Opinion
9:02-CV-0673 (LEK)(GLS)
September 16, 2003
DONNELL JENKINS, Pro Se, Comstock, NY, FOR THE PETITIONER.
HON. ELIOT SPITZER, MICHAEL G. McCARTIN, ESQ., Assistant Atty. General, New York, NY, FOR THE RESPONDENT.
REPORT-RECOMMENDATION AND ORDER
This matter has been referred for Report-Recommendation by the Honorable Lawrence E. Kahn, U.S. District Judge, pursuant to 28 U.S.C. § 636(b) and N.D.N.Y.L.R. 72.4.
I. Background
On November 25, 1986, Donnell Jenkins plead guilty to first degree burglary and second degree robbery. People v. Jenkins, 163 A.D.2d 420 (2d Dept. 1990). Since his incarceration following those convictions, Jenkins has received numerous misbehavior reports and has been found guilty of misconduct following approximately forty Tier II and Tier III disciplinary hearings ( Dkt. No. 11 at ¶ 3; Dkt. No. 13 at Ex. A; Pet. at ¶¶ 5-12). At the conclusion of three of those hearings, it was recommended that Jenkins be deprived of good time credits ( Dkt. No. 11 at ¶ 4). Specifically, following a Tier III hearing at the Elmira Correctional Facility on February 4, 1992, the hearing officer recommended that Jenkins lose six months good time credits after he was found guilty of possessing both a weapon and a controlled substance ( Dkt. No. 13 at Ex. A, P. 7). On December 4, 1993, Jenkins was again found to be in possession of a controlled substance at Elmira and the hearing officer recommended that Jenkins be deprived of three months good time credits. Id. at Ex. A, P. 6. Finally, on January 5, 1996, while Jenkins was incarcerated at the Washington Correctional Facility, a hearing officer found Jenkins guilty of violent conduct, harassment and disobeying a direct order, and recommended that Jenkins be deprived of three months good time credits. Id.
On June 16, 2000, Jenkins sought reconsideration of all of the above-referenced Tier II and Tier III determinations. In those applications, Jenkins alleged that the hearing officers wrongfully failed to consider the fact that Jenkins was on Paxil, a prescription medication, at the time he received the above misbehavior reports, and that his "behavior was predicated upon this medication as taken twice a day." Pet. ( Dkt. No. 1) at ¶ 13. Jenkins claims that, with the exception of his motion to reconsider relating to the dispositions at the Great Meadow Correctional Facility, his motions to reconsider were ignored ( Pet. at ¶¶ 13(a)-(c)). In a written decision dated August 8, 2000, the respondent denied Jenkins' motion to reconsider the disciplinary findings relating to Great Meadow. Pet. at ¶ 13(d).
On August 21, 2000, Jenkins filed a petition pursuant to Article 78 of New York's Civil Practice Law Rules ("CPLR") seeking judicial review of respondent's denial of Jenkins' motion for reconsideration. Pet. at ¶ 14. Before a decision on that application had been rendered, Jenkins filed a motion to supplement his Article 78 petition to include a challenge to all of the disciplinary dispositions rendered against him at the Southport, Elmira and Washington Correctional Facilities ( Dkt. No. 1 at ¶ 15). Respondent opposed both the petition and the motion to supplement, arguing that the proceeding was untimely and that any claim relating to Jenkins' mental condition had been waived due to his failure to raise that issue at the disciplinary hearings ( Dkt. No. 13 at Ex. 6).
On February 9, 2001, Ulster County Supreme Court Justice Vincent G. Bradley issued a decision regarding Jenkins' Article 78 petition and motion to supplement that application. In his decision, Justice Bradley found that Jenkins' Article 78 petition was time-barred by the four month statute of limitations applicable to Article 78 petitions ( Dkt. No. 13 at Ex. B). Justice Bradley also found that because Jenkins had never placed his mental condition at issue during the disciplinary hearings held at Great Meadow, or otherwise gave any indication at those proceedings that he suffered from a mental disease or defect, Jenkins had waived any claim relating to his mental health regarding those dispositions. Id. In denying Jenkins' motion to supplement, Justice Bradley found that the (proposed) supplemental petition "suffer[ed] from the same defects identified in respondent's motion to dismiss." Id.
