Summary
dismissing habeas petition challenging revocation of parole where petitioner was released from prison after fully serving sentence
Summary of this case from Casler v. U.S.Opinion
99 CIV. 4523 (DLC), 00 CIV. 2307 (DLC)
November 4, 2003
Kevin Hicks, pro se, Brooklyn, NY, for Petitioner
Tiffany M. Foo, Esq., New York, NY, for Respondent, Peter J. Lacy
Bernadine Agocha, Esq., New York, NY, for Respondent, New York State Division of Parole
OPINION AND ORDER
Pro se petitioner Kevin Hicks ("Hicks") has filed two petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, which are addressed here as related cases. The first petition ("Petition I"), filed on May 3, 1999, arises out of Hicks's plea of guilty to possession of a forged instrument. The second petition ("Petition II"), filed on February 22, 2000, arises out of the revocation of Hicks' parole on an earlier, unrelated robbery conviction. Petitions I and II were referred to Magistrate Judge Frank Maas on July 1, 1999, and April 4, 2000, respectively, for a Report and Recommendation ("Report"), which was issued on September 9, 2003. The Report recommends that both petitions be denied, and that no certificate of appealability issue on either petition. Hicks has filed objections to the Report. For the reasons that follow, the Report is adopted, and both petitions are denied.
Background
Petition I
In 1996, Hicks pleaded guilty to one count of Attempted Criminal Possession of a Forged Instrument in the Second Degree, for which he was sentenced to one and one-half to three years in jail. The relevant events leading up to Hicks' plea are-summarized as follows.
Hicks was arrested on December 27, 1994. At a hearing on June 22, 1995, held in Hicks' absence, Hicks' counsel consented to exclude from speedy trial calculations under New York law a period of approximately six weeks during which the parties were engaged in plea negotiations. On the morning of July 5, a Criminal Court Judge dismissed the case against Hicks on the basis of a concession by an Assistant District Attorney ("ADA") that there had been no grand jury action. Later that afternoon, however, the ADA actually assigned to the case, who had not been present at the morning's hearing, asked the court to vacate the dismissal. After the ADA explained that the parties had previously consented to extend the time for an indictment, the Criminal Court Judge vacated the dismissal and reinstated the charges against Hicks.
On July 12, Hicks was indicted for Criminal Possession of a Forged Instrument in the Second Degree and related crimes. Hicks' motion to dismiss the indictment on the ground that it violated his right to a speedy trial was denied on March 7, 1996. On March 25, Hicks' motion to suppress the items seized by the police at the time of his arrest was denied. The following day, March 26, Hicks pleaded guilty to one count of Attempted Criminal Possession of a Forged Instrument in the Second Degree. Hicks acknowledged as part of his plea that he waived his right to appeal from the denial of his speedy trial and suppression motions. On April 15, 1996, Hicks was sentenced in accordance with his plea agreement.
On July 29, 1997, the Supreme Court denied Hicks' motion to vacate the judgment of conviction. On December 4, the Appellate Division for the First Department denied Hicks' application for leave to appeal that decision. The Appellate Division affirmed Hicks' conviction on October 6, 1998. The New York Court of Appeals denied Hicks leave to appeal on December 2, 1998.
In his timely habeas petition, Hicks seeks relief on the basis of four alleged constitutional errors that occurred prior to his guilty plea. First, Hicks claims that the trial court lacked subject matter jurisdiction because the dismissal and reinstatement of the charges against him on July 5, 1995, occurred before different judges. Second, Hicks argues that he was denied due process because neither he nor his attorney was present at the afternoon proceeding at which the charges against him were reinstated. Third, Hicks contends that his counsel was ineffective on June 22, 1995, when he improperly consented to an extension of time and failed to secure Hicks' presence at the hearing. Fourth, Hicks alleges that his right to a speedy trial was violated.
