United States District Court, N.D. New York
ROBERT F. SMITH, Petitioner,
BRANDON SMITH, Superintendent, Greene Correctional Facility, DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, and BOARD OF PAROLE Respondents.
F. SMITH PETITIONER, PRO SE
ERIC T. SCHNEIDERMAN ATTORNEYS FOR RESPONDENTS
B. LYONS, ESQ. ASS'T ATTORNEY GENERAL
DECISION AND ORDER
N. HURD UNITED STATES DISTRICT JUDGE
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.
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"). Petitioner filed a reply. Dkt. No. 17,
Traverse; Dkt. No. 17-1, Petitioner's Memorandum of Law
reasons that follow, Smith's petition is denied and
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.
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).
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.
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).
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.
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
State Court Proceedings
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.
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. Concurrently, petitioner also successfully
received in forma pauperis status for his state court
proceeding. SCR 201-02.
30, 2016, respondents filed a motion to change venue from
Orange County Supreme Court to Greene County Supreme Court.
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.
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.
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.
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).").
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.
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] . . . ...