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holding that because "'[t]he New York parole scheme is not one that creates in any prisoner a legitimate expectancy of release . . . [a prisoner] can claim a due process violation only if the Parole Board has denied his release arbitrarily or capriciously"
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03 Civ. 1670 (KMW) (AJP).
July 29, 2003.
REPORT AND RECOMMENDATION
Petitioner Steven Romer seeks a writ of habeas corpus from a June 2000 denial of parole by the New York State Division of Parole ("the Parole Board"). Romer's petition alleges that: (1) the Parole Board violated his Due Process rights by: (a) failing to follow its own regulations and policies, which created an expectation of parole, (b) acting arbitrarily and capriciously, and (c) making a decision that showed "irrationality bordering on impropriety" (Dkt. No. 1: Pet. ¶ 12(A)-(B)); (2) the Board effectively resentenced Romer in violation of the separation of powers clause by denying him parole (Pet. ¶ 12(B)); (3) the Parole Board violated Romer's right to equal protection (Dkt. No. 2: Romer Br. at 70-71, 76-77); and (4) denial of parole subjected him to Double Jeopardy (Pet. ¶ 12(C)).
Romer, an attorney, filed this petition "pro se," but was assisted by and is now formally represented by his son, Kenneth Romer, Esq. (Dkt. No. 10: 5/12/03 Order.).
For the reasons set forth below, Romer's petition should be DENIED.
FACTS Romer's Conviction and Incarceration
Romer, an attorney, was convicted in 1992 of grand larceny and related offenses in connection with his theft of over $7 million of client funds and sentenced to seven and one-half to twenty-two and one-half years imprisonment. (Dkt. No. 1: Pet. ¶¶ 1-4; Dkt. No. 3: Pet. App.: 5/98 Inmate Status Report at 505-06; Pet. App.: 6/13/00 Parole Bd. Hearing Minutes ["H."] at 527, 530.) Since February 1992, Romer has been in the custody of the New York State Department of Correctional Services, and since April 1993, imprisoned at Sing Sing Correctional Facility. See Romer v. Travis, 00 Civ. 8671, 2001 WL 220115 at *1 (S.D.N.Y. Jan. 31, 2001) (Peck M.J.).
Parole Proceedings 1998
Romer appeared before the Parole Board in 1998 and was denied parole with a twenty-four-month hold. (Dkt. No. 3: Pet. App.: 6/18/98 Parole Bd. Release Decision Notice at 511-12.) The Parole Board acknowledged, and urged Romer to continue, his model behavior, but pointed to the seriousness of his crimes as one reason to deny parole. (Id. at 512.) Romer had a second hearing before the Parole Board in June 2000. (Pet. App.: 4/10/00 Parole Report at 515-19; H. 524-38.) Romer submitted numerous letters for the Board's consideration from doctors, neighbors, legislators, clergy members, and the prison legal librarian attesting to Romer's good behavior in prison and supporting his release on parole. (See Pet. App. at 3-214.)
The Parole Board explained its denial of parole as follows:
Parole is denied for the following reasons: In the instant offense, Grand Larceny 1st Degree/Not Auto; CPSP 1st, Grand Larceny 2nd/Not Auto, and Criminal Possession of Forged Instrument 2nd Degree. You misappropriated the funds of a number of clients. The multi[p]licity of the offenses involving numerous victims occurring over an extended period of years which demonstrated a high degree of sophistication in your taking advantage of victims who were particularly vulnerable indicates to this panel that your parole now would be inappropriate, as well as incompatible with the public welfare. We note your exemplary institutional programming and model disciplinary record. You are urged to continue.
(Id.; see also id. at 525.).
2000
At the June 2000 parole hearing, Romer asserted his innocence and said that he would "lead a law-abiding life" should he be released. (Pet. App.: H. 528-29, 532, 535.) Romer also explained that, because he had been disbarred, he would no longer have access to the kinds of escrow and trust funds he had been convicted of misusing. (H. 534-35.) During the hearing, a commissioner on the panel stated, "you have been a model prisoner. We have to [l]ook at that. . . . You have no disciplinary infraction reports. That comes to us as a glaring and siren for all your good doing in here. We note that you have continued to program as a paralegal assistant in the law library, that you have participated in family reunion programs, that you continue to receive regular visits from your wife. . . . and we also note that you have strong family and community support." (H. 5 37.) The commissioner assured Romer that "we have and will continue to review the entirety of your record," noting that Romer's adoption of eight children prior to his incarceration was "very positive." (H. 537.) The commissioner added: "Many good things have been done [by Romer]. But we have to consider all of it." (Id.)
On June 13, 2000, the Parole Board again denied Romer parole and imposed a second twenty-four-month hold, based in part on his crimes and his failure to express remorse:
Parole is again denied for the following reasons: In the instant offenses, Grand Larceny in the 1st/Not Auto, Criminal Possession of Stolen Property in the 1st, Grand Larceny in the 2nd/Not Auto, and Criminal Possession of a Forged Instrument in the 2nd Degree you misappropriated the funds of a number of clients.