Petition II
In 1981, Hicks was convicted on three counts of robbery in the first degree and sentenced to a term of six to eighteen years' imprisonment. He was released on parole in 1988. On July 26, 1995, following his arrest for possession of a forged instrument, Hicks was served with a violation of release report based on his failure to appear for scheduled appointments and his failure to report his arrest. At a parole revocation hearing on January 5, 1996, Hicks' parole officer testified that he had regular contact with Hicks until November 3, 1993, but that Hicks had subsequently failed to report as required. The parole officer further testified that Hicks had failed to respond to a 1995 letter directing Hicks to report, and had failed to report his arrest for possession of the forged checks. Hicks' counsel argued at the hearing that the parole officer had advised Hicks in 1994 that he no longer needed to report. In addition, Hicks claimed that he had in fact ceased contact with the parole officer in 1991. The officer disputed this testimony, but admitted that the sign-in sheets for the dates between 1991 and 1993 were unavailable and perhaps destroyed.
An Administrative Law Judge ("ALJ") prepared a decision at the end of the hearing crediting the parole officer's testimony and recommending that Hicks be held until his maximum expiration date of July 20, 1998. The Parole Board affirmed the ALJ's decision on January 19, 1996. The Appellate Division for the Third Department affirmed the Parole Board's determination on November 25, 1998, and on February 23, 1999, the New York Court of Appeals denied Hicks' application for leave to appeal. Hicks was released from prison on May 23, 2002, the maximum expiration date on all of his prior convictions.
In his second habeas petition, Hicks seeks relief on the basis of an alleged denial of due process at the parole revocation hearing. Hicks claims that the New York State Division of Parole introduced fabricated records to support its position that Hicks reported until late 1993, and destroyed the "sign-in logs" that would have corroborated Hicks' assertions at the parole revocation hearing.
Discussion
A reviewing court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). The Court shall make a de novo determination of those portions of the Report to which objection is made.United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).
Petition I
As a threshold matter, the Report concluded that Hicks failed to exhaust his claims that the state court acted without subject matter jurisdiction and violated his right to a speedy trial. Consequently, these two claims are unexhausted, but the Report concluded that they were now procedurally barred. 28 § U.S.C. § 2254(b)(1)(A). In his objections to the Report, Hicks disputes the conclusion that he failed to exhaust the two claims. He refers to a letter dated June 25, 1997, submitted in conjunction with his petition to vacate the judgment, in which he referred the state court to six cases. None of the six cases.1 however, discusses either the issue of subject matter jurisdiction or the right to a speedy trial. The citations therefore fail to satisfy the exhaustion requirement by fairly presenting Hicks' federal constitutional claims to the state court. Jones v. Keane, 329 F.3d 290, 294-95 (2d Cir. 2003). Nonetheless, each of the claims in Hicks' first petition is, as the Report explains, properly dismissed on the merits. 28 U.S.C. § 2254(b)(2); Pratt v. Greiner, 306 F.3d 1190, 1197 (2d Cir. 2002).
People v. Ramos, 85 N.Y.2d 678 (1995); People v. Antomarchi, 80 N.Y.2d 247 (1992); People v. Parker, 57 N.Y.2d 136 (1982); People v. Session, 34 N.Y.2d 254 (1974);People ex re. Lobenthal v. Koehler, 516 N.Y.S.2d 928 (N.Y. A.D. 1987); and People, ex rel. Stage v. Sherwood, 404 N.Y.S.2d 818 (1978).
"A knowing and voluntary guilty plea waives all nonjurisdictional defects in the prior proceedings." United States v. Coffin, 76 F.3d 494, 496 (2d Cir. 1996) (speedy trial claim waived by guilty plea). Therefore, the only claim that was not waived through Hicks' plea of guilty is the issue of the trial court's subject matter jurisdiction.
Hicks alleges that the morning and afternoon proceedings on July 5, 1995, at which the charges against him were dismissed and reinstated, occurred before different Criminal Court judges. He contends that the judge who reinstated the charges therefore lacked jurisdiction over the case. In fact, the trial transcript indicates that both proceedings were before the same judge.
