Safran v. Superintendent

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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David Jeffrey Safran,

Petitioner, MEMORANDUM & ORDER

23-CV-9485 (NRM)

-against- 25-CV-256 (NRM)

Superintendent,

Franklin Correctional Facility

Respondent.

and

David Jeffrey Safran,

Petitioner,

-against-

Superintendent,

Respondent.

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NINA R. MORRISON, United States District Judge:

Pending before the Court are two petitions for a writ of habeas corpus filed by

David Jeffrey Safran (“Petitioner”). For the reasons outlined herein, Petitioner’s

petitions are DISMISSED for failure to exhaust his state court remedies.

The Court is aware that Petitioner has filed several letters and motions

requesting a hearing on his petitions. See Safran v. Superintendent, No. 25-CV-256

(NRM), ECF Nos. 18, 23, 24. However, because the exhaustion requirement is a strict

one in federal habeas corpus cases, and because it is clear from the written record

that Petitioner has not exhausted his state court remedies, there is no need for an

evidentiary hearing or oral argument on either of his petitions, and his motions for a

hearing are hereby denied.

FACTS AND PROCEDURAL HISTORY

A. Safran I & II

The Court previously reviewed and decided two prior habeas corpus petitions

filed by this same Petitioner. First, on May 6, 2023, the Court dismissed Petitioner’s

initial petition challenging his 2021 Nassau County conviction for second-degree

assault because he failed to exhaust his state court remedies. See Safran v. New

York, No. 22-CV-3177 (NRM), 2023 WL 3306932 (E.D.N.Y. May 6, 2023) (“Safran I”).

Then, on July 13, 2023, the Court dismissed Petitioner’s second petition because it

was largely identical to his first petition and suffered from the same procedural

defect. See Safran v. Comm’r of D.O.C.C.S. et al., No. 23-CV-3496 (NRM) (“Safran

II”), ECF Nos. 4, 6.

In the Court’s May 6, 2023, Memorandum & Order dismissing Safran I, the

Court laid out the facts and procedural history of Petitioner’s 2021 Nassau County

plea and sentencing. See Safran I, ECF No. 54 at 1–4.1 In summary, Petitioner was

arrested in April 2018 in connection with a car accident in Nassau County, New York;

three years later, he pled guilty to two counts of second-degree assault and one count

1 Citations for all four of Petitioner’s petitions refer to the pagination generated

by the Official Court Electronic Document Filing System (CM/ECF) under each

respective filing.

of leaving the scene of an accident; and, on May 17, 2021, he was sentenced to seven

years in prison. Id. at 1–2.

As the Court previously noted, Petitioner took some initial steps towards

appealing his conviction, including filing a brief and exhibits with the Appellate

Division of the New York Supreme Court, but he never perfected his appeal or refiled

after his submissions were dismissed on procedural grounds due to errors with his

filings. Id. at 2, 6. He also initially attempted to file an application for post-conviction

relief under N.Y. C.P.L. § 440.10 in New York Supreme Court (Nassau County) but

this was dismissed by the trial court, and Petitioner never sought leave to appeal that

decision with the Appellate Division. Id. at 2–3, 6–7. The Court also noted that

Petitioner filed a separate motion, again with the Appellate Division, but it was

unclear whether this motion referred to his direct appeal, his § 440.10 application, or

was unrelated to those proceedings; regardless, that motion did not exhaust any

claims or remedies because the motion was never ruled on by the Appellate Division

and, even if the Appellate Division had ruled on the motion, additional steps were

still necessary before the appeal was exhausted. Id. at 7. Therefore, the Court found

this first petition, along with his nearly identical second petition, required dismissal

as his claims were unreviewable because he failed to fully exhaust his state court

remedies before seeking federal relief. See id. at 6–8; Safran II, ECF No. 4 at 1.

In both decisions, the Court provided Petitioner with the opportunity to “cure

his failure to exhaust by doing one of the following within 30 days of this order: (1)

File a record with this Court demonstrating that Petitioner has completed a full

round of state court review on direct appeal . . . [or] (2) File a record with this Court

demonstrating that Petitioner has completed a full round of state post-conviction

review.” See Safran I, ECF No. 54 at 8–9; Safran II, ECF No. 4 at 1–2. Petitioner

did neither. Following the decisions, instead of filing any documents demonstrating

any attempts to cure his failure to exhaust his state court remedies, Petitioner filed

a motion for reconsideration with this Court in each case. See Safran I, ECF No. 61;

Safran II, ECF No. 5. The Court denied both motions because his submissions did

not “satisfy the high standard required to prevail on a motion for reconsideration.”

