Opinion
Civil Action No. 9:11-CV-1112 (DNH/DEP)
03-23-2015
DAVID McCULLOUGH, Petitioner, v. NYS DIVISION OF PAROLE, Respondent.
APPEARANCES: FOR PETITIONER: DAVID McCULLOUGH, Pro Se 2500 South Salina St Syracuse, NY 13205 FOR RESPONDENT: HON. ERIC T. SCHNEIDERMAN New York State Attorney General 120 Broadway New York, NY 10271 THOMAS B. LITSKY, ESQ. Assistant Attorney General
APPEARANCES: FOR PETITIONER: DAVID McCULLOUGH, Pro Se
2500 South Salina St
Syracuse, NY 13205
FOR RESPONDENT: HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
120 Broadway
New York, NY 10271
THOMAS B. LITSKY, ESQ.
Assistant Attorney General
DAVID E. PEEBLES U.S. MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
Pro se petitioner David McCullough, a New York State prisoner, has commenced this proceeding pursuant to 28 U.S.C. § 2254 seeking habeas relief. McCullough's petition centers upon a parole revocation proceeding that resulted in an additional two-year period of incarceration, following his initial release on parole. McCullough contends that during the revocation hearing, he was deprived of the effective assistance of counsel and his due process rights were violated.
At the time McCullough filed his petition, he was released from the custody of the New York State Department of Corrections and Community Supervision ("DOCCS") on parole. Dkt. No. 1 at 1. According to publicly available information, however, petitioner is currently in DOCCS custody once again. DOCCS Inmate Information, http://nysdoccslookup.doccs.ny.gov/GCA00P00/WIQ3/WINQ130 (last visited Mar.23, 2015).
In opposition to the petition, the respondent, the New York State Division of Parole, argues that (1) McCullough has forfeited the right to pursue either ground based upon his failure to exhaust those claims by first presenting them to the highest court in New York State, and is now procedurally barred from raising his claims in state court; and (2) all of petitioner's claims lack merit. For the reasons set forth below, I concur on both counts and recommend that McCullough's petition be dismissed.
I. BACKGROUN
Following a jury trial in Onondaga County, petitioner was convicted in 1995 of rape, sodomy, unlawful imprisonment, and assault. Dkt. No. 12-1 at 61-62. As a result of his criminal history, which included prior felony convictions, petitioner was sentenced to concurrent prison terms of between ten and twenty years on the rape and sodomy charges, and one year each with respect to the unlawful imprisonment and assault counts. Id. Following a remand for an evidentiary hearing to address issues raised by the petitioner, McCullough's conviction was affirmed on appeal, and leave to appeal was subsequently denied by the New York State Court of Appeals, both initially and on request for reconsideration. See People v. McCullough, 248 A.D.2d 938 (4th Dep't 1998), aff'd following remand, People v. McCullough, 254 A.D.2d 750 (4th Dep't 1998), lv. denied, 92 N.Y.2d 1035 (1998), reconsideration denied, 92 N.Y.2d 1035 (1998). An application for a writ of error coram nobis was subsequently denied by the New York State Supreme Court, Fourth Department. People v. McCullough, 261 A.D.2d 975 (4th Dep't 1999), lv. to appeal dismissed, 93 N.Y.2d 1004 (1999).
The court appreciates that the pertinent state court records submitted by respondent's counsel have been indexed and paginated for ease of reference.
A subsequent petition to this court for a writ of habeas corpus in connection with that conviction was initially granted. McCullough v. Bennett, 317 F. Supp. 2d 112 (N.D.N.Y. 2003) (Hurd, J.). That determination, however, was reversed on appeal. McCullough v. Bennett, 143 F. App'x 379 (2d Cir. 2005), cert. denied, 546 U.S. 1079 (2005), reh'g denied, 546 U.S. 1211 (2006).
