Opinion
No. 03 Civ. 0903 (GBD)(KNF).
June 12, 2006
REPORT AND RECOMMENDATION
TO THE HONORABLE GEORGE B. DANIELS, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
Before the Court is Salvatore Dagnone's ("Dagnone") pro se petition for a writ of habeas corpus, made pursuant to 28 U.S.C. § 2254. Dagnone contends that his confinement by the state of New York in the Elmira Correctional Facility's Special Housing Unit ("SHU") and the loss of his good time credit is unlawful because: (1) the hearing officer assigned to preside at his Tier III disciplinary hearing was biased against him and, as a consequence, Dagnone's Fourteenth Amendment right to due process was violated; (2) insufficient evidence was presented at the Tier III hearing to sustain the hearing officer's determination that the petitioner committed the alleged infractions and, therefore, Dagnone's Fourteenth Amendment right to due process was violated; and (3) the evidence supporting the hearing officer's determination, that Dagnone violated prison rules, was based upon an improperly authorized mail watch that violated Dagnone's First and Fourteenth Amendment rights.
"[W]hen a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus." Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S. Ct. 1827, 1841 (1973). Here, Dagnone challenges the lawfulness of his confinement in the SHU and his loss of thirty-six months of good time credit. His confinement in the SHU is a condition of his confinement, and, therefore, does not affect the length of his sentence. A challenge to his SHU confinement would properly be the subject of an action brought pursuant to 42 U.S.C. § 1983. See Jenkins v. Haubert, 179 F.3d 19, 27 (2d Cir. 1999). Accordingly, his loss of good time credit, which affects his prison sentence, is the only aspect of his claim for habeas corpus relief that is cognizable under 28 U.S.C. § 2254.
Prisoners in the state of New York's custody are subject to three levels of disciplinary hearings for violating prison rules. Tier III disciplinary hearings are convened for the most serious disciplinary violations. See New York Compilation of Codes Rules Regulations ("NYCRR") tit. 7 § 270.3 (2005).
The respondents oppose the petition. It is addressed below.
II. BACKGROUND
On July 2, 2001, the superintendent of the Elmira Correctional Facility approved a request from the deputy superintendent, security, that a 60-day mail watch be commenced on all incoming and outgoing mail to or from Dagnone. At the time, Dagnone was confined in the facility's SHU due to an attempted prison escape. As a result of the mail watch, in August 2001, prison officials discovered that Dagnone had attempted to mail to his sister various items pertinent to a failed prison escape attempted at another facility by an inmate named Paul Garrett ("Garrett"). Garrett was, at that time, confined in the SHU with Dagnone. Among the items Dagnone was sending to his sister were: (a) photographs of a partially dismantled chain link fence; and (b) a diagram depicting how parts of that fence could be used to scale a prison security wall. After Dagnone's mail was intercepted, prison officials conducted a search of his cell. During that search, legal materials pertinent to Garrett's criminal prosecution for attempted escape were recovered. Dagnone was not authorized to possess Garrett's legal materials.
Dagnone was served with an Inmate Misbehavior Report (the "Report") filed by Captain S. Wenderlich ("Wenderlich"), based upon the conduct described above. The Report alleged that Dagnone: (i) possessed escape paraphernalia; (ii) made an unauthorized exchange of personally owned articles; (iii) had an authorized item in an unauthorized area; (iv) possessed contraband; and (v) smuggled an item out of the facility or from one area of the facility to another.
Upon receiving the Report, Dagnone exercised his right to request the assistance of a facility employee to prepare for the disciplinary hearing that would be held to address the allegations made in the Report. Thereafter, Dagnone met with his assigned assistant who reviewed the Report with him and, at Dagnone's request, conducted interviews with prospective disciplinary hearing witnesses and sought to gather pertinent documents.
On August 30, 2001, Dagnone's Tier III hearing was held. David Barrett ("Barrett") was the hearing officer designated by the facility's superintendent to preside at the proceeding. At the hearing, Dagnone pleaded guilty to the charge that he had engaged in an unauthorized exchange of personally owned articles. He pleaded not guilty to the remaining charges. Dagnone explained that, although he possessed photographs and the diagram that were uncovered through the mail watch, he was not guilty of possessing escape paraphermalia since there was no proof that he intended to use the items to escape. Dagnone maintained that he attempted to send the photographs and the diagram to his sister to demonstrate to her the disparity in the length of SHU confinement that Garrett and he had received notwithstanding the fact that each was confined to the SHU as punishment for attempting to escape.