Jenkins appealed Justice Bradley's decision to the New York State Supreme Court, Appellate Division, Third Department. However, that court affirmed, finding that the Article 78 petition was properly dismissed by Justice Bradley as time-barred ( Dkt. No. 13 at Ex. C). The Court of Appeals denied Jenkins' application for leave to appeal to that court ( Dkt. No. 13 at Ex. D).
II. Discussion A. Procedural History
Jenkins commenced this action pursuant to 28 U.S.C. § 2254 on May 17, 2002. Pet. In his petition, Jenkins argues that his due process rights were violated at all of the disciplinary hearings discussed above, and appears to seek an order restoring the twelve months of good time credits he lost as a result of those hearings. Id.
Rather than file an answer and memorandum of law in opposition to the petition, respondent chose to file a motion for summary judgment, together with supporting papers ( Dkt. Nos. 70-74 ). In his motion, respondent argues that the petition should be dismissed because Jenkins failed to timely exhaust the state-court remedies available to him relating to the above-mentioned disciplinary dispositions ( Dkt. No. 12). In his response in opposition to the dismissal motion, Jenkins argues that he has fully exhausted his available state court remedies, and that he is entitled to the relief he seeks under 28 U.S.C. § 2241.
Rule 11 of the United States District Court rules governing § 2254 cases permits a court under appropriate circumstances to grant summary judgment in habeas proceedings. Whitaker v. Meachum, 123 F.3d 714, 715-16 n. 2 (2d Cir. 1997).
B. Statute Under Which This Action is Properly Brought
Initially, the Court considers respondent's argument that this action is properly brought under 28 U.S.C. § 2254, rather than 28 U.S.C. § 2241 ( Dkt. No. 12 at P.5, N.1).
In Carmona v. U.S. Bureau of Prisons, 243 F.3d 629 (2d Cir. 2001), the Second Circuit held that federal inmates who seek to expunge disciplinary sanctions from their record — including the loss of good time credits — are to bring such actions pursuant to 28 U.S.C. § 2241. See Id. at 632. However, as the Second Circuit subsequently explained in Cook v. New York State Div. of Parole, 321 F.3d 274 (2d Cir. 2003)
[b]ecause a federal prisoner cannot challenge the execution of his or her sentence by a motion under § 2255, he or she must resort to a § 2241 petition to do so. A state prisoner such as Cook, by contrast, not only may, but according to the terms of § 2254 must, bring a challenge to the execution of his or her sentence — in this case with respect to revocation of Cook's parole — under § 2254. A petition under § 2241 is therefore unavailable to him.
Cook, 321 F.3d at 278 (emphasis added).
Since Jenkins is a state prisoner challenging the execution of his sentence, this proceeding is properly considered under, and is necessarily subject to, the laws governing habeas petitions brought under 28 U.S.C. § 2254. See Cook, 321 F.3d at 278; James v. Walsh, 308 F.3d 162, 167 (2d Cir. 2002); see e.g., Preiser v. Rodriguez, 411 U.S. 475 (1973) ( passim); Jenkins v. Haubert, 179 F.3d 19, 23-24 (2d Cir. 1999) (citing Preiser); Savage v. Snow, 575 F. Supp. 828, 834 (S.D.N.Y. 1983) ("a state prisoner seeking the restoration of good time credits must bring an action for a writ of habeas corpus under 28 U.S.C. § 2254") (citing Preiser). C. Merits of Respondent's Motion
When this court issued an order directing the respondent to file a response to this action, the court noted that because the petition did not challenge Jenkins' underlying conviction but rather the dispositions rendered at the disciplinary hearings related to him, the court was inclined to consider the present action as one brought pursuant to 28 U.S.C. § 2241 ( see Dkt. No. 3 at N.1). However, the Second Circuit's subsequent decision in Cook clarified this issue. Cook, 321 F.3d at 275-81 (citing, inter alia, Walker v. O'Brien, 216 F.3d 626, 632-33 (7th Cir. 2000) (petitions challenging loss of state-prison good-time credits are to be brought under § 2254).
It is well settled that all state remedies must be exhausted before a federal court may consider a state prisoner's petition for a writ of habe as corpus. See 28 U.S.C. § 2254(b)(1)(A); Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997); Daye v. Attorney General of New York, 696 F.2d 186, 190 (2d Cir. 1982) (en banc); Glover v. Bennett, 98-CV-0607, 1998 WL 278272, at *1 (N.D.N.Y. May 21, 1998) (Pooler, J.).