McCullough was released to parole supervision on April 28, 2009. Dkt. No. 12-1 at 65. Petitioner's release conditions included electronic monitoring and a requirement that he obtain permission before leaving Onondaga County or being out of his residence between 9:00 p.m. and 7:00 a.m. Id. at 69-70.
On May 13, 2009, petitioner was accused of committing four separate violations of those two conditions of supervised release. Id. at 65. After being served with the notice of violation, petitioner executed a written waiver of his right to a preliminary hearing concerning the charges on that same date. Dkt. No. 12-1 at 64. The Frank H. Hiscock Legal Aid Society ("Legal Aid") was subsequently assigned on May 20, 2009 to represent McCullough in the matter. Id. at 135. A notice of appearance on petitioner's behalf was filed by Lawrence J. Young, Esq., an attorney with Legal Aid, on May 22, 2009. Id. at 136. On that same date, Attorney Young corresponded by letter with the petitioner, informing him that he would be representing him in connection with the matter. Id. at 20.
On May 26, 2009, Parole Revocation Specialist Mary Hotaling forwarded a notice to petitioner's counsel advising that a parole revocation hearing in the matter had been scheduled for June 2, 2009. Dkt. No. 12-1 at 21. The hearing was subsequently convened on that date before Administrative Law Judge ("ALJ") Gerald Hamill. Id. at 22-32. During the hearing, ALJ Hamill established that petitioner had received a copy of the violation report and inquired as to whether petitioner's counsel had received adequate notice of the hearing, to which he replied, "Yes, I did." Id. at 25. ALJ Hamill then asked petitioner's counsel, "Are there any issues outstanding as to the notice?", and counsel responded, "There are not." Id. After confirming that Attorney Young had advised petitioner concerning his rights and available options, ALJ Hamill placed on the record an agreement that was reached between the Division of Parole and petitioner, whereby, in return for McCullough's guilty plea, the ALJ would recommend that the parole board impose a twenty-four month period of incarceration as a sanction for the violations. Id. at 25, 26-27. Based upon that agreement, petitioner entered a plea of guilty to two of the four counts charged in the violation notice. Id. at 28. After acknowledging he had made "bad decisions" and needed "to be able to do the right thing by following the rules and regulations of parole," petitioner was advised of the ALJ's recommendation that he receive a "time assessment" of twenty-four months, and counts one and three of the violation notice were dismissed. Id. at 28-30.
II. PROCEDURAL HISTORY
A. State Court Proceedings
On November 1, 2009, petitioner, acting pro se, filed a petition seeking a writ of habeas corpus pursuant to New York Civil Practice Law and Rules ("CPLR") Article 70 in New York State Supreme Court, Orleans County, challenging certain aspects of the parole revocation hearing. Dkt. No. 12-1 at 13-18. In support of his application for state court habeas relief, McCullough argued that he was not provided with at least fourteen days' notice of the revocation hearing, as required by N.Y. Executive Law § 259-i(f)(iii), and that he received ineffective assistance of counsel in connection with his revocation hearing. Id. Specifically, in that petition McCullough argued that Attorney Young (1) never visited him to discuss the violation charges, (2) spoke only briefly with him prior to commencement of the hearing, (3) did not argue for or suggest a twelve-month assessment, and (4) failed to object to the untimely hearing notice. Id. at 16. McCullough's state court habeas petition was denied by Acting Supreme Court Justice James P. Punch on February 18, 2010. Dkt. No. 12-1 at 7-12. In his decision, Justice Punch rejected both claims and specifically found that the petitioner's counsel had provided adequate representation and had sufficient time to prepare for the hearing. Id. at 11-12. That determination was upheld on appeal to the New York State Supreme Court Appellate Division, Fourth Department, on March 25, 2011. See People ex rel. McCullough v. N.Y. State Div. of Parole, 82 A.D.3d 1640 (4th Dep't 2011). In its decision, the Fourth Department concluded that petitioner had waived any issue concerning the allegedly untimely notice of the revocation hearing and his ineffective assistance of counsel claim could not be raised in an Article 70 proceeding, and the court declined to convert the petition to one seeking relief under Article 78 of the CPLR. People ex rel. McCullough, 82 A.3d at 1640. Leave to appeal to the New York Court of Appeals was subsequently denied. People ex rel. McCullough v. N.Y. State Div. of Parole, 17 N.Y.3d 704 (2011).
