Opinion
9:21-cv-0473 (MAD/TWD)
05-08-2024
RANDOLPH CHASE, Petitioner, v. JULIE WOLCOTT, Respondent.
RANDOLPH CHASE Petitioner, pro se HON. LETITIA JAMES PAUL B. LYONS, ESQ. New York State Attorney General Attorney for Defendants
RANDOLPH CHASE Petitioner, pro se
HON. LETITIA JAMES PAUL B. LYONS, ESQ. New York State Attorney General Attorney for Defendants
REPORT-RECOMMENDATION AND ORDER
THERESE WILEY DANCKS, United States Magistrate Judge
I. INTRODUCTION
Pro se petitioner Randolph Chase (“Petitioner”) filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging a Tier III disciplinary hearing and resulting imposition of sanctions which occurred while he was incarcerated at Cayuga Correctional Facility (“Cayuga”). See generally, Dkt. No. 1. For the reasons set forth below, the Court recommends the petition be denied and dismissed.
II. BACKGROUND
On or about October 3, 2019, Petitioner was transferred from Woodbourne Correctional Facility to Cayuga. Dkt. No. 1 at 2. On October 16, 2019, a corrections officer conducted a search of Plaintiff's cell and confiscated a “piece of mental can lid with melted black plastic as a handle ....” Id. at 22. The officer issued a misbehavior report charging Petitioner with possessing a weapon, contraband, and an altered item. Id. at 26.
Citations to the parties' submissions will refer to the pagination generated by CM/ECF, the Court's electronic filing system. Unless otherwise indicated, excerpts from the record are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar have not been corrected.
A Tier III disciplinary hearing on the charges occurred from October 21-26, 2019, at Cayuga. See generally, Dkt. No. 24-1 at 57-99. As relevant here, Petitioner pleaded not guilty to the three charges, id. at 61, but the hearing officer found Petitioner guilty of possessing a weapon and imposed a sanction of 90 days in the SHU, 90 days' loss of various privileges, and loss of two months of good time credits, id. at 94-95.
Petitioner filed an Article 78 petition in Albany County Supreme Court, wherein he argued: (1) the hearing officer was not an impartial factfinder; (2) the misbehavior report contained inaccurate information; (3) he was improperly denied the right to be present for the search of his cell; and (4) the confidential information which prompted the search of his cell was manufactured. See id. at 1-41. The People subsequently filed an answer. See id. at 42-159. Petitioner purported to “reject” the People's answer as deficient in a reply letter. See id. at 160.
On January 19, 2021, Acting Supreme Court Justice George R. Bartlett, III dismissed the petition. See id. at 162-68. The court concluded Petitioner's claim concerning the hearing officer was without merit; Petitioner was not prejudiced by any errors in the misbehavior report, which provided him with sufficient information to prepare a defense; Petitioner had no right to be present for the search; and he was not prejudiced by not having access to any confidential informant. Id. at 165-67. The Decision/Order was entered in the Office of the County Clerk on February 11, 2021. See id. at 170, 172. An employee of the New York Attorney General's office served a copy of the Decision and Order on Petitioner by mail on February 25, 2021. Id. at 171. Petitioner did not appeal Supreme Court's denial of his Article 78 petition.
In a letter dated March 24, 2021, Supreme Court acknowledged a “Notice of Motion seeking Respondent to serve a verified answer with certified transcript . . . filed on November 25, 2020 . . . .” Dkt. No. 24-2 at 1. Because the petition had already been decided, Acting Justice Bartlett denied the motion as moot. Id.
Petitioner, then incarcerated at Orleans Correctional Facility, filed a petition for habeas corpus relief in the United States District Court for the Western District of New York by depositing it into a prison mailbox on March 11, 2021. See Dkt. No. 1 at 1, 45. On April 26, 2021, the case was transferred to the United States District Court for the Northern District of New York, Dkt. No. 5, and the undersigned subsequently ordered the Respondent to file and serve an answer, Dkt. No. 8.
