Opinion
21-CV-6108 (AT) (JW)
02-10-2023
JOSEPH MULLADY, Petitioner, v. NEW YORK STATE DEPARTMENT OF CORRECTIONS & COMMUNITY SUPERVISION, Respondent.
HONORABLE ANALISA TORRES, U.S.D.J.
REPORT & RECOMMENDATION
JENNIFER E. WILLIS UNITED STATES MAGISTRATE JUDGE
Petitioner Joseph Mullady (“Petitioner”) brings this habeas corpus proceeding under 28 U.S.C. § 2254, alleging Respondent violated his constitutional rights by holding his fourth and fifth parole reconsideration interviews late in violation of New York Executive Law § 259-i(2)(a), and thus illegally detaining Petitioner. Dkt. No. 1. Respondent argues “[t]he petition should be dismissed with prejudice because the petition is untimely, is procedurally defaulted or at least unexhausted, and fails to state a valid federal claim that is not moot.” Dkt. No. 21 at 1. In Petitioner's reply in support of his petition, Petitioner also asserts that his constitutional rights were violated because his 1988 sentence was grossly disproportionate to his crime, which amounts to cruel and unusual punishment. Dkt. No. 28 at 13-14. For the reasons set forth below, I respectfully recommend that the petition be denied.
BACKGROUND
A. Petitioner's Conviction
On June 14, 1989, following a trial in the New York State Supreme Court of New York County, a jury convicted Petitioner of murder in the second degree, robbery in the first degree, and criminal possession of a weapon in the second degree. The Court sentenced Petitioner, as a persistent violent felony offender, to 25 years to life. Dkt. No. 20:1-5 at 305-06 (hereinafter “SR”). The Appellate Division, First Department affirmed the judgement on appeal and the Court of Appeals denied leave for appeal. People v. Mullady, 180 A.D.2d 408 (1st Dep't 1992), lv. denied, 80 N.Y.2d 835 (1992).
B. Petitioner's Parole Interview History
The Parole Board (the “Board”) has denied Petitioner parole five times. Each time it has done so, the Board has set a reconsideration interview date no more than 24 months later, as required by statute. Exec. Law § 259-i(2)(a)(i); SR 11, 15, 19, 47, and 124. The Board interviewed Petitioner for the first time on February 5, 2013 and denied Petitioner parole. SR 11. The Board scheduled Petitioner's second parole interview for December 2014. SR 11. Following the Board's December 3, 2014 interview, the Board denied Petitioner parole for the second time and scheduled the next parole interview for December 2016. SR 15.
Respondent states that the correct term is a reconsideration “interview”. Dkt. No. 21 at 5 n.2. Petitioner refers to the interview as a reconsideration “hearing.” Dkt. No. 1 ¶ 10. The difference in terminology is irrelevant to Petitioner's claims. The Court will use the term reconsideration “interview.”
The interview was supposed to take place in December 2012 but was postponed to February 5, 2013 to comply with a statutory requirement to consider the sentencing court's recommendations. The sentencing minutes were missing at the initial interview date. SR 7, 9, 11; Exec. Law § 259-i(2)(c)(A)(vii).
The interview was set for 24 months after the original date the Board was supposed to interview Petitioner for his first reconsideration interview but for the Board's delay in receiving Petitioner's sentencing minutes.
Petitioner waived his right to an interview with the Board on December 6, 2016 for his third parole reconsideration. SR 19. The Board denied parole and set the fourth parole interview for December 2018 (Id.), which was delayed beyond the 24 months set by statute to January 3, 2019. SR 22. The Board again denied Petitioner parole and set the fifth reconsideration interview date for December 2020. SR 47.The fifth interview occurred on December 29, 2020 and the Board denied Petitioner parole again thereafter. SR 124.
Based on either party's interpretation of how to calculate when the Board conducts a delayed reconsideration interview, the Board's fourth interview occurred later than statutorily permitted. Dkt. No. 21 at 14.
Petitioner contends that the Board set the fifth reconsideration interview for December 10, 2020. Dkt. No. 1 ¶ 11.