Safran I, ECF No. 63, at 2 (dated July 6, 2023); see also Safran II, ECF No. 6, at 1–2

(dated July 13, 2023).

On July 18, 2023, the Clerk of the Court filed a judgment dismissing

Petitioner’s second petition. See Safran II, ECF No. 7. On July 19, 2023, again

addressing his first petition, the Court denied Petitioner’s third motion for

reconsideration filed on July 17, 2023. See Safran I, Order date July 19, 2023.

Finally, on February 15, 2024, still addressing his first petition, the United States

Court of Appeals for the Second Circuit denied Petitioner’s motions for a certificate

of appealability, in forma pauperis status, a hearing, monetary relief, and a jury trial.

Safran I, ECF No. 68. The Second Circuit then dismissed his appeal of this Court’s

decision dismissing his first petition. Id.

B. Safran III

On December 4, 2023, Petitioner filed his third petition for a writ of habeas

corpus with this Court. See Safran v. Superintendent, No. 23-CV-9485 (“Safran III”).2

Again, although his factual and legal claims are somewhat difficult to discern, this

petition appears to be very similar to his first and second petitions. See generally,

Safran III, ECF. No. 1. This petition appears to still primarily challenge the same

2021 Nassau County conviction at issue in his first two petitions. Id. at 1–3. He

appears to challenge the legality of his 2018 arrest and subsequent pleas and

sentence in 2021. Id. at 1–2.

Petitioner asserts that he is being held “in breach of Nass. Co. Po. Proc. OPS-

6460, U.S.C.A (14) and my (state), federal rights to not be held.” Id. at 1. He also

attaches a November 3, 2023, decision from New York Supreme Court (Franklin

County) Justice John T. Ellis denying Petitioner’s state court petition for writ of

habeas corpus. Id. at 4–5.3 After reviewing his submissions, it is not clear what

2 Petitioner initially filed with the United States District Court for the

Northern District of New York (“N.D.N.Y”) under 9:23-cv-1519. See Safran III, ECF

Nos. 1, 5. On December 26, 2023, Judge Suddaby of N.D.N.Y. ordered the case

transferred to the United States District Court for the Eastern District of New York

(“E.D.N.Y.”). Safran III, ECF No. 5, at 3–4. Even though Petitioner was detained in

N.D.N.Y.’s jurisdiction, Judge Suddaby determined E.D.N.Y. was the appropriate

forum for the case because the conviction and sentence being challenged were

imposed in Nassau County Supreme Court (under E.D.N.Y.’s jurisdiction) and

Petitioner’s two previous habeas petitions challenging the same conviction and

sentence were decided in E.D.N.Y. Id. at 2–4.

3 Justice Ellis of the New York Supreme Court (Franklin County) denied

Petitioner’s state “Petition for Writ of Habeas Corpus” on the following grounds: “(1)

the Petition is not verified in accordance with CPLR 7002(c); (2) there is no mandate

attached to the Petition, even though the Petition makes reference to sentencing and

claims were asserted in the state habeas petition or what relief Safran sought from

the state court. In the decision denying that petition, Justice Ellis found that “overall,

the Petition is unintelligible for large portions, conclusory in other aspects, and

lacking any details which would aid the Court in assessing the merits of Petitioner’s

claims, to the extent that Petitioner has even made the Court aware of his claims.”

Id. at 5.

C. Safran IV

While Petitioner’s third petition was under review by this Court, Petitioner

filed a fourth petition for a writ of habeas corpus on November 27, 2024. See Safran

v. Superintendent, No. 25-cv-256 (NRM), ECF No. 1 (“Safran IV”).4 Once again,

Plaintiff appears to be primarily challenging his 2021 Nassau County conviction. See

Safran IV, ECF No. 1 at 3; ECF No. 3 at 4; ECF No. 6 at 2–4; ECF No. 23 at 1. Since

filing, he has submitted numerous letters in support of his petition (see Safran IV,

ECF No. 3; ECF Nos. 6–7; ECF No. 13; ECF No. 20), including a motion for discovery

(see Safran IV, ECF No. 5; ECF Nos. 8–11) and requests for a hearing. (See Safran

plea transcripts, which leads the Court to believe that Petitioner’s detention is by

virtue of a mandate (see CPLR 7002[c][1]); (3) the Petition does not allege that a court

or judge of the United States does not have exclusive jurisdiction to order Petitioner

released (see CPLR 7002[c][3]); (4) the petition does not indicate whether an appeal

has been taken from any order by virtue of which petitioner has been detained (see

CPLR 7002[c][5]); and (5), the Petition does not allege that the Petitioner is entitled

to immediate release or show any facts, other than in a conclusory and/or

unintelligible manner, which would indicate that Petitioner is entitled to immediate

release.” Safran III, ECF No. 1 at 4–5.