On September 16, 2021, Respondent requested permission to limit its answer to the question of exhaustion asserting Petitioner failed to appeal Supreme Court's denial of his Article 78 petition to the Appellate Division, Third Department, as required to properly exhaust his claims. Dkt. No. 18 at 2-3. The Court granted Respondent's request on September 21, 2021. Dkt. No. 19 at 5.
Respondent filed an answer, supporting memoranda, and state court records. Dkt. Nos. 22, 23, 24. Petitioner then filed a traverse on February 22, 2022. Dkt. No. 36. Finally, the Court takes judicial notice of New York Department of Corrections and Community Supervision public administrative records revealing Petitioner was conditionally released to parole supervision on November 14, 2022. See https://nysdoccslookup.doccs.ny.gov/ (site last visited Apr. 26, 2024).
See also, e.g., Gifford v. Thoms, No. 9:19-CV-0194 (GLS/DJS), 2020 WL 5822102, at *6 (N.D.N.Y. Sept. 11, 2020) (taking notice of the petitioner's parole status using the DOCCS Inmate Lookup and noting, in light of the petitioner's release to parole, he was no longer in the respondent's custody, but treating the respondent as properly named), report and recommendation adopted, 2020 WL 5821609 (N.D.N.Y. Sept. 30, 2020).
III. PETITION
Petitioner's contentions in the instant petition are indistinguishable from his claims in the Article 78 proceeding before Albany County Supreme Court. Compare Dkt. No. 1 at 8-19, with Dkt. No. 24-1 at 10-21. Respondent avers Petitioner's claims are unexhausted, procedurally defaulted, and, in any event, are plainly meritless. See Dkt. No. 23 at 2; Dkt. No. 22 at 9-18. In his traverse, Petitioner asserts he was not served with the notice of entry of Albany County Supreme Court's decision denying his Article 78 petition, therefore, he was “deprived of the right to appeal the void judgment.” Dkt. No. 36 at 4.
While Petitioner is no longer housed at a DOCCS facility, his parole supervision satisfies §2254(a)'s “in custody” requirement. Earley v. Murray, 451 F.3d 71, 75 (2d Cir. 2006) (citing Jones v. Cunningham, 371 U.S. 236, 240-43 (1963)).
As an initial matter, the Court notes Plaintiff has not filed a change of address following his release to parole supervision in November of 2022. Therefore, as a result of Petitioner's failure to communicate with the Clerk's office, the Court does not have his current address on file. Local Rule 10.1(c)(2) provides:
In his most recent filing, dated June 17, 2022, Petitioner listed “Orleans Corr. Facility . . . ” as his address. See Dkt. No. 37 at 1.
All attorneys of record and Pro se litigants must immediately notify the Court of any change of address and telephone number. Parties must file the notice of change of address with the Clerk and serve the same on all other parties to the action. The notice must identify each and every action to which the notice shall apply.
Further, Local Rule 41.2(b) states “[f]ailure to notify the Court of a change of address by counsel or pro se litigant within 14 days of a chance in accordance with L.R. 10.1(c)(2) may result in dismissal of any pending action.” Additionally, in this Court's May 24, 2021, Decision and Order, the undersigned ordered “Petitioner must also promptly notify the Clerk's Office and all parties or their counsel of any change in his address. His failure to do so will result in the dismissal of this action.” Dkt. No. 8 at 5.
Courts in this district have dismissed actions, including habeas petitions, due to litigants' failure to abide by Local Rules or orders related to address changes. See Williams v. Lilley, No. 9:20-CV-0999 (TJM/ML), 2023 WL 10365043, at *2 (N.D.N.Y. Aug. 8, 2023) (collecting cases), report and recommendation adopted, 2024 WL 637422 (N.D.N.Y. Feb. 15, 2024). Accordingly, it would be an appropriate exercise of discretion to dismiss the instant petition. See, e.g., Shortell v. Kickbush, No. 9:20-CV-0062 (GLS/DJS), 2021 WL 3856738, at *2 (N.D.N.Y. Aug. 30, 2021). However, giving due consideration to the Pro se Petitioner's right to due process, and as all required pleadings have already been filed, the undersigned will consider the parties' arguments.
