Opinion
117681.
Decided October 18, 2004.
Petitioner has moved ex parte (without notice to other parties) for issuance of a statutory writ of habeas corpus, and for poor person status in connection with the application. Petitioner has filed two previous applications for issuance of a habeas corpus writ. The first was denied by Hon. Peter Feldstein, Acting Justice of Supreme Court, Franklin County, by order dated December 19, 2003. The second application was made to Hon. Robert Main, Judge of Franklin County Court, because petitioner is incarcerated at Upstate Correctional Facility in Franklin County. Judge Main granted poor person status based on a review of inmate assets, but denied the writ, in an order dated August 9, 2004, on the grounds that petitioner failed to demonstrate in his papers that he was illegally detained and entitled to immediate release from custody. Petitioner has now brought a third application for a writ, because this County Court is located in a county adjoining Franklin County, where petitioner is incarcerated. This procedure is authorized by CPLR 7002(b)(4).
As noted in Judge Main's order denying the second writ application, Mr. Trisvan filed a notice of appeal from Justice Feldstein's denial of the first application. However, this court has verified with the Appellate Division, Third Department that no appeal is pending there involving Mr. Trisvan.
Petitioner's inmate account balance sheet shows a spendable balance, as of October 5, 2004, in the amount of $87.94. Given that modest sum, and the result of this application discussed below, the application for poor person status is granted, and the payment of filing fees is waived, pursuant to CPLR 1101(d).
Petitioner is held in the custody of the Commissioner of the Department of Corrections, by reason of a commitment order issued on December 11, 1997 in Kings County Supreme Court, where petitioner was convicted of first degree manslaughter and was sentenced to an indeterminate term of 12 ½ to 25 years. Defendant's conviction was affirmed, since the court found that defendant's objections were either unpreserved or lacked merit. People v. Trisvan, 280 AD2d 563 (2nd Dept 2001). The Court of Appeals denied leave to appeal and on reconsideration sustained that decision in 2001.
In his present application petitioner raises various concerns, written in a 22-page hand-written narrative. Petitioner takes issue with the previous court rulings that he is not entitled to relief because he failed to show he is entitled to release from custody. Petitioner asserts that the habeas writ allows him to challenge the circumstances of his custody, and not merely the question whether he was lawfully held under a valid sentence. Petitioner's concerns in this application touch on the following areas:
alleged cruel and unusual punishment and maltreatment by DOCS employees relating to prison disciplinary infractions and punishment and alleged use of sprayed liquids on petitioner;
prison staff allegedly tormenting petitioner emotionally, causing him to contemplate suicide;
alleged continued torment when petitioner was committed to protective custody in response to claimed death threats from prison gang members;
claims that prison guards spread malicious gossip among the prison population, suggesting that petitioner was 'snitching' on others, and so exposing petitioner to the risk of harm from other inmates;
alleged use of racial epithets toward petitioner;
alleged physical assault by an officer;
allegedly improper and excessive disciplinary sanctions by prison authorities;
claimed failure of prison authorities to house petitioner separately from inmate enemies transferred from another prison.
Petitioner has supplemented his writ application with an 18-page hand-written supplemental petition. Each of the assertions in the supplemental petition relate to claimed errors before defendant's conviction. Those errors presumably should and could have been raised, or were raised, either in the appeal actually filed (and rejected) or in a CPL Article 440 motion addressed to Kings County Supreme Court. People ex rel. Murphy v. Kulman, 207 AD2d 937 (3rd Dept 1994), app. dismissed without opinion 85 NY2d 856 (1995); People ex rel. Thomas v. LeFevre, 102 AD2d 925 (3rd Dept 1984). See CPLR 7003(b).
CPLR 7003(a) states that "If it appears from the petition or the documents annexed thereto that the person is not illegally detained or that a court of the United States has exclusive jurisdiction to order him released, the writ shall be denied." While there is no issue as to exclusive jurisdiction of the federal courts in this case, it is clear that there is no illegal detention.
Petitioner attached to his papers, as he is required to do, a copy of the order of commitment from Kings County Supreme Court following his conviction and sentence.