4 Again, Petitioner initially filed with N.D.N.Y. under 9:24-cv-1439. See Safran

IV, ECF Nos. 1, 14. On January 8, 2025, Judge Kahn of N.D.N.Y. ordered the case

transferred to E.D.N.Y. Safran IV, ECF No. 14, at 3–4.

IV, ECF No. 13; ECF Nos. 16–19; ECF No. 23). Within these submissions, he appears

to be requesting various witnesses appear, and documents be produced, at a hearing

on his petition. See, e.g., Safran IV, ECF No. 8 at 1–2; ECF No. 10 at 1–2; ECF No.

13 at 1, 16–19, 34–36, 38; ECF No. 16 at 1; ECF No. 18 at 1. Scattered throughout

his submissions, Petitioner includes numerous documents, many of which contain

handwritten notes that make his arguments difficult to decipher because the notes

overlay the documents’ text and occupy its blank spaces and margins. He also

resubmits some of the same documents, but adds handwritten notes to the

documents, making it increasingly difficult to follow. Petitioner also attached

multiple copies of the transcript from his May 17, 2021, sentencing hearing where he

attempted to withdraw his guilty plea, which was denied by Judge Corrigan of the

New York Supreme Court (Nassau County). See Safran IV, ECF No. 3, at 11–71;

ECF No. 13, at 13–15; ECF No. 20, at 45–89. On the printed transcripts, Petitioner

appears to be attempting to highlight his arguments by marking off and circling

certain lines and adding handwritten notes throughout the document.

i. Post-Release Supervision Revocation

When Petitioner was sentenced to seven years of incarceration in 2021, he was

also sentenced to five years of post-release supervision. See Safran IV, ECF No. 3 at

69; ECF No. 20 at 18. Petitioner was released from custody prior to the maximum

expiration of his carceral sentence and placed under post-release supervision, but he

was later reincarcerated on or about September 23, 2024, following a revocation of

his supervised release. Although it is hard to follow, Plaintiff’s fourth habeas petition

also appears to challenge the revocation of his supervised release following his 2024

revocation hearing. Safran IV, ECF No. 3 at 3; ECF No. 6 at 7; ECF No. 13 at 22–27.

In addition, in Safran IV, Petitioner alleges that on or about July 9, 2024, his parole

officer arrested him for an alleged parole violation, and then illegally took his

property, including his birth certificate and photo identification. Safran IV, ECF No.

19 at 1. He further alleges his rights were violated at his revocation hearing,

including that his lawyer was ineffective because he allegedly told Petitioner to plead

guilty to violating the conditions of his post-release supervision. Safran IV, ECF No.

3 at 3; ECF No. 13 at 22–24.5

ii. St. Lawrence County Petition

Within the submissions for his fourth petition, Petitioner also appears to

challenge the status of his “Petition for a Writ of Habeas Corpus” filed in October

2024 with the clerk’s office at the St. Lawrence County Court, New York. See Safran

IV, ECF No. 1 at 1–5. This submission addressed to the New York Supreme Court

(St. Lawrence County), labeled as a state petition for a writ of habeas corpus, also

appears to be challenging (1) his 2021 Nassau County conviction; (2) his 2024 post-

release supervision revocation hearing; and (3) his continued detention. Id. at 3–5.

On October 28, 2024, the St. Lawrence County Clerk’s Office informed Petitioner it

5 To the extent Petitioner is claiming he was never actually sentenced to post-

release supervision (see Safran IV, ECF No. 1, at 4: “I’m being held on a revocation of

post Release Supervision, even though the sentencing court never imposed Post

Release Supervision”), the state court record clearly reflects that the sentencing court

informed Petitioner he was being sentenced to five years of post-release supervision,

in addition to seven years of incarceration. See Safran IV, ECF No. 3, at 69 (“. . . you

are hereby sentenced to the following: Seven years of incarceration with five years of

post-release supervision.”)

was in receipt of his “Petition for a Writ of Habeas Corpus” and advised him to refile

with the appropriate fees or fee waiver affidavit, and suggested he consider seeking

legal advice. Id. at 2. It appears that Petitioner did not respond to or refile with the

St. Lawrence County Clerk’s Office, and he did not attempt to appeal the decision.