The multiplicity of these offenses occurring over a period of years demonstrated a high degree of sophistication and a careless disregard for the welfare of the numerous vulnerable victims.
In this interview you continued to present yourself as a victim. In fact, you insisted that you are an "innocent man," and expressed little or no remorse other than making statements about wanting to pay restitution. These seem to be self-serving and disingenuous. As such, we find you to be an inappropriate candidate for discretionary release at this time. Your release at this time would deprecate the severity of your offense and diminish respect for the law.
(H. 539; accord Pet. App.: 6/15/00 Parole Bd. Release Decision Notice at 541.)
Romer appealed to the Parole Board's Appeals Unit on the grounds that the decision was excessive, arbitrary and capricious, and in violation of the Parole Board's lawful procedures. (Pet. App.: 12/4/00 Statement of Appeals Unit Findings at 543.) The Appeals Unit affirmed the Parole Board's decision. (Id.; see also Pet. App.: 12/29/00 Parole Appeal Dec. Notice at 542.) Subsequently, Romer challenged the parole decision in state court pursuant to C.P.L.R. Article 78. (See Pet. App.: 11/21/01 Sup.Ct. Westchester Co. Decision, at 562-69.) The Supreme Court (id.) and the Second Department affirmed the denial of parole. Romer v. Travis, 299 A.D.2d 553, 750 N.Y.S.2d 519 (2d Dep't 2002), appeal denied, 99 N.Y.2d 508, 757 N.Y.S.2d 818 (2003).
A prisoner may initiate an Article 78 proceeding to claim that a determination by the Parole Board was, inter alia, erroneous, arbitrary and capricious, in violation of lawful procedure, or an abuse of discretion.
Romer also sought injunctive relief from the Parole Board's decision under 42 U.S.C. § 1983; this Court dismissed the claim. Romer v. Travis, 00 Civ. 8671, 2001 WL 220115 (S.D.N.Y. Jan. 31, 2001) (Peck, M.J.) (dismissing Romer's § 1983 action because habeas corpus was the proper way to bring the claim), report rec. adopted, 00 Civ. 8671 (S.D.N.Y. June 5, 2001) (Wood, D.J.) (reprinted in Dkt. No. 3: Pet. App. at 557-61).
The Second Department held:
The record demonstrates that the determination of the New York State Board of Parole (hereinafter the Board) denying the petitioner's second parole request does not show irrationality bordering on impropriety. The Board was justified in considering, among other factors, the severity of the underlying crime.Romer v. Travis, 299 A.D.2d at 553, 750 N.Y.S.2d at 519 (citations omitted).
2002
Romer's third parole hearing was held in June 2002. (See Dkt. No. 12: State Br. at 3.) Due to lack of consensus among the June 2002 panel, a different panel interviewed Romer in July 2002. (Id.) At the July parole hearing, Romer said that he continued to work in the prison law library as a paralegal assistant, taught legal research courses, and generally helped in the law library. (Dkt. No. 11: 6/19/03 Affidavit of Asst. Atty. General Michael King: Ex. D: 7/02 Parole Hearing Minutes at 4.) Romer said he hoped the paralegal job was still waiting for him although he had not been in touch with the agency for a year and a half, but otherwise he felt he would have no problem obtaining a job because of his management and engineering background. (Id. at 5-6.) The July 2002
Parole Board again denied parole, and scheduled Romer's next appearance for July 2004, explaining: Parole is denied, hold 24 months. Next appearance 06/04 Board.
Reasons: After an interview and review of the pertinent portions of the file, including the present Inmate Status Report and prior Inmate Status Reports, parole is denied as follows: you are currently serving a sentence for the convictions of Grand Larceny 1st Degree, Not Auto, Criminal Possession of Stolen Property 1st Degree, Grand Larceny 2nd Degree, Not Auto, and Criminal Possession of a Forged Instrument 2nd Degree. You misappropriated the funds of a number of clients. You committed these offenses over a period of years, which has been demonstrated to a high sophistication in taking advantage of very vulnerable clients. You have minimized your criminal actions and have shown a lack of insight into the motivational factors associated with your criminality. We note your good programming and spotless disciplinary record. When all factors considered, your discretionary release is inappropriate. The decision is above the guidelines due to sentence structure. High degree of sophistication involved in the offense. Ineligible for Certificate of Relief. All commissioners concur.
(Id. at 14.)
Romer administratively appealed, and the Appeals Unit affirmed the Board's decision on February 24, 2003. (Dkt. No. 11: King Aff. Ex. E: Parole Appeals Decision.) Romer again sought judicial review via an Article 78 proceeding, on May 6, 2003. (Dkt. No. 11: King Aff. Ex. F: Article 78 Petition.) That Article 78 proceeding still is pending in Supreme Court, Westchester County.
