Opinion
No. 02 Civ. 9744 (RMB)(KNF).
January 30, 2006
REPORT RECOMMENDATION
TO THE HONORABLE RICHARD M. BERMAN, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
Before the Court is Carlos Nieves' ("Nieves") petition for a writ of habeas corpus, made pursuant to 28 U.S.C. § 2254. The petitioner claims that his constitutional rights to due process and equal protection under the law were violated when the New York State Division of Parole denied him release. The petitioner also contends that the court should consider the merits of his petition without requiring him to exhaust his state court remedies because any attempt to obtain state court review of his claims would be futile. The respondents oppose Nieves' petition for a writ of habeas corpus. They contend that his due process and equal protection claims are unexhausted and, in any case, without merit.
II. BACKGROUND
In June 1994, Nieves was arrested for his involvement in a drug trafficking organization in Manhattan called "Yellow Top Crew."See Nieves v. Thomas, 256 F. Supp. 2d 169, 170 (S.D.N.Y. 2003) (denying petitioner's request for bail and discovery pending review of the instant habeas corpus petition). Nieves had participated in the distribution of illegal drugs and was an "enforcer" for the organization. On July 21, 1995, Nieves pleaded guilty to conspiracy in the second degree in New York State Supreme Court, New York County, see N.Y. Penal Law § 105.15, and was sentenced to a term of imprisonment of seven to twenty-one years. At the time the instant petition was filed, Nieves was serving his sentence at the Mid-Orange Correctional Facility in Warwick, New York.
Nieves appeared before the New York State Parole Board ("Board") for the first time on March 2, 2000. The Board denied his application for parole. He appeared before the Board a second time on March 20, 2002. The Board again denied him parole, stating:
You assisted the [drug trafficking] organization in distributing illegal drugs. Your role was also that of "enforcer" and you were involved in at least one homicide. We note a juvenile record with a six month placement based upon a drug arrest. Your present offense represents both a continuation of that same misconduct as well as an escalation of the severity of that misconduct. We note your efforts at programming and present clean discipline record. However, in view of these other factors discretionary release would not be appropriate. You present a serious threat to community safety and welfare.
On May 1, 2002, Nieves filed an administrative appeal from the Board's decision to the New York State Division of Parole, Appeals Unit ("Appeals Unit"). The Appeals Unit affirmed the Board's decision to deny parole in December 2002. Nieves did not proceed under Article 78 of New York's Civil Practice Law and Rules ("CPLR") to further challenge the denial of his parole application. Instead, he filed the petition now before the Court. Nieves acknowledges that he has not exhausted his available state court remedies with respect to the claims raised in the petition, but contends that his failure to exhaust should be excused because the only remedy available to him is ineffective and futile to protect his constitutional rights.
III. DISCUSSION
Failure to Exhaust
"[A] state prisoner must normally exhaust available state judicial remedies before a federal court will entertain his petition for habeas corpus." Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 512 (1971). To satisfy the exhaustion requirement, a habeas corpus petitioner must "fairly present" his or her federal claim to the highest state court from which a decision can be rendered. Daye v. Attorney Gen. of New York, 696 F.2d 186, 190-91 n. 3 (2d Cir. 1982) ( en banc). A claim is "fairly presented" if the state courts are informed of "both the factual and the legal premises of the claim [asserted] in federal court." Id. at 191. Additionally, "having presented his federal constitutional claim to an appropriate state court, and having been denied relief, the petitioner must have utilized all available mechanisms to secure state [appellate] review of the denial of that claim." Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981) (citations omitted).