In addition to arguing that insufficient evidence existed to sustain the charges to which he pleaded not guilty, Dagnone claimed that the materials recovered from his cell were obtained as a result of an "illegal" mail watch. According to Dagnone, since the memorandum through which the facility's superintendent authorized the mail watch failed to set forth specific facts that formed the basis for his issuing the mail watch authorization, as required by the relevant agency policy and procedure, the mail watch was "illegal" and any searches undertaken as a result thereof were also illegal. However, at the Tier III hearing, Wenderlich testified that the mail watch was authorized by the superintendent based upon specific facts which were made known to him. Wenderlich testified further that a memorandum the superintendent endorsed, approving a request that Dagnone's incoming and outgoing mail be watched, did not need to recite the specific and confidential facts that were revealed to and relied upon by the superintendent in determining to approve the mail watch request.
At the conclusion of the Tier III disciplinary hearing, Barrett found Dagnone guilty of all charges that had been made against him. He imposed the following penalties on Dagnone: (i) 36 months confinement in the SHU; and (ii) 36 months without packages, commissary, telephone, special events and television and movie privileges. In addition, Barrett recommended that Dagnone lose 36 months of good time credit. After the disposition was read into the disciplinary hearing record, Dagnone stated his belief that Barrett was biased against him. Dagnone asserted that Garrett had received a 120-day suspended penalty for committing the same disciplinary infractions that Dagnone had been accused of committing. The disparity in the penalties prompted Dagnone to allege that Wenderlich, whom he contends was Barrett's supervisor, had influenced Barrett's decision. Specifically, Dagnone claimed that Wenderlich had instructed Barrett "to make sure [Dagnone] got a more severe penalty [than the penalty Garrett received]."
Dagnone appealed Barrett's determination, administratively, to no avail, as Barrett's decision was affirmed. Thereafter, Dagnone sought judicial review of the disciplinary hearing determination. He commenced a special proceeding, pursuant to Article 78 of the New York Civil Practice Law and Rules, in the New York State Supreme Court, Chemung County. The Article 78 proceeding was transferred from that court to the New York State Supreme Court, Appellate Division, Third Department.
The respondents were unable to locate the documents that comprise the record of Dagnone's Article 78 petition to the New York State Supreme Court.
The Appellate Division confirmed the hearing officer's determination and dismissed the petition. See Dagnone v. Goord, 297 A.D.2d 869, 746 N.Y.S.2d 874 (App.Div. 3d Dep't 2002). The Appellate Division found the determination, that Dagnone was guilty of violating prison rules, "supported by substantial evidence in the form of, inter alia, (sic) the detailed misbehavior report, the hearing testimony of the investigating officer and the physical evidence." Id. In addition, the court found that "petitioner's contention that there was insufficient evidence of his guilt due to the lack of proof that he was actually planning to escape [was] meritless since an intent to escape was not an element of any of the charged acts of misconduct." Id. The Appellate Division also found Dagnone's claim of hearing officer bias "to be unpersuasive inasmuch as there is no indication that the hearing was conducted in an unfair manner or that the resulting determination flowed from anything other than the substantial evidence of the petitioner's guilt." Id. The court reviewed all the remaining issues raised by Dagnone and found them to be without merit.Id.
Dagnone sought leave to appeal to the New York Court of Appeals from the determination reached by the Appellate Division; that application was denied. See Dagnone v. Goord, 99 N.Y.2d 503, 753 N.Y.S.2d 806 (2002). The instant application for a writ of habeas corpus followed.
III. DISCUSSION
Exhaustion of State Remedies
Before a federal court may entertain a habeas corpus petition on behalf of a state prisoner, the petitioner must first exhaust his or her available state remedies. See 28 U.S.C. § 2254(b) and (c); Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 512 (1971); Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997);Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997); Daye v. Attorney Gen. New York, 696 F.2d 186, 190 (2d Cir. 1982) (en banc). Premised on the principles of comity, the exhaustion doctrine assures the "respect for our dual judicial system and concern for harmonious relations between the two adjudicatory institutions," Daye, 696 F.2d at 191, and "increas[es] the likelihood that the factual allegations necessary to a resolution of the claim will have been fully developed in state court, making federal habeas review more expeditious." Id. Although the writ of habeas corpus provides a remedy for imprisonment in violation of federal law, id., state courts, as well as federal courts, are charged with protecting a criminal defendant's federal rights, and the exhaustion doctrine requires that state courts "be given the opportunity to consider and correct any violations of federal law." Jones, 126 F.3d at 413.
To satisfy the exhaustion doctrine, a habeas corpus petitioner must first "fairly present" his or her federal claim to the highest state court from which a decision can be rendered.Daye, 696 F.2d at 191. A claim is not fairly presented unless the state court was informed of the factual and legal premises of the claim being asserted in federal court.Id. If material factual allegations or legal doctrine are presented in a federal petition that were not presented to the state court, the state court has not had a fair opportunity to rule on the claim. Id. at 191-92. The Second Circuit has stated:
[T]he ways in which a state defendant may fairly present to the state courts the constitutional nature of his claim, even without citing chapter and verse of the Constitution, include (a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.Id. at 194. Once a claim is fairly presented, a petitioner must have "utilized all available mechanisms to secure state [appellate review] of the denial of that claim." Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981) (citations omitted).
