Opinion
No. 99-CV-0188 E(B).
December 31, 2003.
REPORT AND RECOMMENDATION
I. INTRODUCTION
Petitioner Hernando Rizo commenced this action on March 17, 1999, by filing a pro se petition requesting habeas corpus relief pursuant to 28 U.S.C. § 2254. Petitioner, an inmate at the Shawangunk Correctional Facility, contends that he should be released because his parole release for deportation was rescinded in violation of his constitutional rights.
This matter has been referred to the undersigned for a report and recommendation by the Honorable John T. Elfvin, United States District Judge, pursuant to 28 U.S.C. § 636(b)(1)(B). (Docket No. 10).
II. BACKGROUND
A. Petitioner's Conviction and SentenceIn August of 1988, Petitioner, along with others, conspired to distribute and distributed kilogram quantities of cocaine in Queens, New York. (Docket No. 7, Ex. 6, p. 3-4). Petitioner supplied the cocaine and supervised its distribution.Id.
Exhibit Number 6 is Petitioner's pre-sentence investigation report, which summarizes the evidence submitted at Petitioner's trial.
On May 10, 1989, Petitioner was convicted in a New York court for violating multiple provisions of New York Penal Law ("N.Y.P.L.") Article 220. (Docket No. 7, Ex. 3). Specifically, Petitioner was found guilty of Conspiracy in the Second Degree, two counts of Criminal Possession of a Controlled Substance in the First Degree, Criminal Sale of a Controlled Substance in the First Degree, and two counts of Criminal Possession of a Controlled Substance in the Third Degree. On June 7, 1989, Petitioner was sentenced to a term of 58 1/3 years to life imprisonment. (Docket No. 7, Ex. 3).
Unless indicated, all references to the N.Y.P.L. are to McKinney 1998.
Petitioner was born in Cali, Columbia and is not a citizen of the United States. Under the law in effect at the time of his sentencing, Petitioner would not have been eligible for parole until December of 2046. (Docket No. 7, Ex. 7, p. 2). However, on June 10, 1995, the New York State Legislature amended Executive Law § 259-i(2)(d). The amendment provided that a foreign-born inmate serving a prison sentence based upon a drug-related A-1 felony or violent felony conviction, could be paroled conditionally to the United States Immigration and Naturalization Service ("INS") for deportation only. L. 1995, ch. 3 § 40. Prior to this amendment, inmates were eligible for parole under this provision only upon completion of their minimum sentence. Eligibility for deportation was only one among several factors to be considered for early release. Executive Law § 259-i(2)(d)(i). Among the other factors to be considered were that there be 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 the law." Id. at § 259-i(2)(c).
On July 6, 1995, Petitioner, a foreign-born inmate convicted of a drug-related violent felony, was granted conditional parole for deportation only ("CPDO") pursuant to the recently-amended Executive Law § 259-i(2)(d). (Docket No. 7, Ex. 5). Shortly thereafter, INS notified the New York Department of Corrections that it would not deport Petitioner due to the severity of his narcotics offenses and drug policy interests. (Respondent's Memorandum of Law to the Appellate Division, p. 4-5).
Respondent's Memorandum of Law to the Appellate Division can be found at Docket No. 7, Ex. D.
In August 1995, Petitioner's CPDO was temporarily suspended pending investigation. (Docket No. 7, Ex. 9). Thereafter, the New York State Division of Parole commenced a proceeding to rescind the grant of CPDO. (Docket No. 7, Ex. 10).
On November 3, 1995, Petitioner filed a lawsuit in the United States District Court for the Southern District of New York. (Docket No. 7, Ex. 11). In that suit, Petitioner sought a court order directing the INS to deport him to Columbia. The case was subsequently settled and the INS withdrew its opposition to Petitioner's deportation. (Docket No. 7, Exs. 15, 16). Accordingly, the Division of Parole reinstated its CPDO order with respect to Petitioner on March 20, 1996. (Docket No. 7, Ex. 17).
