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Peterson v. Sullivan

January 6, 2009

RICKY PETERSON, PETITIONER,
v.
THOMAS P. SULLIVAN, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Kugler, District Judge

OPINION

Petitioner Ricky Peterson, a convicted state prisoner currently confined at the Bayside State Prison in Leesburg, New Jersey, has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the revocation of his parole. For the reasons stated herein, the Petition will be denied for lack of substantive merit.

I. BACKGROUND

A. Statement of Facts

The facts of this case were recounted below and this Court, affording the state court's factual determinations the appropriate deference, see 28 U.S.C. § 2254(e)(1), will simply reproduce the Appellate Division's factual recitation, as set forth in its May 24, 2007, unpublished Opinion on petitioner's appeal from the June 15, 2006 final decision of the New Jersey State Parole Board revoking his parole and establishing a new Future Eligibility Term ("FET") of 16 months:

Appellant has a significant history of criminal and aberrant behavior. His most serious offense was in 1974, when he shot and killed a cab driver while attempting to rob him. Appellant pled guilty to murder, robbery and robbery while armed, and was sentenced to life imprisonment in 1976. He was initially released on parole in July 1994. That parole was revoked in September 1998 because of violations which are not at issue in the present appeal, and the Board imposed a fifteen month FET. In September 2003, appellant was again paroled. After appellant repeatedly failed to report, as required, to his parole officer in February and March 2005, a parole violation warrant was issued. Not long thereafter, in April 2005, appellant was arrested in New Brunswick for purchasing cocaine, which he stated he had bought for a prostitute. After his arrest on that charge, appellant misidentified himself as "Craig" Peterson, who is his brother. He was returned to the custody of the Department of Corrections in June 2005.

Appellant's parole revocation hearing on the present charges was first conducted on June 30, 2005. That hearing resulted in a panel recommendation to revoke his parole. However, the Board vacated that initial disposition, after determining that appellant had not waived his right to a probable cause hearing in advance of the merits hearing. In the meantime, appellant was convicted in October 2005 of possession of a controlled dangerous substance arising out of his April 2005 arrest. He was sentenced by the criminal judge to a three-year custodial term, concurrent with the disposition of his parole violation.

On March 20, 2006, a second parole revocation hearing was scheduled, at which time appellant did waive his right to a separate probable cause hearing. Appellant participated in the March 20, 2006 hearing via video conference. At that hearing, appellant was advised of his right to be represented by counsel, and he chose to proceed on a pro se basis.

After considering the proofs, the hearing officer determined, by clear and convincing evidence, that appellant had violated his parole in multiple ways and "in a serious and persistent manner." Among other things, the hearing officer found that appellant had failed to obey the law by his illegal possession of cocaine and his consequent arrest and conviction for that possession, had failed to report to his parole officer on multiple occasions, had failed to undergo urine monitoring and drug and alcohol counseling, and had failed to participate in mental health counseling. The officer also noted that while appellant was on missing status, he was using heroin on a daily basis.

The hearing officer accordingly recommended that appellant's parole be revoked, and that a sixteen-month FET be imposed. On March 29, 2006, a two-member panel of the Parole Board affirmed the hearing officer's findings and recommendation. Appellant filed an administrative appeal to the full Board, which affirmed the disposition on June 15, 2006. (May 24, 2007 Appellate Division Opinion, Exhibit C to respondents' Declaration of Christopher C. Josephson ("Josephson's Decl."), at Bates Nos. DOC129-DOC131.*fn1

B. Procedural History

On June 7, 2005, petitioner, Ricky Peterson ("Peterson"), was returned to the custody of the New Jersey Department of Corrections ("NJDOC") on parole violations and on charges of possession of a controlled dangerous substance ("CDS"). He was served with a Notice of Probable Cause Hearing on June 14, 2005, which advised Peterson of his rights and notified him that the hearing was scheduled for June 30, 2005. (Josephson Decl. At Exhibit B, Bates ## DOC56, DOC68-DOC70).

The initial hearing was conducted on June 30, 2005, as a Final Parole Revocation hearing. At the conclusion of the hearing, the hearing officer recommended that the two-member parole panel revoke Peterson's parole. On September 21, 2005, a two-member Board panel adopted the hearing officer's recommendation and revoked Peterson's parole. (Id. at Bates ## DOC70-DOC72; DOC75-DOC79). Peterson appealed the two-member panel's decision, alleging that he did not waive his right to a probable cause hearing, and therefore, his June 30, 2005 hearing should not have been considered a final revocation hearing. (Id. at Bates ## DOC82-DOC90). The New Jersey State Parole Board ("the Board") reviewed Peterson's appeal, and on February 1, 2006, vacated its September 21, 2005 decision to revoke parole, as well as granting Peterson a new revocation hearing. (Id. at Bates ## DOC80-DOC81).

On March 20, 2006, Peterson received a new parole revocation hearing, where he waived his probable cause hearing and agreed to proceed to a final revocation hearing. (Id. at Bates ## DOC96-DOC98). The hearing officer found that Peterson violated numerous parole conditions and recommended that his parole be revoked and a 16-month FET be imposed. (Id. at Bates # DOC98). A two-member Board panel concurred with the hearing officer's recommendation, and revoked Peterson's parole and imposed a 16-month FET on March 29, 2006. (Id.). Peterson administratively appealed the decision to the full Board on May 1, 2006. The Board affirmed the revocation of parole and the imposition of a 16-month FET on June 15, 2006. (Id. at Bates ## DOC99-DOC115).

Peterson then appealed the Board's decision to the New Jersey Superior Court, Appellate Division. (Josephson Decl. at Exhibit A, Bates ## DOC1-DOC22). On July 26, 2006, the Appellate Division affirmed the Board's decision. (Josephson Decl. at Exhibit C, Bates ## DOC128-DOC134). Peterson filed a motion for reconsideration on June 5, 2007, which the Appellate Division denied on June 13, 2007. (Josephson Decl. at Exhibits D and E, respectively).

On June 30, 2007, Peterson filed a petition for certification with the Supreme Court of New Jersey. The Supreme Court of New Jersey denied certification on November 16, 2007. (Josephson Decl. at Exhibits F and H, respectively).

Peterson then filed this federal habeas petition under 28 U.S.C. ยง 2254 on December 17, 2007. He submitted a legal memorandum in support of his petition on February 11, 2008. Respondents answered the petition, providing the relevant state court record, ...


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