Romer's Current Federal Habeas Corpus Petition
Romer seeks a writ of habeas corpus from the Parole Board's denial of parole at his second and subsequent parole hearings. Romer's petition alleges that: (1) the Parole Board violated his Due Process rights by: (a) failing to follow its own regulations and policies, which created an expectation of parole, (b) acting arbitrarily and capriciously, and (c) making a decision that showed "irrationality bordering on impropriety" (Dkt. No. 1: Pet. ¶ 12(A)-(B)); (2) the Board effectively resentenced Romer in violation of the separation of powers clause by denying him parole (Pet. t 12(B)); (3) the Parole Board violated Romer's right to equal protection (Dkt. No. 2: Romer Br. at 7071, 76-77.); and (4) denial of parole subjected him to Double Jeopardy (Pet. ¶ 12(C)).
Although Romer groups his argument into three claims (see Pet. ¶¶ 12(A)-(C)), the Court addresses them as noted above for the sake of clarity.
ANALYSIS
For discussion of the AEDPA review standard, see, e.g., Skinner v. Duncan, 01 Civ. 6656, 2003 WL 21386032 at * 11-13 (S.D.N.Y. June 17, 2003) (Peck, M.J.) ( cases cited therein).
As the State notes, it is unclear whether Romer is challenging the Parole Board's 2000 decision or its 2002 decision. (See Dkt. No. 12: State Br. at 7.) If Romer is challenging the 2000 decision, the State argues, Romer's claim is moot because he has already received the subsequent July 2002 hearing, the only relief to which he might be entitled. (Id. at 8-10.) If Romer is challenging the 2002 decision, the State argues that Romer's claims are unexhausted because the state court has not yet ruled on his pending Article 78 proceeding. (Id. at 7-8.)
Regardless of whether Romer is now challenging the 2000 or 2002 parole decision, Romer's claims contest the legal standards by which the Parole Board made its decisions, not the specific circumstances of each denial of parole. Romer exhausted these claims via his Article 78 challenge to the Parole Board's June 2000 decision. The fact that Romer may be making identical claims about the 2002 decision raises a question of mootness, not a question of exhaustion.
As to mootness, Romer may challenge an alleged error by the Parole Board, despite having already received a new hearing, if the error is "'capable of repetition, yet evading review.'"Olmstead v. Zimring, 527 U.S. 581, 594 n. 6, 119 S.Ct. 2176, 2184 n. 6 (1999). An otherwise moot question is justiciable when: "(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again." Weinstein v. Bradford, 423 U.S. at 149, 96 S.Ct. at 349.
See also, e.g., Spencer v. Kemna, 523 U.S. 1, 17, 188 S.Ct. 978, 988 (1998); Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349 (1975) (challenge to a denial of parole by a petitioner who was no longer under state supervision or custody was moot); United States v. Ciccone, 312 F.3d 535,544 (2d Cir. 2002) (dismissing as moot a claim that was "'capable of repetition'" but not possible to "characterize as 'evading review"'); Board of Educ. of the Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d 476, 479 n. 1 (2d Cir. 2002),cert. denied, 123 S.Ct. 1284 (2003); Atlantic States Legal Found., Inc. v. Norton, No. 01-6129, 29 Fed. Appx. 729, 731, 2002 WL 278040 at *1 (2d Cir. Feb. 26, 2002).
Accord, e.g., Spencer v. Kemna, 523 U.S. at 17, 118 S.Ct. at 988; Bd. of Educ. of the Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d at 479 n. 1; Irish Lesbian Gay Organization v. Giuliani, 143 F.3d 638, 647-48 (2d Cir. 1998); Rastelli v. Warden, 782 F.2d 17, 20 (2d Cir. 1986).
Here, each denial of parole has resulted in an additional two years of imprisonment for Romer. It took more than two years to litigate Romer's challenge to the Parole Board's June 2000 decision: the Appeals Unit ruled in December 2000, Romer's Article 78 challenge was denied by the State Supreme Court in November 2001 and by the Second Department in November 2002, and the New York Court of Appeals did not deny leave to appeal until February 2003 (see pages 3-6 above) — after Romer had again been denied parole in July 2002 for the same reasons he challenged in the Article 78 challenge to the June 2000 parole denial. Because it is unlikely that Romer can obtain full state court judicial review of his parole claims before the next Parole Board hearing and decision, the Court finds that a twenty-four-month hold is too short in duration for Romer's parole claim "to be fully litigated prior to its cessation or expiration." See, e.g., Irish Lesbian Gay Organization v. Giuliani, 143 F.3d at 647-48 (case not moot where plaintiff who applied for a permit to participate in an annual parade was denied the permit a few weeks before the parade date and where plaintiff planned to seek a permit for subsequent annual parades); Chabad-Lubavitch of Vermont v. City of Burlington, 936 F.2d 109, 111 (2d Cir. 1991) (where plaintiff sought permission to display a menorah in a city park at Chanukah, and Chanukah had passed but plaintiff intended to seek such permission each year, case not moot because, "[g]iven the short length of Chanukah and the relatively slow pace of litigation," it would be "highly improbable" that the next year's challenge would reach the court before Chanukah passed again), cert. denied, 505 U.S. 1218, 112 S.Ct. 3026 (1992); Rastelli v.Warden, 782 F.2d at 20 (period of thirty-one to 119 days was insufficient for parole revocation challenges to be fully litigated).