Petitioner was represented by counsel in connection with both his appeal to the Fourth Department and his subsequent efforts to obtain leave to appeal to the New York Court of Appeals.
B. Proceedings Before This Court
Petitioner commenced this proceeding on September 20, 2011. Dkt. No. 1. In his petition, McCullough asserts two grounds for relief, including (1) ineffective assistance of counsel based upon the fact that his attorney did not meet with him until twenty minutes before the scheduled revocation hearing, had no strategy or plan, failed to return his telephone calls or visit him to discuss the case, and did not object to the late hearing notice; and (2) violation of due process based upon the untimely notice. Id. at 4. The petition, which sets forth the grounds in only summary terms, was not augmented by a legal memorandum or briefing providing further elaboration regarding those claims. See generally id. Respondent has since answered the petition, arguing that petitioner's claims are forfeited based upon his failure to properly present them to the state courts and the fact that he is now precluded from doing so, and additionally arguing that the claims lack merit. See generally Dkt. No. 11. McCullough's petition, which is now ripe for determination, has been referred to me for the issuance of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed. R. Civ. P. 72(b).
III. DISCUSSION
A. Exhaustion
Before addressing the merits of petitioner's two habeas claims, the court must first determine whether he is procedurally barred from raising them, as respondent argues, based on his failure to present them to the state courts for determination.
Prior to seeking federal habeas relief, a petitioner must exhaust available state remedies or establish either an absence of available state remedies or that such remedies cannot adequately protect his rights. Aparicio v. Artuz, 269 F.3d 78, 89 (2d Cir. 2001) (quoting 28 U.S.C. § 2254(b)(1)); Ellman v. Davis, 42 F.3d 144, 147 (2d Cir. 1994), cert. denied, 515 U.S. 1118, 115 S.Ct. 2269 (1995). The exhaustion doctrine recognizes "respect for our dual judicial system and concern for harmonious relations between the two adjudicatory institutions." Daye v. Attorney Gen. of N.Y., 696 F.2d 186, 191 (2d Cir. 1982); see also Galdamez v. Keane, 394 F.3d 68, 72 (2d Cir. 2005) ("Comity concerns lie at the core of the exhaustion requirement."). 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. Galdamez, 394 F.3d at 72 (citing O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999)). "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." Daye, 696 F.2d at 192 (footnote omitted).
This exhaustion requirement is satisfied if the federal claim has been "'fairly present[ed]'" to the state court. Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)). A claim has been "fairly presented" if the state court was apprised of "both the factual and the legal premises of the claim [the petitioner] asserts in federal court." Daye, 696 F.2d at 191. Thus, "the nature or presentation of the claim must have been likely to alert the court to the claim's federal nature." Id. at 192.
Like petitions challenging criminal convictions, those addressing parole revocations are subject to this exhaustion requirement. Blanchard v. West, No. 04-CV-1492, 2008 29429 2949388, at *3 (N.D.N.Y. July 30, 2008) (Sharpe, J., adopting report and recommendation by Treece, M.J.); Scales v. N.Y. State Div. of Parole, 396 F. Supp. 2d 423, 428 (S.D.N.Y. 2005). The typical path for exhausting a claim concerning a petitioner's parole revocation proceeding includes both completion of the internal, administrative appeal process within the Division of Parole and, in the event of an adverse determination, commencement of a CPLR Article 78 proceeding. Blanchard, 2008 WL 2949388, at *3; Scales, 396 F. Supp. 2d at 428. Alternatively, a parolee may exhaust a constitutional claim by commencing a state court habeas corpus proceeding pursuant to Article 70 of the CPLR. Hall v. N.Y. State Div. of Parole, No. 99-CV-11317, 2000 WL 33952256, at *4 (S.D.N.Y. Nov. 29, 2000).
Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.
In this instance, petitioner's ineffective assistance of counsel claim is unexhausted because it was not presented to a court in a manner under which it could have been addressed on the merits - that is, by way of an Article 78 petition. Under New York law, it is well established, as the Fourth Department held in this instance, that Article 70 does not provide relief based upon an alleged denial of effective assistance of counsel in the context of a parole revocation hearing. People ex rel. McCullough v. N. Y. State Div. of Parole, 82 A.D.3d 1640, 1640 (4th Dep't 2011); see also People ex rel. Santoro v. Hollins, 273 A.D.2d 829 (4th Dep't. 2000); People ex rel. Dell v. Walker, 186 A.D.2d 1043, 1043-44 (4th Dep't 1992). Petitioner has therefore failed to exhaust his ineffective assistance of counsel claim.
Respondent also argues that the ineffective assistance of counsel claim is unexhausted because petitioner did not parse out and present to the New York courts the portions of his claim that rely on his attorney's failure to meet with him before the hearing and object to the allegedly inadequate notice of the proceeding, thereby alerting the state courts of the constitutional basis of his claim. Dkt. No. 11 at 9-10. Although petitioner presented his ineffective assistance of counsel claim to the state courts by citing state law, it is well settled that the state and federal standards governing such a claim are materially different. Cornell v. Kirkpatrick, 665 F.3d 369, 376 (2d Cir. 2011). Accordingly, petitioner did not fairly present this claim to the state courts, thereby providing an additional ground upon which the court could conclude that petitioner's ineffective assistance of counsel claim was never fairly presented to the state courts prior to commencement of this proceeding. See Cornell, 665 F.3d at 376 ("[A petitioner]'s mere mention of 'ineffective assistance of counsel' in a filing in the Appellate Division, without more, is insufficient to alert the New York courts to the possible federal basis of that claim.").
Petitioner's due process claim is similarly unexhausted. There is nothing in petitioner's state-court briefs suggesting that, by referencing the concept of due process, he intended to set forth a constitutional basis for his claim, especially in light of his reliance on New York Executive Law § 259. Dkt. No. 12-2 at 15-18. The mere incantation of the phrase "due process" is insufficient to give rise to a finding that the state courts were placed on notice that petitioner intended to advance a federal constitutional claim. See Grady v. LeFevre, 846 F.2d 862, 864 (2d Cir. 1988) (finding that the mere reference to "constitutional rights" did not alert the state court to a confrontation clause issue); Petrucelli v. Coombe, 735 F.3d 684, 688 (2d Cir. 1984) ("[A] mere statement that 'due process' rights have been violated does not necessarily give rise to a specific federal constitutional claim. 'Due process,' like 'fair trial,' can be a catchphrase used by habeas petitioners as part of an allegation about any type of trial court error, including errors in rulings based on state law.").
While the petitioner has failed to exhaust both of the claims now before this court, it is clear that he is no longer in a position to do so and his claims therefore should be considered to have been both exhausted and procedurally defaulted. See Aparicio, 269 F.3d at 90 ("When a claim has never been presented to a state court, a federal court may theoretically find that there is an absence of available State corrective process under § 2254(b)(1)(B)(i) if it is clear that the unexhausted claim is procedurally barred by state law and, as such, its presentation in the state forum would be futile."). The dismissal of petitioner's Article 70 state court habeas petition was the subject of both an appeal to the Appellate Division and an application for leave to appeal to the New York Court of Appeals, and he is now foreclosed from further state court appeals with regard to that petition. Id. at 91. While it is true that petitioner could have presented at least certain portions of his ineffective assistance of counsel claim in an Article 78 proceeding, he is now precluded from doing so because the time for the commencing such a proceeding is four months from the date of the accrual of the claim, a deadline that has long since passed. 9 N.Y.C.R.R. § 8006.2(a); see also Matter of Sumpter v. Supreme Court of Bronx Cnty., 76 A. D.3d 1155, 1156 (3d Dep't 2010) (dismissing the petitioner's request for a writ of habeas corpus because he failed to perfect his administrative appeal).
