal possession of a weapon in the third degree in violation of § 265.02. SCR 1-2. Petitioner was sentenced, as a second felony offender, to two indeterminate terms of imprisonment-12.5 to 25 years on the rape charge and 2 to 4 years on the weapons charge-to run concurrent with one another. Id.

         B. Parole Proceedings

         In May 2015, Smith was released to post release supervision. SCR 3-15. However, on October 31, 2015 a warrant was issued and executed for petitioner's detention in connection with several violations of petitioner's parole conditions. SCR 16; see also SCR 18 (Notice of Violation); SCR 19-22 (Violation of Release Report & Case Summary).

         On November 9, 2015, a preliminary revocation hearing occurred. SCR 17. Based on the proffered testimony, a hearing officer from the Board of Parole determined that there was sufficient evidence to establish probable cause for the alleged violations of Smith's parole conditions. Id.

         On April 5, 2016, a final revocation hearing was held before a Board of Parole administrative law judge ("ALJ"). SCR 32-156. Smith was represented by counsel. See SCR 33 (noting appearance of counsel for parolee). The ALJ heard testimony from petitioner (SCR 140-152), an offender rehabilitation counselor (SCR 46-61), and two parole officers (SCR 61-139) before reserving judgment (SCR 154-55).

         In a written decision dated April 29, 2016, the ALJ held that the New York State Department of Corrections and Community Supervision ("DOCCS") had successfully met its burden of proof on four of the five charges and found that Smith violated several of his parole supervision conditions. SCR 159-65. Accordingly, petitioner's parole was revoked and he was ordered held in prison until the maximum expiration date of his sentence. SCR 164.

         The ALJ's written decision ended with a notice that was in bold font and all capital letters reading, “NOTICE: YOU HAVE THE RIGHT TO APPEAL THIS DECISION.” SCR 165. However, Smith did not administratively appeal the revocation of his parole. SCR 356-57.

         C. State Court Proceedings

         On or about April 8, 2016, Smith filed a petition for a writ of habeas corpus with the Orange County Supreme Court. SCR 166-72. Petitioner claimed that his detention pursuant to the October 2015 parole warrant was illegal because the warrant was forged and that these actions represented several violations of various New York State laws and regulations. SCR 168.

         In May of 2016, Smith filed an amended petition for a writ of habeas corpus. SCR 173-86. This petition presented the same allegations but included more detail and further exhibits. SCR 173-86.[2] Concurrently, petitioner also successfully received in forma pauperis status for his state court proceeding. SCR 201-02.

         On June 30, 2016, respondents filed a motion to change venue from Orange County Supreme Court to Greene County Supreme Court. SCR 203-08.

         On July 11, 2016, Smith filed a response to the motion to change venue, proffering the same arguments set forth in his habeas petition: (1) the parole warrant was forged and, therefore, illegally executed and enforced on him; and (2) he was being illegally detained. SCR 228-62.

         On July 13, 2016, respondents' motion to change venue to Greene County was granted. SCR 263-64. Thereafter, respondents argued the state petition should be dismissed because: (1) the petition failed to name a necessary party; (2) petitioner did not administratively appeal the revocation of his parole, and the time limit for such an appeal had expired; and (3) habeas corpus is an appropriate remedy only if petitioner is entitled to immediate release from custody, and in this case, petitioner would not be entitled to immediate release even if his factual allegations were true. SCR 265-94.

         Smith filed a seventeen-page reply. SCR 295-311; see SCR 312-46 (exhibits attached to reply). Petitioner addressed each of respondents' arguments, specifically contending that the "Board of Parole ha[d] no jurisdiction for review [of the revocation decision]: . . . ALJ[s] . . . do not have jurisdiction over issues stemming from preliminary hearing proceedings and the matter may not be appealed . . . ." SCR 298.

         Smith further argued that the parole warrant was improperly executed in violation of New York State statutes and regulations, with one exception. SCR295-311. In one of the final paragraphs, petitioner included a citation to the Fourth and Fourteenth Amendments. SCR 310 ("There is clear evidence of PO Flynn's actions of bad faith, willful and negligent disregard of warrant requirement which has been a pattern as well as a practice of inattention to warrant requirement. U.S.C.A. Const. Amends. 4, 14; Executive Law §259-i(3)(a)(i); 9 NYCRR 8004.2 (a, b).").

         On October 31, 2016, relying solely on state law, the Greene County Supreme Court issued a decision denying and dismissing Smith's petition in its entirety. SCR 354-59. First, the Court held that a necessary party was missing, which alone would constitute reason to dismiss. SCR 356. Second, the Court found that petitioner was not entitled to immediate release. SCR 356. Third, and most relevant to the present petition, the Court determined that petitioner failed to exhaust his administrative remedies prior to commencing suit. SCR 356. Specifically, the Court held:

Since [petitioner] has not filed an appeal or otherwise challenged the final parole revocation issued on April 5, 2016, he has failed to exhaust his administrative remedies. This result remains the same whether the action is brought as a habeas corpus or as the properly converted article 78 petition, as “[h]abeas corpus is a summary remedy; it is not an appropriate vehicle to bypass administrative remedies when there are disputed factual issues present (see Matter of Trimaldi v. Superintendent of Washington Corr. Fac., 169 A.D.2d 960, 960-61 [3d Dept 1991] [citations omitted] ["The doctrine of exhaustion of administrative remedies would clearly bar any relief under CPLR article 78, and we see no reason for reaching a different result even if we accept petitioner's claim that habeas corpus is an appropriate remedy."]).

SCR 357. Finally, the Court dismissed any remaining arguments on the merits. SCR 357.

         It does not appear that Smith appealed from this adverse decision. Indeed, as of August 22, 2017, the Appellate Division, Third Department had no record of any appeal of the October 31, 2016 decision denying the petition. Respondents' Answer ¶ 4; see also Pet. ¶ 12(d)(4) & (7) (explaining the “judge rendered an arbitrary and capricious ruling that left [petitioner] with the assumption [his] . . . ...


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