After being sentenced for a violation of his post-release supervision, Petitioner

was discharged again on March 12, 2025. Safran IV, ECF No. 18 at 8. Petitioner is

not currently incarcerated, although for purposes of the instant habeas petition, his

status is considered “custodial.”6 His maximum post-release supervision expiration

date is listed as March 28, 2029.7

LEGAL STANDARD AND ANALYSIS

The Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) generally

requires a petitioner to have exhausted his state court remedies prior to filing his

petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). “Because the exhaustion

doctrine is designed to give the state courts a full and fair opportunity to resolve

6 Petitioner’s status on post-release supervision is considered “in custody”

under 28 U.S.C. 2254(a). See Earley v. Murray, 451 F.3d 71, 75 (2d Cir. 2006) (“Post-

release supervision, admitting of the possibility of revocation and additional jail time,

is considered to be ‘custody.’” (citing Jones v. Cunningham, 371 U.S. 236, 240–43

(1963) (holding that parole satisfies the “in custody” requirement of habeas

petitions))); see also Peck v. United States, 73 F.3d 1220, 1224 n.5 (2d Cir. 1995)

(holding that supervised release satisfies the “in custody” requirement of habeas

petitions); Animashaun v. New York, No. 21-CV-2597 (KAM), 2024 WL 4266003, at

*16 (E.D.N.Y. Sept. 23, 2024) (holding that petitioner satisfies “in custody”

requirement for habeas petition because he remains under term of post-release

supervision).

7 See New York State Department of Corrections and Community Supervision,

Incarcerated Lookup, https://nysdoccslookup.doccs.ny.gov/ (last accessed

September 22, 2025) (displaying search results for David Safran, DIN: 21A1013).

federal constitutional claims before those claims are presented to the federal courts,”

a habeas petitioner must give the state the chance to review his claims by invoking

“one complete round” of an available state judicial review procedure. O’Sullivan v.

Boerckel, 526 U.S. 838, 845 (1999). The petitioner may satisfy this requirement with

respect to a particular claim either by completing a full round of direct appellate

review that includes that claim, or a full round of state post-conviction review that

includes that claim. Harvey v. Portuondo, 98-CV-7371 (JG), 2002 WL 2003210, at *5

(E.D.N.Y. Aug. 5, 2002).

In New York state, a petitioner must avail himself of slightly different

appellate procedures for purposes of exhaustion, depending on whether he has raised

his claim on direct appeal or through an application for post-conviction review. See

Daye v. Attorney Gen., 696 F.2d 186, 190 n.3 (2d Cir. 1982) (“Exhaustion of available

state remedies requires presentation of the claim to the highest state court from

which a decision can be had.” (emphasis added)). On direct appeal, a defendant

exhausts his claims once his motion for leave to appeal a decision by the Appellate

Division has been denied by the New York Court of Appeals. See, e.g., Borthwik v.

Lavalley, No. 10-CV-556, 2014 WL 4794413, at *5 (N.D.N.Y. Sept. 14, 2014) (“Having

failed to present this [direct appeal] claim to the New York Court of Appeals,

Petitioner has failed to exhaust it.”); Ramos v. Superintendent, Sing Sing Corr. Fac.,

No. 11-CV-4929 (VB) (PED), 2013 WL 7046334, at *18 (S.D.N.Y. Sept. 19, 2013)

(“Petitioner failed to present this claim in his letter requesting leave to appeal to the

New York Court of Appeals and thereby failed to exhaust his claim.”), report and

recommendation adopted in part, 2014 WL 243148 (S.D.N.Y. Jan. 22, 2014). On post-

conviction review under N.Y. C.P.L. § 440.10, however, an applicant may not appeal

to the Appellate Division as of right, but instead must seek leave to appeal to that

court. See Davis v. Griffin, No. 16-CV-550, 2019 WL 1384587, at *2 n.1 (W.D.N.Y.

