Summary
finding petitioner's due process claim unlikely to succeed when the Parole Board looked to "the severity of [Petitioner's] offense" and petitioner's "`positive programming and community support'" and found that "the former outweighed the latter"
Summary of this case from Scott v. DennisonOpinion
02 Civ. 7413 (RWS)
January 2, 2003
JOSEPH DEFINO, Petitioner Pro Se, #94-A-1319 Mid-Orange Correctional Facility, Warwick, NY.
HONORABLE ELIOT SPITZER, Attorney General of the State of New York, Attorney for Respondents, New York, NY., By: DARIAN B. TAYLOR, Assistant Attorney General Of Counsel.
OPINION
Pro se petitioner Joseph Defino ("Defino") has moved against defendants Gail Thomas, Acting Superintendent of the Midorange Correctional Facility and Brion D. Travis, Chairman of the New York Division of Parole (the "State") for either bail pending habeas review, or for a hearing to determine his fitness for bail, pursuant to Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001). For the following reasons, that motion is denied.
Facts
On September 13, 1992, Defino was arrested and charged with second-degree murder. On February 4, 1994, Defino 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.
Defino appeared before the Parole Board (the "Board") for the first time in July 1999. The Board denied parole, and Defino was held for another 24 months. The instant habeas petition relates to his second appearance before the Board, on July 25, 2001. The Board again denied parole "due to the extreme violence [Defino] 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). It noted that Defino had remained crime free for approximately 16 years before the instant offense, but had returned at that time to drug use and had possession of an illegal weapon. Id. The Board further concluded that in spite of Defino's "positive programming and community support," it found "more compelling your total disregard for the life of another." Id. Defino will be considered for parole again in July 2003.
On November 19, 2001, Defino appealed this decision to the Appeals Unit of the Division of Parole. The decision was affirmed on May 10, 2002.
On May 25, 2002, Defino filed a petition in the Supreme Court of the State of New York, Albany County, pursuant to N.Y. C.P.L.R. § 7803 ("Article 78") for judicial review of the parole denial. He argued "that the determination was arbitrary and capricious in that the Parole Board failed to properly consider the statutory factors and relied too heavily on the instant offense." In the matter of Defino v. Travis, No. 4525-02, slip op. at 1 (Nov. 11, 2002). It was held that the Board's finding "was amply supported" and that it "considered all of the statutory factors, including prisoner's prison disciplinary record, his institutional programming, his plans for release and his explanation of the circumstances surrounding his crime and his explained mitigating factors." Id. at 2. Therefore, the petition was dismissed.
Defino filed the instant motion along with his habeas petition on August 26, 2002. The habeas petition, brought under 28 U.S.C. § 2254, alleges violations of his equal protection and due process rights in the execution of his sentence, i.e., the denial of his parole on July 25, 2001. The State responded to the motion for bail on December 16, 2002, and the motion was considered fully submitted at that time.
Discussion
I. Standard of Review
In addressing the present motion, the Court is mindful that the plaintiff is proceeding pro se and that his submissions should be held "'to less stringent standards than formal pleadings drafted by lawyers. . . .'"Hughes v. Rowe, 449 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). Indeed, district courts should "read the pleadings of a pro se plaintiff liberally and interpret them to raise the strongest arguments they suggest.'" McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Nevertheless, the Court is also aware that pro se status "'does not exempt a party from compliance with relevant rules of procedural and substantive law." Traquth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (quotations omitted).
II. Bail Will Not Be Granted
A federal court has the inherent power to grant bail to a habeas petitioner who is properly before it contesting the legality of his custody. Word v. Lord, 2001 U.S. Dist. LEXIS 15592, at *23 (S.D.N.Y. Sept. 27, 2001) (quoting Mapp, 241 F.3d at 226). However, "a habeas petitioner should be granted bail only in 'unusual cases,' . . . or where 'extraordinary or exceptional circumstances exist which make the grant of bail necessary to make the habeas remedy effective. . . .'" Ostrer v. United States, 584 F.2d 594, 596 n. 1 (2d Cir. 1978) (internal citations omitted) accord Mapp, 241 F.3d at 226.
Some courts have considered three factors in determining the propriety of granting bail:
(1) Are substantial claims set forth in the habeas corpus petition?
(2) Is there a demonstrated likelihood that the petition will prevail?
(3) Are there extraordinary circumstances attending the prisoner's situation which would require the grant in order to make the writ of habeas corpus effective, presumably if granted?