In February of 1996, William J. Comiskey, First Assistant Deputy Attorney-General of the Northern Regional Office of the Attorney General of the State of New York, wrote a letter to the New York State Parole Board objecting to the grant of CPDO to Petitioner. (Docket No. 7, Ex. 18). Comiskey, as a member of the Attorney General's Organized Crime Task Force, stated that he was familiar with the facts and circumstances of Petitioner's case. Comiskey explained that Petitioner was a high level manager in the notorious Cali Drug Cartel. Id. at p. 1. He further stated that the Cali Cartel was responsible for the importation and distribution of tons of cocaine in New York.Id. Comiskey wrote that the Cartel was a sophisticated and violent international crime syndicate, headquartered in Columbia. In Comiskey's view, Petitioner's return to Columbia would represent a miscarriage of justice. (Docket No. 7, Ex. 18).
The initial prosecution of Petitioner was maintained by the Organized Crime Task Force.
Based upon Comiskey's letter, the Parole Board once again temporarily suspended Petitioner's CPDO. The Board held a recision hearing on May 7, 1996. (Docket No. 7, Ex. 1). At the hearing, Comiskey testified to the contents of his letter and was cross-examined by Petitioner's counsel. Id. Following the hearing, the Parole Board rescinded Petitioner's CPDO Id. The Board determined that Comiskey's letter constituted significant information not known by the Board at the time of Petitioner's first recision hearing. Id.
Petitioner filed an administrative appeal pursuant to 9 N.Y.C.R.R. § 8006.2. (Docket No. 7, Ex. 2). In a decision dated April 21, 1997, the Appeals Unit affirmed the Parole Board's decision. Id.
B. State Appellate Proceedings
Petitioner appealed the recision of his parole pursuant to New York Civil Practice Law and Rules ("C.P.L.R.") Article 78. His appeal was transferred to the Appellate Division, Fourth Department of the New York State Supreme Court pursuant to C.P.L.R. § 7804(g). Through his attorney, Petitioner argued that: (1) the evidence at the recision hearing was neither new nor significant; (2) the recision of Petitioner's CPDO violated his due process rights under the New York Constitution and United States Constitution; and (3) the Parole Board was estopped from rescinding the CPDO grant.
Article 78 authorizes the New York Supreme Court to set aside administrative actions found to be arbitrary, capricious, or unlawful, or for lack of substantial evidence. C.P.L.R. § 7803.
In a decision issued on June 10, 1998, the Appellate Division unanimously affirmed the Parole Board's decision. Rizo v. New York State Board of Parole, 674 N.Y.S.2d 180 (4th Dep't 1998). The court stated that "the information in the Comiskey letter and the testimony of Comiskey at the rescission hearing with respect to [P]etitioner's high-ranking position in the Cali drug cartel constitute significant information that was not previously known to respondent." Id. at 181. The court also held that Petitioner's due process rights had not been violated. Id. Lastly, the court found that Petitioner's estoppel claim was without merit. Id.
On September 22, 1998, the New York Court of Appeals denied Petitioner permission to appeal. Rizo v. New York State Board of Parole, 703 N.E.2d 269, 269 (N.Y. 1998).
III. DISCUSSION
In the present case, Petitioner argues that he is entitled to an immediate grant of CPDO because: (1) the recision of his CPDO violated his due process rights under the New York Constitution and United States Constitution, (2) the information presented in the Comiskey letter was neither new nor significant; and (3) the decision to rescind the CPDO violated the Ex Post Facto Clause.
A. Federal Habeas Corpus Standard
Federal habeas corpus review of a state court parole decision is governed by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Under AEDPA, federal courts must give substantial deference to a state court determination that has adjudicated a federal constitutional claim "on the merits." 28 U.S.C. § 2254(d); Sellan v. Kuhlman, 261 F.3d 303, 309-10 (2d Cir. 2001). Specifically, AEDPA requires that where a state court has adjudicated the merits of a petitioner's federal claim, habeas corpus relief may not be granted unless the state court's adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d).
In Williams v. Taylor, 529 U.S. 362, 413 (2000), the Supreme Court defined the phrases "contrary to" and "unreasonable application of" clearly established federal law. A state court decision is "contrary to clearly established federal law . . . if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Court] has on a set of materially indistinguishable facts." Id. A state court decision involves "an unreasonable application" of Supreme Court case law if it "identifies the correct governing legal principle from [the Court's] decisions but unreasonably applies that principle to the particular facts of [a] prisoner's case." Id.
