Summary
holding that plaintiff's status as violent felony offender was not an impermissible consideration motivating parole denial
Summary of this case from Victory v. PatakiOpinion
02 Civ. 9258 (RMB)(FM).
July 14, 2003.
Jason Blackett, Pro Se.
REPORT AND RECOMMENDATION TO THE HONORABLE RICHARD M. BERMAN
I. Introduction
This habeas corpus proceeding, brought pursuant to 28 U.S.C. § 2254, is one of more than a dozen recently commenced by inmates at the Mid-Orange Correctional Facility ("Mid-Orange"). Like his fellow inmates, pro se petitioner Jason Blackett ("Blackett") contends that the circumstances under which the New York State Parole Board ("Board") denied him parole constitute a violation of his Fourteenth Amendment rights to due process and equal protection of the law. On this basis, Blackett seeks an order directing respondents Gail Thomas, Acting Superintendent of Mid-Orange, and Brion D. Travis, Chairman of the New York Division of Parole ("Division"), to release him to parole supervision. Blackett also has moved for court-appointed counsel, discovery, and bail pending habeas review (or a hearing to determine his fitness for bail). For the reasons set forth below, Blackett's petition should be denied, thereby rendering his other motions moot. Additionally, pursuant to 28 U.S.C. § 2253(c)(2), Blackett should be denied a certificate of appealability because he has failed to make a substantial showing of the denial of a constitutional right.
II. Facts
Blackett's conviction arises from an incident in September 1987 during which he and a co-defendant entered the Manhattan apartment of Raymond Tucker and his common law wife, Janice Benson. The apartment was a "crack spot" where Blackett obtained crack cocaine for resale to others. Once he and his co-defendant were inside the apartment, there was a dispute over drugs which led to Benson being shot and killed and Tucker being seriously wounded. The co-defendant fired the shots that killed Benson; Blackett fired the shot that struck Tucker. (Pet. Exs. 1 at 1-2, 4 at 2; Tr. at 3-4).
"Tr." refers to the transcript of the Board hearing held on July 24, 2002.
On May 16, 1990, following a jury trial, Blackett was convicted on two counts of criminal possession of a weapon in the second degree, and one count each of attempted murder in the second degree, assault in the first degree, and criminal possession of a weapon in the third degree. (Pet. Ex. 1 at 1). Prior to this conviction, Blackett had previously been adjudicated as a youthful offender and received a five-year term of probation for his involvement in a 1984 robbery. (Id. at 2 Ex. 1 at 3).
Blackett is now incarcerated at Mid-Orange, where he is serving an indeterminate sentence of nine to twenty-seven years. (Id. ¶ 1). He appeared before the Board for the first time in July 1996. (Id. ¶ 7). After the Board denied him parole, Blackett filed an unsuccessful administrative appeal. (Id. ¶ 8). Thereafter, Blackett was also denied parole in July 1998 and July 2000. (Id.). His habeas petition arises out of his fourth unsuccessful appearance before the Board on July 24, 2002. Blackett claims to have filed a timely notice of appeal from that denial of parole. (Pet'r's Reply Mem. at 1). There is no indication, however, that the Appeals Unit of the Division has ruled on his administrative appeal, or that he filed an Article 78 proceeding if it was denied.
III. Discussion
A. Exhaustion
A court ordinarily may not grant a writ of habeas corpus to a person in state custody unless the applicant has exhausted all available state court remedies, or there is an absence of state corrective process, or circumstances render that process ineffective to protect the petitioner's rights. 28 U.S.C. § 2254(b)(1)(A), (B). The respondents argue that this Court should therefore decline to reach the merits of Blackett's petition because he has failed to exhaust his remedies fully by seeking Article 78 review of the latest parole denial in state court. (See Resp't's Mem. at 5-6). In his reply papers, Blackett counters that he filed a timely administrative appeal in 2002, but did not attempt to exhaust his state court remedies because the manner in which parole denials must be challenged in state court renders the process ineffective. (Pet. at 9; Pet'r's Reply Mem. at 1). As he explains, an inmate is guaranteed a parole hearing every two years. Consequently, by the time an inmate has fully exhausted his state court remedies, he often has had a new parole hearing, which renders his prior Article 78 proceeding moot. (See Pet'r's Mem. at 2-3). There is some basis for this contention. See, e.g., Herrera v. N.Y.S. Bd. of Parole, 666 N.Y.S.2d 523 (3d Dep't 1998) (appeal dismissed as moot because petitioner had reappeared before Board and again been denied parole); Bey v. Russi, 647 N.Y.S.2d 1022 (3d Dep't 1996) (same). Blackett also notes that the only remedy available in state court is a new hearing by the Board. (Pet'r's Mem. at 2, 3). He contends that the Board has capitulated to political pressure from Governor Pataki against the release of violent felons, which renders a de novo hearing by the Board nothing more than another "spin" of an "absurd procedural merry-go-round." (Pet'r's Mem. at 3). On this basis, he urges the Court to excuse his failure to exhaust his state court remedies.