An application for a writ of habeas corpus may not be granted until a petitioner has exhausted all remedies available in state court unless “there is an absence of available State corrective process; or . . . circumstances exist that render such process ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B)(ii)-(iii). A petitioner must exhaust his claims both procedurally and substantively.
Procedural exhaustion requires that a petitioner raise all claims in state court prior to raising them in the habeas corpus petition. In other words, “state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Substantive exhaustion requires a petitioner to “‘fairly present' his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citing Duncan v. Henry, 513 U.S. 364, 365 (1995)).
“Under New York law, the proper way to challenge the loss of good time credits is the commencement of an Article 78 proceeding and exhaustion of that proceeding in the state courts.” Kevilly v. Connell, No. 9:09-CV-0270 (GLS), 2009 WL 2868219, at *4 (N.D.N.Y. Aug. 31, 2009) (citing Van Gorder v. Boucaud, No. 9:08-CV-0442 (NAM/DEP), 2008 WL 2858678, *1 (N.D.N.Y. Jul. 22, 2008)) (additional citations omitted); see also Abreu v. Lempke, No. 9:11-CV-0839 (LEK/CFH), 2013 WL 3475304, at *8 (N.D.N.Y. July 10, 2013) (“In New York, a challenge to a prison disciplinary disposition must be made through an Article 78 petition, ordinarily in state supreme court.”) (citing N.Y. CPLR § 7802(b)) (additional citations omitted).
To the extent Petitioner challenges the hearing officer's imposition of other sanctions, namely the 90 days in the SHU and loss of recreation, packages, commissary, and phone privileges, see Dkt. No. 24-1 at 95, such claims are not cognizable on federal habeas review. See Urena v. Annucci, No. 7:17-CV-2835, 2019 WL 10947148, at *4 (S.D.N.Y. Sept. 25, 2019) (explaining “challenges to the validity of prison administrative determinations and penalties that affect the fact or duration of a prisoner's confinement may be properly brought pursuant to 28 U.S.C. § 2254 ....By contrast, where a petitioner is challenging actions that affect solely the conditions of his confinement, not the fact or duration, such claims are properly brought pursuant to U.S.C. § 1983.”) (citing Peralta v. Vasquez, 467 F.3d 98, 102 (2d Cir. 2006); Homen v. Hasty, 229 F.Supp.2d 290, 295 (S.D.N.Y. 2002)) (additional citations omitted, emphasis in original), report and recommendation adopted, 2020 WL 6275020 (S.D.N.Y. Oct. 23, 2020); see also Edwards v. Goord, 362 Fed.Appx. 195, 197 (2d Cir. 2010) (explaining “the Supreme Court has held that a prisoner has a protected liberty interest in an award of good time credits when the applicable state statutory scheme provides that credits, once awarded, may only be revoked under specific circumstances,” therefore, “the arbitrary revocation of previously awarded good time credits runs afoul of the Fourteenth Amendment's guarantee of due process.”) (citing Wolff v. McDonnell, 418 U.S. 539, 556-58 (1974); Sandin v. Conner, 515 U.S. 472, 483-84 (1995)).
To properly exhaust his claims, a petitioner must appeal the adverse determination on his Article 78 proceeding to the Appellate Division and then the Court of Appeals. See Abreu, 2013 WL 3475304, at *8 (finding several of the petitioner's claims were “unexhausted as those claims were never raised before the Court of Appeals.”).
