Hill v. Mance

598 F.Supp.2d 371

Duane HILL, Petitioner, v. James A. MANCE, Superintendent of Marcy Correctional Facility, Respondent.

No. 07-CV-6301(VEB).

United States District Court, W.D. New York.

February 23, 2009.

Duane Hill, Marcy, NY, pro se.

Michael J. Hillery, Erie County District Attorney's Office, Buffalo, NY, for Respondent.

DECISION AND ORDER

VICTOR E. BIANCHINI, United States Magistrate Judge.

I. Introduction

Petitioner pro se Duane Hill ("Hill") filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on June 12, 2007. (Docket No. 1). Hill pleaded guilty in Erie County Court to one count of criminal possession of a weapon in the second degree (N.Y. Penal Law § 265.03(2)) and one count of criminal possession of a weapon in the third degree (N.Y. Penal Law § 265.02(4)). He was sentenced on May 9, 2000, to concurrent terms of three and one-half years on the second degree weapons conviction, and two years on the third degree weapons conviction. Hill did not pursue a direct of appeal of his conviction. Indeed, Hill does not attack the conviction itself or the length of the sentence imposed by the trial court. Rather, Hill's only ground for habeas relief is that the administrative imposition of five years of post-release supervision by the New York State Department of Correctional Services ("NYSDOCS") is unconstitutional:

Petitioner, after pleading guilty under two Erie County indictments, was sentenced to two determinate sentences. Neither in the sentencing minutes, nor the commitment document did the judge issue a five (5) year period of post-release supervision. In February of 2003, petitioner was notified and required to sign documents of the Division of Parole that indicated that he would serve an additional period of five (5) years post-release Petitioner [was] coerced into signing these documents [and] was released on April 8, 2003. On May 12, 2006, petitioner's parole was violated and he was assessed to an additional twenty-four months incarceration.¹ The administrative addition of five (5) years to petitioner's sentence by the Department of Correctional Services and carried out by the Division of Parole, neither indicated in the sentencing minutes, nor found in the commitment documents, and the additional incarceration of petitioner is illegal and petitioner was therefore denied due process of law.

Petition, ¶ 7 (Docket No. 1); see also Petitioner's Memorandum of Law (Docket No. 2). Along with his accompanying memorandum of law, Hill has submitted copies of the sentence and commitment orders, the sentencing minutes, the parole violation documents, "legal computation data", his state writ of habeas corpus, the County Court decision denying the writ; the appellate court's dismissal of appeal, and "copy of 28 U.S.C. § 2242 and Judge Weinstein's analogy."

In his memorandum of law, Hill provides additional facts concerning the addition of post-release supervision to his sentence. According to Hill, it was not until February 2003, after he had been incarcerated for nearly three years and was first eligible for parole, that he was "notified by Mohawk Facility Parole Officer that he was required to sign documents indicating that he was to serve and additional five (5) years of PRS or else he would not be released from custody." Pet'r Mem., ¶ 7. On April 8, 2003, Hill was released to parole supervision, having completed three and one-half years of incarceration, the maximum term imposed by the sentencing judge.

On May 12, 2006, Hill states, he "was re-incarcerated by the Division of Parole ("DOP") for an alleged violation of PRS and on June 7, 2006, petitioner was assessed for an additional twenty-four (24) months of incarceration by the DOP." Id., ¶ 8. At that time, Hill made a document request under the Freedom of Information Law ("FOIL"), and received a copy of his "Reception/Classification System Legal Date Computation" pertaining to his time spent in NYSDOCS custody. Hill indicates that his receipt of the Legal Date Computation on June 22, 2006, "was the first time petitioner ever saw an indication of PRS in a record of any kind (EXH. E), outside of his release papers." Pet'r Mem., ¶ 8 (emphasis supplied) (Docket No. 2).

Hill indicates that about three months later, on September 20, 2006, he filed a petition for a writ of habeas corpus in Oneida County Supreme Court pursuant to New York Civil Practice Law and Rules ("C.P.L.R.") § 7001 "demanding his immediate release from confinement based on the due process violation of DOCS administratively adding an additional five year period of PRS to his sentence (EXH. F)." Pet'r Mem., ¶ 9 (Docket No. 2). Hill cited to, inter alia, Earley v. Murray, 451 F.3d 71, 74 (2d Cir.2006), a case whose facts were squarely on point with his.