In short, is this case different from other habeas corpus cases?Jackson v. Bennett, 2002 U.S. Dist. LEXIS 1448 at *2 (S.D.N.Y. Jan. 30, 2002) (citing Richard v. Abrams, 732 F. Supp. 24, 25 (S.D.N.Y. 1990); accord Harris v. Allard, 2002 U.S. Dist. LEXIS 23667, at *4 (S.D.N.Y. Dec. 9, 2002).
A. The Petition Presents Substantial Claims
The State does not appear to contest that Defino's claims of due process and equal protection violations are substantial claims.
B. Defino Has Not Demonstrated that He Is Likely to Prevail
Defino has failed to demonstrate that his failure to exhaust his claims in state court is likely to be excused or that the underlying merits of the claims will be successful.
1. Defino Has Not Demonstrated that His Failure to Exhaust the Claims Is Likely To Be Excused
Pursuant to § 2254(b)(1)(A), a petitioner must first exhaust his available state court remedies before filing a habeas petition in federal court. As an initial matter, Defino concedes than he has failed to exhaust either of his two claims.
In order to exhaust a denial of parole under New York law, a petitioner must "first file an administrative appeal with the Division of Parole's Appeals Unit, . . . [and] [i]f that appeal is denied, he must seek relief in state court pursuant to Article 78." Desire v. N.Y. Division of Parole, 2001 U.S. Dist. LEXIS 13784, at *6 (S.D.N.Y. Aug. 22, 2001) (internal citation omitted)
His first claim alleges a due process violation, in that his parole denial was "arbitrary" and not rationally based on any clearly formulated criteria. While Defino has raised this claim in an Article 78 hearing, he has not attempted to appeal the denial of his petition. Therefore, his claim has not been presented to the highest state court and cannot be said to be exhausted. N.Y.C.P.L.R. § 5701(c); Daye v. Attorney General of New York, 696 F.2d 186, 191 (2d Cir. 1982) (en banc) (federal constitutional claim must be "fairly presented" to the highest state court from which a decision may be rendered); Lott v. Dalsheim, 474 F. Supp. 897, 898 (S.D.N.Y. 1979) (petitioner followed proper state procedure in challenging parole denial by first filing petition in state supreme court and subsequently appealing to New York appellate courts)
The second claim, alleging an equal protection violation claim because three other men who committed murder and were "similarly situated" to him "in all material respects" were granted parole, was not raised in a state proceeding at all.
The exhaustion requirement may be excused if the petitioner can demonstrate that "there is an absence of available State corrective process" or "circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b)(1)(B)(i), (ii). Defino argues that he should not be required to exhaust his state court remedies because they are ineffective to protect his constitutional rights. Defino claims that, under New York law, his only remedy lies in an Article 78 proceeding. He then argues that because New York law has established that a "proceeding challenging a denial of parole must be dismissed as moot if the prisoner is reconsidered for parole," such a remedy is ineffective because a prisoner is reconsidered for parole at least every two years. N.Y. Exec. Law § 259-i(2)(a) (McKinney 2001). Thus, if the Parole Board should consider him again for parole while his Article 78 proceeding is pending, his Article 78 proceeding would be rendered ineffective as it would be dismissed as moot. This timeline, Defino argues, would also render ineffective any judgment in a petitioner's favor in an Article 78 hearing. The Parole Board need only file a notice of appeal to stay the judgment, N.Y. C.P.L.R. § 5519(a)(1) (McKinney 1995), and it is possible that the two-year period will be expired by the time the judgment is up for review on appeal.
The Supreme Court had not yet issued its ruling when Defino filed his habeas petition. Presumably the same logic applies, however, to the appeal of his petition.
Finally, Defino challenges the efficacy of the state court proceeding because the only remedy available is a "so called de novo hearing" before the Parole Board. Further, he argues that if the petitioner is denied parole again at that de novo hearing, "the absurd procedural merry-go-round of sham hearings and meaningless state court review is given another 'spin.'" Pet.'s Mem. at 3-4.
Since the time that Defino filed his habeas petition and the instant motion, the State Supreme Court has ruled on his petition in the Article 78 proceeding. Defino thus may be considered to argue that if he appeals, and if that appeal is not decided prior to his next bail hearing, the process will be futile. Because Defino's Article 78 proceeding has not yet been rendered moot by the occurrence of another bail hearing, it is unnecessary to address his potentially powerful arguments regarding the futility of the state process. Thus, Defino has failed to show that he will be able to present an excuse for failing to exhaust his state remedies. In any case, as discussed below, he has also failed to demonstrate that he will succeed on the merits of his claim.
