Opinion
05 Civ.0478 (DLC).
March 22, 2007
For Petitioner: John L. Lewis, pro se, Kingston, NY.
For Respondent: Luke Martland, Assistant Attorney General, New York, NY.
MEMORANDUM OPINION ORDER
Pro se petitioner John L. Lewis ("Lewis") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his denial of parole by the New York State Division of Parole ("Parole Board"). Lewis asserts violations of his First Amendment right of access to the courts and his Fourteenth Amendment right to procedural of substantive due process.
The case was referred to Magistrate Judge Theodore Katz for a Report and Recommendation ("Report"), which was issued January 5, 2007. The Report recommends that the petition be dismissed as moot. Lewis, who is no longer incarcerated, did not file an objection to the Report. This Opinion adopts the Report.
Background
The facts established at trial are set forth in the Report and are summarized here. On September 10, 1980, Lewis and an accomplice were involved in the robbery and murder of a taxicab driver. Lewis entered the cab alone and told the driver to take him to the airport. While en route, Lewis directed the driver to pull the cab over and informed the driver that he was going to rob him. Lewis then shot the driver in the back of the head and fled with fifty dollars. Lewis's accomplice picked him up moments later.
Procedural History
On June 17, 1983, a jury convicted Lewis of murder in the second degree and robbery in the first degree. Lewis was sentenced to an aggregate, indeterminate term of imprisonment of twenty years to life. On November 18, 2002, the Parole Board ("Board") denied Lewis's first application for parole, finding that his crime represented an escalation of his criminal activity that had occurred in 1979, and thus his past negative conduct indicated that he was not a good candidate for community release at that time.
Lewis challenged the Board's denial of his parole application by filing an administrative appeal with the Division of Parole's Appeals Unit ("Appeals Unit") on January 2, 2003. Four months later, Lewis also commenced a proceeding in the Supreme Court of the State of New York pursuant to Article 78 of the New York Civil Practice Law and Rules. Before Lewis received a decision from the Appeals Unit — which ultimately affirmed the Board's denial of his application — the New York Supreme Court denied Lewis's Article 78 petition based on the seriousness of the crime. Lewis appealed the New York Supreme Court's decision to the Appellate Division, Third Department, which also rejected his Article 78 claims, but ordered that Lewis receive a new parole hearing because the Board incorrectly referred to Lewis's conviction as murder in the first degree, when, in fact, Lewis had been convicted of murder in the second degree. The new parole hearing occurred on August 18, 2004, and Lewis was again denied parole. The Board denied Lewis parole for the third time in November 2004.
On January 14, 2005, Lewis filed this petition for a writ of habeas corpus pursuant to 28 U.S.C §§ 2241 and 2254. Lewis asserts violations of his First Amendment right of access to the courts and his Fourteenth Amendment rights because the New York parole statute, Executive Law § 259-i(5), denied him meaningful, fair and full access to the state courts. The case was referred to Magistrate Judge Katz on February 14, 2005.
On November 6, 2006, the Board granted Lewis's application for parole. He was released from Woodbourne Correctional Facility on November 28. On December 7, Magistrate Judge Katz ordered Lewis to demonstrate by December 27 a concrete and continuing injury other than the now-ended incarceration or parole, and a substantial likelihood that the requested relief will remedy the alleged injury in fact. Lewis did not respond to that Order.
DISCUSSION
The reviewing court "may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate judge." 28 U.S.C § 636(b)(1)(c). "To accept the report and recommendations of a magistrate, to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record." Figueroa v. Riverbay Corp., No. 06-CV-5364 (PAC), 2006 WL 3804581 at *1 (S.D.N.Y. Dec. 22, 2006) (citation omitted).
For the reasons described in the Report, Lewis's claims are moot. In order to have Article III standing, "[a] plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." DaimlerChrysler Corp. v. Cuno, 126 S. Ct. 1854, 1861 (2006) (citation omitted). Although given an opportunity to do so, Lewis has failed to allege, much less demonstrate, a continuing injury resulting from his earlier denial of parole, or a substantial likelihood that any relief available in this proceeding would remedy such an injury. Accordingly, the petition must be dismissed as moot.
CONCLUSION
The recommendation of Magistrate Judge Theodore Katz is adopted and the petition for writ of habeas corpus is denied. In addition, the Court declines to issue a certificate of appealability. Lewis has not made a substantial showing of a denial of a federal right, and appellate review is therefore not warranted. Love v. McCray, 413 F.3d 192, 195 (2d Cir. 2005). The Court also finds pursuant to Title 28, United States Code, Section 1915(a)(3), that any appeal from this order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962). Moreover, Lewis made no objection to the Report, and as the Report so advised him, he has waived his right to appeal.Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003). The Clerk of Court shall dismiss the petition.
SO ORDERED: