Opinion
18 Civ. 0932 (KMK) (PED)
08-03-2021
WAYNE C. JAMES, Petitioner, v. DANIELLE DILL, Executive Director,[1] Respondent.
REPORT AND RECOMMENDATION
PAUL E. DAVISON, U.S.M.J.
TO THE HONORABLE KENNETH M. KARAS, United States District Judge:
I. INTRODUCTION
On or about January 29, 2018, Pro se petitioner Wayne C. James filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his continued confinement at Central New York Psychiatric Center. Dkt. #1. This petition is before me pursuant to an Order of Reference dated February 16, 2018 (Dkt. #5). For the reasons set forth below, I respectfully recommend that Your Honor deny the petition in its entirety.
Civil commitments are typically challenged in habeas proceedings. See Duncan v. Walker, 533 U.S. 167, 176 (2001) (stating that a state court order of civil commitment satisfies § 2254's “in custody” requirement); Buthy v. Comm‘r of Office of Mental Health of New York, 818 F.2d 1046, 1051-52 (2d Cir. 1987) (petitioning for a writ of habeas corpus pursuant to § 2254 is the appropriate method for an individual to challenge the fact or duration of his involuntary civil commitment to a state psychiatric institution).
On April 13, 2020, petitioner filed an Amended Petition (Dkt. #36) without leave of the court. He filed a Second Amended Petition on November 4, 2020, again without leave of the court. See Dkt. #39. By letter dated April 5, 2021 (Dkt. #42), James sought leave to amend, I construed the Amended Petition and Second Amended Petition as applications for leave to amend and, for reasons set forth in a Decision and Order issued contemporaneously with this Report and Recommendation, I denied petitioner's applications to amend.
II. BACKGROUND
A. New York's Sex Offender Management and Treatment Act
New York's Sex Offender Management and Treatment Act, codified at N.Y. Mental Hygiene Law (“MHL”) § 10.01, et seq., “creates a statutory scheme prescribing the procedures to be followed with respect to convicted sex offenders who the state seeks to commit or supervise following completion of their prison terms.” Atkinson v. Okocha, No. 20 Civ. 4497, 2021 WL 1550493, at *4 (E.D.N.Y. Apr. 19, 2021). The statute requires a case review team to screen all persons who are “detained sex offenders” approaching anticipated release, to evaluate whether they require civil management. MHL §§ 10.03(g), 10.05. If the case review team determines that an individual is a sex offender requiring civil management, it must provide written notice of that finding to the individual and the attorney general. Id. § 10.05(g). The attorney general may then file an Article 10 petition in the supreme court or county court where the individual is located. Id. § 10.06(a). Within thirty days of filing (or longer upon consent of the individual), the court must conduct a hearing to determine whether there is probable cause to believe that the individual is a sex offender requiring civil management. Id. § 10.06(g). If probable cause is established, the court must conduct a jury trial (or a bench trial if a jury trial is waived) to determine whether, by clear and convincing evidence, the individual “is a detained sex offender who suffers from a mental abnormality.” Id. §§ 10.07(a), (d). Upon a verdict in the Attorney General's favor, the court must determine whether the individual is a “dangerous sex offender requiring confinement or a sex offender requiring strict and intensive supervision [“SIST”].” Id., § 10.07(f). Confined offenders are entitled to an annual review of their status, including a mental health evaluation and an evidentiary hearing. Id. § 10.09.
B. Procedural History
In November 1989, following a jury trial in Westchester County, petitioner Wayne James was convicted of first degree sexual abuse and first degree sodomy, and sentenced to twelve and one-half to twenty-five years in prison. On November 23, 1992, the Appellate Division, Second Department affirmed the conviction. People v. James, 187 A.D.2d 672, 591 N.Y.S.2d 784 (2d Dep't 1992). The Court of Appeals denied leave to appeal on March 12, 1993. People v. James, 81 N.Y.2d 887, 613 N.E.2d 981, 597 N.Y.S.2d 949 (Table) (1993).
