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rejecting habeas petitioner's Equal Protection Claim, in part because of the "lack of substantive proof" for the allegations underlying the claim
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02 CV 9622 (HB).
June 25, 2003.
OPINION AND ORDER
Fernando Morel ("Morel") petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, on the basis that his due-process and equal-protection rights were violated when the New York State Division of Parole denied his release. Morel also moved for bail pending habeas review. For the following reasons, the petition is DENIED and the motion for bail is dismissed.
I. BACKGROUND
Gabe Miller, an intern in my Chambers during the summer of 2003 and a second-year law student at Columbia Law School, provided substantial assistance in the research and drafting of this opinion.
Morel was convicted of first-degree manslaughter for a fatal stabbing during an altercation in a parking lot in Queens, New York on July 20, 1991. He was convicted on November 13, 1992, but this conviction was later reversed. He was again convicted of the same crime on November 9, 1995, and the court imposed a sentence of eight and one-third to twenty-five years, which he is currently serving at the Mid-Orange Correctional Facility in Warwick, New York.
Morel became eligible for parole after he served his minimum sentence, and he appeared before the Parole Review Board (the "Board") for the first time on September 22, 1999. The Board denied his application for parole and recommended that he apply again for parole in two years, the maximum allowed interval under N.Y. Executive Law § 259-i(2)(a).
He appeared before the Board a second time on September 19, 2001. When asked about the details of his crime, Morel explained that he was acting in self-defense. He stabbed the victim unintentionally as the victim threatened to strike Morel in the head with a glass bottle. Resp. Ex. A at 11-12 (Morel Parole Board Hearing, Sept. 19, 2001). At the hearing, the Board discussed with Morel his "excellent institutional adjustment" and "great disciplinary record," and his employment prospects if paroled. Nevertheless, the Board again denied him parole, stating:
The relevant portions of this discussion are as follows:
Q . . . Since you've been in State prison you have an excellent institutional adjustment. You have completed many programs. You have a great disciplinary record. You don't have any tickets; is that correct?
A Yes.
. . .
Q If you were to get released where would you live?
A I would live at home where I have been living all my life, practically —
Q And, where is that?
A That's in Jamaica, Queens.
Q Forty-eight Street?
A Yes
Q And, you live there with your mother?
A Yes, I do.
Q And, what type of work would you do? You could be a mechanic; could you do that?
A Yes. I have numerous letters of employment.
Q Yes, you have got a lot of letters of support and a lot of community support.
This was an extremely heinous brutal act during the commission of which you took a human life. You have an excellent institutional adjustment, however, you appear to lack insight into the reason for your crime. This panel feels that you are a poor candidate for discretionary release at this time [as it] would deprecate the seriousness of the instant offense and diminish respect for the law.Id. at 19.
Morel filed an administrative appeal on December 17, 2001 to the Appeals Unit of the Division of Parole, and on June 5, 2002, the decision was affirmed on grounds that the Board did not rely on any erroneous information in denying his claim nor did it fail to consider all relevant information regarding his release. Resp. Ex. B at 29-30. On February 11, 2002, Morel filed a petition for judicial review of the parole denial in the Supreme Court of the State of New York, Albany County, pursuant to N.Y.C.P.L.R. § 7803 ("Article 78"). He asserted that the Board violated his rights to due process and equal protection under the federal Constitution and his state-law right to be free of arbitrary and capricious administrative action under the New York Constitution. He contended that the Board's determination was arbitrary and capricious as it was not supported by any evidence that his release was inappropriate at that time.
Supreme Court Justice George L. Cobb dismissed Morel's Article 78 petition on all counts for failing to state facts on which relief could be granted. Justice Cobb observed that:
It is well settled that the serious nature of the crime together with a lack of remorse or insight constitutes sufficient grounds and evidence to deny parole release. . . . [A] review of the transcript of his parole release hearing indicates that petitioner attempted to minimize his fault, thereby clear[ly] establishing a lack of insight.Morel v. Travis, No. 3044-02, slip op. at 2-3 (Sept. 30, 2002) (citations omitted). Morel has not appealed this most recent denial to the Appellate Division.