2. Defino Has Failed to Show a Likelihood that He Will Succeed on the Merits a. Due Process Claim
Under the Supreme Court's standards for determining when a liberty interest in parole is statutorily created, the New York State parole scheme "is not one that creates in any prisoner a legitimate expectation of release." Barna v. Travis, 239 F.3d 169, 171 (2d Cir. 2001); accord Marvin v. Goord, 255 F.3d 40, 44 (2d Cir. 2001). Defino's only interest in parole is in not being denied parole for arbitrary or constitutionally impermissible reasons. Meachum v. Fano, 427 U.S. 215, 226, 96 S.Ct. 2532, 2539 (1976). As a result, parole can be denied based upon the statutorily authorized considerations of an offender's background of other violent conduct and the severity of his offenses. E.g., Thurman v. Hodges, 292 A.D.2d 872, 873, 739 N.Y.S.2d 324 (4th Dep't 2002). It cannot be denied, however, based on impermissible factors such as race or financial status. E.g., Block v. Potter, 631 F.2d 233, 238 (3d Cir. 1980) (granting habeas relief where Virgin Islands Parole Board denied petitioner's parole based on his race (white) and his economic status (affluent), instead of statutorily authorized factors).
While Block has been called into question, e.g., State ex rel. Ghashiyah v. Sullivan, 650 N.W.2d 560, 2002 WL 1552480, at *3 (July 16, 2002), it has not been overturned. In any case, it is not held that Defino has established a substantive due process violation under Block.
In this case, 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. Further, New York Supreme Court Justice B. Michael Kavanagh reviewed this finding during petitioner's Article 78 proceeding and concluded that the Board had "considered all the statutory factors," and that the conclusion to deny parole was "amply supported" by the record. In light of the above facts and the determination in the Article 78 hearing, Defino has not shown that he is likely to succeed on his due process claim.
b. Equal Protection Claim
The Equal Protection Clause of the Fourteenth Amendment requires that all persons treated similarly should be treated alike. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 105 S.Ct. 3249 (1985). "Unless a classification trammels fundamental personal rights or is drawn upon inherent suspect distinctions such as race, religion, or alienage," the courts must presume that the distinctions made are constitutional as long as they are "rationally related to a legitimate state interest." City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976)
Defino does not claim that he is a member of a suspect class. Moreover, he compares himself to members of his own class — offenders guilty of homicide — rather than comparing himself to others outside of that class. He therefore claims to be a "class of one." A successful claim under this theory requires a showing that (1), The claimant was similarly situated to others and received different: treatment from those persons; (2) "irrational and wholly arbitrary acts," and (3) "intentional disparate treatment." Giordano v. City of New York, 274 F.3d 740, 750-51 (2d Cir. 2001) accord Barstow v. Shea, 196 F. Supp.2d 141, 148 (D. Conn. 2002) Derino has named three inmates whom he asserts are similarly situated :o himself because they all committed at least one homicide. He does not provide further details, such as that they too were involved in a violent homicide, had engaged in illegal drug use and had possession of illegal weapons that they used to commit their crimes. Due to these lack of details it is difficult to determine whether he has appropriately shown a class, and whether he experienced "irrational and arbitrary acts" and "intentional disparate treatment" than the other three inmates who had committed a homicide.
Although he does not raise the issue, merely being a prisoner is insufficient to place him in a suspect class. E.g., Hampton v. Hobbs, 106 F.3d 1281, 1286 (6th Cir. 1997) ("neither prisoners nor indigents are a suspect class"); Carbonell v. Acrish, 154 F. Supp.2d 552, 561 (S.D.N.Y. 2001) ("prisoners are not a suspect class").
As a result, Defino also fails to demonstrate a likelihood that his equal protection claim will be successful.
III. Motion for Discovery
Defino has also moved for permission to obtain discovery. Habeas petitioners, however, are not usually entitled to discovery. Gonzalez v. Bennett, 2001 U.S. Dist. LEXIS 19798, at *11 (S.D.N.Y. Nov. 30, 2001). Pursuant to Rule 6 of the Rules Governing 28 U.S.C. § 2254 cases, a federal judge may permit discovery only for "good cause shown." A determination of good cause turns on whether the petition has "set forth specific allegations that provide 'reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief.'" Gonzalez, 2001 U.S. Dist. LEXIS at *11 (internal citations omitted). Generalized statements regarding the potential existence of discovery are insufficient. Id. Here, Defino has only made generalized statements regarding the potential existence of discovery. In the absence of more particularized allegations, his request for discovery may not be granted.
Conclusion
For the foregoing reasons, Defino's motion for bail pending habeas review is denied.
It is so ordered.