Based upon petitioner's procedural default, this court may not engage in habeas review of his claims unless he demonstrates either (1) good cause for and actual prejudice resulting from his procedural default, or (2) that "he is actually innocent." Bousley v. United States, 523 U.S. 614, 622 (1998); accord, Clark v. Perez, 510 F.3d 382, 393 (2d Cir. 2008). To establish "cause" sufficient to excuse a procedural default, a petitioner must show that some objective external factor impeded his ability to comply with the relevant procedural rule. Coleman v. Thompson, 501 U.S. 722, 753 (1991) (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)). Examples of such external mitigating circumstances can include ineffective assistance of counsel, "a showing that the factual or legal basis for a claim was not reasonably available to counsel, or that some interference by officials made compliance impracticable." Murray, 477 U.S. at 488 (quotation marks and citations omitted); Coleman, 501 U.S. at 753. When a petitioner has failed to establish adequate cause for his procedural default, the court need not proceed to examine the issue of prejudice because federal habeas relief is generally unavailable as to procedurally defaulted claims unless both cause and prejudice are demonstrated. Stepney v. Lopes, 760 F.2d 40, 45 (2d Cir. 1985); accord, Long v. Lord, No. 03-CV-0461, 2006 WL 1977435, at *6 (N.D.N.Y. March 21, 2006) (McCurn, J.).
Because petitioner in this case has not claimed actual innocence and there is nothing before me to suggest that this exception applies, I have not addressed it in this report. See Clark, 510 F.3d at 393 (addressing cause and prejudice because "actual innocence [was] not in issue").
It should be noted, however, that "[a]ttorney ignorance or inadvertence is not 'cause' because the attorney is the petitioner's agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must 'bear the risk of attorney error.'" Coleman, 501 U.S. at 753 (quoting Murray, 477 U.S. at 488).
In this case, petitioner has failed to establish adequate cause for his procedural default, thereby obviating the need to examine the issue of prejudice. Accordingly, I recommend a finding that petitioner has procedurally forfeited the right to pursue both of the claims set forth in his petition.
Notwithstanding this recommendation, I have addressed the merits of petitioner's contentions out of an abundance of caution.
B. AEDPA Standard of Review on the Merits
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant habeas corpus relief with respect to a claim adjudicated on the merits in state court only if, based upon the record before the state court, the adjudication of the claim (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 proceeding. Cullen v. Pinholster, --- U.S. ----, 131 S. Ct. 1388, 1398, 1400 (2011) (citing 28 U.S.C. § 2254(d)); Premo v. Moore, --- U.S. ----, 131 S. Ct. 733, 739 (2011); Thibodeau v. Portuondo, 486 F.3d 61 (2d Cir. 2007) (Sotomayor, J.). The AEDPA "'imposes a highly deferential standard for evaluating state-court rulings' and 'demands that state-court decisions be given the benefit of the doubt.'" Felkner v. Jackson, --- U.S. ----, 131 S. Ct. 1305, 1307 (2011) (per curiam) (quoting Renico v. Lett, 559 U.S. 766, 773 (2010)); accord, Cullen, 131 S. Ct. at 1398. Federal habeas courts must presume that the state court's factual findings are correct "unless applicants rebut this presumption with 'clear and convincing evidence.'" Schriro v. Landrigan, 550 U.S. 465, 473-74 (2007) (quoting § 2254(e)(1)); see also Boyette v. Lefevre, 246 F.3d 76, 88 (2d Cir. 2001). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable - a substantially higher threshold." Schriro, 550 U.S. at 473 (citing Williams v. Taylor, 529 U.S. 362, 410 (2000)).