Hicks' claim for relief would fail, however, even if his case were heard by two different judges. New York Law vests preliminary jurisdiction over felony and misdemeanor arrests in the New York City Criminal Court, not in any individual judge. N.Y. Crim. Proc. Law § 10.30 (2003). Moreover, a claim based on the law allocating jurisdiction in the state court system does not present a federal constitutional issue. As the Second Circuit has stated, "no federal court to our knowledge has ever granted a writ where a state court's asserted lack of jurisdiction resulted solely from the provisions of state law." United States ex rel. Roche v. Scully, 739 F.2d 739, 741-42 (2d Cir. 1984) (quoting United States v. Mancusi, 415 F.2d 205, 209 (2d Cir. 1969)).
None of Hicks' objections to the Report addresses the principle of law that his entry of a guilty plea waived all of his non-jurisdictional claims. For instance, Hicks argues that the People failed to comply with state law governing notice for reinstatement of a criminal action. N.Y. Crim. Proc. Law § 160.5 (2003). Errors of state law, however, do not provide the federal constitutional grounds on which habeas relief must be based. Estelle v. McGuire, 502 U.S. 62, 67 (1991). Hicks also relies on two decisions addressing state courts' denial of bail,Finetti v. Harris, 609 F.2d 594, 597 (2d Cir. 1979), andUnited States ex rel. Cameron v. People of New York, 383 F. Supp. 182, 184 (E.D.N.Y. 1974), for the proposition that an arbitrary denial of a right created by a state legislature is a denial of due process. Finally, Hicks quotes from the concurrence in Santobello v. New York, 404 U.S. 257, 263 (1991), concerning the duties of the prosecutor. These cases provide no basis for Hicks to raise non-jurisdictional claims concerning events prior to the entry of his guilty plea. Petition II
The Report recommends that Petition II be dismissed on the merits and because the petition is moot. Hicks was released from prison on May 23, 2002, the maximum expiration date on all of his prior convictions.
Under the Supreme Court's holding in Spencer v. Kemna, 523 U.S. 1 (1998), a petitioner seeking relief from a parole revocation, unlike a petitioner seeking relief from an original conviction, is not entitled to a presumption of collateral consequences satisfying the case-or-controversy requirement of Article III. Id. at 14. A habeas petitioner no longer in custody who is challenging the result of a parole revocation hearing must therefore demonstrate a concrete, ongoing injury-in-fact attributable to his parole revocation. Id.;see also United States v. Probber, 170 F.3d 345r 348 (2d Cir. 1999). Hicks' prior incarceration until his maximum expiration date does not constitute an ongoing injury.
In his objections to the Report, Hicks argues that the revocation of his temporary certificate of relief from civil disabilities constitutes an injury-in-fact resulting from his parole revocation. Under New York law, a certificate of-relief from civil disabilities acts to "relieve an eligible offender of any forfeiture or disability, or to remove any bar to his employment, automatically imposed by law by reason of his conviction of the crime or of the offense specified therein." N.Y. Correct. Law § 701(1) (2003). A certificate of disability is considered temporary while the offender is under supervision; if the certificate is not revoked during that time, it becomes permanent upon the termination of the offender's parole. N.Y. Correct. Law § 703(4) (2003). The board of parole is only authorized to issue a certificate of relief to an "eligible offender," defined as a person "who has not been convicted more than once of a felony." N.Y. Correct. Law § 700(1) (2003).
At the time of Hicks' 1996 parole revocation hearing, he was under supervision as a result of an earlier felony robbery conviction. Hicks' plea of guilty to Attempted Criminal Possession of a Forged Instrument in the Second Degree on March 26, 1996, resulted in a second felony conviction. As of that conviction, Hicks was no longer an "eligible offender." Thus, even if Hicks was injured by the revocation of his temporary certificate of relief from civil disability at the January 1996 parole revocation hearing, the resulting injury was of limited duration, as Hicks was no longer eligible for the certificate in March of that year. Hicks is therefore unable to show a concrete, continuing injury resulting from the parole revocation hearing. Hicks' second habeas petition is, therefore, moot.
Conclusion
The recommendation of Magistrate Judge Maas is adopted and the petition is dismissed. In addition, I decline to issue a certificate of appealability. The petitioner has not made a substantial showing of a denial of a federal right, and appellate review is, therefore, not warranted. Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998). I also find pursuant to 28 U.S.C. § 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). The Clerk of Court shall dismiss this petition and close the case.
SO ORDERED.