Opinion
02 Civ. 7413 (RWS)
September 29, 2003
JOSEPH DEFINO, Petitioner Pro Se, Warwick, NY, for Petitioner
HONORABLE ELIOT SPITZER, New York, NY, for Respondents
DARIAN B. TAYLOR, Of Counsel
OPINION
Petitioner Joseph Define is an inmate at the Mid — Orange Correctional Facility in Warwick, New York. Define moves pursuant to Rule 60(b) to set aside the judgment dismissing his petition for habeas corpus.
For the reasons set forth below, the motion is denied.
Prior Proceedings
On September 13, 1992, Define was arrested and charged with second — degree murder. On February 4, 1994, Define pled guilty to manslaughter in the first degree and was sentenced to seven to twenty — one years as a first — time offender. His term of incarceration began on February 24, 1994.
Define appeared before the Parole Board (the "Board") for the first time in July 1999. The Board denied parole, and Define was held for another 24 months. Define made his second appearance before the Board on July 25, 2001. The Board again denied parole "due to the extreme violence [Define] exhibited in the instant offense, manslaughter in the first degree, wherein you shot a man multiple times causing his death." Parole Board Hearing Tr. at 9 (July 25, 2001).
Define filed an initial habeas petition challenging the second parole denial, along with a motion for bail and discovery, on August 26, 2002. The motion for bail and discovery was denied in an opinion dated January 2, 2003. Defino v. Thomas, 2003 WL 40502 (Jan. 2, 2003) ("Defino I").
Defino moved for reconsideration of that decision on January 13, 2003. The motion for reconsideration and the petition for habeas corpus were denied in an opinion dated March 25, 2003. Defino v. Thomas, 2003 WL 1563253 (Mar. 25, 2003) ("Defino II"). On April 10, 2003, Defino appealed the judgment denying his habeas petition. That appeal remains pending.
By letter dated June 9, 2003, Defino moved pursuant to Rule 60(b) to set aside the judgment. The State responded on June 24, 2003, and the motion was considered fully submitted on July 16, 2003.
Discussion
In addressing Defino's motion, the Court is mindful that Defino is proceeding pro se and that his submissions should be held "`to less stringent standards than formal pleadings drafted by lawyers . . .'"Hughes v. Rowe, 49 U.S. 5, 9, 101 S.Ct. 173, 176 (1980) (per curiam) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595 (1972));see also Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir. 1993). Nevertheless, pro se status "does not exempt a party from compliance with relevant rules of procedural and substantive law." Tracruth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (quotations omitted).
"Although a pending appeal generally divests a district court of power to grant a Rule 60(b) motion, a court may still consider such a motion, and either deny it on the merits, or if the court is persuaded that relief is warranted, seek remand from the Court of Appeals." Hairston v. Thomas, No. 02 Civ. 9301, 2003 WL 2212662, at *1 (S.D.N.Y. Sept. 12, 2003) (citing Toliver v. County of Sullivan, 957 F.2d 47, 49 (2d Cir. 1992)).
Define's motion to set aside the judgment takes issue with the rejection of his equal protection claim. In his original memorandum of law in support of his petition for a writ of habeas corpus, Define asserted that the Parole Board's denial of his parole application violated his Fourteenth Amendment right to equal protection. Define argued "that the Parole Board has in fact granted parole to offenders convicted of other, similar crimes of violence, but arbitrarily refused to grant him parole." Defino II,2003 WL 1563252, at *6. The standard for such a "class of one" claim is that 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.'" Id. (quoting Giordano v. City of New York, 274 F.3d 740, 751 (2d Cir. 2001)).
In denying Define's petition, this Court observed that Define "is not the only first — degree manslaughter offender to be denied parole,"id. (quoting Brown v. Thomas, No. 02 Civ. 9257, 2003 WL 941940, at *2 (S.D.N.Y. March 10, 2003)), and cited five recent cases in which inmates convicted of Manslaughter in the First Degree had been denied parole.Id. (citing cases).
The present motion to set aside the judgment is based entirely on the Second Circuit's recent opinion in Demuria v. Hawkes, 328 F.3d 704 (2d Cir. 2003). In that case, the Second Circuit overruled the district court's granting of a motion to dismiss under Fed.R.Civ.P. 12(b) (6), holding that a plaintiff asserting a "class of one" equal protection claim is not required to "identify in her complaint actual instances where others have been treated differently for the purposes of equal protection." Id. at 707.
In denying a virtually identical Rule 60(b) motion from another inmate at the Mid — Orange Correctional Facility, the Honorable Naomi Reice Buchwald held that the petitioner's reliance on Demuria was misplaced because,
Demuria dealt with a motion to dismiss the complaint. Different standards are applicable to a habeas petition, which "should set out the substantive facts that will enable the court to see a real possibility of constitutional error." Aubut v. State of Maine, 431 F.2d 688, 689 (1st Cir. 1970). See also Blackledge v. Allison, 431 U.S. 63, 76 n. 7 (1977) (quoting Advisory Committee Note to Rule 4, Rules Governing Habeas Corpus Cases for proposition that "[n]otice pleading is not sufficient, for the petition is expected to state facts that point to a `real possibility of constitutional error.'"). Nothing in Demuria disputes the fundamental standard of "irrational and wholly arbitrary" acts and "intentional disparate treatment," which, as noted earlier, petitioner has wholly failed to demonstrate.Hairston, 2003 WL 22136662, at *2. Judge Buchwald's reasoning is persuasive, and the holding in Hairston is accordingly adopted by this Court. Effectively identical Rule 60(b) motions from inmates at Mid — Orange Correctional Facility have also been denied in Manley v. Thomas, 265 F. Supp.2d 363 (S.D.N.Y. 2003) and Davis v. Thomas, 269 F. Supp.2d 335 (S.D.N.Y. 2003). The Court in both of those decisions noted that approximately twenty separate actions challenging parole denial on equal protection grounds have been brought by inmates of Mid — Orange, "apparently generated by circulation and serial reuse of the same form complaint." Manley, 265 F. Supp.2d at 366 n. 2.
Conclusion
For the reasons stated above, remand from the Court of Appeals will not be sought. Define's motion to set aside the judgment is denied.
It is so ordered.