On December 4, 2002, Morel filed a petition for habeas corpus and a motion for bail pending habeas review.
II. DISCUSSION
Morel contends that he is entitled to habeas corpus relief because the Parole Board violated his federal constitutional rights to due process and equal protection under the Fourteenth Amendment when it denied his September 2001 request for parole. In addition to contesting the merits of Morel's petition, respondent also argues that Morel is procedurally barred under 28 U.S.C. § 2254(b)(1)(a) from bringing his habeas petition until he has exhausted all remedies available to him at the state level.
To exhaust a denial of parole under New York law, an inmate must first file an administrative appeal with the Division of Parole's Appeals Unit. See N.Y. Comp. Codes. R. Regs. tit. 9, § 8006.1. If that appeal is denied, he must seek relief in state court pursuant to Article 78 of the Civil Practice Law and Rules. See Desire v. N.Y. Div. Of Parole, 2001 U.S. Dist. LEXIS 13784, at *6 (S.D.N.Y. Aug. 22, 2001). Morel did appeal his denial to the Appeals Unit, and he also filed an appeal in New York Supreme Court pursuant to Article 78. Yet, he did not appeal the denial rendered by Justice Cobb to the Appeals Division of the state court. Thus, he failed to fully exhaust the state remedies available to him; Morel concedes this fact. See Pet. Mem. of L. at 1.
A petitioner challenging his custody pursuant to a conviction in state court must first exhaust all state-court remedies unless "it appears that . . . circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b)(1). "An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state." 28 U.S.C. § 2254(b)(2). Morel contends that the appeal process for a denial of parole is ineffective because he will be eligible for a new hearing before he has exhausted his appeal — thus his appeal will be moot. He also contends that the state remedy is ineffective because the only remedy available to him is a de novo hearing before the Board. Morel's argument is nearly identical to the argument raised in several recent habeas challenges by other inmates in the Mid-Orange Correctional Facility. In all four cases, the court dismissed the due-process and equal-protection claims on substantive grounds and declined to rule on the procedural question of state exhaustion. See Brown v. Thomas, 2003 U.S. Dist. LEXIS 3396 (S.D.N.Y. Mar. 10, 2003); Defino v. Thomas, 2003 U.S. Dist. LEXIS 4299 (S.D.N.Y. Mar. 24, 2003); Hairston v. Thomas, 2003 U.S. Dist. LEXIS 5020 (S.D.N.Y. Mar. 31, 2003); Manley v. Thomas, 2003 WL 1739003 (S.D.N.Y. Apr. 1, 2003). Judge Lynch stated in Brown,
[S]o often in habeas corpus cases potentially complex and difficult issues about the various obstacles to reaching the merits should not be allowed to obscure the fact that the underlying claims are totally without merit. Since [the] petition can easily be rejected on the merits, requiring submission of that petition to the state courts, with the likelihood that the same arguments will be presented here in any event, would be a waste of the resources of both the state and federal courts.
In Brown and Defino, the petitioners were each incarcerated pursuant to convictions of manslaughter in the first degree. See Brown, 2003 U.S. Dist. LEXIS 3396 at *1; Defino, 2003 U.S. Dist. LEXIS 4299 at * 1. In Hairston, the petitioner had been convicted of four counts of robbery and one count of assault, and the petitioner in Manley was incarcerated pursuant to a conviction of second-degree murder. See Hairston, 2003 U.S. Dist. LEXIS 5020 at *1; Manley, 2003 WL 1739003 at *1. Each of the petitioners had excellent institutional records, had met numerous rehabilitative goals, and had participated in several institutional programs while incarcerated.
2003 U.S. Dist. LEXIS 3396, at *2-*3. Similarly, this Court declines to rule on Morel's exhaustion argument because the petition can be dismissed on the merits of both the due-process and equal-protection claims.
A. Due Process
Morel contends that the Parole Board violated his federally-protected rights to procedural due process on three grounds. First, the Board provided no evidence to support its determination that granting him parole would be inappropriate. Second, the Board's denial was arbitrary and capricious because it "failed to proffer any reasons for rejecting Petitioner's institutional record, community support and employability." Pet. Mem. of L. at 18. Finally, the Board's decision was "impermissibly infected" with political and public pressure to deny parole to inmates convicted of violent felonies. Id. at 19. He concedes that if he was not deprived of a liberty interest, then his "claims necessarily fail." Id. at 7. Although Morel makes a compelling argument that he should be paroled under the present state of the law, his due-process claim must be dismissed.
