Opinion
06 Civ. 3680 (SAS).
July 2, 2007
Petitioner (Pro Se): Rafael Almeyda, # 79-A-1209, Mid-Orange Correctional Facility, Warwick, New York.
For Respondent: Ashlyn Dannelly, Assistant Attorney General, New York, New York.
MEMORANDUM OPINION AND ORDER
On June 12, 2007, I issued an Opinion and Order dismissing Almeyda's habeas petition brought under 28 U.S.C. § 2254. A certificate of appealability was granted regarding the issue of when, and if, a Parole Board may consider an inmate's silence in deciding whether to grant that inmate parole. Almeyda now moves for reconsideration. For the following reasons, Almeyda's motion for reconsideration is denied.
See Notice of Motion for Reconsideration dated June 16, 2007.
Motions for reconsideration are governed by Local Civil Rule 6.3 and are committed to the sound discretion of the district court. "The standard for granting such a motion is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked-matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Reconsideration is an "extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources."
See Pattterson v. United States, No. 04 Civ. 3170, 2006 WL 2067036, at *1 (S.D.N.Y. July 26, 2006) ("The decision to grant or deny a motion for reconsideration is within the sound discretion of the district court." (citing McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983)).
Shrader v. CSXTransp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). Accord Eisemann v. Greene, 204 F.3d 393, 395 n. 2 (2d Cir. 2000) ("To be entitled to reargument, a party must demonstrate that the Court overlooked controlling decisions or factual matters that were put before it on the underlying motion.") (quotation marks and citation omitted).
In re Health Mgmt. Sys., Inc. Sec. Litig., 113 F. Supp. 2d 613, 614 (S.D.N.Y. 2000) (quotation marks and citation omitted).
Local Civil Rule 6.3 is narrowly construed and strictly applied in order to avoid repetitive arguments already considered by the Court. A motion for reconsideration is not a substitute for appeal. Nor is it "a `second bite at the apple' for a party dissatisfied with a court's ruling." Accordingly, the moving party may not "advance new facts, issues or arguments not previously presented to the Court."
See Lichtenberg v. Besicorp Group Inc., 204 F.3d 397, 400 (2d Cir. 2000).
See RMED Int'l, Inc. v. Sloan's Supermarkets, Inc., 207 F. Supp. 2d 292, 296 (S.D.N.Y. 2002).
Pannonia Farms, Inc. v. USA Cable, No. 03 Civ. 7841, 2004 WL 1794504, at *2 (S.D.N.Y. Aug. 10, 2004).
Caribbean Trading and Fidelity Corp. v. Nigerian Nat'l Petroleum Corp., 948 F.2d 111, 115 (2d Cir. 1991) (quotation marks and citation omitted).
Almeyda does not satisfy the standard for reconsideration for several reasons. First, Almeyda's arguments concerning the Parole Board's violation of his First Amendment rights represent nothing more than a restatement of the arguments he made in his original petition. Almeyda does not point to any controlling facts or law overlooked by this Court in reaching its earlier decision. Accordingly, it is for the Second Circuit to decide whether this Court has erred. It is not appropriate for this Court to second-guess itself simply in response to Almeyda's unsubstantiated request for reconsideration.
Second, Almeyda advances new arguments in his motion for reconsideration that were not presented in his original petition. For example, Almeyda states that "the Parole Board cannot consider the lack of insight conditioned on the explicit warning that Almeyda's silence will not be used against him. To do so would condone fraud and deception and represent such an egregious due process violation that shakes the very foundation of our First Amendment guarantees." In addition, Almeyda appears to state another due process claim by arguing that "[s]uch inhumane and unconstitutional scheme violates the liberty interest protection that Almeyda has in the possibility of parole release."
Affirmation in Support, dated June 16, 2007, ¶ 7 (emphasis added).
Id. ¶ 10 (citing Board of Pardons v. Allen, 482 U.S. 369 (1987)).
Almeyda's due process claims cannot be considered by this Court on reconsideration because he did not raise them in his original petition. Furthermore, were this Court to consider these claims, they would be denied. As stated by the Supreme Court, "[t]here is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence." "In order for a state prisoner to have an interest in parole that is protected by the Due Process Clause, he must have a legitimate expectancy of release that is grounded in the [particular] state's statutory scheme." According to the Second Circuit, "[t]he New York parole scheme is not one that creates in any prisoner a legitimate expectancy of release." With respect to challenges to Parole Board decisions, therefore, "judicial intervention is warranted only when there is a showing of irrationality bordering on impropriety." Thus, parole decisions in New York are afforded very limited due process protection. In sum, Almeyda's due process claims — which were raised for the first time in his motion for reconsideration and are hence unreviewable — are devoid of merit in any event.
Greenholtz v. Inmates of the Nebraska Penal and Corr. Complex, 442 U.S. 1, 7 (1979).
Barna v. Travis, 239 F.3d 169, 170 (2d Cir. 2001).
Id. at 171 ("The New York parole scheme is not one that creates in any prisoner a legitimate expectancy of release. The State statute creates a parole board that has the power and the duty to determine `which inmates serving an indeterminate . . . sentence of imprisonment may be released on parole . . . and when.'") (quoting N.Y. Exec. Law § 259).
Silmon v. Travis, 95 N.Y.2d 470, 476 (2000) (quotation marks and citation omitted). Almeyda's reliance on Board of Pardons v. Allen is misplaced. In Allen, the Montana parole statute in issue used "mandatory language (`shall') to `creat[e] a presumption that parole release will be granted' when the designated findings are made." Allen, 482 U.S. at 377-78 (quoting Greenholtz, 442 U.S. at 12). Under the Montana parole scheme, "once the Board of Pardons determines that the facts underlying a particular parole application are such that the release can occur consistently with the three criteria the statute specifies, then under [the] law the Board is required to order release." Id. at 378. Given the compulsory nature of the Montana scheme, the Supreme Court held that the Montana parole statute "`creates a presumption that parole release will be granted.'" Id. (quoting Greenholtz, 442 U.S. at 12). Allen is clearly distinguishable in light of New York's parole scheme which vests the Parole Board with complete discretion as to whether to grant or deny parole.
Accordingly, the Clerk of the Court is directed to close the instant motion [Document No. 9].
SO ORDERED: