Justice v. Graham

• Decision Date: 30 December 2010
• Docket Number: DECISION AND ORDER No. 09-CV-6054T
• Parties: JOHN D. JUSTICE Petitioner, v. HAROLD GRAHAM, Superintendent Respondent.
• Court: U.S. District Court — Western District of New York

JOHN D. JUSTICE Petitioner,
v.
HAROLD GRAHAM, Superintendent Respondent.

DECISION AND ORDER No. 09-CV-6054T

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

Dated: December 30, 2010

I. Introduction

Pro se Petitioner John D. Justice ("Petitioner") has filed a timely petition for a writ of habeas corpus under 28 U.S.C. § 2254. Dkt. # 1. In the instant petition, Petitioner maintains that he should be in the custody of the New York Office of Mental Health ("OMH"), rather than the New York Department of Corrections ("DOCS").

Petitioner is in state custody as a result of a judgment of conviction entered January 14, 1993 in New York, County Court, Erie County. By that judgment, Petitioner was convicted of Manslaughter in the First Degree (N.Y. Penal Law ("Penal Law") § 125.20), Manslaughter in the Second Degree (Penal Law § 125.15), and two counts of Criminal Possession of a Weapon in the Fourth Degree (Penal Law § 265.01). For those crimes, Petitioner was sentenced to an aggregate indeterminate term of from thirteen and one-third to forty years.

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II. Factual Background and Procedural History

A. Petitioner's Conviction

In 1985, in Kenmore, New York, Petitioner, who was then seventeen-years old, stabbed to death his thirteen-year old brother as his brother returned home from school. Petitioner then stabbed to death his mother when she returned home from work. Next, Petitioner picked up his father from work in the family car, and stabbed him to death as his father entered their home. As Petitioner drove away quickly from the home, he crashed into a car driven by Wayne Haun ("Haun"), killing him.

Petitioner was charged with four counts of second-degree murder and four counts of fourth-degree criminal possession of a weapon. At trial, Petitioner asserted the affirmative defense of insanity. With respect to the murder charges for his father's and brother's deaths, the jury found Petitioner not-responsible by way of mental disease or defect. The jury, however, convicted Petitioner of intentional murder for his mother's death, and depraved indifference murder for Haun's death.

On direct appeal, the Fourth Department reversed the conviction on the ground that the trial court's supplemental jury charge was inadequate and misleading. Petitioner's two not responsible by reason of insanity verdicts remained intact. See People v. Justice, 173 A.D.2d 144 (4th Dep't 1991).

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Petitioner was retried and convicted by a jury of first and second degree manslaughter, and two counts of fourth degree criminal possession of a weapon. On January 14, 1993, Petitioner was sentenced to an aggregate indeterminate prison term of from thirteen and one-third to forty years. The Fourth Department unanimously affirmed the judgment of conviction, and leave to appeal was denied. People v. Justice, 202 A.D.2d 981 (4th Dep't 1994); lv. denied, 83 N.Y.2d 968 (1994).

B. Petitioner's Parole Violation

Petitioner was released to parole supervision from the Wende Correctional Facility on September 9, 2005. See Resp't Ex. A. Because Petitioner had been found not responsible by reason of mental disease or defect for two of the four homicide charges at his first trial, he also was subject to supervision by OMH. See Resp't Ex. B.

Pursuant to the conditions of his parole release, Petitioner was required to enter and complete mental health and anger management programs at the Butler Clinic. See Resp't Ex. A. By an agreement between OMH and the Division of Parole ("Parole"), Petitioner was also required to live at the Grace Ministry Halfway House in Buffalo, New York. See Resp't Ex. C. OMH assigned Petitioner to an outpatient psychiatric clinic, and coordinated those efforts with Parole and DOCS. Id.

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Nearly eleven months after his release, on August 7, 2006, Petitioner violated his parole. On that date, he contacted his parole officer, stating that he was frustrated with his living situation at Grace House. Shortly thereafter, Petitioner's parole officer received a call from Grace House indicating that Petitioner had twice threatened to kill staff member Larry Blakely ("Blakely"). See Resp't Ex. D. When other staff members attempted to console Petitioner, he made additional verbal threats against them. After the parole officer arrived at Grace House, Petitioner admitted that he had verbally threatened staff members, and that he had done so in order to violate parole and return to jail to serve out the remainder of his sentence.