See People ex rel. Brown v. N.Y.S. Dep't of Corr. Servs., 415 N.Y.S.2d 137, 138 (4th Dep't 1979) (the "proper procedural remedy [to challenge a denial of parole] is an article 78 proceeding").
Section 2254(b)(2) of Title 28, United States Code, provides that an application for a writ of habeas corpus may be denied on the merits despite a petitioner's failure to exhaust all of the remedies available to him. In keeping with this provision, several judges of this Court have found it unnecessary to address the exhaustion requirement, instead electing to proceed directly to the merits of a Mid-Orange inmate's claims. See, e.g., Morel v. Thomas, 2003 WL 21488017, at *2-*3 (S.D.N.Y. June 26, 2003) (Baer, J.); Gittens v. Thomas, 2003 WL 21277151, at *1 (S.D.N.Y. May 30, 2003) (Martin, J.); Davis v. Thomas, 256 F. Supp.2d 190, 191 (S.D.N.Y. 2003) (Marrero, J.);Manley v. Thomas, 255 F. Supp.2d 263, 266 (S.D.N.Y. 2003) (Marrero, J.); Hairston v. Thomas, 2003 WL 1744728, at *1 (S.D.N.Y. Mar. 31, 2003) (Buchwald, J.); Defino v. Thomas, 2003 WL 1563253, at *4 (S.D.N.Y. Mar. 25, 2003) (Sweet, J.);Brown v. Thomas, 2003 WL 941940, at *1 (S.D.N.Y. March 10, 2003) (Lynch, J.). But see Washington v. Thomas, 2003 WL 21262089, at *1 (S.D.N.Y. May 29, 2003) (Griesa, J.) (dismissing petition for failure to exhaust but also noting that "on the merits, petitioner has no case"). Here, too, there is no need to reach the exhaustion issue as Blackett's claims plainly do not entitle him to habeas relief.
B. Merits
1. Due Process
In his due process claim, Blackett alleges that the Board failed to take into account his excellent institutional record, including his participation in various rehabilitation programs and community work. (Pet. at 4-6 Ex. 7). He contends that, notwithstanding these positive factors, the Board denied him parole based on the nature of his offense and its perception that "he had not served enough time." (Id. at 5). This, Blackett argues, constitutes a denial of due process. (Id. at 5-6).
The New York parole system does not give any inmate a legitimate expectation that he will be released on parole.Marvin v. Goord, 255 F.3d 40, 44 (2d Cir. 2001); Barna v. Travis, 239 F.3d 169, 171 (2d Cir. 2001). Accordingly, to comply with the dictates of due process, all that the Board must do is (a) afford the inmate an opportunity to be heard and (b) if parole is denied, advise him of the reasons for its decision.See Greenholtz v. Inmates of Nebraska Penal Corr. Complex, 442 U.S. 1, 15 (1979); Gittens, 2003 WL 21277151, at *1.
The New York parole system meets these minimal requirements. Thus, at least one month before his parole eligibility date, an inmate must be interviewed by one or more members of the Board to determine whether parole should be granted; if it is not, the inmate must be given detailed written reasons for the denial within two weeks and a date for reconsideration no more than twenty-four months later must be set. N.Y. Exec. L. § 259-i(2)(a). New York law specifically provides that parole is not a reward for good conduct in prison; rather, it is granted when there is a "reasonable probability" that the inmate will not violate the law upon his release, and his release is not inconsistent with societal welfare and "will not so deprecate the seriousness of his crime as to undermine respect for law."Id. § 259-i(2)(c)(A). In determining whether to grant parole, the Board may consider, among other factors, the offender's background, his criminal history, the severity of his offense and any prior offenses, and the manner in which he has adjusted to any prior release on probation or parole. Id.