On May 6, 2010, James was released on parole. SR 003. On June 9, 2011, he was charged with five counts of violating the conditions of his parole, including failure to participate in a mandatory Sex Offender treatment program. Id. On June 21,2011, James was charged with additional counts of violating the conditions of his parole based upon allegations, inter alia, that he verbally and physically assaulted a paramour. SR 004-6. On December 14, 2011, following completion of James's final revocation hearing, the ALJ recommended that James's parole be revoked and that he be imprisoned until the maximum expiration date of his sentence. SR 007-013. On January 10, 2012, James was returned to DOCCS custody. SR 078.
Citations to “SR__”refer to pages from the State Court Record (Dkt. #53-2, #53-3 and #53-4); Unless otherwise noted, all page designations herein reflect document (not ECF) pagination. Due to privacy issues stemming from the victim's identifying information and petitioner s mental health treatment, respondent filed (and the undersigned granted) various applications to seal. Dkt. #12, #13, #14, #16, #17, #19, #20, #47, #48. Accordingly: (1) a redacted version of Dkt.' 1-2 is filed at Dkt. #18; (2) unredacted documents are designated court view only (Dkt. #1-2, #49, #50, #51; and (3) redacted versions of documents (other than Dkt. 1-2) are viewable by the public only at the courthouse (Dkt. #53). . Respondent filed Dkt. #52 in error; at my request, the clerk's office designated it court view only.
Prior to James's parole hearing, the maximum expiration date of his sentence was March 9, 2014. Dkt. #1-3, at 26 (ECF pagination). After James was found to have violated parole DOCCS adjusted his maximum expiration date to April 25, 2014 (accounting for his -day period of delinquency). Id. James challenges his parole revocation and, therefore, asserts that the adjusted maximum expiration date was improper. Dkt. #1, at 8. tor purposes of evaluating the instant habeas petition, I adopt petitioner's assertion that the correct maximum expiration date of his sentence was March 9, 2014. Id.
On May 3, 2013, the New York Attorney General filed a petition pursuant to MHL Article 10 in Westchester County Supreme Court, seeking civil management of James. SR 07485. At the conclusion of a probable cause hearing, the court found probable cause to believe that James qualified for civil management under MHL Article 10. SR 111, 120-21, 135-36. During a hearing held on October 11, 2013, James waived his right to a jury trial on the question of whether he had a mental abnormality, waived a dispositional hearing and consented to a determination that he is a sex offender requiring SIST. SR 136-37, 155; T. 3-17. James s attorney confirmed that James had previously reviewed the proposed SIST conditions and requested modification of one condition; the court declined to modify the condition. SR 137; T. 19-23. The court again asked James if he still wished to consent to SIST; James answered in the affirmative. SR 138; T. 26. See SR 88-100. At the conclusion of the hearing, the court issued a written order placing James on SIST (“the SIST Order”). SR 086-87, 120-22.
The AG's petition stemmed from the case review team's finding (on or about April 30, 2013) that James is a sex offender in need of civil management. SR 84.
Citations to “T.__” refer to pages from the State Court Transcript (Dkt. #53-5).
James (by and through counsel) appealed the SIST Order to the Appellate Division on the ground that the MHL did not authorize waiver of a dispositional hearing. SR 103-17 (“James II”). By Decision and Order dated March 31, 2015, the Second Department affirmed the SIST Order. SR 155-56; Matter of State of N. Y. v. Wayne J., W A.D.3d 1211, 7 N.Y.S.3d 529 (2d Dep't 2015). The Court of Appeals denied leave to appeal on July 1,2015. SR 164; Matter of State of N.Y. v. Wayne J, 25 N.Y.3d 913, 37 N.E.3d 1161, 16 N.Y.S.3d 518 (Table) (2015).
