9:99-CV-0145 (Lead Case), 9:99-CV-0399 (Member Case).
February 17, 2004
JOEL E. GIBBS, Petitioner, Pro Se, Wilmington, DE, for the Petitioner.
HON. ELIOT SPITZER, Office of Attorney General RISA VIGLUCCI, ESQ., Ass't Attorney General, Albany, NY, for the Respondent.
DECISION and ORDER
I. Background A. State Court Proceedings
On May 9, 1985, Gibbs was sentenced to an indeterminate term of four years to life imprisonment after he plead guilty to second degree criminal possession of a controlled substance ( Dkt. No. 21, Ex. A). On April 12, 1991, Gibbs was released on parole by the New York State Division of Parole ("Division of Parole") ( Dkt. No. 21, Ex. B).
Unless otherwise indicated, docket numbers referenced throughout this Decision and Order refer to the docket of the lead case in this consolidated action, Gibbs v. McCoy, 9:99-CV-0145.
On January 6, 1997, Gibbs received a Notice of Violation from the Division of Parole ( Dkt. No. 21, Ex. C). On March 4, 1997, a final parole revocation hearing was conducted relating to the violation charged in that notice, with Administrative Law Judge John Casey presiding ( Dkt. No. 21, Ex. E). At that hearing, Gibbs, who was represented by counsel, plead guilty to failing to report to his parole officer ( Id.). ALJ Casey thereafter ordered that Gibbs' parole be revoked and that he enroll in the Willard Drug Treatment Campus ("WDTC") program ( Dkt. No. 21, Ex. F). On March 22, 1997, Gibbs filed a writ of habeas corpus in the Ulster County Court pursuant to Article 70 of New York's Civil Practice Law and Rules ("CPLR") challenging ALJ Casey's decision revoking his parole ( Dkt. No. 14, Ex. 2). On May 27, 1997, Ulster County Supreme Court Justice Joseph P. Torraca issued a decision denying Gibbs' March 1997 habeas petition because he had not exhausted his administrative remedies prior to filing that petition ( Dkt. No. 14, Ex. 3). Gibbs appealed that decision, the Appellate Division affirmed, Gibbs v. New York Parole Board, 251 A.D.2d 718 (3d Dept. 1998), and the Court of Appeals denied Gibbs' application for leave to appeal. Gibbs v. New York Board of Parole, 92 N.Y.2d 814 (1998).
On July 23, 1997, a second parole revocation hearing was conducted by ALJ Melissa Davis arising out of a charge that Gibbs had failed to comply with the terms of his parole by refusing to enter the WDTC program ( Dkt. No. 21, Ex. J). At that hearing, a parole officer of the WDTC testified that on March 27, 1997, Gibbs refused to sign a memorandum of agreement to participate in the WDTC program despite being advised that his failure to sign that agreement was a violation of the terms of his parole ( Dkt. No. 21, Ex. M at PP. 12-13). In opposing the parole violation charge, Gibbs' counsel introduced into the record a document which stated, inter alia, that Gibbs was wrongfully induced and/or coerced into agreeing to participate in the WDTC program under the threat of a "heavier sentence" by "the parole judge" ( Dkt. No. 21, Ex. M at P. 22). Gibbs argued that a finding that he violated the terms of his parole by not participating in that program would demonstrate a "callous and reckless disregard for petitioner's constitutional rights" ( Id. at P. 23). On July 28, 1997, ALJ Davis issued a decision in which she affirmed the finding that Gibbs had violated the terms of his parole ( Dkt. No. 21, Ex. N). ALJ Davis therefore recommended that Gibbs be re-incarcerated for a period of thirty-six months ( Id.). Gibbs did not administratively appeal that decision ( Dkt. No. 15 at P. 2).
On August 19, 1997, Gibbs filed a second habeas petition challenging ALJ Casey's March 1997 decision revoking his parole ( Dkt. No. 14, Ex. 7 at P. 1). Acting Cayuga County Supreme Court Justice Peter E. Corning dismissed that application on December 27, 1997, after finding that: i) Gibbs had not exhausted his administrative remedies regarding ALJ Casey's decision before filing the August 1997 petition; and, ii) Gibbs was estopped from bringing a second habeas petition challenging the March 1997 decision ( Dkt. No. 14, Ex. 7 at P. 2). The Appellate Division affirmed the dismissal of that petition, Gibbs v. New York State Board of Parole, 262 A.D.2d 990 (4th Dept. 1999), and the Court of Appeals denied Gibbs leave to appeal. Gibbs v. New York State Board of Parole, 93 N.Y.2d 817 (1999).