The transcript of Blackett's July 2002 parole hearing shows that the Board considered the circumstances leading to his conviction, his prior criminal record, his institutional adjustment, and his future plans. (Tr. 1-8). The transcript further indicates that the Board took notice of Blackett's "positive program[m]ing and discipline." (Id. at 9). Subsequently, however, the Board denied parole based upon Blackett's "firm commitment to a life of violent crime, beginning with [his] youthful offender adjudication for robbery one" and concluding with the crimes for which he was serving time. (Id. at 9). As the Board explained, in its view, Blackett's "total disregard for the rights, well-being and life of others" outweighed his positive adjustment in determining his fitness for parole. (Id.). "' [T]he Board was fully entitled to determine that the nature of the crime outweighed the positive aspects of his record.'" Manley, 255 F. Supp.2d at 267 (quoting Brown, 2003 WL 941940, at *2). Moreover, given the seriousness of Blackett's crimes, there is no basis upon which this Court could conclude that the Board's decision was arbitrary and capricious or based upon impermissible considerations. Thus, although Blackett disagrees with the outcome, he was afforded all the due process that the Constitution requires.
2. Equal Protection
Blackett's second claim is that he was denied equal protection because the Board granted parole to several other inmates convicted of "intentional murder" without presenting a legitimate reason for treating him differently. (Pet. at 6-7). As Judge Lynch has noted, this argument is "in tension with [Blackett's] first argument[,] that the Board applied an inflexible and impermissible policy of denying parole to inmates based on their offense of conviction, [because it] asserts that the Board in fact has granted parole to offenders convicted of [intentional murder], but arbitrarily rejected [his] application." Brown, 2003 WL 941940, at *2. In any event, to advance such a selective enforcement claim, Blackett must allege that "([a]) the person, compared with others similarly situated, was selectively treated; and ([b]) 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." Giordano v. City of New York, 274 F.3d 740, 750-51 (2d Cir. 2000) (quoting Lisa's Party City, Inc. v. Town of Henrietta, 185 F.3d 12, 16 (2d Cir. 1999)). Here, Blackett presents no evidence that the denial of his parole application was based on any constitutionally impermissible considerations. Instead, Blackett claims that his parole denial was the result of "political pressure" on the part of Governor Pataki, who has conducted an "overt and covert campaign to eliminate parole for all so-called 'violent felony offenders.'" (Pet. at 6-7). Assuming that this is true, it does not constitute an impermissible ground for the denial of parole. Indeed, as Judge Baer has observed, "the motive and animus that [Blackett] contends is impermissible — namely the Board's decision to get tough on violent offenders because of public and political pressure — in fact seems entirely permissible, as it closely relates to the statutory factor of whether 'release is not incompatible with the welfare of society and will not so deprecate the seriousness of the offense as to undermine respect for law.'" Morel, 2003 WL 21488017, at *5.
By letter dated June 5, 2003, Blackett argues that he is entitled to prevail because the Second Circuit's recent decision in DeMuria v. Hawkes, 328 F.3d 704, 707 (2d Cir. 2003), eliminated any requirement that a plaintiff alleging that he is a member of a "class of one" plead the details of others who received disparate treatment or that he was the victim of discriminatory animus. To prevail on a "class of one" equal protection claim, a petitioner must show that "[(a]) [he] received different treatment than others similarly situated, and that this disparate treatment was [(b]) irrational and wholly arbitrary and [(c]) intentional." Morel, 2003 WL 21488017, at *5 (citing Giordano, 274 F.3d at 751, and DeMuria, 328 F.3d at 706-07). Even if the pleading requirements applicable to this claim have been liberalized, Blackett has not shown, as he must, that the Board's determination in his case was irrational and wholly arbitrary, nor, given the numerous factors that can appropriately be considered, is it likely that he could. Furthermore, Blackett has not alleged that the Board's decision to deny him parole but grant it to others who were similarly situated was intentional. In fact, his petition alleges precisely the opposite: that the Board has succumbed to political pressure by denying parole to all violent offenders. It follows that if other violent offenders were released, the Board's decision to do so must have been unintentional. See id. at *5-*6. Blackett therefore cannot prevail on his "class of one" equal protection claim.
IV. Conclusion
For the foregoing reasons, Blackett's petition for a writ of habeas corpus should be denied. Additionally, his applications for discovery, release on bail, and appointment of counsel should be denied as moot. Finally, because Blackett has not made a substantial showing of the denial of a constitutional right, a certificate of appealability should not be issued. See 28 U.S.C. § 2253(c)(2).
V. Notice of Procedure for Filing of Objections to this Report and Recommendation
The parties are hereby directed that if they have objections to this Report and Recommendation, they must, within ten days from today, make them in writing, file them with the Clerk of the Court, and send copies to the chambers of the Honorable Richard M. Berman at the United States Courthouse, 40 Centre Street, New York, New York, 10007, to the chambers of the undersigned, at 500 Pearl Street, New York, New York, 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Berman. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b).