The Court notes that the Second Circuit has engrafted an exhaustion requirement on habeas petitions brought by state inmates under 28 U.S.C. § 2241. See United States ex rel. Scranton v. State of New York, 532 F.2d 292, 294 (2d Cir. 1976) ("While 28 U.S.C. § 2241 does not by its own terms require the exhaustion of state remedies as a prerequisite to the grant of federal habeas relief, decisional law has superimposed such a requirement in order to accommodate principles of federalism"); Rossney v. Travis, OOCIV.4562, 2003 WL 135692, at *5 (S.D.N.Y. Jan. 17, 2003).
The exhaustion doctrine recognizes "respect for our dual judicial system and concern for harmonious relations between the two adjudicatory institutions." Daye, 696 F.2d at 191. Though both federal and state courts are charged with securing a state criminal defendant's federal rights, the state courts must initially be given the opportunity to consider and correct any violations of federal law. Id. "The chief purposes of the exhaustion doctrine would be frustrated if the federal habeas court were to rule on a claim whose fundamental legal basis was substantially different from that asserted in state court." Glover, 1998 WL 278272, at *1 (quoting Daye, 696 F.2d at 192) (footnote omitted).
This exhaustion doctrine is satisfied if the claim has been "fairly presented" to the state courts. See Dorsey, 112 F.3d at 52 (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)). A claim has been "fairly presented" if the state courts are apprised of "both the factual and the legal premises of the claim [the petitioner] asserts in federal court." Daye, 696 F.2d at 191; Morales v. Miller, 41 F. Supp.2d 364, 374 (E.D.N.Y. 1999). Thus, "the nature or presentation of the claim must have been likely to alert the court to the claim's federal nature." Daye, 696 F.2d at 192 (emphasis added); Morales, 41 F. Supp.2d at 374. "Citing a specific constitutional provision or relying on federal constitutional precedents alerts state courts of the nature of the claim." Jones v. Vacco, 126 F.3d 408, 413-14 (2d Cir. 1997).
Respondent argues that the petition should be dismissed because Jenkins failed to exhaust his state-court remedies ( Dkt. No. 12 at PP. 5-8). As noted above, only three of the numerous disciplinary hearings to which Jenkins was a subject ultimately resulted in a loss of good time credits. Two of those hearings were conducted at Elmira ( Dkt. No. 13 at Ex. A, PP.6-7), while the third was conducted at Washington ( Dkt. No. 13 at Ex. A, P. 6). The Article 78 petition filed by Jenkins did not relate to any of these claims; rather, that application only challenged the results of the disciplinary hearings held at Great Meadow. See Pet. at ¶ 14; see also, Dkt. No. 13 at Ex. B (noting that Article 78 petition sought to challenge disciplinary dispositions rendered from February 1997 through February 2001). However, Jenkins sought leave from Justice Bradley to supplement his Article 78 petition to include in that application claims relating to the disciplinary hearings conducted at, inter alia, Elmira and Washington ( Dkt. No. 13 at Ex. B).
The exhaustion requirement is not satisfied where a petitioner presents a claim to an appellate court for the first time in an application for discretionary review that is rejected. Peterson v. Bennett, 01-CV-920, 2002 WL 1592600, at *3 (E.D.N.Y. July 18, 2002) (citing Castille v. People, 489 U.S. 346, 351 (1988); Ellman v. Davis, 42 F.3d 144, 148 (2d Cir. 1994)). However, unlike a motion for discretionary review of a claim in the context of an application for leave to appeal, a motion to amend an Article 78 petition is addressed to the sound discretion of the trial court, and such leave should be freely granted. See New York State Ass'n of Community Action Agency Bd. Members v. Shaffer, 119 A.D.2d 871, 873 (3d Dept. 1986) ("[d]enial of permission to amend a pleading . . . constitutes a reversible abuse of discretion in the absence of prejudice or surprise resulting from the delay in pleading the new matter originally") (citations omitted).
As with motions to amend, the CPLR provides that leave to supplement a party's pleadings "shall be freely given upon such terms as may be just." CPLR § 3025(b); see Fitzpatrick v. Fitzpatrick, 55 Misc.2d 7, 8 (N.Y.Sup. 1967) ("[l]eave to serve a . . . supplemental pleading may be given at any time and such should, by statutory direction, be freely given" (citing CPLR § 3025(b)).