On August 27, 1998, Gibbs filed a habeas corpus petition in Cayuga County Court challenging ALJ Davis' July 28, 1997, decision revoking his parole and the classification of Gibbs as a "Category II parole violator" ( Dkt. No. 14, Ex. 10). On November 5, 1998, Justice Corning denied that application, finding that: i) Gibbs had failed to exhaust his administrative remedies prior to commencing his habeas petition; and, ii) the petition was substantively without merit ( Dkt. No. 14, Ex. 12). Gibbs' motion to reargue Justice Corning's decision was denied on December 7, 1998 ( Dkt. No. 14, Ex. 13). Although Gibbs filed a notice of appeal regarding the decision denying his motion to reargue, that appeal was never perfected and the appeal was therefore deemed abandoned and dismissed by the Fourth Department ( Dkt. No. 20). B. This Action
Where a parole violation charge is sustained following a final parole revocation hearing, the parole violator is classified as either a Category 1, Category 2 or Category 3 violator based upon various factors. See N.Y. Comp. Codes R. Reg. Tit. 9, § 8005.20(c).
On January 29, 1999, Gibbs filed two habeas corpus petitions in this District challenging the March 4, 1997, and July 23, 1997, decisions revoking his parole. See Dkt. No. 1; see also, Gibbs v. McCoy, 9:99-CV-0399 ("99-CV-0399") at Dkt. No. 1. This court consolidated these actions and directed the respondent to file a response to both petitions ( 99-CV-0399 at Dkt. No. 3). On September 24, 1999, the Office of the Attorney General for the State of New York, acting on respondent's behalf, filed an answer and memorandum of law in opposition to Gibbs' petitions ( Dkt. Nos. 14-15). In opposing the relief requested by Gibbs, respondent argues that Gibbs: i) failed to exhaust his state court remedies prior to filing his federal petitions; and, ii) procedurally defaulted on the claims he asserts in this consolidated action ( Dkt. No. 15 at PP. 3-8). Gibbs thereafter filed a traverse in which he argues that he is entitled to the relief he seeks ( Dkt. No. 16).
II. Discussion A. Mootness
Article III, Section 2 of the United States Constitution limits the subject matter of the federal courts to those cases that present a "case or controversy." Spencer v. Kemna, 523 U.S. 1, 6 (1998); Greif v. Wilson, Elser, Moskowitz, Edelman Dicker LLP, 258 F. Supp.2d 157, 160 (E.D.N.Y. 2003). "A case is moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome." City of Erie v. Pap's A.M., 529 U.S. 277, 287 (2000) (internal quotations and citations omitted); Lavin v. United States, 299 F.3d 123, 128 (2d Cir. 2002).
After these actions were consolidated, Gibbs was released to parole ( Dkt. No. 18) (notice of change of address filed by Gibbs indicating that he is no longer incarcerated). A habeas petitioner's release from prison generally does not render that party's petition moot because § 2254 requires only that the petitioner be "in custody" at the time the petition is filed. Wheel v. Robinson, 34 F.3d 60, 63 (2d Cir. 1994); Cadilla v. Johnson, 119 F. Supp.2d 366, 371 n. 2 (S.D.N.Y. 2000). The typical habeas petition challenging the validity of a state court conviction "always satisfies the case-or-controversy requirement because the incarceration (or the restriction imposed by the terms of the parole) constitutes a concrete injury, caused by the conviction and redressable by invalidation of the conviction." Spencer, 523 U.S. at 7; see United States v. Mercurris, 192 F.3d 290, 293 (2d Cir. 1999) (citing Spencer).
However, Gibbs does not challenge his underlying conviction in this consolidated action ( Dkt. No. 1). Rather, he claims that his parole was improperly revoked by the decisions of ALJ Casey and ALJ Davis. Id. Since Gibbs has since been restored to parole ( Dkt. No. 18), "[t]he reincarceration that he incurred as a result of [the parole revocation] is now over, and cannot be undone. Subsistence of the suit requires, therefore, that continuing `collateral consequences' of the parole revocation be either proved or presumed." Spencer, 523 U.S. at 8.
Gibbs has not established that he will endure any collateral consequences as a result of the parole revocations about which he complains in this consolidated action. Moreover, courts cannot properly presume such collateral consequences in the context of a parole revocation proceeding. Spencer, 523 U.S. at 14. Thus, this action appears to be moot in light of Spencer.
Additionally, Gibbs has obtained the relief sought by his petitions — restoration to parole. "The hallmark of a moot case . . . is that the relief sought . . . is no longer needed." Martin-Trigona v. Shiff, 702 F.2d 380, 386 (2d Cir. 1983); see also, Petrazzoulo v. U.S. Marshals Service, 999 F. Supp. 401, 406 (W.D.N.Y. 1998) (citing Martin-Trigona) (other citations omitted). Therefore, for this reason as well, it appears as though this action is moot and may therefore be dismissed. See Hall v. New York State Division of Parole, 99CIV11317, 2000 WL 33952256, at *3 (S.D.N.Y. Nov 29, 2000). However, Gibbs is also procedurally barred from obtaining the relief he seeks.
B. Failure to Exhaust
It is well settled that all state remedies must be exhausted before a federal court may consider a state prisoner's petition for a writ of habeas corpus. See 28 U.S.C. § 2254(b)(1)(A); Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997); Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991); Daye v. Attorney General of New York, 696 F.2d 186, 190 (2d Cir. 1982) (en banc); Glover v. Bennett, 98-CV-0607, 1998 WL 278272, at *1 (N.D.N.Y. May 21, 1998) (Pooler, J.). The exhaustion doctrine recognizes "respect for our dual judicial system and concern for harmonious relations between the two adjudicatory institutions." Daye, 696 F.2d at 191. 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. Id. "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." Glover, 1998 WL 278272, at *1 (quoting Daye, 696 F.2d at 192) (footnote omitted). This exhaustion doctrine is satisfied if the claim has been "fairly presented" to the state courts. See Dorsey, 112 F.3d at 52 (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)). A claim has been "fairly presented" if the state courts are apprised of "both the factual and the legal premises of the claim [the petitioner] asserts in federal court." Daye, 696 F.2d at 191; Morales v. Miller, 41 F. Supp.2d 364, 374 (E.D.N.Y. 1999). Thus, "the nature or presentation of the claim must have been likely to alert the court to the claim's federal nature." Daye, 696 F.2d at 192; Morales, 41 F. Supp.2d at 374. A claim that has been abandoned at the appellate level is unexhausted and therefore generally may not be considered by a federal court. Snead v. Artuz, 99CIV2406, 2001 WL 199409, at *4 (S.D.N.Y. Feb. 28, 2001); Cardenas v. Superintendent, CV-94-5093, 1996 WL 497138, at *4 (E.D.N.Y. Aug. 26, 1996) (citing Grey, 933 F.2d 119).
i) March 1997 Parole Revocation Decision
Gibbs filed two habeas petitions in state court relating to ALJ Casey's March 1997 decision revoking his parole ( Dkt. No. 14, Exs. 2, 7). Additionally, Gibbs administratively appealed ALJ Casey's decision revoking his parole and placing him in the WDTC to the Board of Parole's Appeals Unit ("Appeals Unit") ( Dkt. No. 21, Ex. H).
Both of the above-referenced petitions were denied before the Appeals Unit decided Gibbs' administrative appeal relating to ALJ Casey's decision. Compare Dkt. No. 14, Exs. 3, 7 with Dkt. No. 21, Ex. I. The filing of a state habeas corpus petition before an administrative appeal has been decided by the Appeals Unit does not satisfy the exhaustion requirement of 28 U.S.C. § 2254. See Hall v. New York State Division of Parole, 99CIV11317, 2000 WL 33952256, at *4 (S.D.N.Y. Nov 29, 2000) ("[a]though [petitioner] did commence an Article 70 proceeding in this case, he did so before any decision was rendered on his administrative appeal, and it was rejected as premature. Accordingly, the filing of that procedurally defective petition did not constitute exhaustion of [petitioner's] state judicial remedies").
Gibbs' habeas petitions were denied on June 17, 1997, and December 27, 1997, respectively ( Dkt. No. 14, Exs. 3 and 7). The Appeals Unit affirmed ALJ Casey's decision on January 20, 1998 ( Dkt. No. 21, Ex. I).