Mar. 27, 2019) (citing N.Y. C.P.L. § 450.15(1)). Because a denial by the Appellate

Division for leave to appeal a trial court’s denial of an applicant’s § 440 motion “is not

reviewable by the New York Court of Appeals,” the claims raised in a such a motion

are considered exhausted for federal habeas purposes once the Appellate Division has

denied leave to appeal. Coke v. Superintendent, Green Haven Corr. Fac., No. 6-CV-

811F, 2009 WL 3162486, at *1 (W.D.N.Y. Sept. 29, 2009); see also DiValentino v.

Miller, No. 21-CV-4534 (PMH) (AEK), 2022 WL 2048211, at *3 (S.D.N.Y. June 7,

2022) (“The claims in that motion were fully exhausted . . . when the Appellate

Division denied Petitioner’s motion to reargue the denial of his application for leave

to appeal the denial of his § 440.10 motion.”); Reyes v. Phillips, No. 2-CV-7319 (LBS),

2005 WL 475544, at *5 (S.D.N.Y. Mar. 1, 2005) (“Failure to seek leave to appeal the

denial of a § 440.10 motion to the Appellate Division constitutes failure to exhaust

the claims raised in that motion.” (citing Pesina v. Johnson, 913 F.2d 53 (2d Cir.

1990))).

A. The December 4, 2023 Petition (“Safran III”) is unexhausted

As to Petitioner’s third habeas petition, the Court concludes that this petition

still suffers from the same procedural defect as Petitioner’s first and second petitions.

Like his first two petitions, this third petition still appears to be challenging his 2021

Nassau County conviction. Following the Court’s decisions dismissing each of the

first two petitions, the record contains no indication that Petitioner has taken the

necessary steps to exhaust his available state court remedies before again seeking

federal relief. Petitioner has still not completed a full round of direct appellate review

of his 2021 conviction and has also failed to complete a full round of post-conviction

review. See Safran I, ECF No. 54, at 6–7 (citing Reyes, 2005 WL 475544, at *5).

The decision and order attached by Petitioner from Justice Ellis of the New

York Supreme Court (Franklin County), denying his state petition for a writ of habeas

corpus, does not constitute exhaustion of his state court remedies. See Safran III,

ECF No. 1 at 4–5. The petition, which Judge Ellis appeared to consider a state habeas

corpus petition filed pursuant to Article 70 of the N.Y. C.P.L.R.,8 was dismissed for a

range of reasons, including procedural grounds and because the “Petition is

unintelligible for large portions, conclusory in other aspects, and lacking any details

which would aid the Court in assessing the merits of Petitioner’s claims.” Id. It is

not entirely clear what Petitioner was challenging (or whether it relates to his

underlying conviction or sentence that is the subject of the instant habeas petition)

because the petition itself was not included with his submissions; regardless,

Petitioner has not shown he attempted to appeal this decision to the Appellate

Division. See N.Y. C.P.L.R. § 7011 (guidelines for appealing state habeas corpus

decision); see also Bowman v. Capra, No. 21-1822, 2023 WL 4339502, at *2 (2d Cir.

8 “Under CPLR Article 70, state prisoners may petition for a writ of habeas

corpus in state court to ‘inquire into the cause of [his or her] detention and for

deliverance.’” Slater v. Keyser, No. 20-CV-3012 (KPF), 2020 WL 4016759, at *4

(S.D.N.Y. July 16, 2020) (alteration in original) (citing N.Y. C.P.L.R. § 7002(a)).

July 5, 2023) (“Petitioners’ failure to perfect and pursue their direct appeal under

C.P.L.R. § 7011, which explicitly authorizes direct appeals from the denial of a state

habeas petition, constitutes a failure to exhaust.”).9

B. The November 27, 2024 Petition (“Safran IV”) is unexhausted

The analysis is slightly more complicated for Petitioner’s fourth habeas

petition. This is because it is unclear from the petition whether he is again

challenging this 2021 criminal conviction and sentence, or whether he is also (or

alternatively) challenging the 2024 revocation of his post-release supervision.

To the extent Petitioner’s fourth habeas petition again challenges the

constitutionality of his 2021 Nassau County conviction and sentence, it is barred by

his failure to exhaust his state court remedies — just like his first three petitions.

Out of an abundance of caution, the Court now separately analyzes whether, if the

petition is construed to include a challenge to the revocation of his post-release

supervision, it is properly before this Court.