On administrative appeal of the Board's January 2019 denial, Petitioner did not reference his present claims (SR 50-76), and neither did the Board, which affirmed its denial. SR 83-91. On administrative appeal of the Board's December 2020 denial, Petitioner argued that his fourth and fifth reconsideration interviews were held later than permitted by statute. SR 129-30. The Board affirmed its December 2020 decision. SR 135. Petitioner's sixth reconsideration interview was scheduled for December 2022. SR 124. Petitioner recently submitted a Board Release Decision Notice, which states that Petitioner's sixth reconsideration interview occurred on January 3, 2023, but the Board's decision was postponed six months at Petitioner's request “for pending legal matters.” Petitioner's next appearance before the Board is scheduled for June 2023 or earlier. Dkt. No. 39.
C. State Proceedings
In June 2019, Petitioner challenged his incarceration, arguing that the Board's January 2019 parole decision violated his constitutional due process rights. SR 143-71. In November 2019, the New York State Supreme Court of Orange County dismissed Petitioner's challenge. SR 364-71. Petitioner was served with the Court's decision on December 10, 2019. SR 372; C.P.L.R. §§ 2103(b)(2) and (c). Accordingly, his time to appeal such decision expired on January 9, 2020. See C.P.L.R. § 5513(a).
In January 2021, for the first time, Petitioner raised a claim relating to his delayed reconsideration interviews in state court. SR 375-89. The New York State Supreme Court of Essex County denied his petition on June 7, 2021. SR 515. The Court distinguished parole release from parole revocation, finding that the former considers whether a person will be granted a liberty they desire (parole) and the latter considers whether a person will have a liberty they already possess (release from incarceration) revoked. SR 513, citing Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 9-10 (1979). “Although the January 3, 2019 hearing was held beyond the twenty-four month period during which the Board of Parole was required to conduct it, [Petitioner] was afforded his due process rights at that hearing as well as at the subsequent hearing on December 29, 2020.” SR 515. The Court reasoned that the statutes governing the timelines for parole considerations - Executive Law § 259-i (2)(a) and 9 N.Y.C.R.R. § 8002.l(a) - are “only procedural requirements.” Id. The remedy for violations of such procedural requirements is a reconsideration hearing, not release, which Petitioner had in January 2019 and December 2020. Id.
On June 25, 2021, Petitioner filed a timely notice of appeal to the Appellate Division, Third Department. SR 516. On July 12, 2021, Petitioner withdrew his appeal and the Clerk of Court closed the case. SR 518-19. Petitioner has never brought his cruel-and-unusual punishment claim to any court before this Court. See SR.
LEGAL STANDARDS
A. Exhaustion and Procedural Default
Prior to seeking federal habeas review, a petitioner in state custody must exhaust all remedies available in state court. 28 U.S.C. § 2254(b)(1); see also Jackson v. Conway, 763 F.3d 115, 133 (2d Cir. 2014). This means that a petitioner “must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); see also Jackson, 763 F.3d at 133 (explaining a “complete round” requires a petitioner to present the “essential factual and legal premises of his federal constitutional claim to the highest state court capable of reviewing it”) (internal citation omitted).
In New York, a petitioner invokes “one complete round” of review by appealing an issue to the Appellate Division and then seeking leave to appeal to the New York Court of Appeals. Galdamez v. Keane, 394 F.3d 68, 74 (2d Cir. 2005). If a habeas petition presents unexhausted claims, the federal court must determine whether the petitioner would be able to return to state court to exhaust those claims. Jackson, 763 F.3d at 133. An unexhausted claim for which the petitioner cannot obtain further review in state court is procedurally defaulted and must be dismissed. Id. (“[I]f the state prisoner fails to exhaust his state remedies in a manner in which, were he to return to the state courts with his unexhausted claim, those courts would find the claim barred by the application of a state procedural rule, we must deem the claim procedurally defaulted.”) (internal citation and quotation marks omitted).