As required by section 2254, on federal habeas review, a court may only consider claims that have been adjudicated on the merits by the state courts. 28 U.S.C. § 2254(d); Cullen, 131 S. Ct. at 1398; Wash. v. Schriver, 255 F.3d 45, 52-55 (2d Cir. 2001). The Second Circuit has held that, when a state court adjudicates a claim on the merits, "a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim - even if the state court does not explicitly refer to either the federal claim or to relevant federal case law." Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001).
C. Ineffective Assistance of Counsel
In his first habeas claim, McCullough argues that he did not receive effective assistance of counsel from Attorney Young, the attorney assigned to represent him at the revocation hearing. Dkt. No. 1 at 4.
1. Clearly Established Supreme Court Precedent
Under the well-established standard governing ineffective assistance of counsel claims,
the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.Strickland v. Wash., 466 U.S. 668, 687 (1984); accord, Murden v. Artuz, 497 F.3d 178, 198 (2d Cir. 2007).
To be constitutionally deficient, the attorney's conduct must fall "outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690; accord, Rivas v. Fischer, --- F.3d ----, No. 13-2974, 2015 WL 1036047, at *15 (2d Cir. Mar. 11, 2015). An attorney's performance is judged against this standard in light of the totality of the circumstances and from the perspective of counsel at the time of trial, with every effort made to "eliminate the distorting effects of hindsight[.]" Strickland, 466 U.S. at 689; see also Rivas, 2015 WL 1036047, at *15 (noting the court's "scrutiny of counsel's performance must be 'highly deferential'" (quoting Strickland, 466 U.S. at 689)).
Addressing the second prong of the Strickland test, courts have generally held that prejudice is established by showing that there is a "reasonable probability" that, but for the attorney's deficient conduct, "the result of the proceeding would have been different." Strickland, 466 U.S. at 694; see also Murden, 497 F.3d at 198 ("Under Strickland, a defendant must show that . . . there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (quotation marks omitted))
2. State Court Determination
In his determination in connection with McCullough's state court habeas petition, Acting Supreme Court Justice James P. Punch concluded that petitioner's ineffective assistance of counsel claim was without merit because, based on his review of the plea agreement and statements made at the parole revocation hearing, petitioner's attorney provided "adequate representation." Dkt. No. 12-1 at 12.
3. Contrary to or Unreasonable Application of Controlling Supreme Court Precedent
As was discussed above, to establish the denial of effective assistance of counsel as guaranteed by the Constitution and judged according to the standard set forth in Strickland, a petitioner must show that his counsel's conduct fell below an objective standard of reasonableness, and that, but for they attorney's substandard performance, the outcome would have been different. Petitioner in this matter has made neither of these showings. Although it is true that New York Executive Law § 259-i(3)(f)(iii) provides that both the alleged parole violator and counsel "shall be given written notice of the date, place and time of the hearing . . . at least fourteen days prior to the scheduled date," a requirement that was not satisfied in this case, petitioner has failed to demonstrate how he was prejudiced by Attorney Young's failure to object to the untimely notice. As respondent argues, even assuming Attorney Young did interpose an objection on this ground, the appropriate remedy would have been adjournment of the hearing. See People ex rel. Smith v. N.Y. State Bd. of Parole, 131 A.D.2d 401, 403 (1st Dep't 1987) (finding that, where the petitioner was not provided adequate notice pursuant to Executive Law § 259-i, adjournment of the hearing was required, notwithstanding that the hearing would then have been deemed untimely). By regulation, final revocation hearings must be held within ninety days of a waiver of the preliminary hearing. 9 N.Y.C.R.R. § 8005.17(a). Because the preliminary waiver hearing occurred on May 13, 2009, a revocation hearing could have been adjourned until, at the latest, August 11, 2009. Petitioner has not demonstrated, or even suggested, how an adjournment would have produced a different result.