The exhaustion requirement applies to habeas corpus petitions challenging denial of parole. See Scales v. New York State Div. of Parole, 396 F. Supp. 2d 423, 428 (S.D.N.Y. 2005) (citingCook v. New York State Div. of Parole, 321 F.3d 274, 278 [2d Cir. 2003]). "To exhaust a denial of parole under New York law, the inmate must first file an administrative appeal with the Division of Parole's Appeals Unit. If that appeal is denied he must seek relief in state court pursuant to Article 78." Id. (quoting Desire v. New York State Div. of Parole, No. 00 Civ. 5514, 2001 U.S. Dist. LEXIS 13784, *6 [S.D.N.Y. Aug. 22, 2001]);see also N.Y. Comp. Codes R. Regs. tit. 9, § 8006.1. If the Article 78 petition is denied, a petitioner must appeal that denial to the highest state court from which a decision can be rendered. A petitioner's failure to exhaust his claims may be excused if: (1) "there is an absence of state corrective process;" or (2) "circumstances exist that render such process ineffective to protect the right of the applicant." 28 U.S.C. § 2254(b)(1)(B)(I)-(ii).
Nieves argues that his failure to exhaust his claims should be excused because, under New York law, the only avenue available to him to challenge a denial of parole is a mandamus proceeding pursuant to CPLR Article 78. However, because the appeal process, including review by the Appellate Division and the New York Court of Appeals, typically takes more than two years, Nieves will have appeared before the Board for a new parole hearing before a judgment on the merits of his appeal can be obtained. See N.Y. Exec. Law 259-i(2)(a) (stating that if parole is not granted, the Board will reconsider its determination not more than two years later). Nieves argues that since a "proceeding challenging a denial of parole must be dismissed as moot if the prisoner is reconsidered for parole," his reappearance before the Board for a new parole hearing would require the dismissal as moot of any pending appeal. Hence, the only remedy available to him to challenge the denial of parole is ineffective. Moreover, Nieves argues, even if he were to obtain a final judgment on the merits, the only available judicial remedy would be a new hearing before the Board. If he were denied parole again at that hearing, "the absurd procedural merry-go-round of sham hearings and meaningless state court review [would be] given another 'spin.'"
A claim similar, if not identical, to that presented here was addressed by the court in Flanders v. Chairman of Div. of Parole State of New York, No. 02 Civ. 3899, 2004 WL 253323, at *2 (S.D.N.Y. Feb. 10, 2004). In that case, with respect to the argument that a subsequent appearance before the Board would render moot any appeal of a denial of parole, the court noted that the petitioner, in his application for habeas relief, had challenged the constitutionality of the parole decision-making procedures themselves, rather than the Board's decision on its merits. See id. In the latter circumstance, the court reasoned, a reappearance before the Board would have rendered the petitioner's appeal moot because a new hearing would address the problems that had arisen in the petitioner's prior hearing before the Board. In the former circumstance, however, "a subsequent hearing would not have rendered his claim moot because the hearing would have been conducted pursuant to the same procedure" that the petitioner had challenged in his habeas corpus petition.Id. Therefore, the court found, the petitioner's argument that his failure to exhaust should be excused was unavailing. See id. Similarly, in this case, Nieves, who contends that the Board's denial of parole violated his rights to due process and equal protection, has challenged the constitutionality of the parole procedure itself. Thus, a new hearing before the Board, conducted in accordance with the same procedure petitioner has challenged, would not render his claim on appeal moot.
Alternatively, as other courts in this judicial district have found, because the claims the petitioner has raised plainly do not entitle him to habeas corpus relief, it is unnecessary to address the exhaustion issue presented here. Pursuant to 28 U.S.C. § 2254(b)(2), the court may deny the instant petition for a writ of habeas corpus on the merits despite the petitioner's failure to exhaust all of the remedies available to him. Due Process
See, e.g., Brown v. Thomas, No. 02 Civ. 9257, 2003 WL 941940, at *1 (Mar. 10, 2003); Morel v. Thomas, No. 02 Civ. 9622, 2003 WL 21488017, at *2-3 (S.D.N.Y. June 26, 2003) (citing cases); Seltzer v. Thomas, No. 03 Civ. 00931, 2003 WL 21744084, at *2 (S.D.N.Y. July 29, 2003) (same).