In addition, Romer contests not the factual findings of a specific parole proceeding or the actions of a particular parole commissioner, but the legal standards under which parole decisions are made (which have resulted in his denial of parole in 1998, 2000 and again in 2002). There thus is a "reasonable expectation" that Romer will face the same procedures and standards at his future parole hearings. See, e.g., Russman v. Board of Educ. of the Enlarged City Sch. Dist. of Watervliet, 260 F.3d 114, 120 (2d Cir. 2001) ("To create a reasonable expectation of recurrence, repetition must be more than theoretically possible," but "a plaintiff need not show a 'demonstrated probability' of recurrence."); Lerman v. Board of Elections in City of New York, 232 F.3d 135, 141 (2d Cir. 2000) (candidate's suit to seek ballot access was not moot after election had passed because there was a reasonable expectation that same candidate would seek ballot access in the next election); Shrader v. Granninger, 870 F.2d 874, 877 (2d Cir. 1989) (former mental patient's due process challenge to the state's involuntary commitment procedures was not moot, even though patient was no longer in custody, because patient had been committed over 160 times, thus creating a reasonable expectation that patient would be subjected to commitment procedures again; compare, e.g., Weinstein v. Bradford, 423 U.S. at 149, 96 S.Ct. at 349 (challenge to a denial of parole was moot given that former prisoner was no longer in state custody and thus there was no reasonable expectation that former prisoner would again be subject to the parole system's jurisdiction).
Romer's claims are therefore not moot and can be reviewed by this Court.
II. THE PAROLE BOARD DID NOT VIOLATE ROMER'S DUE PROCESS RIGHTS WHEN IT CONSIDERED THE SEVERITY OF ROMER'S CRIMINAL OFFENSES IN ITS DECISIONS TO DENY PAROLE
Romer asserts that the Parole Board violated his constitutional rights and acted arbitrarily and capriciously by failing to follow its own regulations and policies, which created an expectation of parole. (Dkt. No. 1: Pet. ¶ 12(A)-(B).) Specifically, Romer argues that the Board should not have taken into account the severity of his criminal offenses during his 2000 and 2002 parole proceedings. (See Dkt. No. 2: Romer Br. at 27-56.) Romer's due process claim should be denied because Romer has not asserted a cognizable violation of his constitutional rights and because he relies on an incorrect interpretation of New York parole regulation, 9 N.Y.C.R.R. § 8002.3.
A. The Parole Board Did Not Violate Romer's Right Not to Be Denied Parole Arbitrarily or Capriciously
"There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence." Greenholtz v. Inmates of the Neb. Penal Corr. Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2104 (1979). "In order for a state prisoner to have an interest in parole that is protected by the Due Process Clause, he must have a legitimate expectancy of release that is grounded in the state's statutory scheme." Barna v. Travis, 239 F.3d 169, 170 (2d Cir. 2001) (citing, inter alia, Greenholtz v. Inmates of the Neb. Penal Corr. Complex, 442 U.S. at 11-13, 99 S.Ct. at 2106).
Accord, e.g. Board of Pardons v. Allen, 482 U.S. 369, 373, 107 S.Ct. 2415, 2418 (1987); Boothe v. Hammock, 605 F.2d 661, 663-64 (2d Cir. 1979).
The Second Circuit, however, has held unequivocally that "[t]he New York parole scheme is not one that creates in any prisoner a legitimate expectancy of release." Barna v.Travis, 239 F.3d at 171; accord, e.g., Marvin v. Goord, 255 F.3d 40, 44 (2d Cir. 2001); Boothe v. Hammock, 605 F.2d at 664. Accordingly, Romer can claim a due process violation only if the Parole Board has denied his release "arbitrarily or capriciously." Morel v. Thomas, 2003 WL 21488017 at *4. Under New York law,
See also, e.g., Morel v. Thomas, 02 Civ. 9622, 2003 WL 21488017 at *4 (S.D.N.Y. June 26, 2003); Gilmore v.Stone, No. 01-CV-00880, 2003 WL 1923734 at *3 (N.D.N.Y. Apr. 23, 2003); Manley v. Thomas, 255 F. Supp.2d 263, 266 (S.D.N.Y. 2003); Brown v. Thomas, 02 Civ. 9257, 2003 WL 941940 at *1 (S.D.N.Y. Mar. 10, 2003); Defino v. Thomas, 02 Civ. 7413, 2003 WL 40502 at *3 (S.D.N.Y. Jan. 2, 2003);Vasquez v. Reynolds, 00 Civ. 0862, 2002 WL 417183 at *8 n. 11 (S.D.N.Y. Mar. 18, 2002) ("Notwithstanding the fact that Petitioner has served his minimum sentence . . . he does not have a 'right' to parole release."), aff'd, No. 02-2219, 58 Fed. Appx. 553, 2003 WL 1025705 (2d Cir. 2003).
Accord, e.g., Manley v. Thomas, 255 F. Supp.2d at 266; Brown v. Thomas, 2003 WL 11 941940 at *1; Defino v. Thomas, 2003 WL 40502 at *3.
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.