B. Habeas Review
A habeas corpus petition is not a vehicle to relitigate every issue previously determined in state court. Herrera v. Collins, 506 U.S. 390, 401 (1993). Instead, a state prisoner seeking habeas relief under § 2254 must show by a preponderance of the evidence that he is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). “[T]he petitioner bears the burden of proving by a preponderance of the evidence that his rights have been violated.” Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997).
A federal court may grant a writ of habeas corpus to a state prisoner where the state court's adjudication of the petitioner's federal claim on the merits:
1. resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
2. resulted in a decision that 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).
A decision is “contrary to” clearly established federal law, as determined by the Supreme Court, “if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law” or “if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [the Supreme Court's].” Williams v. Taylor, 529 U.S. 362, 404-05 (2000). “[C]learly established federal law” “refers to the holdings, as opposed to the dicta, of [the Supreme Court's] decisions.” Id. at 412.
A decision is an unreasonable application of clearly established federal law if a “state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. at 413; accord Cullen v. Pinholster, 563 U.S. 170, 188 (2011) (holding that the unreasonable application prong of § 2254(d)(1) can be satisfied “only by showing that ‘there was no reasonable basis' for the [state court's] decision”); Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (defining “unreasonable application” to require more than clear error). Moreover, a “federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant statecourt decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams, 529 U.S. at 411; accord Lockyer, 538 U.S. at 75.
The standard for relief under the Antiterrorism and Effective Death Penalty Act (“AEDPA”) “is difficult to meet, because the purpose of AEDPA is to ensure that federal habeas relief functions as a guard against extreme malfunctions in the state criminal justice systems, and not as a means of error correction.” Greene v. Fisher, 565 U.S. 34, 38 (2011) (internal quotation marks omitted); accord Metrish v. Lancaster, 569 U.S. 351, 357-58 (2013); see Burt v. Titlow, 571 U.S. 12, 19 (2013) (“AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court”).
“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.” Harrington v. Richter, 562 U.S. 86, 103. “[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the prisoner's claim on the merits.” Greene, 565 U.S. at 38 (citing Cullen, 563 U.S. at 181).
C. New York State Law Regarding the Parole Board
Prisoners who receive an indeterminate sentence with a maximum duration of life imprisonment for a felony classified as violent or a non-drug class A-1 felony can only be released through the Board's discretion, executive clemency or judicial vacatur. Non-discretionary, automatic, and as-of-right avenues for release are barred. See Penal Law §§ 70.30(4)(a), 70.40(1); Exec. Law §§ 259-c, 259-i(2)(a)(ii) and (2)(c)(A); Corr. Law §§ 803(1)(a) and (1)(d)(ii), 805, 806(1)(i), 865. The Board must interview a prospective parolee “at least one month prior to the date on which an incarcerated individual may be paroled.” Exec. Law § 259-i(2)(a)(i). If the Board denies parole, it must “specify a date not more than twenty-four months from such determination for reconsideration.” Id.
Both parties assume this language also mandates that the reconsideration must be held as scheduled. See Dkt. No. 21 at 6 n.3.
ANALYSIS
A. Timeliness of Parole Board Reconsideration Interview Claims
a. Petitioner's Claim as to His Fourth Reconsideration Interview is Time-Barred
Petitioner's challenge to the execution of his state sentence is governed by 28 U.S.C. § 2254. See James v. Walsh, 308 F.3d 162, 167 (2d Cir. 2002) (“Section 2254 permits a state prisoner to file a habeas petition ‘on the ground that he is in custody in violation of the Constitution or laws or treaties of the Untied States.'”). A petition pursuant to § 2254 must be filed within one year of “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D).
Petitioner argues a due process right to release arose when the Board failed to hold his fourth reconsideration interview within 24 months of his third parole denial. Dkt. No. 1 ¶¶ 10-11, 14-16. According to Petitioner, his fourth reconsideration interview was late because it did not occur by the biennial anniversary day of his third parole denial plus two additional days. Id. ¶ 10. Respondent, however, calculates delay based on the month and thus would only find an interview to be late if it did not occur by the first of the month following the date on which the interview was initially scheduled. Dkt. No. 21 at 6. Either way, and giving Petitioner the benefit of a later date, both parties would agree that Petitioner's fourth reconsideration interview was late when it did not occur by January 1, 2019, thereby triggering a January 1, 2020 deadline to file a petition asserting Petitioner's present claim. See 28 U.S.C. § 2244(d)(1)(D). Petitioner did not file such a petition until July 1, 2021.