Respondent has not cited, and this Court has not located, any precedent which stands for the proposition that a claim is not fairly presented to the state courts — and is therefore not exhausted — if it is asserted for the first time in the context of a motion to amend or supplement a pleading that is considered by a trial court. Additionally, there is authority which indicates that such conduct would constitute a "fair presentation" of a claim so as to satisfy the exhaustion requirement. See Baker v. Corcoran, 220 F.3d 276, 291 (4th Cir. 2000) (claim raised for first time in motion to re-open satisfied § 2254's exhaustion requirement). Thus, it appears as though Jenkins fairly presented his claim challenging the denial of good time credits to Justice Bradley. Jenkins appealed the denial of his Article 78 petition, however, the Appellate Division affirmed the dismissal of that application, finding that the petition was "properly dismissed as time-barred." Jenkins v. Goord, 288 A.D.2d 732, 733 (3d Dept. 2001). The Court of Appeals denied Jenkins' application for leave to appeal that decision. Jenkins v. Goord, 97 N.Y.2d 748 (2002).
For reasons best known to the respondent, none of the state court records relating to either Jenkins' direct appeal to the Appellate Division or application for leave to appeal to the Court of Appeals were submitted along with the motion for summary judgment. Thus, it was impossible for this Court to accurately ascertain which matters Jenkins raised in those appellate papers.
In his motion, respondent appears to argue that because Jenkins' Article 78 petition and motion to supplement were denied as barred by the statute of limitations, he failed to exhaust his state court remedies ( Dkt. No. 12 at P. 6). However, the issue of whether a party ultimately prevailed in the appellate process is separate and distinct from the issue of whether a habeas petitioner has exhausted his state remedies.
Summary judgment may only be granted when the moving party carries its burden of showing the absence of a genuine issue of material fact. Fed.R.Civ.P. 56; Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990) (citations omitted); U.S. v. Aiello, 814 F.2d 109, 113-14(2d Cir. 1987) (applying standard in context of habeas petition brought pursuant to 28 U.S.C. § 2255). "Ambiguities or inferences to be drawn from the facts must be viewed in the light most favorable to the party opposing the summary judgment motion." Id. Where the non-moving party is proceeding pro se, the court must afford him special solicitude. Maguire v. Coughlin, 901 F. Supp. 101, 104 (N.D.N.Y. 1995) (McAvoy, C.J.). Since the only evidence before this court establishes that Jenkins exhausted his state court remedies as to the claims raised in his petition, the present motion for summary judgment should be denied. However, as noted above in N.7, it is possible that a complete state court record relating to Jenkins' state-court appeals might reveal that Jenkins did not fairly present his federal issues to the Appellate Division or the Court of Appeals. Thus, although the Court recommends that respondent's motion for summary judgment be denied as to the issue of exhaustion, it does so without prejudice to the respondent asserting this defense in his answer and response in opposition to the petition.
A petitioner satisfies the exhaustion requirement relating to an Article 78 petition where he seeks leave to appeal denial of that application from the Court of Appeals. Rossney v. Travis, OOCIV.4562, 2003 WL 135692, at *5 (S.D.N.Y. Jan. 17, 2003).
WHEREFORE, based upon the above, it is hereby
RECOMMENDED, that respondent's motion for summary judgment ( DM. No. 10) be DENIED WITHOUT PREJUDICE; and it is further ORDERED, that the respondent file a formal response to the petition, and provide the court with all of the relevant state court records relating to Jenkins' Article 78 petition, within FORTY-FIVE (45) DAYS from the date of the district judge's order denying respondent's motion for summary judgment; and it is further
As noted above, if the state court records support such an argument, the respondent may assert in his response in opposition to the petition a renewed argument that Jenkins has not exhausted his state court remedies.
ORDERED, that the Clerk of Court serve a copy of this Report-Recommendation and Order on the parties by regular mail.
NOTICE: pursuant to 28 U.S.C. § 636(b)(1), the parties have TEN (10) DAYS within which to file written objections to the foregoing report-recommendation. Any objections shall be filed with the clerk of the court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e)and 72.
IT IS SO ORDERED.