In August 2014, James was arrested for violating the SIST Order and additional conditions imposed by his parole officer. SR 279. On or about August 25, 2014, the State of New York moved to have James civilly committed. SR. 281. On February 27, 2015, at the conclusion of an evidentiary hearing, the Westchester County Supreme Court (Cacace, J.) found that James “has violated his SIST conditions, that he is not an appropriate candidate for SISI and that he is a ‘dangerous sex offender' requiring confinement pursuant to MHL § 10.11(d)(4).” SR 267. Accordingly, the court ordered James committed to a secure treatment facility. SR 254-68.
James (by and through counsel) appealed on the ground, inter alia, that the MHL Article 10 proceedings were improper because his parole revocation was improper. SR 319-20 (James III"). On October 12, 2016, the Second Department affirmed. Matter of State of N.Y. v. Wayne J., 143 A.D.3d 834, 39 N.Y.S.3d 206 (2d Dep't 2016). On October 17, 2017, the Court of Appeals dismissed James's leave application as untimely. SR 396; Matter of State of N.Y.v. Wayne J., 30 N.Y.3d 962, 86 N.E.3d 555, 64 N.Y.S.3d 663 (Mem) (2017).
During the pendency of James's appeal of his civil commitment, he filed an application for a writ of error coram nobis alleging that appellate counsel in James 11 was ineffective for failing to argue that the expert testimony at James's 2013 MHL Article 10 probable cause hearing was inadmissible hearsay. SR 185-201. On April 12, 2017, the Second Department denied the application. SR 233-34; Matter of State of N. Y. v. Wayne J, 49 A.D.3d 846, 53 N.Y.S.3d 82 (2d Dep't 2017). James did not seek leave to appeal to the Court of Appeals.
On or about August 31,2017, James filed an application for CPLR Article 78 relief in Bronx County Supreme Court, demanding expungement of the 2012 parole revocation. SR 24751. The court issued an Order to Show Cause, directing respondent to appear on January 22, 2018 and show cause as to why the court should not grant the relief sought. The record does not contain a response or decision addressing petitioner's application.
In an effort to supplement the record, chambers staff contacted respondent s counsel, he represented that he had provided all documents in his possession and that he does not have ready access to additional state court records. Chambers staff also attempted to contact Bronx Supreme Court; multiple voice mail messages were unanswered. In any event, disposition of the instant habeas petition does not turn on the outcome of James's Article 78 proceeding.
On or about September 10, 2017, James filed an application for a writ of habeas corpus in the Appellate Division, Fourth Department. SR 398. On November 1, 2017, the Fourth Department dismissed the petition on the ground that “habeas corpus relief does not lie where there are other procedures available for review of the challenged error.” Id. (quotation marks and citations omitted).
The record does not contain a copy of the petition or response.
On or about January 29, 2018, James filed the instant habeas petition. James seeks habeas relief on a single ground: he claims that his parole hearing was unlawful and, therefore, his civil confinement violates Due Process because he was a parolee and not a “detained sex offender” at the time the State initiated civil management proceedings.
James subsequently filed multiple letters (some with documents attached) in support of his contention that his parole revocation was unlawful. Dkt. #10, #23, #24, #28, #30, #31, #32, #34, #41, #54, #55. None of these submissions are germane to the narrow legal issue before this Court.
III. APPLICABLE LAW
“Habeas review is an extraordinary remedy.” Bousley v. United States, 523 U.S. 614, 621 (1998) (citing Reed v. Farley, 512 U.S. 339, 354 (1994)). “The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Harrington v. Richter, 562 U.S. 86, 97 (2011). Before a federal district court may review the merits of a state criminal judgment in a habeas corpus action, the court must first determine whether the petitioner has complied with the procedural requirements set forth in 28 U.S.C. §§ 2244 and 2254. If there has been procedural compliance with these statutes, the court must then determine the appropriate standard of review applicable to the petitioner s claim(s) in accordance with § 2254(d). The procedural and substantive standards applicable to habeas review are summarized below.