This is the date of Petitioner's cover letter and the date on which Petitioner applied to prison officials for a check to cover his federal court filing fee. Dkt. No. 1 at 12-13. See R. Gov'g § 2254 Proceedings 3(d) (“A paper filed by an inmate confined in an institution is timely if deposited in the institution's internal mailing system on or before the last day for filing.”); see also Hardy v. Conway, 162 Fed.Appx. 61, 62 (2d Cir. 2006) (“[In] the absence of contrary evidence, district courts in this circuit have tended to assume that prisoners' papers were given to prison officials on the date of their signing.”).
Statutory tolling does not save Petitioner's claim. Under the AEDPA, “[the] time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation.” 28 U.S.C. § 2244(d)(2). Petitioner's June 2019 state action did not raise his current claim and thus did not toll the statute of limitations. SR 143-71. Petitioner filed his second state action in January 2021 and an amended version thereof on February 19, 2021, asserting that his fourth reconsideration interview was late. SR 405. The Essex County Supreme Court denied the petition on June 7, 2021. SR 510-15. However, Petitioner's second state action did not toll Petitioner's federal AEDPA deadline because Petitioner filed it over a year after his January 1, 2020 AEDPA deadline.
Petitioner is not entitled to equitable tolling either. Petitioner has not argued or provided any evidence to establish “‘(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). Moreover, the Court declines to provide habeas relief despite the fact that the petition is time-barred as to the fourth reconsideration interview because Petitioner has not “‘advance[d] both a legitimate constitutional claim and a credible and compelling claim of actual innocence.'” Cosey v. Lilley, 460 F.Supp.3d 346, 372 (S.D.N.Y. 2020) (internal citation omitted).
Finally, Petitioner argues that the filing is not late because he did not know the legal basis for his present federal claim when the Board delayed holding his fourth reconsideration interview. However, “ignorance of the law does not justify equitable tolling of the statute of limitations, even for pro se petitioners.” Sanders v. Chappius, No. 12-CV-3339 (BSJ) (JCF), 2012 WL 6756238, at *6 (S.D.N.Y. Nov. 9, 2012), report and recommendation adopted, 2013 WL 28471 at *4 (S.D.N.Y. Jan. 2, 2013).
b. Petitioner's Fourth Reconsideration Interview Claim is Procedurally Defaulted
Petitioner's claim that the Board failed to hold a timely fourth reconsideration interview is procedurally defaulted. Petitioner failed to satisfy the AEDPA's “one complete round” requirement because he withdrew his appeal of Essex County Supreme Court's denial of his claim. See SR 516-19; O'Sullivan. 526 U.S. at 845 (“[S]tate prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.”).
Petitioner erroneously argues that he is exempt from this exhaustion requirement, citing state habeas rulings that are inapplicable to the present federal habeas petition because they do not address federal habeas procedure. Dkt. No. 1 ¶ 20 (citing People ex rel. Degranges v. Anderson, 59 Misc.3d 238, 243 (Sup. Ct. Dutchess Cnty. 2018) (holding that the court must consider defendant's ability to pay and whether there is any less restrictive means to achieve the state's interests when imposing bail)). He also argues that he has a First Amendment right to seek federal habeas relief without exhausting state remedies but does not cite any supporting caselaw for such argument. Dkt. No. 1 ¶ 23.