While both AEDPA and its predecessor statute recognize that a presumption of correctness shall apply to state court findings of fact, Whitaker v. Meachum, 123 F.3d 714, 715 n. 1 (2d Cir. 1997), AEDPA also requires a petitioner to rebut that presumption by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1);LanFranco v. Murray, 313 F.3d 112, 117 (2d Cir. 2002). A presumption of correctness applies to findings by both state trial and appellate courts. Galarza v. Keane, 252 F.3d 630, 635 (2d Cir. 2001); Whitaker, 123 F.3d at 715 n. 1.
If, however, the federal court cannot determine whether the state court has adjudicated a petitioner's federal constitutional claims on the merits, the federal constitutional claims are considered as not having been determined on the merits and, as such, the federal court applies the pre-AEDPA, de novo, review standard, even where the petition was filed after the effective date of the statute. See Sellan, 261 F.3d at 314; Boyette v. Lefevre, 246 F.3d 76, 89, 91 (2d Cir. 2001).
A federal claim is adjudicated on the merits when the state court "(1) disposes of the claim `on the merits,' and (2) reduces its disposition to judgment." Sellan, 261 F.3d at 312. In other words, in order to invoke the deferential standards of 2254(d)(1), "the state court need only dispose of the Petitioner's federal claim on substantive grounds, and reduce that disposition to judgment. No further articulation of its rationale or elucidation of its reasoning process is required."Aparicio v. Artuz, 269 F.3d 78, 93-94 (2d Cir. 2001) (citing Sellan, 261 F.3d at 312). If there is no indication that the federal claim has been decided on procedural grounds, the federal claim will be deemed to have been adjudicated on the merits.Brown v. Artuz, 283 F.3d 492, 498 (2d Cir. 2002).
The court concludes that, in this case, the Appellate Division decided Petitioner's claims on the merits when it unanimously affirmed the Parole Board's decision. Rizo, 674 N.Y.S.2d at 181. The court specifically addressed Petitioner's federal constitutional claims and dismissed them on the merits. Id.;see also Cotto v. Herbert, 331 F.3d 217, 231 (2d Cir. 2003). As such, the court will review the instant habeas corpus petition under the AEDPA's "unreasonable application" standard.
B. Parole Recision Hearing
Two of Petitioner's claims directly challenge the parole recision hearing. First, Petitioner asserts that his due process rights were violated because he had a liberty interest in CPDO release. Second, he asserts that there was no new or significant information presented to the Parole Board that supported recision. The court will address each argument in turn.
1. Liberty Interest
The Second Circuit has not decided whether a state prisoner has a liberty interest in CPDO release. However, even assuming that Petitioner did have a protected liberty interest in CPDO release, he received the necessary due process to satisfy his constitutional rights. See Doe v. Simon, 221 F.3d 137, 139 (2d Cir. 2000) (distinguishing between due process required to be afforded to conditional release prisoners and general parolees).
"[T]he fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.'" Id. (citingMathews v. Eldridge, 424 U.S. 319, 333 (1979) (citations omitted)). In this case, Petitioner received written notice and had a formal hearing at which he was represented by counsel. He also had the opportunity to examine and cross-examine witnesses. Further, he was afforded the opportunity to appeal the decision of the Parole Board. Due process requires no more. Simon, 221 F.3d at 139; see also Friedl v. City of New York, 210 F.3d 79, 85 (2d Cir. 2000) (stating that where a petitioner is given a hearing, an opportunity to present evidence, and afforded the opportunity to appeal, due process requirements are met).
2. Evidence Supporting Parole Board's Decision
Petitioner also argues that the information offered by Comiskey did not constitute significant or new evidence justifying the Parole Board's decision to rescind the CPDO. However, the appropriate standard with regard to administrative determinations is that there be "some evidence" justifying the ultimate decision. See Superintendent, Mass. Correctional Institution v. Hill, 472 U.S. 445, 455 (1985); see also Friedl, 210 F.3d at 85 (stating that the minimum requirements of due process are met if there was some evidence to support the administrative tribunal's decision).
In the instant case, the Appellate Division found that the letter and testimony by Comiskey with respect to Petitioner's high-ranking position in the Cali drug cartel constitute significant information that was not previously known to the Parole Board. Rizo, 674 N.Y.S.2d at 181. The court stated that "[t]he documents considered by respondent at the initial hearing did not put respondent on notice that [P]etitioner was connected to the cartel or involved in a long-term, sophisticated drug operation." Id.
