Opinion
02 Civ. 9435 (JSM)
May 29, 2003
Brian Gittens #97R-8863, Mid-Orange Correctional Facility, Warwick, NY, for Pro Se Petitioner.
Michael P. King, Assistant Attorney General, Federal Habeas Corpus Section, Criminal Division, New York, NY, for Respondent.
OPINION ORDER
Brian Gittens, who is serving a New York State prison sentence, brings this action pursuant to 28 U.S.C. § 2254 seeking to overturn a decision of the New York State Board of Parole denying him parole.
In addition to contesting Petitioner's claims on the merits, the State argues that the Court should not consider certain of Petitioner's claims because he failed to exhaust his state remedies in that the claims were not presented to the highest state court. However, 28 U.S.C. § 2254 (b)(2) gives the Court the discretion to deny unexhausted claims on the merits. Given the fact that, as demonstrated below, these claims are so lacking in merit, the Court will exercise its discretion and decide the claims on the merits.
Under New York law, an inmate who complies with a work and treatment program may be issued a "certificate of earned eligibility" at the discretion of the commissioner of correctional services. N.Y. Correction Law § 805. If such a certificate is issued, the inmate "shall be granted parole release at the expiration of his minimum term . . . unless the board of parole determines that there is a reasonable probability that, if such inmate is released, he will not live and remain at liberty without violating the law and that his release is not compatible with the welfare of society." Id.
Since Petitioner has received a certificate of earned eligibility, he has a protectable liberty interest which entitles him to due process in the consideration of his application for parole. Walters v. Ross, No. 92 Civ. 2290, 1992 WL 398307, *3 (E.D.N.Y. Dec. 21, 1992).
However, as the Supreme Court observed in Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 12-13, 99 S.Ct. 2100, 2106 (1979)
It is axiomatic that due process "is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S., at 481, 92 S.Ct., at 2600; Cafeteria Restaurant Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961); Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 162-163, 1371 S.Ct. 624, 643, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring). The function of legal process, as that concept is embodied in the Constitution, and in the realm of factfinding, is to minimize the risk of erroneous decisions. Because of the broad spectrum of concerns to which the term must apply, flexibility is necessary to gear the process to the particular need; the quantum and quality of the process due in a particular situation depend upon the need to serve the purpose of minimizing the risk of error. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976)
With respect to parole proceedings, all that is required is that the parole board afford the prisoner "an opportunity to be heard, and when parole is denied it informs the inmate in what respects he falls short of qualifying for parole; this affords the process that is due under these circumstances." Id. at 15, 99 S.Ct. at 2108.
Here, Petitioner does not contend that he was denied an opportunity to be heard or that the Parole Board did not state its reasons for denying him parole. Petitioner disagrees with the Board's conclusion that there is a reasonable probability that if he were released, he would not remain at liberty without violating the law. However, due process does not require the courts to reexamine the factual determinations of the Board.
Petitioner's claims that the Board did not properly apply state law does not present a federal question. "[I]t is not the province of a federal habeas court to reexamine. determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68, 112 So. Ct. 475, 480 (1991).
Petitioner's final claim is that the Parole Board denied him the equal protection of the law because similarly situated prisoners were granted parole but he was not. However, as the Second Circuit stated in Giordano v. City of New York, 274 F.3d 740, 750-51 (2000)
we held repeatedly that a selective-enforcement claim based on the Equal Protection Clause must allege that: "(1) the person, compared with others similarly situated, was selectively treated; and (2) that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person." Lisa's Party City, Inc. v. Town of Henrietta, 185 F.3d 12, 16 (2d Cir. 1999) (quoting LaTrieste Rest. Cabaret Inc. v. Vill. of Port Chester, 40 F.3d 587, 590 (2d Cir. 1994) (quoting LeClair v. Saunders, 627 F.2d 606, 609-10 (2d Cir. 1980))) (internal quotation marks omitted)
Here, there is no evidence that the Parole Board's determinations in the specific cases cited by Petitioner were "based on impermissible considerations."
For the foregoing reasons, the petition for relief pursuant to 28 U.S.C. § 2254 is denied and the action is dismissed. In addition, pursuant to 28 U.S.C. § 1915 (a), the Court certifies that an appeal from this case may not be taken in forma pauperis; such an appeal would be frivolous and cannot be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S.Ct. 917, 920-21 (1962). The Court determines that the petition presents no question of substance for appellate review and that Petitioner has failed to make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253 (c)(2); see Fed.R.App.P. 22(b). Accordingly, a certificate of appealability will not issue.