Additionally, Petitioner's argument that there are no state remedies available to him in his state habeas corpus action prior to the maximum expiration date of his sentence (see Dkt. No. 1 ¶ 17-23 (citing People ex rel. D'Adamo v. Artus, 61 A.D.3d 1263 (3d Dep't 2009)) is unavailing. Given that Petitioner claims a legal right to non-discretionary release, Petitioner could have commenced a C.P.L.R. Article 78 proceeding or asked the Essex County Supreme Court or Third Department to convert his habeas action into an Article 78 action pursuant to C.P.L.R. § 103(c). See Perry v. Sheahan, No. 16-CV-517S, 2016 WL 6093997, at *2 (W.D.N.Y. Oct. 19, 2016) (rejecting petitioner's argument that he had no state remedies available because appealing the denial of his state court habeas petition would have been futile given that petitioner could have pursued an Article 78 action); Mastropietro v. Bradt, No. 10-CV-6940 (VB) (PED), 2012 WL 4794441, at *2 (S.D.N.Y. July 9, 2012) (noting that the Cayugta County Supreme Court converted petitioner's petition from an Article 70 to Article 78 action pursuant to C.P.L.R. § 103(c)); People ex rel. Gonzalez v. New York State Bd. of Parole, 103 A.D.2d 855 (2d Dep't 1984) (converting petitioner's habeas corpus proceeding to an Article 78 one pursuant to C.P.L.R. 103(c)). Moreover, if the Third Department denied Petitioner relief because he had not yet reached the expiration of his sentence, Petitioner could have appealed to the New York Court of Appeals, which the Court has not found to have adopted the Third Department's approach.
c. Petitioner's Fifth Reconsideration Interview Was Timely
Petitioner argues a due process right to release arose when the Board failed to hold his fifth reconsideration interview by December 10, 2020. Dkt. No. 1 ¶¶ 11, 1416. The record reflects that Petitioner's fourth reconsideration interview was originally scheduled for December 2018. SR 19. The Board did not state a specific day in December 2018 for the interview. Id. Whether the Court follows Petitioner's or the Board's interpretation of Executive Law § 259-i, Petitioner's fifth reconsideration interview held on December 29, 2020 was 24 months after the original December 2018 deadline to interview Petitioner and less than 24 months after Petitioner was interviewed on January 3, 2019 and denied parole on January 7, 2019. The Court thus finds that Petitioner's fifth reconsideration interview was timely.
d. Petitioner Has No Liberty Interest
Even if the petition was timely and not procedurally defaulted as to Petitioner's fourth reconsideration interview claim and if Petitioner's fifth reconsideration interview was in fact late, Petitioner has no liberty interest under the Due Process Clause of the Fourteenth Amendment in the Board providing a timely parole reconsideration interview. As the Essex County Supreme Court correctly observed, a timely parole hearing does not give rise to a liberty interest. SR 513; see also Greenholtz, 442 U.S. at 9 (“[P]arole release and parole revocation are quite different. There is a crucial distinction between being deprived of a liberty one has, as in parole, and being denied a conditional liberty that one desires.”). Required procedures for parole consideration do not create a right to release from incarceration. See Gordon v. Alexander, 592 F.Supp.2d 644, 651 (S.D.N.Y. 2009) (“This Court is bound, however, by the determination of the Second Circuit that the New York State parole system does not vest prisoners with a liberty interest protected by the Fourteenth Amendment. Thus no process is constitutionally mandated, and on that ground alone, a claim alleging constitutionally burdensome delay must fail.”).
Petitioner references Supreme Court precedent discussing liberty interests in areas of prison life such as unwanted facility transfers (Olim v. Wakinekona, 461 U.S. 238 (1983)), visitation rights (Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454 (1989)), and discretionary parole decisions (Board of Pardons v. Allen, 482 U.S. 369 (1987)). See Dkt. No. 28 at 12. However, these cases do not address Petitioner's purported liberty interest here and the Court is unaware of any case finding that prisoners have a liberty interest in a timely reconsideration interview. Accordingly, Petitioner's claim is also denied on the merits. The Court cannot conclude that the Essex County Supreme 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 “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).
e. Petitioner's Claims are Moot
Moreover, Petitioner's claims are moot. The Essex County Supreme Court reasonably concluded that even if Petitioner had a liberty interest in timely reconsideration interviews, the proper remedy for the Board's failure would be for a court to order the Board to conduct a parole interview. Given that the Board conducted reconsideration interviews in January 2019 and December 2020, even if they were late as Petitioner alleges, there is no other relief available. SR 515. See Gomez v. Alexander, No. 08-CV-8800 (RMB) (KNF), 2010 WL 1257331, at *5 (S.D.N.Y. Mar. 24, 2010) (dismissing plaintiff's timeliness claims because plaintiff had already received the remedy he sought - an appearance before the Board).