A. Timeliness
The AEDPA established a one-year statute of limitations for the filing of a habeas corpus petition seeking relief from a state court conviction. See 28 U.S.C. § 2244(d)(1). The one-year limitation period runs from the latest of:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.Id.
The AEDPA's statute of limitations is tolled during the pendency of a properly filed application for state post-conviction relief, or other collateral review, of a claim raised in the petition. See id. § 2244(d)(2). The one-year limitation period is also subject to equitable tolling, which is warranted when a petitioner has shown “‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). “The term ‘extraordinary' refers not to the uniqueness of a party's circumstances, but rather to the severity of the obstacle impeding compliance with a limitations period.” Harper v. Ercole, 648 F.3d 132, 137 (2d Cir. 2011). “To secure equitable tolling, it is not enough for a party to show that he experienced extraordinary circumstances. He must further demonstrate that those circumstances caused him to miss the original filing deadline. Id. Additionally, “[consistent with the maxim that equity aids the vigilant, a petitioner seeking equitable tolling of AEDPA's limitations period must demonstrate that he acted with reasonable diligence throughout the period he seeks to toll.” Id. at 138 (internal quotation marks and citations omitted); see also Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000) (A petitioner seeking equitable tolling must “demonstrate a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing, a demonstration that cannot be made if the petitioner, acting with reasonable diligence, could have filed on time notwithstanding the extraordinary circumstances.”).
B. Procedural Default
Federal habeas corpus review of a state court's denial of a state prisoner s federal constitutional claim is barred if the state court's decision rests on an independent and adequate state procedural ground, unless the petitioner can demonstrate cause for the procedural default and actual prejudice resulting from the alleged constitutional violation, or that he is actually innocent. See Bousley, 523 U.S. at 622; Coleman v. Thompson, 501 U.S. 722, 750 (1991). See also Lee v. Kemna, 534 U.S. 362, 375 (2002); Dunham v. Travis, 313 F.3d 724, 729 (2d Cir. 2002). A procedural ground is “independent” if “the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar.” See Harris, 489 U.S. at 263 (internal quotation marks omitted). A procedural bar is “adequate” if it is ‘ based on a rule that is firmly established and regularly followed by the state in question.” Monroe v. Kuhlman, 433 F.3d 236, 241 (2d Cir. 2006) (internal quotation and citation omitted).
In certain limited circumstances, however, “even firmly established and regularly followed state rules will not foreclose review of a federal claim if the application of the rule in a particular case is ‘exorbitant.'” See Garvey v. Duncan, 485 F.3d 709, 713-14 (2d Cir. 2007) (citing Lee, 534 U.S. at 376). To this end, the Second Circuit has set forth the following “guideposts” for evaluating the adequacy of the state procedural bar in the context of “the specific circumstances presented in the case, an inquiry that includes an evaluation of the asserted state interest in applying the procedural rule in such circumstances:
(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether . . . petitioner had “substantially complied” with the rule given “the realities of trial,” and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (quoting Lee, 534 U.S. at 381-85).
C. Exhaustion
A federal court may not grant habeas relief unless the petitioner has first exhausted his claims in state court. O 'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); see 28 U.S.C. § 2254(b)(1) (“[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that - (A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant”); Id. § 2254(c) (the petitioner .shall not be deemed to have exhausted the remedies available in the courts of the State ... if he has the right under the law of the State to raise, by any available procedure, the question presented'). The exhaustion requirement promotes interests in comity and federalism by demanding that state courts have the first opportunity to decide a petitioner's claims. Rose v. Lundy, 455 U.S. 509, 518-19 (1982).