Nieves contends that he has an inherent liberty interest in being free from institutional restraint, that this gives him a constitutionally protected interest in parole release and that he was deprived of this protected liberty interest when he was denied parole. Nieves also claims that he has a state-created federally protected liberty interest in parole. Nieves identifies three grounds on which his claim that the Board violated his right to due process is based. First, no evidence was presented that would support the Board's decision to deny him parole and the Board gave no reason for its decision other than that petitioner's release would be inappropriate. Second, the Board's decision was arbitrary and capricious because it "failed to proffer any reasons for rejecting petitioner's institutional record, community support and employment package." Finally, the Board's decision was "impermissibly infected" by political pressure and public opinion to deny "violent felony offenders" release on parole.
The Second Circuit has ruled that the state parole system in New York "is not one that creates in any prisoner a legitimate expectancy of release" so as to warrant full procedural due process protection. Barna v. Travis, 239 F.3d 169, 171 (2d Cir. 2001). Therefore, "insofar as any inmate incarcerated in a New York State facility has any liberty interest in parole, that interest extends only to not being denied a petition arbitrarily or capriciously, based on inappropriate consideration of a protected classification or an irrational distinction, or by reason of any other constitutionally unlawful grounds." Manley v. Thomas, 255 F. Supp. 2d 263, 266 (S.D.N.Y. 2003). Further, under New York law,
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. Law 259-i(2)(c)(A).
In this case, the Board conducted a hearing on March 20, 2002, and considered Nieves' circumstances, including the nature of his crime, his criminal history and his institutional record and plans for the future. The Board provided reasons for its decision to deny parole, citing Nieves' involvement in "at least one homicide" and his juvenile record involving a drug arrest. The Board also noted Nieves' "clean discipline record," but determined that discretionary release would not be appropriate because Nieves continued to "present a serious threat to community safety and welfare." The Board's decision was based on factors permitted by New York's statutory framework. While acknowledging plaintiff's good conduct, the Board gave more weight to the seriousness of his crime in the context of his prior criminal activity and determined that his release was not compatible with the welfare of society. The Board was entitled to reach its decision in this manner. See Brown, 2003 WL 941940, at *2 ("[T]he Board was fully entitled to determine that the nature of the crime outweighed the positive aspects of [petitioner's] record."). Thus, the Board did not act arbitrarily or capriciously, or on unconstitutional grounds, when it denied petitioner's application for release. Furthermore, Nieves has presented no factual evidence in support of his claim that political pressure and public opinion tainted the Board's decision. Therefore, Nieves' contention that he was denied his right to due process is without merit.
Equal Protection
Nieves also contends that the Board violated his constitutional right to equal protection under the law because it denied him parole while granting parole to others convicted of similar crimes. Specifically, Nieves argues that on the day that he was denied parole, the same three commissioners who made the decision in his case granted parole to two inmates convicted of manslaughter. Additionally, Nieves claims that the Board failed to articulate a rational basis for treating him differently from "similarly situated" persons it has released and that the Board's decision to deny him parole was "motivated by illegitimate animus against the release of so-called violent felony offenders."
Nieves' equal protection claim is governed by the Supreme Court's holding in Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S. Ct. 1073, 1074 (2000), in which the Court found that a "successful equal protection claim may be brought by a 'class of one,' where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." Id. Hence, a person presenting a "class of one" claim must establish that he or she has been treated differently from others similarly situated, and that the treatment was irrational and wholly arbitrary, as well as intentional. See Giordano v. City of New York, 274 F.3d 740, 751 (2d Cir. 2001).
Nieves' petition does not provide a basis to find an irrational or invidiously motivated decision by the Board. As noted above, there was a rational basis for the decision to deny Nieves parole, based on the nature of his crime, his criminal history and institutional record, and his possible threat to the community. Moreover, Nieves has not provided enough information about the inmates who were granted parole to permit the Court to determine whether they were similarly situated. See Brown, 2003 WL 941940, at *2 ("[T]he 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."). Finally, Nieves has not shown that the Board intended to treat him differently from similarly situated inmates. Therefore, Nieves' equal protection claim is unfounded. Accordingly, Nieves has not shown that the Board violated his constitutional rights when it denied him parole.
IV. RECOMMENDATION
For the reasons set forth above, I recommend that Nieves' petition for a writ of habeas corpus be denied.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Richard M Berman, 40 Centre, Room 201, New York, New York, 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Berman. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).