The Supreme Court has held that a convicted inmate has no inherent or constitutional right to be released on parole prior to the expiration of a valid sentence. Greenholtz v. Inmates of the Neb. Panel Corr. Complex, 442 U.S. 1, 7 (1979). However, in Greenholtz, the Court found that a Nebraska statute that mandated parole unless certain requirements were met created a liberty interest in release. Morel contends that the New York parole statute creates a liberty interest in the same fashion as the Nebraska statute. The New York statute provides:
The Nebraska statute provides:
Whenever the Board of Parole considers the release of a committed offender who is eligible for release on parole, it shall order his release unless it is of the opinion that his release should be deferred because:
(a) There is a substantial risk that he will not conform to the conditions of parole;
(b) His release would depreciate the seriousness of his crime or promote disrespect for law;
(c) His release would have a substantially adverse effect on institutional discipline; or
(d) His continued correctional treatment, medical care, or vocational or other training in the facility will substantially enhance his capacity to lead a law-abiding life when released at a later date.
Neb. Rev. Stat. § 83-1,114(1) (emphasis added).
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. In making the parole release decision, the guidelines . . . shall require that the following be considered: (i) the institutional record including program goals and accomplishments, academic achievements, vocational education, training or work assignments, therapy and interpersonal relationships with staff and inmates; (ii) performance, if any, as a participant in a temporary release program; (iii) release plans including community resources, employment, education and training and support services available to the inmate; (iv) any deportation order issued by the federal government against the inmate while in the custody of the department of correctional services and any recommendation regarding deportation made by the commissioner of the department of correctional services pursuant to section one hundred forty-seven of the correction law; and (v) any statement made to the board by the crime victim or the victim's representative, where the crime victim is deceased or is mentally or physically incapacitated.
N.Y. Exec. L. § 259-i(2)(c)(A). Morel relies on Wolff v. McDonnell, 418 U.S. 539 (1974), in which the Supreme Court held that the deprivation of good-time credits because of serious misconduct required a certain degree of due process protection. Morel also cites Sandin v. Conner, 515 U.S. 472 (1995), where the Court ruled that a liberty interest is violated if treatment of an inmate imposes an atypical and significant hardship in relation to the ordinary incidents of prison life. See Sandin, 515 U.S. at 480-84. However, the Second Circuit has ruled unequivocally that the New York parole process "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) (per curiam). Within a few months of the Greenholtz decision, this circuit found New York's parole scheme legally distinguishable from that in Nebraska. See Boothe v. Hammock, 605 F.2d 661, 664 (2d Cir. 1979). The Second Circuit observed, "[I]t is apparent that New York's parole provisions . . . do not establish a scheme whereby parole shall be ordered unless specified conditions are found to exist." Id.; see also Barna, 239 F.3d at 171 (quoting Boothe). Morel contends that in Sandin v. Conner, 515 U.S. 472 (1995), the Supreme Court departed from the analytical approach of Greenholtz, Even if Morel is correct, this court is bound by the Second Circuit's precedent, which is unambiguous on this point.
Indeed, the Barna opinion appears to rely on the distinction mentioned in Greenholtz about whether the state's parole statute contains language of an unmistakable mandatory character. See Barna, 239 F.3d at 171 ("Thus, `[i]t is apparent that New York's parole provisions . . . do not establish a scheme whereby parole shall be ordered unless specified conditions are found to exist. . . . [N]o entitlement to release is created [by the parole provisions].' Boothe v. Hammock, 605 F.2d at 664. Accordingly, plaintiffs have no liberty interest in parole, and the protections of the Due Process Clause are inapplicable."). There is no citation in Barna to Sandin, which instructed that the proper analysis was not about whether the statute contained "language of an unmistakable mandatory character," but rather about "the nature of the deprivation," and specifically whether it "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 480-84. However, even if Morel is correct that the New York parole scheme, like the Nebraska statute, creates a liberty interest, he overlooks the fact that New York's scheme contains procedures similar to Nebraska's to minimize the risk of erroneous decisions, which the Court found met due process requirements. See Greenholtz, 442 U.S. at 16 ("The Nebraska procedure affords an opportunity to be heard, and when parole is denied it informs the inmate in what respects he falls short of qualifying for parole; this affords the process that is due under these circumstances. The Constitution does not require more.").