To exhaust a federal claim, the petitioner must have “fairly present[ed] 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,” and thus “giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights.” Baldwin v Reese, 541 U.S. 27, 29 (2004) (internal quotation marks and citations omitted). “Because nonconstitutional claims are not cognizable in federal habeas corpus proceedings, a habeas petition must put state courts on notice that they are to decide federal constitutional claims.” Petrucelli v. Coombe, 735 F.2d 684, 687 (2d Cir. 1984) (citing Smith v. Phillips, 455 U.S. 209, 221 (1982)). Such notice requires that the petitioner “apprise the highest state court of both the factual and . legal premises of the federal claims ultimately asserted in the habeas petition.” Galdamez v. Keane, 394 F.3d 68, 73 (2d Cir. 2005) (internal citation omitted). In doing so, a petitioner need not cite chapter and verse of the Constitution; there are a number of other ways in which a petitioner may fairly apprise the state court of the constitutional nature of his claim, including: “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.” Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011). A habeas petitioner who fails to meet a state's requirements to exhaust a claim will be barred from asserting that claim in federal court. Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
However, “[f]or exhaustion purposes, a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred.” Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997) (internal quotation omitted). ‘Tn such a case, a petitioner no longer has ‘remedies available in the courts of the State' within the meaning of 28 U.S.C. § 2254(b).” Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991). Such a procedurally barred claim may be deemed exhausted by a federal habeas court. See, e.g., Reyes, 118 F.3d at 139. However, absent a showing of either “cause for the procedural default and prejudice attributable thereto,” Harris v. Reed, 489 U.S. 255, 262 (1989), or “actual innocence,” Schlup v. Delo, 513 U.S. 298 (1995), the petitioner's claim will remain unreviewable by a federal court.
D. Standard of Review
“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States. Estelle v. McGuire, 502 U.S. 62, 68 (1991). See 28 U.S.C. § 2254(a). When reviewing petitions filed subsequent to the AEDPA‘s effective date, a federal court may not grant habeas relief unless the petitioner establishes that the state court's decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1), (d)(2). The AEDPA deferential standard of review will be triggered if the petitioner's claim “was adjudicated on the merits in State court proceedings.” 28 U.S.C. § 2254(d); see Bell v. Miller, 500 F.3d 149, 154-55 (2d Cir. 2007). “A state court adjudicates a state prisoner's federal claim on the merits when it (1) disposes of the claim on the merits, and (2) reduces its disposition to judgment.” Jimenez v. Walker, 458 F.3d 130, 140 (2d Cir. 2006) (quoting Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001)).
A state court's decision is “contrary to” clearly established Federal law if (1) “the state court applies a rule that contradicts the governing law set forth [by the Supreme Court of the United States]” or (2) “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 [Supreme Court] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Clearly established Federal law for purposes of § 2254(d)(1) includes only the holdings, as opposed to the dicta, of [Supreme Court] decisions. And an ‘unreasonable application of those holdings must be objectively unreasonable, not merely wrong; even ‘clear error' will not suffice.” White v. Woodall, 134 S.Ct. 1697, 1702 (2014) (internal quotation marks and citations omitted). “The critical point is that relief is available under § 2254(d)(1)'s unreasonable application clause if, and only if, it is so obvious that a clearly established rule applies to a given set of facts that there could be no ‘fairminded disagreement' on the question.” Id. at 1706-07 (quoting Harrington, 131 S.Ct. at 786-87) (“As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.”).
Finally, under the AEDPA, the factual findings of state courts are presumed to be correct. See 28 U.S.C. §2254(e)(1); see also Nelson v. Walker, 121 F.3d 828, 833 (2d Cir. 1997). The petitioner must rebut this presumption by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). “A state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Cardoza v. Rock, 731 F.3d 169, 178 (2d Cir. 2013) (quoting Wood v. Allen, 558 U.S. 290, 301 (2010)).
IV. ANALYSIS
James seeks habeas relief on a single ground: he claims that his parole hearing was unlawful and, therefore, his civil confinement violates Due Process because he was a parolee and not a “detained sex offender” at the time the State initiated civil management proceedings. Respondent argues that petitioner's claim is procedurally barred and, in any event, is plainly meritless.