However, on November 1, 2007, a justice of Oneida County Supreme Court denied the writ in a summary decision, stating as follows:

Petitioner was sentenced as a violent felony offender. He is, accordingly, automatically subject to five years' post-release supervision by operation of Penal Law § 70.45(2), regardless of the absence of a direction thereof from the sentencing judge. Accordingly, the poor person application is moot, the underlying application has no merit, and the application is DENIED.

Pet'r Ex. G, attached to Pet'r Mem. (Docket No. 2).

Hill filed a motion to take a late notice of appeal to the Appellate Division, Fourth Department, which was dismissed as "unnecessary inasmuch as no appeal lies from a decision of the court (see People ex rel. Aguilar v. Kelly, 143 A.D.2d 535, 533 N.Y.S.2d 263) (emphasis supplied).²" Pet'r Ex. H, attached to Pet'r Mem. (Docket No. 2). Therefore, Hill stated, he had exhausted his state-court remedies.

On August 6, 2007, respondent filed an answer and memorandum of law in opposition to the petition (Docket Nos. 5 & 6). The only argument asserted by respondent pertained to Hill's alleged failure to exhaust his state-court remedies.

On April 21, 2008, a consent order was entered (Docket No. 7) in this matter, reflecting the parties' consent to jurisdiction by a magistrate judge under 28 U.S.C. § 636(c). The case was transferred from District Judge Larimer to Magistrate Judge Payson.

On May 12, 2008, based on the information on the NYSDOCS Inmate Lookup site, Hill released to parole, following his re-incarceration for 24 months as a result of the parole violation.

On February 4, 2009, this case was reassigned to the undersigned (Docket No. 8). On February 17, 2009, the copy of the reassignment order sent to Hill at Marcy Correctional Facility, the most recent address on file with the Court, was returned to the Clerk of the Court. The docket indicates that delivery was attempted, but the postoffice was unable to forward the correspondence to Hill, as the Correctional Facility stated that Hill's forwarding address was not known. See Docket Entry dated February 17, 2009. However, the Court checked the Inmate Lookup website operated by NYSDOCS regarding Hill. As of February 23, 2009, the data in the field "Latest Release Date/Type (Released Inmates Only)" indicates as follows: "05/12/08 PAROLE DIV OF PAROLE." The explanatory section for the Inmate Lookup page states that "[i]f the Custody Status item indicates that the inmate has been released from state prison, this item will indicate the date the inmate was released and the type of that release." Thus, it appears that Hill was released to parole supervision on May 12, 2008. If Hill is under supervision of the New York State Division of Parole, it would seem that NYSDOCS necessarily would have a forwarding address for him.

In any event, the lack of an updated address for petitioner at this juncture is not of critical importance. The Court has determined there is no need for further briefing of the issues, and the only further action required must be undertaken by NYSDOCS, as discussed further, infra. For the reasons that follow, Hill's request for a writ of habeas corpus is granted.

II. Discussion

A. Exhaustion

Section 2254(b)(1) generally requires habeas petitioners to exhaust their state court remedies before bringing their constitutional claims in federal court:

(b)(1) An 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 State corrective process; or

(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.

28 U.S.C. § 2254(b)(1)(A), (B). Accord, e.g., Aparicio v. Artuz, 269 F.3d 78 (2d Cir.2001) ("If anything is settled in habeas corpus jurisprudence, it is that a federal court may not grant the habeas petition of a state prisoner `unless it appears that the applicant has exhausted the remedies available in the courts of the State; or that there is either an absence of available State corrective process; or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.' 28 U.S.C. § 2254(b)(1)....").

Respondent has asserted the defense of non-exhaustion. See Respondent's Memorandum of Law ("Resp't Mem.") at 3-4 (citing 28 U.S.C. § 2254(b)(1)(A), (B)). Respondent's argument on exhaustion is contained in one paragraph: "Petitioner has not filed an appeal. His claim has not been exhausted. He has not demonstrated that `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)(A)(B). His claim must be dismissed." Resp't Mem. at 4 (Docket No. 6).

Respondent, however, has totally ignored Hill's state-court habeas petition, wherein Hill clearly argued and specifically cited to relevant Supreme Court, Second Circuit, and other federal precedent. Respondent does not...