Washington v. Thomas

Full title: TRAVIS WASHINGTON, Petitioner, against GAIL THOMAS, Acting Superintendent…

Court: United States District Court, S.D. New York

Date published: May 29, 2003

03 Civ. 363 (TPG) (S.D.N.Y. May. 29, 2003)

Opinion

03 Civ. 363 (TPG)

May 29, 2003

OPINION

THOMAS GRIESA, Senior District Judge

This is a habeas corpus petition by a state prisoner incarcerated at the Mid-Orange Correctional Facility. It is brought under 28 U.S.C. § 2241 and 2254. However, since petitioner is not challenging his conviction, only § 2241 is applicable. Petitioner claims that he was denied parole in violation of his constitutional rights. The relief he requests is release on parole.

The petition is denied and dismissed.

Petitioner is required to exhaust available state remedies prior to bringing this federal habeas corpus proceeding. Petitioner has not done this. An administrative appeal is available as well as relief in state court by way of an Article 78 proceeding. Petitioner has not even alleged an administrative appeal, much less a court proceeding. Petitioner alleges that the state court remedy would be futile because it would not be completed before his next parole hearing in 2004, and thus the state proceeding would be rendered moot. However, this is surely not an excuse for failing to file an administrative appeal. Moreover, it is speculative at this point to say that an Article 78 proceeding could not be completed and would be rendered moot.

Petitioner also complains about the state court remedy, asserting that the only relief a state court would grant is a new parole hearing. Petitioner considers that he can obtain actual release on parole from the federal court.

Although petitioner has failed to exhaust state remedies, it is appropriate also to recognize that, on the merits, petitioner has no case. Petitioner claims that, in denying him parole, the Parole Board violated his due process and equal protection rights. As to the due process argument, the claim is that there was no sufficient basis for denial of parole. This is thoroughly contradicted by the parole decision, which relied on the seriousness and violence of the petitioner's criminal conduct in the instant offense (murder second and robbery second), as well as the factor of petitioners reversion to a past pattern of criminality. As to the equal protection argument, there is no basis for a federal court to attempt to assess whether petitioner has been given similar or dissimilar treatment in relation to other persons coming before the Parole Board.

For these reasons the petition is denied and dismissed.

SO ORDERED.