First, as respondent points out, petitioner's claim is unexhausted. James could have raised this claim in James II (appeal of the SIST Order) but failed to do so. He presented his claim to the Appellate Division in James III (appeal of his civil commitment) but, after the Appellate Division denied relief, James failed to timely appeal to the Court of Appeals. James cannot present his claim to the Appellate Division in the context of another appeal of the SIST Order because he has already made the one request for leave to appeal to which he is entitled. See Aparicio v. Artuz, 269 F.3d 78, 91 (2d Cir. 2001). He is also precluded from seeking reargument regarding his untimely leave application in James III. See N.Y, Ct. Rules § 500.24(b). Further, state habeas corpus relief is precluded because the claim was raised or could have been raised on direct appeal and in James's previous state habeas corpus proceeding. See People ex rel. Johnson v. Uhler, 191 A.D.3d 1065, 141 N.Y.S.3d 544, 547, leave to appeal denied, 31 N.Y.3d 902, 169 N.E.3d 957 (2021). However, it is unclear whether James could assert the instant claim in an Article 78 proceeding (should his next annual review affirm his current status). Nonetheless, this Court need not further consider whether the instant claim should be deemed exhausted and procedurally barred because the claim is plainly meritless. See 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”).
Assuming, arguendo, that James raised the instant claim in his state habeas proceeding, the claim would be procedurally barred on federal habeas review because the state court dismissed the petition on procedural grounds. See Harrington, 562 U.S. 86 at 103.
The instant claim hinges on a finding that James's parole revocation was unlawful. James challenged his parole revocation in his 2017 Article 78 petition - the outcome of which is unknown to this court.
Petitioner alleges that his civil confinement violates Due Process because he was a parolee and not a “detained sex offender” at the time the State initiated civil management proceedings. Petitioner is mistaken: MHL Article 10's definition of “detained sex offender” includes a person convicted of a qualifying sex offense who “is currently serving a sentence for, or subject to supervision by the division of parole, whether on parole or on post-release supervision, for such offense or for a related offense.” MHL §10.03(g)(1) (emphasis added). According to James, the correct maximum expiration date of his sentence was March 9, 2014. Dkt. #1, at 8. Thus, on May 3, 2013 (when the Article 10 civil management petition was filed) James was, indeed, a “detained sex offender” - whether or not his parole revocation was lawful. Further, Article 10's definition of “detained sex offender” includes a person “who has been determined to be a sex offender requiring civil management pursuant to this article.” MHL § 10.03(g)(6). Therefore, on August 25, 2014 (when the State moved to have James civilly confined) James was a “detained sex offender” - and will remain so until he is released from civil management. Accordingly, because James's habeas claim is plainly meritless, I respectfully recommend that Your Honor dismiss the instant petition.
V. CONCLUSION
For the reasons set forth above, I conclude - and respectfully recommend that Your Honor should conclude that the instant petition for a writ of habeas corpus should be denied in its entirety. Further, because reasonable jurists would not find it debatable that petitioner has failed to demonstrate by a substantial showing that he was denied a constitutional right, I recommend that no certificate of appealability be issued. See 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1)(c), Rule 72(b) of the Federal Rules of Civil Procedure and Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts, the parties shall have fourteen (14) days from service of this Report and Recommendation to serve and file written objections. If copies of this Report and Recommendation are served upon the parties by mail, the parties shall have an additional three (3) days, or a total of seventeen (17) days, from service of this Report and Recommendation to serve and file written objections. Fed.R.Civ.P. 6(d). See also Fed.R.Civ.P. 6(a). Such objections, if any, along with any responses to the objections, shall be filed with the Clerk of the Court with extra copies delivered to the chambers of the Hon, Kenneth M. Karas, at the Hon. Charles L. Brieant, Jr, Federal Building and United States Courthouse, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be entered. See Caidor v. Onondaga County, 517 F.3d 601, 604 (2d Cir. 2008).
Requests for extensions of time to file objections must be made to Judge Karas.
Chambers mailed a copy of this Report and Recommendation to:
Wayne C. James C#127873
ST ARC Oakview CampusP.O. Box 300
9005 Old River Road
Marcy, NY 13403-0300