9 “New York state habeas petitioners may appeal an adverse judgment as of

right.” Pollack v. Patterson, No. 10-CV-6297 (JGK) (JLC), 2012 WL 2369493, at *2

(S.D.N.Y. June 22, 2012) (citing N.Y. C.P.L.R. § 7011); See N.Y. C.P.L.R. § 7011 (“An

appeal may be taken from a judgment refusing to grant a writ of habeas corpus or

refusing an order to show cause issued under subdivision (a) of [N.Y. C.P.L.R.] section

7003, or from a judgment made upon the return of such a writ or order to show

cause.”).

i. Post-Release Supervision Generally

In New York, a determinate prison sentence, like the one Petitioner received

in 2021, must also be followed by a separate period of post-release supervision.10

Under New York’s sentencing statutes, post-release supervision is similar but not

identical to parole.11 Notably, “[u]nlike parole, which is discretionary release before

the expiration of a prison term, post-release supervision, like supervised release in

the federal system, commences when a defendant’s prison term expires.” Newman v.

Annucci, No. 17-CV-918, 2018 WL 4554494, at *3, n. 2 (N.D.N.Y. Sept. 21, 2018)

(citing N.Y. Penal Law § 70.45).

Despite their distinctions, “the revocation of parole and post-release

supervision are governed by the same procedures and standards in New York

State.”12 Kearney v. Kozloski, No. 14-CV-1446, 2016 WL 4690400, at *4 (N.D.N.Y.

10 “When a court imposes a determinate sentence it shall in each case state not

only the term of imprisonment, but also an additional period of post-release

supervision as determined pursuant to this article.” N.Y. Penal Law § 70.45(1).

11 “In 1998, the New York Legislature passed a sentencing reform act (or the

‘Act’) — commonly known as ‘Jenna’s Law’ — which, inter alia, established ‘a scheme

of determinate sentencing’ for violent felony offenders, eliminated parole for all such

offenders, and required that determinate terms of imprisonment be followed by

periods of mandatory postrelease supervision.” Vincent v. Yelich, 718 F.3d 157, 161

(2d Cir. 2013) (quoting People v. Catu, 825 N.E.2d 1081, 1082 (N.Y. 2005)).

The conditions for individuals on post-release supervision are administered the

same way as those on parole. New York Penal Law 70.45(3) (“The board of parole

shall establish and impose conditions of post-release supervision in the same manner

and to the same extent as it may establish and impose conditions in accordance with

the executive law upon persons who are granted parole or conditional release.”).

12 See N.Y. Penal Law § 70.45(4): “Revocation of post-release supervision. An

alleged violation of any condition of post-release supervision shall be initiated, heard

and determined in accordance with the provisions of subdivisions three and four of

Sept. 7, 2016) (first citing N.Y. Exec. Law § 259-i(3); and then citing 9 N.Y.C.R.R.

subtit. CC., pts. 8004–05). The appeals process for both is also governed by the same

statute. See N.Y. Exec. Law § 259-i(4).

ii. Post-Release Supervision Claim is Unexhausted

The Second Circuit has found that petitions seeking federal habeas review of

parole revocation procedures must be brought pursuant to 28 U.S.C. § 2254, and must

comply with AEDPA’s requirements. See Cook v. N.Y.S. Div. of Parole, 321 F.3d 274,

278–79 (2d Cir. 2003) (finding that “[a] state prisoner . . . according to the terms of

section 2254 must[ ] bring a challenge to the execution of his or her sentence — in

this case with respect to revocation of [his] parole — under section 2254” and was

required to comply with AEDPA’s one-year filing deadline).

Courts in this district, applying Cook, have required petitioners challenging

parole revocation proceedings to satisfy AEDPA’s exhaustion requirements before

seeking federal habeas relief. See Clark v. New York, No. 22-CV-6635 (KMK) (AEK),

2024 WL 4108613, at *7 (S.D.N.Y. Aug. 5, 2024) (“AEDPA governs habeas corpus

petitions brought by state prisoners to challenge the execution of their sentences,

including the revocation of parole.” (citing Cook, 321 F.3d at 278)), report and

recommendation adopted, 2024 WL 4003152 (S.D.N.Y. Aug. 30, 2024); see also Peoples

v. Chairman, No. 23-CV-4854 (BMC), 2023 WL 6389770, at *1 (E.D.N.Y. Oct. 2, 2023)

(“A petition seeking habeas corpus relief for a parole revocation is just as much

section two hundred fifty-nine-i of the executive law.” Id. (McKinney); see also

generally, N.Y. Exec. Law § 259-i(3), Revocation of presumptive release, parole,

conditional release and post-release supervision.

subject to the exhaustion requirement as one seeking relief for a criminal conviction

. . . .” (citing Cook, 321 F.3d at 278, 278 n.3)); Scales v. N.Y.S. Div. of Parole, No. 4-

CV-6151 (VM), 396 F. Supp. 2d 423, 428 (S.D.N.Y. 2005) (“The doctrine of exhaustion

applies to habeas petitions challenging parole revocations.” (citing Cook, 321 F.3d at

278)).

