IN RE: Nathan FRAILEY

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Supreme Court, Cayuga County, New York.

IN RE: Nathan FRAILEY, Petitioner, v. Joseph McCOY, as Superintendent of Cayuga Correctional Facility, et al., Respondents.

Decided: May 21, 1999

Nathan Frailey, petitioner pro se. Eliot Spitzer, Attorney General, Syracuse (Patricia M. Bordonaro of counsel), for respondents.

The Court has reviewed the petition for a Writ of Habeas Corpus, verified on March 26, 1999, in which petitioner seeks his release from custody on the grounds that the application of the parole guidelines enacted in January, 1997, to his case violated the ex post facto clause of the United State Constitution.

Petitioner was revoked and restored to the Willard Drug Treatment Campus following a final parole revocation hearing held on December 23, 1998.   While at Willard, he violated the conditions of his parole by failing to complete the program.   At a final parole revocation hearing regarding this violation, petitioner's parole was revoked, and a 10-month hold was ordered.

Petitioner now contends his detention is illegal on the grounds that the application of the parole guidelines which were enacted in January 1997 to his case violated the ex post facto clause of the U.S. Constitution.

 The Court finds petitioner's arguments to be without merit.   Petitioner has failed to preserve this issue for review by failing to file an administrative appeal of the determination sending him to Willard, as is allowed under 9 NYCRR part 8006.  Matter of Crowley v. O'Keefe, 74 N.Y.2d 780, 545 N.Y.S.2d 101, 543 N.E.2d 744, dismissing appeal from 148 A.D.2d 816, 538 N.Y.S.2d 652.   However, even if petitioner had filed an administrative appeal, the argument made would still not give rise to a finding in his favor.

 The crux of the petition is based on the common argument that the application of the parole guidelines dealing with the Willard Drug Treatment Campus to his case violated the ex post facto clause of the U.S. Constitution.   He contends that because he committed the underlying offense prior to January 1997, the parole guidelines in existence at the time his offense was committed should be applied to him.   In a recent First Department case, it was decided that the parole guidelines are not laws within the meaning of the ex post facto clause;  therefore, they may be applied to any current parole violator.   People ex rel. Marcus Johnson v. Russi, 258 A.D.2d 346, 685 N.Y.S.2d 661, 662.   Hence, petitioner's argument must fail.

Accordingly, based upon the foregoing, it is hereby

ORDERED that the petition verified March 26, 1999 be dismissed in its entirety, and the relief requested be denied.

PETER E. CORNING, J.

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