Petitioner cites three cases to support his view that the habeas corpus writ may properly issue, even when a defendant is lawfully held in custody, if he can show that under the circumstances of his custody he is being wrongly deprived of a right to which he is entitled. Petitioner asserts that his claims of brutal treatment by guards and insensitivity to the risk of his injury from fellow inmates fall into this category. Petitioner first cites People ex rel. Brown v. Johnston, 9 NY2d 482 (1961). In Brown the Court of Appeals permitted the use of a habeas writ to challenge the transfer of a lawfully sentenced prisoner from prison to a separate hospital for the criminally insane. Central to the court's holding in Brown is the fact that the hospital for the criminally insane was (a) full of dangerous people and (b) outside the administration of the prison system when the decision was written in 1961. The Court of Appeals again discussed its Brown decision in People ex rel. Dawson v. Smith, 69 NY2d 689 (1986) in the context of reviewing (and upholding) the denial of a habeas writ concerned with petitioner's placement in a Special Housing Unit. In a 5-2 decision the court held that in seeking release from special housing, petitioner was not seeking release from the prison, and therefore the habeas corpus writ was unavailable to challenge the disciplinary housing. This understanding that the writ is unavailable to challenge housing placements within the prison system has been followed in this department in other decisions. See Matter of Berrian v. Duncan, 289 AD2d 655 (3rd Dept 2001), People ex rel. McCallister v. McGinnis, 251 AD2d 835 (3rd Dept 1998).
Petitioner's second citation is to People ex rel. France v. Coughlin, 99 AD2d 599 (3rd Dept 1984). In France the court held that petitioner could not use a habeas corpus application to challenge his involuntary detention in protective custody to segregate him from potential retaliation by other inmates. The court noted that habeas is not available if petitioner does not claim entitlement to immediate release, unless the detention is in excess of what the sentence or constitutional guarantees require. The court also noted that administrative segregation of inmates is well within the terms ordinarily contemplated by a prison sentence, and that petitioner had not made a sufficient showing that his confinement violated his asserted constitutional rights (citations in decision omitted here). The appellate courts have established a clear view that a petitioner who wishes to challenge his administrative housing must use his administrative remedies, and appeal an adverse decision on a full record before seeking redress through the courts. And if such redress is sought, the proper approach is to bring an Article 78 proceeding to challenge administrative action, rather than to use an Article 70 habeas corpus application. People ex rel. Beyah v. Coughlin, 101 AD2d 901 (3rd Dept 1984).
Lastly petitioner cites People ex rel. Ardito v. Trujillo, 100 Misc 2d 1009 (Sup Ct Richmond Co 1981). In Ardito the court allowed the use of a habeas writ as the vehicle by which petitioner sought to compel the state to give him a Jackson hearing, to convert her criminal detention as incompetent to stand trial, to a civil commitment. See Jackson v. Indiana, 406 US 715. Ardito involves a necessary argument, under the holding in Jackson, that a person may not be detained indefinitely in the context of a pending criminal case, without a hearing and findings as to the appropriateness of a civil commitment and eventual dismissal of the criminal case without a trial. Ardito therefore does involve a claim that petitioner is illegally detained in custody, though not imprisoned for a sentence. The case is quite different from this petitioner's situation, and therefore does not support his claim.
In People ex rel. Sandson v. Duncan, 306 AD2d 716 (3rd Dept 2003), appeal denied 1 NY3d 501 (2003), the court rejected a claim that petitioner was being subjected to cruel and unusual punishment within the prison system through denial of medication which he deemed necessary for treatment of his hepatitis C. Once again the court noted that the habeas relief was unavailable because petitioner was not entitled to immediate release, and that he had recourse to an Article 78 proceeding to challenge the prison's denial of his request for medication.
For all of these reasons the court declines to issue the writ of habeas corpus. While the statute does not in so many words prohibit successive applications for a writ of habeas corpus, as petitioner has done here, orderly administration of justice requires at least a showing of changed circumstances before the courts will entertain successive applications. People ex rel. Woodard v. Berry, 163 AD2d 759 (3rd Dept 1990), later proceeding 165 AD2d 968 (3rd Dept), app. den. 76 NY2d 715, app. den. 76 NY2d 712, later proceeding 172 AD2d 890 (3rd Dept), app. den. 78 NY2d 853, habeas corpus dismissed 1992 US Dist Lexis 6874 (EDNY).
The application for a writ of habeas corpus is denied. So ordered.