Exec. L. § 259-i(2)(c)(A) (emphasis added). Where, as here, the prisoner's minimum sentence was set by the court and not by the Parole Board, the Board must specifically consider, among other factors, "the seriousness of the offense with due consideration to the type of sentence, length of sentence and recommendations of the sentencing court." Exec. Law § 259-i(2)(c)(A),-i(1)(a).See Davis v. Thomas, 256 F. Supp.2d 190, 192 (S.D.N.Y. 2003). The Parole Board may give whatever weight it deems appropriate to the statutory factors, and is "entitled to determine that the nature of the crime outweighed the positive aspects of [petitioner's] record." Morel v. Thomas, 2003 WL 21488017 at 4-5.
Accord, e.g., Manley v. Thomas, 255 F. Supp.2d at 267; Harris v. Travis, No. 97-CV-3275, 1998 WL 812617 at *2 (E.D.N.Y. Mar. 24, 1998) (when court, and not Parole Board, sets minimum sentence, "the Board must also consider the seriousness of the offense"), aff'd, No. 98-2344, 175 F.3d 1007 (table), 1999 WL 96125 (2d Cir. 1999); Quartararo v.Catterson, 917 F. Supp. 919, 939 (E.D.N.Y. 1996) (same);Silmon v. Travis, 95 N.Y.2d 470, 476, 718 N.Y.S.2d 704, 708 (2000); Garcia v. New York State Div. of Parole, 239 A.D.2d 235, 238-39, 657 N.Y.S.2d 415, 418 (1st Dep't 1997).
See, e.g., Davis v. Thomas, 256 F. Supp.2d at 192; Manley v. Thomas, 255 F. Supp.2d at 266-67; Brown v.Thomas, 2003 WL 941940 at *2 ("the Board was fully entitled to determine that the nature of the crime outweighed the positive aspects of [petitioner's] record"); Defino v. Thomas, 2003 WL 40502 at *4 (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"); Walters v. Ross, No. CV-92-2290, 1992 WL 398307 at *3-4 (E.D.N.Y. Dec. 21, 1992) (denial of parole based on the severity of the prisoner's crime and his refusal to accept responsibility did not violate the Fourteenth Amendment);Charlemagne v. New York Div. of Parole, 281 A.D.2d 669, 670, 722 N.Y.S.2d 74, 75 (3d Dep't 2001) (Parole Board not required to give equal weight to each factor in parole decision);Garcia v. New York State Div. of Parole, 239 A.D.2d at 239, 657 N.Y.S.2d at 418 (weight accorded to each factor is within the Parole Board's discretion); Farid v. Travis, 239 A.D.2d 629, 629, 657 N.Y.S.2d 221, 221-22 (3d Dep't 1997).
Denial of parole is neither arbitrary nor capricious when the Parole Board relies on the factors defined by New York statute.Davis v. Thomas, 256 F. Supp.2d at 191 ("denial of parole may be justified on the basis of reasonable considerations defined by statute, including . . . seriousness of the offense for which he is in custody."); Manley v. Thomas, 255 F. Supp.2d at 266 (same). Here, the Parole Board acknowledged Romer's good behavior in prison, but found that the severity of his crime and his apparent lack of remorse made him "an inappropriate candidate for discretionary release." (See Dkt. No. 3: Pet. App.: H. 539; Pet. App.: 6/15/00 Parole Bd. Release Dec. Notice at 541; Dkt. No. 11: King Aff. Ex. D: 7/02 Parole Hearing Minutes at 14.) Because it was within the discretion of the Parole Board to consider these factors, the Court cannot say that the decision to deny Romer parole was arbitrary or capricious, or irrational bordering on impropriety.
B. The Parole Board's Decision to Deny Romer Parole Was In Accord With New York Laws and Regulations
See, e.g., Garcia v. New York State Div. of Parole, 239 A.D.2d at 238, 239, 657 N.Y.S.2d at 417-19 (Parole Board's denial of parole based on the seriousness of the prisoner's crime was not arbitrarily or capricious); Farid v.Travis, 239 A.D.2d at 629, 657 N.Y.S.2d at 22122 (Parole Board's consideration of statutory factors, including prisoner's offense and criminal history, was proper); see also cases cited in fn. 12 above.
Romer contends that the Parole Board's decision to deny parole "constitute[d] irrationality bordering on impropriety." (Dkt. No. 1: Pet. ¶ 12(B).) This is essentially another way to claim that the Board's decision was arbitrary and capricious.See Manley v. Thomas, 255 F. Supp.2d at 266 (noting that "any liberty interest in parole . . . extends only to not being denied a petition arbitrarily or capriciously" and that "judicial intervention is warranted only when there is a showing of irrationality bordering on impropriety") (quotations omitted); Silmon v. Travis, 95 N.Y.2d at 476, 718 N.Y.S.2d at 707 (reviewing a decision to deny parole under an "arbitrary or capricious" standard because "[j]udicial intervention [in Parole Board decisions] is warranted only where there is a 'showing of irrationality bordering on impropriety"');Lue-Shing v. Pataki, 301 A.D.2d 827, 828, 754 N.Y.S.2d 96, 96 (3d Dep't) (when Parole Board denied parole based on a finding that the seriousness of his offense and his criminal history outweighed his good behavior in prison, decision was not "arbitrary or capricious in that it was [not] affected by irrationality bordering on impropriety"), appeal denied, 99 N.Y.2d 511, 760 N.Y.S.2d 102 (2003). As such, the Court need not separately address this claim and finds that, because the Board's decision was not arbitrary and capricious, neither is there any showing of "irrationality bordering on impropriety."