Petitioner has not shown that the Appellate Division's decision affirming the recision of his CPDO was "contrary to" or "an unreasonable application of" clearly established federal law. Accordingly, habeas corpus relief should not be granted and Petitioner's claims on these grounds should be DENIED.
C. Ex Post Facto
Petitioner claims that the parole standards contained in the 1995 Amendment to Executive Law § 259-i were retroactively applied to his sentence and thus were a violation of his rights under the Ex Post Facto Clause.
The Ex Post Facto Clause forbids both federal and state governments from passing any law "which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed." Weaver v. Graham, 450 U.S. 24, 28 (1981) (citations omitted). An ex post facto violation occurs if the law is both "retrospective . . . [and] disadvantage[s] the offender affected by it.'"Miller v. Florida, 482 U.S. 423, 430 (1987) (quoting Weaver, 450 U.S. at 29). "A law is retrospective if it `changes the legal consequences of acts completed before its effective date."Miller, 482 U.S. at 430 (quoting Weaver, 450 U.S. at 31). It works to the disadvantage of the offender if the subsequently enacted law changes the definition of a crime or increases the penalty by which a crime is punishable. See Weaver, 450 U.S. at 28. There is no ex post facto violation if the law is merely procedural. See id.
Petitioner's ex post facto claim is without merit. First and foremost, the 1995 Amendment actually benefitted Petitioner by making him eligible for conditional parole at a much earlier date than under prior law. As noted supra, prior to the amendment, Petitioner would not have been eligible for parole consideration until 2046. Moreover, the 1995 Amendment did not establish a new standard for granting parole, it merely added deportation as one among the many factors that may be considered by the Parole Board. That is, the 1995 Amendment to the Executive Law § 259-i did not establish a new standard which was applied to Petitioner to extend his sentence. It was merely a procedural change that had no effect on the definition of the crime Petitioner was convicted of and did not increase the length of his sentence. As such, Petitioner's rights under the Ex Post Facto Clause were not violated and habeas corpus relief should be DENIED on this ground.
IV. CONCLUSION
Based on the foregoing, the Petition should be DISMISSED. Further, as the court finds there is no substantial question presented for appellate review, a certificate of appealability should not issue. 28 U.S.C. § 2253(c)(2) (1996).
Also, the Clerk of the Court should be directed to terminate Walter Kelly as respondent, add Joseph Smith, Superintendent of the Shawangunk Correctional Facility as the new respondent, and revise the caption of this action accordingly.
V. ORDERS
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby ordered that this Report Recommendation be filed with the Clerk of the Court and that the Clerk shall send a copy of the Report Recommendation to all parties.ANY OBJECTIONS to this Report Recommendation must be filed with the Clerk of this Court within ten(10) days after receipt of a copy of this Report Recommendation in accordance with 28 U.S.C. § 636(b)(1), Rules 6(a), 6(e) and 72(b) of the Federal Rules of Civil Procedure, as well as WDNY Local Rule 72(a)(3). FAILURE TO FILE OBJECTIONS TO THIS REPORT RECOMMENDATION WITHIN THE SPECIFIED TIME, OR TO REQUEST AN EXTENSION OF TIME TO FILE OBJECTIONS, WAIVES THE RIGHT TO APPEAL ANY SUBSEQUENT ORDER BY THE DISTRICT COURT ADOPTING THE RECOMMENDATIONS CONTAINED HEREIN. Thomas v. Arn, 474 U.S. 140 (1985); F.D.I.C. v. Hillcrest Associates, 66 F.3d 566 (2d. Cir. 1995); Wesolak v. Canadair Ltd., 838 F.2d 55 (2d Cir. 1988); see also 28 U.S.C. § 636(b)(1), Rules 6(a), 6(e) and 72(b) of the Federal Rules of Civil Procedure, and WDNY Local Rule 72(a)(3).
Please also note that the District Court, on de novo review, will ordinarily refuse to consider arguments, case law and/or evidentiary material which could have been, but was not, presented to the Magistrate Judge in the first instance. SeePatterson-Leitch Co. Inc. v. Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985 (1st Cir. 1988).
Finally, the parties are reminded that, pursuant to WDNY Local Rule 72.3(a)(3), "written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority." Failure to comply with the provisions of Rule 72.3(a)(3) may result in the District Court's refusal to consider the objection.
SO ORDERED.