Similarly, petitioner has not demonstrated any prejudice with respect to his claim that Attorney Young attended the parole revocation hearing without a "strategy or plan." Dkt. No. 1 at 4. A review of the strategy employed by petitioner's counsel, encouraging McCullough to plead guilty, reveals no departure from the norm. With the assistance of Attorney Young, petitioner was able to enter into a plea bargain whereby the ALJ would recommend an additional two-year period of incarceration in exchange for petitioner's plea of guilty to the two charges accusing him of violating the parole restrictions concerning curfew and movement outside of Onondaga County. Dkt. No. 12-1 at 26-27. Given the nature of petitioner's underlying conviction and his prior criminal history, I am unable to conclude that the plea agreement was unreasonable or that Attorney Young's counseling petitioner to enter into that agreement was objectively unreasonable.
Petitioner has also failed to provide any indication as to an alternative strategy that could have been employed, had Attorney Young met with him prior to the day of the revocation hearing. As was discussed above, to prevail on his ineffective assistance of counsel claim, petitioner must demonstrate that a different result was attainable absent Attorney Young's conduct.
In sum, the state court's finding that petitioner was not denied effective assistance of counsel was neither contrary to nor an unreasonable application of the Supreme Court's Strickland standard.
D. Due Process Claim
The second claim raised by the petitioner asserts a deprivation of process, based upon the Division of Parole's failure to provide him with adequate notice of the revocation hearing. Dkt. No. 1 at 4.
1. Clearly Established Supreme Court Precedent
The Supreme Court has held that the Due Process Clause of the Fourteenth Amendment applies to the revocation of parole. Morrissey v. Brewer, 408 U.S. 471, 481-82 (1972); see also Greenholtz v. Inmates of the Neb. Penal & Corr. Complex, 442 U.S. 1, 9 (1979). Individuals in parole revocation proceedings, however, are not entitled to "the full panoply of rights" that are accorded in a criminal prosecution. Morrissey, 408 U.S. at 480 (citing Mempa v. Rhay, 389 U.S. 128 (1967)). Rather, given that the state has an "overwhelming" interest in being able to return parole violators to prison "without the burden of a new adversary criminal trial," the Due Process Clause merely requires that an "informal hearing" be held "to assure that the finding of a parole violation will be based on verified facts and that the exercise of discretion will be informed by an accurate knowledge of the parolee's behavior." Id. at 483-84. Thus, the Supreme Court has delineated the following "minimum requirements of due process" to include
(a) written notice of the claimed violations of parole;Id. at 489; accord, Calhoun v. N.Y. State Div. of Parole Officers, 999 F.2d 647, 652 (2d Cir.1993) (holding that the state may not revoke a person's parole without providing minimum due process protections which include "a preliminary probable cause hearing . . ., as well as a final revocation hearing, at which a parolee may present evidence and confront witnesses"). Morrissey represents the "clearly established Federal law" for purposes of federal habeas review. 28 U.S.C. § 2254(d)(1). Further, the Second Circuit has determined that the procedures set forth in New York Executive Law § 259-i generally satisfy due process. Calhoun, 999 F.2d at 652 (citing N.Y. Exec. Law § 259-i(3)(f)).
(b) disclosure to the parolee of evidence against him;
(c) opportunity to be heard in person and to present witnesses and documentary evidence;
(d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation);
(e) a 'neutral and detached' hearing body; and
(f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.
2. State Court Determination
In his decision in connection with McCullough's state court habeas petition, Acting Supreme Court Justice Punch found, in essence, that the question of whether petitioner's counsel received timely notice was "irrelevant" based upon statements by the attorney that he had in fact received adequate notice of the hearing and there were no outstanding issues concerning the notice. Dkt. No. 12-1 at 11-12. On appeal, the Fourth Department concluded that any argument regarding the alleged untimeliness of the revocation hearing notice was waived. People ex rel. McCullough, 82 A.D.3d at 1640.