Romer contends that the Parole Board should have granted him parole release pursuant to 9 N.Y.C.R.R. § 8002.3(b). (Dkt. No. 2: Romer Br. at 31-40.) Section 8003.2 states:
(a) Cases wherein the guidelines have not previously been applied. In making the parole release decision for those cases where the guidelines have not previously been applied (i.e., [minimum periods of imprisonment] MPI's set by the board prior to January 1, 1978 and cases wherein the court imposed the minimum), the board shall apply the guidelines and in addition the following factors shall be considered:
(1) the institutional record, including program goals and accomplishments, academic achievements, vocational education training or work assignments, therapy and interpersonal relationships with staff and inmates;
(2) performance, if any, as a participant in a temporary release program; and
(3) release plans, including community resources, employment, education and training and support services available to the inmate.
(b) Cases where the guidelines have previously been applied. In those cases where the guidelines have previously been applied, the board shall consider the following in making the parole release decision. Release shall be granted unless one or more of the following is unsatisfactory:
(1) the institutional record, including program goals and accomplishments, academic achievements, vocational education training or work assignments, therapy and interpersonal relationships with staff and inmates;
(2) performance, if any, as a participant in a temporary release program; or
(3) release plans, including community resources, employment, education and training and support services available to the inmate.9 N.Y.C.R.R. § 8002.3 (emphasis added). Romer argues that once a prisoner has had an initial parole hearing (as he did in 1998), he is no longer subject to subsection (a) but rather falls under subsection (b) because the Parole Board applied the "guidelines" to him during his first parole proceeding. (Dkt. No. 2: Romer Br. at 38-39.) Romer argues further that, because he met all of the conditions under subsection (b), the Parole Board in 2000 and 2002 was required to grant him parole and could not consider factors not listed in subsection (b). (Romer Br. at 39-40.)
The purpose of the parole guidelines is to
structure [the Parole Board's] discretion with regard to MPI and release decisions. While the guidelines will be considered in each MPI and release decision, they are based on only two major factors — crime severity and past criminal history. They are intended only as a guide, and are not a substitute for the careful consideration of the many circumstances of each individual case.9 N.Y.C.R.R. § 8001.3(a). The Parole Board may also render a decision outside the guidelines as long as the Board provides the inmate with "the detailed reason for such decision, including the fact or factors relied on." Id. § 8001.3(c);see also Tatta v. State, 290 A.D.2d 907, 908, 737 N.Y.S.2d 163, 164 (3d Dep't) (Parole Board not "required to adhere to the guideline time range established by 9 N.Y.C.R.R. § 8001.3" when the nature of inmate's offense and his criminal history outweighed other factors under consideration), appeal denied, 98 N.Y.2d 604, 746 N.Y.S.2d 278 (2002); Ganci v. Hammock, 99 A.D.2d 546, 547, 471 N.Y.S.2d 630, 632 (2d Dep't 1984) ("[T]he board may in its discretion . . . deny parole release to an inmate who has served time in excess of the guideline range, so long as it sets forth its reasons for doing so in sufficient detail.").
Contrary to his argument, the case law makes clear that Romer remained subject to 9 N.Y.C.R.R. § 8002.3(a), and not just to the factors in § 8002.3(b), because the New York State Supreme Court, not the Parole Board, set his minimum sentence of seven and one-half years. See, e.g., Guerin v. New York State Div. of Parole, 276 A.D.2d 899, 901, 714 N.Y.S.2d 770, 772 (3d Dep't 2000) ("petitioner's minimum period of imprisonment was set by the trial court and not pursuant to the guidelines in Executive Law § 259-i(1)(a) and, thus, the Board was not restricted to considering only those factors set forth in 9 NYCRR 8002.3(b).") (citing cases); Ward v. Hammock, 90 A.D.2d 594, 595, 456 N.Y.S.2d 204, 205 (3d Dep't 1982) (where 1978 parole decision denied parole based on seriousness of criminal offense, 1980 parole board was not precluded from considering criminal record; Department rejected petitioner's argument that 1980 board was limited to 9 N.Y.C.R.R. § 8002.3(b) factors, where court had set minimum period of imprisonment);see also, e.g., Ortiz v. Hammock, 96 A.D.2d 735, 735, 465 N.Y.S.2d 341,342 (4th Dep't 1983). Thus, the Parole Board properly considered the same statutory factors in the 2000 and 2002 parole proceedings as it had in the first parole proceeding in 