Thus, because a New York law does not create a liberty interest in parole, Morel's due process rights extend only to a refusal by the Parole Board to deny release arbitrarily or capriciously, based on inappropriate consideration of a protected classification or an irrational distinction, or on any other unconstitutional grounds. See Manley v. Thomas, 2003 WL 1739003 at *3 (S.D.N.Y. Apr. 1,2003) (citing Meachum v. Fano, 427 U.S. 215, 226 (1976)). Morel has not proven that the government treated him in an arbitrary manner. The Board's decision was justified on the basis of reasonable considerations defined in the New York Executive Law.
Morel contends that the Board's determination was arbitrary and capricious because it failed to offer any reasons for rejecting his institutional record, community support, and employment prospects. Pet. Mem. of L. at 18. Morel also asserts that his behavioral record and his desire to provide assistance to the parents of the victim demonstrate that he has been rehabilitated. See Pet. Mem. of L. at 16. Indeed, Morel presented a number of other factors that seemed to weigh in his favor. Nevertheless, however productive Morel's institutional adjustment has been, the statute clearly states that the Board is not to determine parole based on this consideration alone. The record indicates that the Board was supplied with numerous documents about Morel's crime and discussed these details with him at the parole hearing. Further, as noted above, the Board was certainly aware of the factors in Morel's favor, as it adverted to his exceptional institutional history and employment prospects. Although Morel argues that the arbitrariness of the decision is demonstrated by the lack of a comprehensive and inclusive discussion as to the Board's decision, "[t]he fact that the [B]oard did not discuss each factor with petitioner at [his] hearing does not constitute convincing evidence that it did not consider them." See Matter of Mackall v. New York State Bd. of Parole, 458 N.Y.S.2d 251, 251 (App.Div.2d Dep't 1983). Similarly, the Board has discretion to accord these considerations whatever weight it deems appropriate, and, contrary to assertions made by petitioner, need not expressly discuss each of the reasons in its determination. See Garcia v. N.Y.S. Div. of Parole, 657 N.Y.S.2d 415, 418 (App.Div. 1st Dep't 1997).
He also contends that the Board's determination was arbitrary and capricious because he believes it misconstrued the facts of his case when it issued its determination. Specifically, Morel contends that the Board incorrectly described how he killed the victim and then fled the scene, and that this inaccuracy adversely affected the Board's determination. However, Justice Cobb's ruling on this point apply characterizes the Board's statements. He found that,
[It] is uncontroverted that the stab wound in fact was responsible for the death of the victim. While there might be some implication from the language [of the Board's decision] that the victim died before petitioner fled, the records before the parole board clearly establish that such was not the case. It is thus far more likely that the parole board was inarticulate in stating its grounds for denial, rather than that it believed that the victim died immediately.Morel v. Travis, No. 3044-02, slip op. at 2-3 (Sept. 30, 2002).
The Board was entitled to determine that the nature of the crime outweighed the positive aspects of his record. See Defino, 2003 U.S. Dist. LEXIS 4299, at *4. New York law is clear that where the record "demonstrates that the Parole Board considered the relevant statutory factors, including petitioner's record in prison and postrelease plans, before concluding in its discretion that, due to the serious and violent nature of the crime and petitioner's other violent conduct, petitioner is not an acceptable candidate for release on parole," reliance on the nature of the inmate's crime in their denial is entirely consistent with the criteria laid down by the legislature. Brown, 2003 U.S. Dist. LEXIS 3396 (citing Thurman v. Hodges, 739 N.Y.S.2d 324, 324 (App.Div. 4th Dep't 2002)).