The Appeals Unit denied Gibbs' administrative appeal relating to the March 1997 parole revocation decision on January 20, 1998 ( Dkt. No. 21, Ex. I). Once that decision was rendered, Gibbs was entitled to bring a challenge in state court pursuant to either Article 70 or Article 78 of the CPLR challenging the Appeal Unit's decision. See Hall, 2000 WL 33952256, at *4 (citations omitted). However, none of the state court records indicate that Gibbs filed either a habeas petition pursuant to Article 70 or an Article 78 petition subsequent to the Appeals Unit's decision. Additionally, the court's review of Gibbs' reply memorandum and the numerous exhibits attached to that brief ( Dkt. No. 16) fails to establish that Gibbs ever filed any challenge in the state courts regarding the January 1998 decision of the Appeals Unit.
Once the Appeals Unit has rendered a decision regarding a challenge to a parole revocation decision, administrative review is complete. Carter v. State, Executive Dept., Div. of Parole, 95 N.Y.2d 267, 271 (2000) (citations omitted).
Habeas corpus petitioners bear the burden of demonstrating that they have exhausted available state remedies. Cruz v. Artuz, 97-CV-2508, 2002 WL 1359386 (E.D.N.Y. June 24, 2002) (citing Colon v. Johnson, 19 F. Supp.2d 112, 119-20 (S.D.N.Y. 1998); United States ex rel. Cuomo v. Fay, 257 F.2d 438, 442 (2d Cir. 1958)); see also, Ruine v. Walsh, 00 CIV. 3798, 2002 WL 1349713, at *2 (S.D.N.Y. June 19, 2002) (citing Colon). Nothing before the court indicates that Gibbs exhausted his state court remedies concerning the March 1997 decision revoking his parole. Moreover, Gibbs could not now properly file an Article 70 petition challenging that determination because such an application would be dismissed as moot since Gibbs has been returned to parole supervision. See People ex rel. Faison v. Travis, 277 A.D.2d 916, 916 (4th Dept. 2000) (petitioner's release to parole supervision during appeal of decision revoking parole renders application moot); see also, People ex rel. Donohoe v. Montanye, 35 N.Y.2d 221 (1974) (other citation omitted). Additionally, Gibbs could not now timely commence an Article 78 petition challenging the Appeals Unit's January 1998 determination because such actions are governed by a four-month statute of limitations. See CPLR § 217; Hunter v. New York State Bd. of Parole, 167 A.D.2d 611, 612 (3d Dept. 1990).
In light of the foregoing, the court deems Gibbs' claims relating to the March 1997 decision revoking his parole to be exhausted. E.g. Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997) (courts may deem claims exhausted where it would be futile to require petitioner to assert claims in state court). Therefore, the court's review of the substance of these claims is subject to Gibbs establishing cause for his default and resulting prejudice, or proof that Gibbs was actually innocent of the parole violation charge. See e.g., Ramirez v. Attorney General of State of New York, 280 F.3d 87, 96 (2d Cir. 2001); Stone v. Stinson, 121 F. Supp.2d 226, 236-37 (W.D.N.Y. 2000) (citation omitted).
Even if the court were to liberally construe Gibbs' August 1998 habeas petition as also challenging the March 1997 parole revocation decision, it is clear that Gibbs nevertheless failed to fully exhaust his remedies as to that petition because he abandoned his appeal of the denial of that petition ( Dkt. No. 20).
Where a petitioner has procedurally defaulted on a claim, he bears the burden of demonstrating cause for the default and resulting prejudice, see Simpson v. Portuondo, 01CIV. 8744, 2002 WL 31045862, at *5 (S.D.N .Y. June 4, 2002), or that he is actually innocent. Speringo v. McLaughlin, 202 F. Supp.2d 178, 189 (S.D.N.Y. 2002).
"Cause" is established where the petitioner demonstrates that some objective factor external to the petitioner impeded his efforts to comply with the state's procedural rule. Murray v. Carrier, 477 U.S. 478, 488 (1986); Stone, 121 F. Supp.2d at 237. Included among such factors are "constitutionally ineffective assistance of counsel, interference by government officials rendering compliance with the state procedural rule impracticable, or situations in which the factual and legal basis for the claim was not reasonably available . . . at the time of default." Stone, 121 F. Supp.2d at 237 (citing Murray, 477 U.S. at 488).