In the instant case, it appears from the Appellate Division's decision that Dagnone raised all of the claims which he has included in his petition. Dagnone sought leave to appeal to the New York Court of Appeals, which was denied on December 12, 2002. Consequently, Dagnone has fulfilled the exhaustion requirement with respect to all his claims.
Although the Court cannot verify that the petitioner raised all three of his claims on appeal to the state courts because the respondents have been unable to obtain the petitioner's Article 78 submissions, it is clear from the Appellate Division's decision that Dagnone's bias and sufficiency of evidence claims were raised by the petitioner and determined by the Appellate Division on the merits. Moreover, the Court understands the Appellate Division's holding that "the remaining issues raised by the petitioner have been found to be without merit" to encompass Dagnone's mail watch claim. See Howard v. Walker, 406 F.3d 114, 122 (2d Cir. 2005).
Standard of Review
Where, as in the instant case, a state court has adjudicated the merits of the claims raised in a federal habeas corpus petition, 28 U.S.C. § 2254 provides that a writ of habeas corpus may be granted only if the state court's adjudication resulted in a decision that: (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 proceedings. See 28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495 (2000); Francis S. v. Stone, 221 F.3d 100 (2d Cir. 2000). In addition, when considering an application for a writ of habeas corpus by a state prisoner, a federal court must be mindful that any determination of a factual issue made by a state court is to be presumed correct and the habeas corpus applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
A state court decision is "contrary to" clearly established Supreme Court precedent if "the state court applies a rule that contradicts" Supreme Court precedent or if "the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent." Williams, 529 U.S. at 405-06, 120 S. Ct. at 1519-20. A state court decision involves an "unreasonable application" of Supreme Court precedent if it "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case."Id. at 407-08, 1520-21. A federal habeas court applying the "unreasonable application" standard should ask whether the state court's application of Supreme Court precedent was "objectively unreasonable" and not merely an incorrect or erroneous application of federal law. Id. at 409, 1521; See also Francis S., 221 F.3d at 111 (permitting habeas relief under an "unreasonable application" standard, requires more than an incorrect application of federal law, although the "increment of incorrectness" need not be great).
Due Process
Dagnone's petition raises three due process claims: hearing officer bias; insufficient evidence; and unauthorized mail inspection. The Supreme Court has ruled that while due process protections afforded to a prison inmate at a prison disciplinary hearing do not equate to the "full panoply of rights" due to a defendant in a criminal prosecution, an inmate is entitled to: (i) advance written notice of the charges against him; (ii) a hearing affording him a reasonable opportunity to call witnesses and present documentary evidence; (iii) a fair and impartial hearing officer; and (iv) a written statement of the disposition, including the evidence relied upon and the reasons for the disciplinary actions taken. See Wolff v. McDonnell, 418 U.S. 539, 563-72, 94 S. Ct. 2963, 2978-2983 (1974) passim. A. Impartial Hearing Officer
"The due process requirements for a prison disciplinary hearing are in many respects less demanding than those for criminal prosecution, but they are not so lax as to let stand the decision of a biased hearing officer who dishonestly suppresses evidence of innocence." Edwards v. Balisok, 520 U.S. 641, 647, 117 S. Ct. 1584, 1588 (1997). "Because of the special characteristics of the prison environment, it is possible for the impartiality of [hearing officers] to be encumbered by various conflicts of interest that, in other contexts, would be adjudged of significant magnitude to violate due process." Russell v. Selsky, 35 F.3d 55, 60 (2d Cir. 1994); see Powell v. Ward, 542 F.2d 101, 103 (2d Cir. 1976) (alteration in original) (finding that prison officials responsible for maintaining prison security are not disqualified by the Due Process Clause from adjudicating charges of inmate breaches in prison security); cf. McCann v. Coughlin, 698 F.2d 112, 122 n. 10 (2d Cir. 1983) (finding a due process violation if a prison official serves as hearing officer and either witnessed or investigated an act charged against the prisoner).
Dagnone claims that he was denied the right to a fair and impartial hearing officer, in violation of the Fourteenth Amendment, based upon the investigating officer Wenderlich's supervisory relationship to Barrett, the hearing officer. The petitioner claims that the supervisor/subordinate relationship that existed between Wenderlich and Barrett created an "inherent conflict." In addition, Dagnone contends that Barrett had his "mind made up that [Dagnone] was guilty from the start of the hearing."
The Appellate Division addressed the petitioner's hearing officer bias claim on the merits and concluded that "there [was] no indication that the hearing was conducted in an unfair manner or that the resulting determination flowed from anything other than the substantial evidence of petitioner's guilt." Dagnone, 297 A.D.2d 869, 746 N.Y.S.2d at 875. The Appellate Division's factual findings are presumed to be correct unless Dagnone rebuts that presumption with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). Dagnone has not met this burden with respect to his hearing officer bias claim. Moreover, Dagnone has not demonstrated how, if at all, the determination reached by the Appellate Division on his hearing officer bias claim is either contrary to or an unreasonable application of clearly established Federal law as set forth by the Supreme Court, or that the Appellate Division's decision rests on an unreasonable determination of the facts, in light of the evidence that was presented to that court. Consequently, Dagnone is not entitled to habeas corpus relief based upon this branch of his application for the writ.
B. Sufficiency of Evidence
Due process is satisfied with respect to adjudication of prison disciplinary charges, when the post-hearing decision is supported by any evidence in the record. Stated differently, there must be a modicum of record evidence to support the decision rendered on the charges(s) that an inmate violated prison rules, that is, the record must contain some evidence from which the conclusion of the administrative tribunal could be deduced. See Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454-55, 105 S. Ct. 2768, 2773-74 (1985). "As the Court stressed in Hill . . . the 'some evidence' standard does not impose a rigorous level of due process review. . . . the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board." Smith v. Menifee, No. 02 Civ. 7630, 2003 WL 1872668, at *2 (S.D.N.Y. April 10, 2003) (emphasis in original) (quoting Hill, 472 U.S. at 455-56, 105 S. Ct. at 2774).
In the case at bar, Dagnone maintains that insufficient evidence was presented at the Tier III hearing to support the hearing officer's determination that he was guilty of the charges made against him. In particular, Dagnone contends that no evidence was presented at the hearing establishing his intent to escape from the correctional facility.
The Appellate Division considered Dagnone's claim that insufficient evidence was presented at the disciplinary hearing upon which the hearing officer could have relied in finding him guilty of the prison rule violations and rejected that claim. The court reasoned, in part, that "intent to escape [was] not an element of any of the charged acts of misconduct." See Dagnone, 297 A.D.2d 869, 746 N.Y.S.2d at 875. In addition, the court noted that "substantial evidence in the form of, inter alia, the detailed misbehavior report, the hearing testimony of the investigating officer, and the physical evidence" that was recovered from Dagnone's mail and cell, supported the hearing officer's determination. Dagnone, 297 A.D.2d 869, 746 N.Y.S.2d at 874.
As discussed earlier in this writing, the factual findings of the Appellate Division, on Dagnone's insufficient evidence claim, are presumed to be correct unless Dagnone rebuts that presumption with clear and convincing evidence. This he has not done. Neither has he shown that the Appellate Division's decision on this claim was contrary to or an unreasonable application of Supreme Court precedent. Furthermore, Dagnone has not shown that the Appellate Division's decision was grounded in an unreasonable determination of the facts in light of the evidence presented to it in connection with the Article 78 proceeding. Accordingly, Dagnone is not entitled to habeas corpus relief on this claim.
C. Mail Watch Authorization
Dagnone contends that the items recovered from his outgoing mail and obtained during the search of his cell, upon which the hearing officer relied in finding that he violated prison rules were "illegally" seized, in violation of NYCRR tit. 7 § 720-3(e)(1). That regulation requires that an inspection of a prisoner's outgoing mail be preceded by a written authorization from the facility superintendent. The superintendent must set forth the specific facts forming the basis for the authorization to open, inspect or read an inmate's outgoing mail. Although Dagnone alleges a due process violation in connection with this claim, he also makes reference to the First Amendment and contends that the seized items should have been excluded from his disciplinary hearing because they represent "fruit of [the] poisonous tree."
A prison regulation that impinges on an inmate's constitutional rights is valid when it is reasonably related to legitimate penological interests. See Turner v. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 2261 (1987). However, a state prison official's failure to comply fully with a prison procedural regulation does not violate an inmate's federal due process rights. This is so because state prison regulations that mandate that certain procedures be followed, like state statutes, do not create federally protected due process entitlements to specific performance of the applicable mandated procedures. See Holcomb v. Lykens, 337 F.3d 217, 224-25 (2d Cir. 2003); Shakur v. Selsky, 391 F.3d 106, 118-19 (2d Cir. 2004).
Since no federal due process right would be implicated by the failure of the correction facility's superintendent to comply with the mail watch regulation's procedural requirements, Dagnone is not entitled to obtain habeas corpus relief based on the instant claim.
IV. RECOMMENDATION
For the reasons set forth above, I recommend that the petitioner's application for a writ of habeas corpus be denied.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of the Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable George B. Daniels, United States District Judge, 40 Centre St, Room 410, New York, New York 10007, and to the chambers of the undersigned, 40 Centre St., Room 540, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Daniels. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993);Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Candair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1998); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).