B. Cruel-and-Unusual Punishment Claim
a. Petitioner's Claim is Time-Barred
Petitioner's claim that his sentence of 25 years to life is cruel and unusual punishment is untimely. Petitioner first made this claim in his reply in support of the instant petition, which was filed on June 24, 2022. Dkt. No. 28 at 14. The factual predicate for this claim is Petitioner's sentencing, which occurred on June 14, 1989. SR 198. The deadline to file a habeas petition regarding this claim, therefore, was June 14, 1990. See 28 U.S.C. § 2244(d)(1)(D). The one-year grace period after the passage of the AEDPA for filing federal habeas challenges to convictions or sentences that became final before the passage of the AEDPA on April 24, 1996 only extended Petitioner's deadline to file to April 24, 1997. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998). Petitioner, however, did not raise this issue before June 24, 2022.
b. Petitioner's Claim is Procedurally Defaulted
Petitioner's claim is also procedurally defaulted. Petitioner did not raise this claim in state court to satisfy the “one complete round” requirement. See O'Sullivan. 526 U.S. at 845 (“[S]tate prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.”). Given that Petitioner already appealed his conviction, which was affirmed in 1992 (Mullady, 180 A.D.2d 408, lv. denied, 80 N.Y.2d 835), res judicata bars Petitioner from returning to state court to exhaust his claim based on this new theory. Additionally, even if Petitioner was not barred, Petitioner had thirty days from the date of sentencing to file his challenge to the constitutionality of the sentence imposed. This deadline applied to Petitioner's newly asserted claim. N.Y. Crim. Proc. Law § 460.10.
c. Petitioner's Claim is Meritless
Petitioner's claim that his sentence violates the Eighth Amendment because it is “a de facto sentence of life imprisonment without the possibility of parole” (Dkt. No 28 at 14) fails for two reasons. First, while “[t]here is no ‘bright-line' rule for what constitutes a de facto life sentence in federal or state law,” People v. Lora, 71 Misc.3d 221, 227 (Sup. Ct. N.Y. Cnty. 2021), Petitioner's ongoing parole eligibility approximately every two years effectively means he does not have a “de facto sentence of life without the possibility of parole.”
Second, the Supreme Court has already held that life imprisonment without the possibility of parole does not violate the Eighth Amendment. In Harmelin v. Michigan, 501 U.S. 957, 994-95 (1991), the Court held that the Constitution permits life in prison without the possibility of parole for a person convicted of felony drug possession. Petitioner's reference to Miller v. Alabama, 567 U.S. 460, 470 (2012), where the Court found that sentences of life in prison without the possibility of parole violated the Eighth Amendment where the defendants had been juveniles at the time of the criminal conduct, is factually inapplicable. Petitioner was an adult at the time he committed the crimes for which he is currently imprisoned. Therefore, the Court cannot conclude that New York County Supreme Court's sentencing decision was contrary to Supreme Court precedent. As such, Petitioner's claim should be denied.
Petitioner also attempts to argue that several state court decisions, such as People v. Tower, 308 N.Y. 123 (1954), establish the impropriety of his sentence, but they are not Supreme Court decisions and are factually dissimilar.
CONCLUSION
For the foregoing reasons, I recommend that Petitioner's habeas petition be denied. Furthermore, because Petitioner has not made a substantial showing of the denial of a constitutional right, as required by 28 U.S.C. § 2253(c)(2), a certificate of appealability should not be issued.
OBJECTIONS
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the parties shall have fourteen (14) days (including weekends and holidays) from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6 (allowing three (3) additional days for service by mail). A party may respond to any objections within fourteen (14) days after being served. Such objections, and any responses to objections, shall be filed with the Clerk of Court, Pro Se Intake Unit, United States Courthouse, 500 Pearl Street, Room 200, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Torres.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983)).