Opinion
02 Civ. 9257 (GEL).
March 4, 2003
OPINION AND ORDER
Petitioner Carlos Brown, an inmate at New York State's Mid-Orange Correctional Facility, was convicted of first-degree manslaughter in 1991, and sentenced to eight and a third to twenty-five years in prison. He has thrice been denied parole, most recently in October 2001. Brown's administrative appeal of the parole decision was denied, and he now seeks a writ of habeas corpus in this Court. Brown argues that his rights to due process and equal protection have been violated by what he claims is an arbitrary and irrational decision to deny him parole.
Respondents begin by arguing that this Court should decline to reach the merits of Brown's argument, because he has failed to exhaust his remedies by seeking review of his parole denial in the state courts. Brown responds, however, that state court review would be futile, that is, that "circumstances exist that render such process ineffective to protect [his] rights." 28 U.S.C. § 2254(b)(1)(B)(ii). He points out that the heart of his claim is that he is being denied parole not based on failure to rehabilitate himself, but because the Parole Board, in response to gubernatorial policy, refuses to grant early parole to inmates convicted of violent crimes. The only remedy available on a state court review of parole determinations, however, is a new hearing by the parole board. See, e.g., Lichtel v. Travis, 731 N.Y.S.2d 533, 534-35 (3d Dept. 2001); Quartararo v. N.Y.S. Division of Parole, 637 N.Y.S.2d 721, 721-22 (1st Dept. 1996). Since his entire claim is premised on the assertion that the Parole Board is determined to reject his claim regardless of the merits, based on what he contends are inappropriate criteria, the conventional New York system of judicial review would appear to offer him no prospect of relief at all.
The Court need not address this argument, which another judge of this Court has characterized as "potentially powerful." Defino v. Thomas, No. 02 Civ. 7413 (RWS), 2003 WL 40502, at *3 (S.D.N.Y. Jan. 2, 2003). As so often in habeas corpus cases, potentially complex and difficult issues about the various obstacles to reaching the merits should not be allowed to obscure the fact that the underlying claims are totally without merit. Since Brown's petition can easily be rejected on the merits, requiring submission of that petition to the state courts, with the likelihood that the same arguments will eventually be presented here in any event, would be a waste of the resources of both the state and federal courts.
Petitioner's due process claim is that there is no evidence to support the Parole Board's determination that he should remain in confinement. (Pet. Mem. 12-13.) It is well established that the New York parole system does not "create in any prisoner a legitimate expectancy of release."Barna v. Travis, 239 F.3d 169, 171 (2d Cir. 2001). Thus, petitioner's federally-protected liberty interest is limited to not being denied parole for arbitrary or impermissible reasons. See Meachum v. Fano, 427 U.S. 215, 226 (1976).
Contrary to petitioner's assertions, New York law specifically rejects the notion that an inmate is entitled to release based on his exemplary institutional record, commendable participation in rehabilitative and vocational programs, and sincere remorse. Rather, the parole statute specifically provides that
Discretionary release on parole shall not be granted merely as a reward for good conduct or efficient performance of duties while confined but after considering if there is a reasonable probability that, if such inmate is released, he will live and remain at liberty without violating the law, and that his release is not incompatible with the welfare of society and will not so deprecate the seriousness of his crime as to undermine respect for law.
N.Y. Exec. L. § 259-i(2)(c)(A). While such factors as the inmate's institutional record and release plans must be considered by the Board,id. § 259-i(2)(c)(A)(i) (iii), the passage quoted above makes clear that the "seriousness of [the inmate's] crime" is also considered relevant both to the likelihood that the inmate will not be a danger to the community and to the independent requirement that early release not "deprecate the seriousness of his crime so as to undermine respect for law."
Moreover, New York law is clear that where the record "demonstrates that the Parole Board considered the relevant statutory factors, including petitioner's record in prison and postrelease plans, before concluding in its discretion that, due to the serious and violent nature of the crime and petitioner's other violent conduct, petitioner is not an acceptable candidate for release on parole," reliance on the nature of the inmate's crime to deny parole is entirely consistent with the criteria laid down by the legislature. Thurman v. Hodges, 739 N.Y.S.2d 324, 324 (4th Dept. 2002). Here, the record reveals that the Board considered petitioner's submissions concerning his rehabilitation and post-release plans (Danburg Aff. Ex. A at 9-10), but nevertheless decided that, in view of the nature of his offense, his "release at this time would represent a threat to public safety)." (Id. at 12.) Thus, accepting for the sake of argument Brown's assertion that he "has satisfied all rehabilitative goals set for him" (Pet. ¶ 10), and his claim that he was denied parole principally because of the nature of the crime with which he is charged, the Board was fully entitled to determine that the nature of the crime outweighed the positive aspects of his record. Cf. Defino, 2003 WL 40502, at *4 ("the Board looked to the severity of Defino's offense, his drug use and possession of an illegal weapon as well as Defino's `positive programming and community support,' and it determined that the former outweighed the latter").
Brown's equal protection claim fares no better. This argument, in tension with his first argument that the Board applied an inflexible and impermissible policy of denying parole to inmates based on their offense of conviction, asserts that the Board in fact has granted parole to offenders convicted of first-degree manslaughter, but arbitrarily rejected Brown's application. But Brown's petition and supporting papers are insufficient to establish a denial of equal protection. He does not claim that the Board acted on the basis of any suspect classification or invidious motive. Brown simply asserts that three others convicted of manslaughter have been released on parole, including individuals whose prior records were worse than his. But the number and variety of factors bearing on the seriousness of the underlying offense and the likelihood that an offender will be a danger to the community make it impossible to conclude, on the basis of the sketchy data presented, that petitioner has been singled out from among all homicide offenders for disparate treatment. To establish such a claim that a party constitutes a "class of one," singled out for arbitrary mistreatment from others similarly situated, petitioner must show that he was similarly situated to others and received different treatment from them, and was subjected to "irrational and wholly arbitrary acts" and "intentional disparate treatment." Giordano v. City of New York, 274 F.3d 740, 751 (2d Cir. 2001). As the Defino case demonstrates, Brown is not the only first-degree manslaughter offender to be denied parole, 2003 WL 40502, at *4, and Brown himself argues that such denial is the rule rather than the exception. There is thus no basis to conclude that he was invidiously treated.
Petitioner has shown no violation of constitutional rights in the Board's decision to deny him parole. Accordingly, the petition must be denied. As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue.See 28 U.S.C. § 2253(c)(2); Lucidore v. New York State Div. of Parole, 209 F.3d 107, 111-13 (2d Cir. 2000).
SO ORDERED.