Because revocation proceedings for both parole and post-release supervision

adhere to identical appeals processes, habeas petitions challenging post-release

supervision revocation proceedings — like parole revocation proceedings — must

satisfy the exhaustion requirements of AEDPA. See, e.g, Avent v. Meilunas, No. 20-

CV-908, 2020 WL 9938201, at *4 (N.D.N.Y. Aug. 21, 2020) (“Exhaustion of state court

remedies is required even if one is challenging a revocation of parole or other

supervised release.”), report and recommendation adopted, 2021 WL 1996954

(N.D.N.Y. May 19, 2021).

To exhaust claims challenging post-release supervision proceedings and

revocations, petitioners must “first, within thirty days of receipt of the written

decision, file a notice of appeal with DOCCS’s Division of Parole’s Appeals Unit, and

pursue an administrative appeal in the Appeals Unit.” See Rodriguez v. N.Y.S. Dep’t

of Corr. & Cmty. Supervision, No. 17-CV-5044 (CM), 2017 WL 11522883, at *3

(S.D.N.Y. Oct. 18, 2017) (first citing N.Y. Exec. Law § 259-i(4)(a); then citing N.Y.

Comp. Codes R. & Regs. tit. 9, §§ 8006.1(b), 8006.4; and then citing Carter v. New

York, 739 N.E.2d 730, 732 (N.Y. 2000)); see also Medina v. Berbary, No. 7-CV-1038,

2008 WL 312762, at *2 (N.D.N.Y. Feb. 1, 2008) (“Since petitioner is challenging

revocation of his supervised release pursuant to N.Y. Exec. Law § 259-i, the proper

means to challenge such decision requires that the inmate must first file an

administrative appeal with the Division of Parole’s Appeals Unit.” (internal quotation

marks omitted)). If the administrative appeal is denied, a person may seek judicial

review under Article 78 of the New York Civil Practice Law and Rules. See Rodriguez,

2017 WL 11522883, at *3 (first citing Carter, 739 N.E.2d at 732; then citing N.Y.

C.P.L.R. §§ 7801–7804; and then citing Locurto v. Safir, 264 F.3d 154, 174 (2d Cir.

2001)); see also Medina, 2008 WL 312762, at *2 (citing Scales, 396 F.Supp.2d at 428).

If the Article 78 proceeding is unsuccessful, they may then seek leave to appeal in the

Appellate Division of the New York Supreme Court. See Rodriguez, 2017 WL

11522883, at *3 (citing N.Y. C.P.L.R. § 5701(b)(1), (c)). If still unsuccessful, they may

then seek leave to appeal to the New York Court of Appeals, New York State’s highest

court. Id. (citing N.Y. C.P.L.R. § 5602).

Here, the portions of Petitioner’s claims challenging his post-release

supervision revocation hearing are unexhausted because there is no indication that

he has filed an administrative appeal with the Division of Parole’s Appeals Unit

within thirty days of the decision; and if he did, if that appeal was denied, there is

nothing in the record indicating that he sought judicial relief under Article 78.

Further, if a New York court denied him relief under Article 78, Petitioner would

have to show he attempted to appeal that decision to the Appellate Division pursuant

to N.Y. C.P.L.R. § 5701(c).

Additionally, or in the alternative, petitioners challenging the constitutionality

of the revocation of parole or post-release supervision may also exhaust state court

remedies by filing state habeas corpus petitions. McCullough v. N.Y.S. Div. of Parole,

No. 11-CV-1112, 2015 WL 2340784, at *4 (N.D.N.Y. Apr. 15, 2015) (“Alternatively, a

parolee may exhaust a constitutional claim by commencing a state court habeas

corpus proceeding pursuant to Article 70 of the CPLR.” (citing Hall v. N.Y.S. Div. of

Parole, No. 99-CV-11317 (RMB) (JCF), 2000 WL 33952256, at *4 (S.D.N.Y. Nov. 29,

2000))). Here, following his revocation proceedings, it appears Petitioner filed

another state habeas corpus petition with the New York Supreme Court (St.