Gibbs has failed to establish cause for his failure to timely file either an Article 70 or Article 78 petition challenging the Appeals Unit's decision. During the months following the date on which that decision was rendered, Gibbs: i) filed a reply memorandum in further support of his appeal of Justice Torraca's order dismissing his second habeas petition ( Dkt. No. 16, Ex. 17); and, ii) commenced a habeas corpus action in state court challenging the July 1997 parole revocation decision ( Dkt. No. 14, Ex. 10). Since Gibbs was clearly able to litigate other matters during the period of time immediately following the Appeals Unit's decision, it does not appear as though any objective factors external to Gibbs prevented him from challenging that decision. Since Gibbs cannot establish cause for his failure to file a state court challenge regarding that decision, the court need not decide whether he suffered actual 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); Pou v. Keane, 977 F. Supp. 577, 581 (N.D.N.Y. 1997) (Kahn, J.).
A petitioner can only establish that a fundamental miscarriage of justice in this context where he establishes that the alleged constitutional violation "has probably resulted in the conviction of one who is actually innocent" of the crime of which he has been convicted. Murray, 477 U.S. at 49; Lebron v. Mann, 40 F.3d 561, 564 (2d Cir. 1994). The court's review of the transcript of Gibbs' March 1997 parole revocation hearing ( Dkt. No. 21, Ex. E) establishes that Gibbs is not actually innocent of the parole violation charge that formed the basis of ALJ Casey's decision. Therefore, Gibbs is not entitled to habeas relief as to his claims relating to that decision.
ii) July 1997 Parole Revocation Decision
In August 1998, Gibbs filed a habeas corpus petition in state court challenging ALJ Davis' July 1997 decision revoking his parole. In November 1998, Justice Corning denied that application ( Dkt. No. 14, Ex. 12), and in December 1998, that court denied Gibbs' motion for reargument ( Dkt. No. 14, Ex. 13). Although Gibbs filed a notice of appeal regarding the foregoing ( Dkt. No. 14, Ex. 14), he never perfected that appeal and therefore, his appeal was "deemed abandoned and dismissed" by the Fourth Department ( Dkt. No. 20).
Since Gibbs never pursued his appeal relating to the July 1997 decision revoking his parole, he did not "fairly present" his claim to either the Appellate Division or the Court of Appeals. Gibbs cannot now seek leave to appeal the Fourth Department's dismissal of his appeal because "[u]nder New York law, a petitioner has thirty days in which to seek leave to appeal a determination by the Appellate Division." Jarman v. New York, 234 F. Supp.2d 213, 214 (E.D.N.Y. 2002) (citation omitted). Thus, as with his claims relating to the March 1997 parole revocation decision, Gibbs' claims relating to the July 1997 decision revoking his parole are "deemed exhausted" for this action. The court's review of these claims is therefore conditioned upon Gibbs demonstrating cause for his default and resulting prejudice, or presenting evidence to show that he is "actually innocent" of the April 4, 1997, charge that he failed to comply with the terms of his parole by refusing to enter the WDTC. See e.g., Ramirez, 280 F.3d at 96; Stone, 121 F. Supp.2d at 236-37.
Respondent notes that Gibbs never filed an administrative appeal of ALJ Davis' July 1997 decision ( Dkt. No. 15 at P. 2). Gibbs did not contest this fact in his reply memorandum ( Dkt. No. 16).
Gibbs has not established any cause for his failure to either administratively appeal ALJ Davis' July 1997 decision or perfect the appeal he filed regarding Justice Corning's decision. Additionally, the court's review of the transcript generated after the July 1997 parole revocation hearing ( Dkt. No. 21, Ex. L), establishes that Gibbs was not actually innocent of the April 1997 charge that he failed to comply with the terms of his parole. Thus, Gibbs' claims relating to the July 1997 parole revocation decision must also be denied as procedurally barred.
WHEREFORE, based upon the above, it is hereby
ORDERED, that Gibbs' habeas petitions in this consolidated action are DENIED and DISMISSED; and it is further
ORDERED, that the Clerk of Court serve a copy of this Decision and Order upon the parties by regular mail.
IT IS SO ORDERED.