1998, including the seriousness of a $7 million theft of client funds by an attorney. See, e.g., Nelson v.New York State Parole Bd., 274 A.D.2d 719, 719-20, 711 N.Y.S.2d 792, 792 (3d Dep't 2000) (Parole Board properly considered the seriousness of inmate's offense even though it had considered that factor in previous parole determinations). In fact, the Board was not only permitted but required to consider certain factors beyond those listed in § 8002.3(b), including the seriousness of Romer's offense. See Harris v.Travis, No. 97-CV-3275, 1998 WL 812617 at *2 (E.D.N.Y. Mar. 24, 1998) (Parole Board "must" consider seriousness of inmate's offense when trial court has set minimum sentence), aff'd, No. 982344, 175 F.3d 1007 (table), 1999 WL 96125 (2d Cir. 1999);Watkins v. Annucci, 2003 N.Y. Slip. Op. 14354, 758 N.Y.S.2d 853, 854 (3d Dep't May 22, 2003) ("Because petitioner's minimum sentence was set by the sentencing court, the [Parole] Board was required to consider evidence of the seriousness of petitioner's offense."); Hawkins v. Travis, 259 A.D.2d 813, 813, 686 N.Y.S.2d 198, 198 (3d Dep't) (Parole Board was required to consider seriousness of inmate's offense at even his sixth parole hearing), appeal dismissed, 93 N.Y.2d 1033, 697 N.Y.S.2d 556 (1999); Flecha v. Travis, 246 A.D.2d 720, 720, 667 N.Y.S.2d 519, 520 (3d Dep't 1998) ("Because the trial court set petitioner's minimum period of imprisonment, the [Parole] Board was required to take into account, among other statutory factors, the seriousness of petitioner's crimes," despite prior application of parole guidelines).
Accordingly, state law permitted (indeed, required) the Parole Board in 2000 and 2002 to consider Romer's crime. Romer's due process claim should be denied.
III. THE PAROLE BOARD'S PAROLE DECISION WAS NOT A RESENTENCING AND DID NOT VIOLATE THE SEPARATION OF POWERS CLAUSE
Romer asserts that the Parole Board, by extending Romer's incarceration beyond the seven-and-one-half-year minimum set by the court, effectively re-sentenced Romer in violation of the separation of powers clause. (Dkt. No. 1: Pet. ¶ 12(B); see Dkt. No. 2: Romer Br. at 73.) However, the denial of parole is "neither the imposition nor the increase of a sentence."Alessi v. Quinlan, 711 F.2d 497, 501 (2d Cir. 1983). An inmate has no inherent right to be released on parole before the end of his sentence. Greenholtz v. Inmates of the Neb. Penal Corr. Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2104 (1979);accord, e.g., Morel v. Thomas, 02 Civ. 9622, 2003 WL 21488017 at *3 (S.D.N.Y. June 26, 2003); Gilmore v. Stone, No. 901-CV-00880, 2003 WL 1923734 at *3 (N.D.N.Y. Apr. 23, 2003) (finding no inherent or constitutional right to parole when petitioner's sentence had not yet expired); Manley v.Thomas, 255 F. Supp.2d 263, 266 (S.D.N.Y. 2003) (no right to parole prior to expiration of sentence). Here, the court imposed an indeterminate sentence of seven and one-half to twenty-two and one-half years. (Dkt. No. 1: Pet. ¶ 3.) In denying Romer's discretionary release, the Parole Board did not in any way extend Romer's incarceration beyond the twenty-two-and-one-half-year maximum set by the court and, thus, did not "resentence" Romer. Indeed, under Romer's argument, since parole cannot be granted before the inmate serves the judicially imposed minimum sentence, any subsequent denial of parole would, in Romer's view, "effectively re-sentence" the inmate, creating a right to parole that the Supreme Court clearly has stated does not exist. Romer's claim is frivolous.
IV. ROMER HAS NOT ALLEGED FACTS SUFFICIENT TO SUPPORT AN EQUAL PROTECTION CLAIM
Romer alleges that the Parole Board violated his right to equal protection by singling him out from among other similarly situated inmates for disparate treatment. (See Dkt. No. 2: Romer Br. at 70-71, 76-77.) To establish such a claim, Romer must allege that: (1) he was similarly situated to other inmates but received different treatment from them; (2) "irrational and wholly arbitrary acts" by the Parole Board; and (3) intentional disparate treatment. See, e.g., Giordano v. City of New York, 274 F.3d 740, 750-51 (2d Cir. 2001);Morel v. Thomas, 2003 WL 21488017 at *5; Gittens v.Thomas, 02 Civ. 9435, 2003 WL 21277151 at *2 (S.D.N.Y. May 30, 2003).
Romer does not allege his equal protection rights derive from membership in a suspect class; rather, his claim is in the nature of a "class of one." (See Romer Br. at 70-71, 76-77.)See, e.g., Morel v. Thomas, 02 Civ. 9622, 2003 WL 21488017 at *5 (S.D.N.Y. June 26, 2003).
See also, e.g., Davis v. Thomas, 256 F. Supp.2d 190, 192 (S.D.N.Y. 2003); Manley v. Thomas, 255 F. Supp.2d 263, 267-68 (S.D.N.Y. 2003); Brown v. Thomas, 02 Civ. 9257, 2003 WL 941940 at *2 (S.D.N.Y. Mar. 10, 2003); Defino v.Thomas, 02 Civ. 7413, 2003 WL 40502 at *4 (S.D.N.Y. Jan. 2, 2003).