3. Contrary to or Unreasonable Application of Controlling Supreme Court Precedent
In this case it is unnecessary to address the question of whether the state courts' determination regarding the due process claim was either contrary to or an unreasonable application of clearly established Supreme Court precedent. Regardless of whether the notice received by petitioner of his hearing was constitutionally adequate, petitioner waived any defect by his guilty plea during the revocation hearing. See Johnson v. Carlsen, No. 09-CV-0066, 2010 WL 1817343, at *7 (N.D.N.Y. Mar. 29, 2010) (Homer, M.J.), report and recommendation adopted by 2010 WL 1837779 (N.D.N.Y. May 5, 2010) (Suddaby, J.), (concluding that, even assuming the petitioner's constitutional rights were violated by an untimely final parole revocation hearing, the petitioner "waived all hearing defects by pleading guilty") (citing Tollett v. Henderson, 411 U.S. 258, 267 (1973); United States v. Coffin, 76 F.3d 494, 498 (2d Cir. 1996)). Absent a basis to conclude that the plea was not knowing and voluntary, Johnson, 2010 WL 1817343, at *7, - and none has been presented - McCullough's plea of guilty waived any claim that he was deprived of due process by the short notice of the revocation hearing. Having carefully reviewed the transcript of the revocation hearing and petitioner's plea allocution, I find no basis to conclude that his counselled plea was not knowing and voluntary. In this regard, it is worth noting that petitioner took full responsibility for the parole violations during the revocation hearing. Dkt. No. 12-1 at 28-29. Indeed, he admitted to making "bad decision[s]" and acknowledged his need to "follow[] the guidelines and regulations established by parole." Id. Accordingly, I recommend a finding that petitioner has waived his right to raise a due process claim with regard to the notice of the revocation hearing.
D. Certificate of Appealability
To appeal a final order denying a request for habeas relief by a state prisoner, a petitioner must obtain from the court a certificate of appealability ("COA"). 28 U.S.C. § 2253(c)(1)(A); see also Fed. R. App. P. 22(b)(1) ("[T]he applicant cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c)."). In the absence of a COA, a federal court of appeals lacks jurisdiction to entertain an appeal from the denial of a habeas petition. Hoffler v. Bezio, 726 F.3d 144, 152 (2d Cir. 2013). A COA may issue only "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); Hoffler, 726 F.3d at 154. A petitioner may demonstrate a "substantial showing" if "the issues are debatable among jurists of reason; . . . a court could resolve the issues in a different manner; or . . . the questions are adequate to deserve encouragement to proceed further." Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983) (quotation marks and alterations omitted); see also Slack v. McDaniel, 529 U.S. 473, 478 (2000) ("[A] COA should issue . . . if the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling."). In this instance, I conclude that the petitioner has not made a substantial showing of the denial of a constitutional right and therefore recommend against the issuance of a COA.
IV. SUMMARY AND RECOMMENDATION
Because the two claims raised by the petitioner in this matter are both unexhausted and procedurally barred based upon his failure to properly present those claims to the highest court in New York State prior to commencing this proceeding, they are subject to dismissal in this procedural basis. Addressing the merits, and applying the deferential standard required under the AEDPA, I conclude that petitioner has failed to establish a basis to conclude he received constitutionally deficient representation during the course of the revocation hearing, and further that, by his plea of guilty, he waived the procedural defects associated with the revocation hearing, including any claim of inadequacy of the notice provided to him. Accordingly, it is hereby respectfully
RECOMMENDED that the petition in this matter be DENIED and DISMISSED in all respects; and it is hereby further
RECOMMENDED, based upon my finding that McCullough has not made a "substantial showing of the denial of a constitutional right" pursuant to 28 U.S.C. § 2253(c)(2), that a certificate of appealability not issue with respect to any of the claims set forth in his petition.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules. Dated: March 23, 2015
Syracuse, New York
/s/_________
David E. Peebles
U.S. Magistrate Judge