“[P]etitioners must appeal an adverse Article 78 determination within thirty days after being served with a copy of the judgment.” Scales v. New York State Div. of Parole, 396 F.Supp.2d 423, 429 (S.D.N.Y. 2005) (citing C.P.L.R. § 5513(a)-(b)); see also, e.g., Smith v. Smith, No. 9:17-CV-0258 (DNH), 2018 WL 557877, at *7 (N.D.N.Y. Jan. 22, 2018). Here, Petitioner did not timely appeal the Decision/Order dismissing his Article 78 proceeding.
An affidavit of service indicates Petitioner was served Supreme Court's Decision/Order along with the Notice of Entry on February 25, 2021. See Dkt. No. 24-1 at 171. Petitioner appears to claim he was not able to appeal Supreme Court's adverse judgment because he was not served, see Dkt. No. 36 at 4, yet a true copy of the Decision/Order entered February 11, 2021, is included in the instant petition, which Petitioner filed by prison mailbox on March 11, 2021, see Dkt. No. 1 at 45. Given that Petitioner was indisputably in possession of the judgment, his contention that he “was deprived of his right to appeal based upon no judgement being served or entered” thus rendering the state court proceedings “ineffective,” see Dkt. No. 1 at 1, is meritless.
See Dkt. No. 1 at 38-44.
Where a petitioner has “failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred, the federal habeas court should consider the claim[s] to be procedurally defaulted.” Clark v. Perez, 510 F.3d 382, 390 (2d Cir. 2008) (citing Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991)). Here, the 30-day time period for Petitioner to appeal Albany County Supreme Court's dismissal of his Article 78 proceeding has lapsed, therefore, he could not present his claims to the Appellate Division. See C.P.L.R. § 5513(a)-(b); Scales, 396 F.Supp.2d at 429. Nor could Petitioner file a new Article 78 proceeding challenging the disciplinary hearing outcome at issue in this matter as the four-month limitations period to do so has similarly expired. See N.Y. C.P.L.R. § 217 (“Unless a shorter time is provided in the law authorizing the proceeding, a proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner ....”); see also Perry v. Woods, No. 1:07-CV-0341, 2007 WL 2973585, at *3 (E.D.N.Y. Oct. 9, 2007) (“The state courts strictly and regularly apply the fourmonth limitation provision of Article 78 to proceedings seeking restoration of good time.”) (citations omitted).
Because a state court would find Plaintiff's claims procedurally barred, those claims are procedurally defaulted for federal habeas purposes. “That procedural default can only be cured by a showing of cause for the default plus prejudice, or a showing of actual innocence.” Aparicio v. Artuz, 269 F.3d 78, 91 (2d Cir. 2001) (citing Coleman, 501 U.S. at 748-49). Here, Petitioner has not alleged, much less established, either some external factor caused the procedural default of his claims and prejudice resulted, or that he is actually innocent. See generally, Dkt. No. 36. Accordingly, Petitioner's claims are procedurally defaulted and the petition should be dismissed. See, e.g., Benjamin v. Taylor, No. 9:05-CV-0902 (LEK/DEP), 2007 WL 2789454, at *6 (N.D.N.Y. Sept. 24, 2007) (concluding the petitioner's claims were procedurally barred and dismissing the petition where the petitioner failed to appeal his Article 78 petition to the New York Court of Appeals).
V. CONCLUSION
WHEREFORE, it is hereby
RECOMMENDED that the petition, Dkt. No. 1, be DENIED and DISMISSED in its entirety; and it is further
RECOMMENDED that no Certificate of Appealability (“COA”) shall issue because reasonable jurists would not find it debatable that Petitioner has failed to offer a substantial showing that he was denied a constitutional right. See 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
ORDERED that the Clerk shall serve a copy of this Report-Recommendation and Order on Petitioner, along with copies of unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
ORDERED that the Clerk serve a copy of the Report-Recommendation on the parties. Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW . Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72.
IT IS SO ORDERED.