That same day, Parole executed a parole violation warrant, charging Petitioner with violating the conditions of his release. Specifically, Petitioner was charged for: (1) his failure to complete the requisite one year of the Butler Clinic's mental health counseling program; (2) his failure to complete the Butler Clinic's anti-aggression/anti-violence counseling; (3) threatening the safety and well-being of Blakely when Petitioner threatened to kill him; (4) threatening the safety and well-being of Grace House staff member Melvin Taylor ("Taylor") when Petitioner verbally threatened him with physical harm; (5) admitting to parole officers that he verbally threatened the safety and well-being of staff members at Grace House; (6) having been discharged from Grace House

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Transitional Home due to verbally threatening its staff members; and (7) failing to complete the Grace House Transitional program as directed by his parole officer during an office visit. See Resp't Ex. D.

C. The State Habeas Petition

Upon his arrest, Petitioner was placed in the Erie County Holding Center. He waived his right to a preliminary parole revocation hearing. While awaiting his final parole revocation hearing, Petitioner was evaluated by staff from the Buffalo Psychiatric Center. See Resp't Ex. C.

Still prior to his final revocation hearing, Petitioner filed a pro se state petition for a writ of habeas corpus in New York Supreme Court, Erie County, dated March 28, 2007. See Resp't Ex. E. In that petition, he contended, inter alia, that Parole had deprived him of due process rights because it denied him supervision by OMH, pursuant to his C.P.L. § 330.20(12) Order of Conditions. After a hearing, the Supreme Court summarily denied the claim and dismissed the state habeas petition. See Resp't Ex. H.

Petitioner appealed the denial of dismissal of his state habeas petition. See Resp't Ex. I. By that date, however, the final parole revocation hearing had concluded, and Petitioner was no longer in the custody of the Erie County Holding Center. Thus, on February 29, 2008, the Fourth Department dismissed the appeal as

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moot. See Resp't Ex. J. Petitioner, nonetheless, sought leave to appeal, which was denied. See Resp't Exs. K, M.

Petitioner then sought leave to appeal directly from the New York Court of Appeals, which was denied on September 4, 2008. See Resp't Exs. N and P. Petitioner then petitioned, pro se, for a writ of certiorari in the United States Supreme Court, which was denied on January 12, 2009. See Resp't Ex. Q.

D. The Parole Revocation Hearing

Petitioner's final parole revocation hearing took place on May 16-18, 23, 29 and June 4, 2007. Petitioner appeared, pro se, with an attorney acting as his legal advisor. See Hr'g Mins. [H.M.] of 05/16/07. At the outset of the hearing, Petitioner sought an adjournment on the ground that he had raised in his pending state habeas petition the issue of whether, due to his concurrent supervision by OMH, Parole had jurisdiction to incarcerate him and revoke his parole. Id. 4-6. The attorney for Parole argued that the state habeas petition had been dismissed, and Petitioner was pursuing a "separate issue" with OMH that did not impact the parole revocation proceedings. Id. at 6. The Administrative Law Judge ("ALJ") denied Petitioner's adjournment request, and informed Petitioner that the hearing would be limited to the issue of whether he had violated the conditions of his release to parole supervision. Id. at 7-9.

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Petitioner argued that Parole did not have jurisdiction to incarcerate him for a parole violation. The ALJ found that she "ha[d] no jurisdiction" to consider "issues of joint supervision by two separate agencies." Id. at 10-13. The ALJ explained, on the record, that the parole revocation hearing itself was a vehicle by which Petitioner could "fully exercise [his] due process rights as they relate to the conditions imposed upon [him] by the Division of Parole, " and that Petitioner could raise in the hearing any argument that his Parole conditions of release were "contradictory to or inconsistent with" those imposed by OMH. Id. at 14-15.

Ten witnesses testified at the hearing, including Petitioner, two mental health professionals, and four employees of Saving Grace Ministries, which operated the Grace Ministry Halfway House. The ALJ also admitted an audio cassette tape of Petitioner's personal audio diary entries made the week before and on the date he violated parole.

At the close of the hearing, and with the agreement of Parole, the ALJ dismissed charges one, two and seven. See H.M. of 06/04/07 at 74.

In a written...