Romer has claimed that four inmates, including two attorneys convicted of larceny, are similarly situated to himself. (Romer Br. at 70-71.) Romer does not provide enough detail to establish their similarity to him. On the contrary, unlike Romer, all four inmates pled guilty to their crimes. (Id.) Given that the Parole Board's decision was based in part on Romer's unwillingness to show remorse for or admit to guilt of his crime (see Dkt. No. 3: Pet. App.: H. 539; Dkt. No. 11: King Aff. Ex. D: 7/02 Parole Hearing Minutes at 14), it would not be "irrational" or "arbitrary" to treat differently those inmates who were incarcerated on guilty pleas from those incarcerated following a trial and conviction who still professed their innocence. Moreover, Romer has presented no proof that the Parole Board considered impermissible factors in denying him parole. See, e.g., Morel v. Thomas, 2003 WL 21488017 at *5 (denying equal protection claim where the Board gave a rational reason for denying parole, i.e., the seriousness of the crime, where petitioner failed to show he was similarly situated with two other inmates convicted of the same crime, and where he did not even allege parole board intended to treat him differently); Gittens v. Thomas, 2003 WL 21277151 at *2 (no equal protection claim where "there is no evidence that the Parole Board's determinations . . . were 'based on impermissible considerations'"); Washington v. Thomas, 03 Civ. 363, 2003 WL 21262089 at * 1 (S.D.N.Y. May 29, 2003) ("[T]here 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."); Davis v. Thomas, 256 F. Supp.2d at 192 (no evidence of an equal protection violation despite petitioner's assertion that, on the day the Parole Board denied petitioner parole, the Board granted parole to several inmates convicted of the same crime as petitioner). V. ROMER'S DOUBLE JEOPARDY CLAIM SHOULD BE DENIED BECAUSE THE DOUBLE JEOPARDY CLAUSE DOES NOT APPLY TO PAROLE PROCEEDINGS
See also, e.g., Manley v. Thomas, 255 F. Supp.2d at 267-68 (finding "no evidence" of an equal protection violation); Brown v. Thomas, 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."); Hairston v. Thomas, 02 Civ. 9301, 2003 WL 1744728 at *1 (S.D.N.Y. Mar. 31, 2003) (same); Defino v.Thomas, 2003 WL 40502 at *4 (when petitioner alleged that three inmates who had committed the same crime as he had were similarly situated to him, it was "difficult to determine" whether petitioner had shown an equal protection violation "[d]ue to [the] lack of details" presented).
Romer contends that the Parole Board's denial of parole and imposition of a twenty-four-month hold after each hearing increased Romer's minimum sentence from seven and one-half to thirteen and one-half years, thereby violating Romer's rights under the Double Jeopardy clause of the Fifth Amendment. (Dkt. No. 2: Romer Br. at 87-88.). The Second Circuit has held, however, that "[t]he Double Jeopardy Clause applies to judicial proceedings, not parole." Priore v. Nelson, 626 F.2d 211, 217 (2d Cir. 1980); see also, e.g., Jones v. Fraser, No. 96-CV-5484, 1998 WL 355341 at *4 (E.D.N.Y. May 8, 1998) ("The double jeopardy clause does not apply to parole proceedings. . . ."); Scherl v. United States Parole Comm'n, 92 Civ. 7435, 1993 WL 258736 at *3 (S.D.N.Y. July 7, 1993) (Leval, D.J.) ("Courts have consistently held that the 'Double Jeopardy Clause applies to judicial proceedings, not parole' proceedings."). "A denial of parole is a decision to withhold early release from the confinement component of a sentence. It is neither the imposition nor the increase of a sentence, and it is not punishment for purposes of the Double Jeopardy Clause. . . ." Alessi v. Quinlan, 711 F.2d 497, 501 (2d Cir. 1983); accord, e.g., United States v. Porrini, No. 01-1060, 34 Fed. Appx. 19, 20, 2002 WL 992167 at *1 (2d Cir. May 14, 2002). Accordingly, the Parole Board's decisions to deny parole and impose a twenty-four-month hold did not violate Romer's Double Jeopardy rights.
See also Mayrides v. Chaudhry, No. 01-3369, 43 Fed. Appx. 743, 745, 2002 WL 1359366 at *2 (6th Cir. June 20, 2002) (denial of parole did not violate double jeopardy rights because "parole board's refusal to grant parole does not increase [petitioner's] sentence nor is parole designed to punish a defendant for the violation of criminal law."); Sand v.Bogan, No. 93-2280, 21 F.3d 428 (table), 1994 WL 112862 at *2 (6th Cir. Mar. 31, 1994).
CONCLUSION
For the reasons set forth above, Romer's habeas petition should be denied, and a certificate of appealability should not issue.
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 the Court, with courtesy copies delivered to the chambers of the Honorable Kimba M. Wood, 500 Pearl Street, Room 1610, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Wood. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); 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); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).