Although not rising to the level of arbitrary and capricious, the Board's decision in this case is somewhat troublesome. As noted, Morel presented a number of positive factors, such as his exemplary institutional record and the employment opportunities available to him upon release, which the Board was required by the statute to consider. See N.Y. Exec. L. § 259-i(2)(c)(A); see also Greenholtz, 442 U.S. at 15 ("The behavior record of an inmate during confinement is critical in the sense that it reflects the degree to which the inmate is prepared to adjust to parole release."). Yet, the Board apparently found that his crime, which it characterized as an "extremely heinous brutal act," and his apparent lack of insight outweighed these positive factors. Notwithstanding that Morel's actions caused the death of another person, one could easily be concerned, as I am, with the Parole Board's description and the denial which flowed from it, where the uncontroverted facts of the events preceding the crime indicate that Morel had been approached by the victim, that the victim threatened to strike Morel in the head with a glass bottle, that Morel stabbed him once in the abdomen and then fled the scene, and that Morel contacted the police to turn himself in the following day. Pet. Ex. 4 at 3-9. Concern, however, does not pass the arbitrary and capricious test.
Thus, for the aforementioned reasons, it was within the Board's discretion to find as they did, and Morel's contention that the Parole Board violated his due process rights is unfounded.
B. Equal Protection
Morel also asserts that the Board violated his right to equal protection of the laws by denying him parole while granting it to offenders convicted of similar crimes. This contention too is without merit.
Morel's equal-protection claim is in the nature of a "class of one." See Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). As the Court explained in Olech, "Our cases have recognized successful equal protection claims 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. Thus, the three elements of a "class of one" equal-protection claim are that 1) the person received different treatment than others similarly situated, and that this disparate treatment was 2) irrational and wholly arbitrary and 3) intentional. See Giordano v. City of New York 274 F.3d 740, 751 (2d Cir. 2001); DeMuria v. Hawkes, 328 F.3d 704, 706-07 (2d Cir. 2003).
Morel also contends that the Giordano approach runs counter to the Supreme Court's decision in Olech, where the Court sustained a "class of one" equal-protection claim without requiring proof of an illicit motivation by the state. The Circuit has not decided whether Olech eliminated the Circuit's previously existing requirement that malice or bad faith be shown. See DeMuria, 328 F.3d at 707 n. 2 (declining to decide the issue and noting that it was similarly left unresolved in Giordano and Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499-500 (2d Cir. 2001)). It is not necessary to resolve this issue here, either.
As noted above, there was a rational basis for the Board's decision to deny him parole — i.e., the Board's determination that to release Morel would deprecate the seriousness of the crime and undermine respect for the law. This alone would seem to also dispose of his equal-protection claim. However, in addition, although Morel contends that on the same day he was denied parole, the same three commissioners granted parole to two inmates convicted of manslaughter, he fails to show that they were similarly situated. Indeed, as Judge Sweet noted, "Given the degree of discretion accorded to the parole Board and the wealth of factors that its members may take into account, [petitioner's equal-protection] argument is difficult if not impossible to sustain." See Defino, 2003 U.S. Dist LEXIS 4299, at * 19. Further, given the various factors the Board can consider, Morel does not and cannot allege or show that the Parole Board intended to treat him differently from similarly situated inmates. Finally, Morel points to the Circuit's recent DeMuria decision in support of his argument that he has stated a claim and is entitled to discovery on it. He is correct that in DeMuria, the Circuit noted that "the allegation of an impermissible motive and of animus is sufficient to establish an equal protection issue." DeMuria, 328 F.3d at 707. However, the motive and animus that Morel contends is impermissible — namely, the Board's decision to get tough on violent offenders because of public and political pressure — in fact seems entirely permissible, as it closely relates to the statutory factor of whether "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." See N.Y. Exec. L. § 259-i(2)(c)(A).
Given the amount of discretion accorded to the Parole Board under the law and the lack of substantive proof that the Board irrationally and intentionally treated Morel in a different fashion than it did other similarly situated offenders, Morel's equal protection claim is dismissed as being without merit.
III. CONCLUSION
For the foregoing reasons, Morel's habeas corpus petition is DENIED. Accordingly, his motion for bail is moot and dismissed. The Clerk of the Court is instructed to close this case and remove it from my docket.