Lawrence County). See Safran IV, ECF No. 1 at 3–5. However, Petitioner’s

submissions to the St. Lawrence County Supreme Court are extremely difficult to

decipher, and it is unclear whether, in that filing, he challenged his 2021 Nassau

County conviction or his post-release supervision hearing.

Regardless, Petitioner’s filings in St. Lawrence County do not suffice to

exhaust this state court remedies. That is because his petition was returned by the

St. Lawrence County Clerk’s Office after he failed to provide required documents.

Specifically, the Clerk found that he failed to provide a “request for Judicial

Intervention, and a fee waiver affidavit.” See Safran IV, ECF No. 1, at 2.13 Petitioner

13 Additionally, Petitioner’s claims that his revocation hearing attorney was

ineffective and told him to accept his plea, was also improperly brought in an Article

70 state habeas petition because “it was not presented to a court in a manner under

which it could have been addressed on the merits — that is, by way of an Article 78

petition. Under New York law, it is well established, as the Fourth Department held

in this instance, that Article 70 does not provide relief based upon an alleged denial

also has not shown that he redressed the error identified by the Clerk, refiled the

petition with the omitted documents included, or attempted to appeal the outcome of

his St. Lawrence County petition to the Appellate Division. See CPLR § 7011, supra

n. 8.

For these reasons, the claims that Petitioner raises in the present action are

all unexhausted. Therefore, they cannot be reviewed by this Court in a federal habeas

corpus petition.

CONCLUSION

For the reasons outlined herein, Petitioner’s third and fourth petitions for writs

of habeas corpus are dismissed for failure to exhaust his state court remedies. The

Court also notes that it has entered this order based on the state court record

available to it. If Petitioner believes that the Court’s exhaustion analysis is based on

an incomplete record, he may cure his failure to exhaust the third and/or fourth

petitions, by doing one of the following within 30 days of this order regarding the

state court record that relates to each petition, as applicable:

(1) File a record with this Court demonstrating that Petitioner has completed

a full round of state court review on direct appeal. To do this, Petitioner must file

with this Court (a) an order from the Appellate Division denying Petitioner’s direct

appeal, and (b) an order from the New York Court of Appeals denying Petitioner’s

appeal of the Appellate Division decision, or denying Petitioner leave to appeal.

of effective assistance of counsel in the context of a parole revocation hearing.”

McCullough, 2015 WL 2340784, at *4 (citations omitted).

(2) File a record with this Court demonstrating that Petitioner has completed

a full round of state post-conviction review. To do this, Petitioner must file with the

Court (a) an order from a New York trial court denying Petitioner’s § 440 application,

and (b) an order from the Appellate Division denying Petitioner leave to appeal the

trial court’s order.

(3) File a record with this Court demonstrating that Petitioner has completed

a full round of state court review of his post-release supervision proceedings. To do

this, Petitioner must file with the Court (a) an order from the Division of Parole’s

Appeal Unit denying his administrative appeal, (b) an order from a New York

Supreme Court denying Petitioner’s Article 78 proceeding, (c) an order from the

Appellate Division denying Petitioner’s appeal of the Article 78 decision or denying

leave to appeal, and (d) an order from the New York Court of Appeals denying

Petitioner’s appeal of the Appellate Division decision, or denying Petitioner leave to

appeal.

(4) File a record with this Court demonstrating that Petitioner has completed

a full round of state court review of his state court habeas corpus petitions. To do

this, Petitioner must file with this Court (a) an order from the Appellate Division

affirming the denial of Petitioner’s New York Supreme Court, St. Lawrence County,

state habeas petition, and (b) an order from the New York Court of Appeals denying

Petitioner’s appeal of the Appellate Division decision, or denying Petitioner leave to

appeal.

If such documents exist, Petitioner shall file them with the Court and may, if

he wishes, also submit an explanatory letter identifying the specific documents

provided, not to exceed two pages. If within 30 days of this order the Court does not

receive anything from Petitioner, or it receives documents from Petitioner that are

insufficient to cure the defect described in this opinion, the Court will direct the Clerk

of Court to close this case.

SO ORDERED.

/s/ Nina R. Morrison

NINA R. MORRISON

United States District Judge

Dated: September 22, 2025

Brooklyn, New York