Opinion
03 Civ. 0931 (LTS)(FM).
July 28, 2003.
Charles Seltzer, Pro Se.
REPORT AND RECOMMENDATION TO THE HONORABLE LAURA TAYLOR SWAIN
I. Introduction
This habeas corpus proceeding, brought pursuant to 28 U.S.C. § 2254, is one of more than a dozen recently commenced by inmates at the Mid-Orange Correctional Facility ("Mid-Orange"). Like his fellow inmates, pro se petitioner Charles Seltzer ("Seltzer") contends that the circumstances under which the New York State Parole Board ("Board") denied him parole constitute a violation of his Fourteenth Amendment rights to due process and equal protection of the law. On this basis, Seltzer seeks an order directing respondents Gail Thomas, Acting Superintendent of Mid-Orange, and Brion D. Travis, Chairman of the New York Division of Parole ("Division"), to release him to parole supervision. Seltzer also has moved for court-appointed counsel, discovery, and bail pending habeas review (or a hearing to determine his fitness for bail). For the reasons set forth below, Seltzer's petition should be denied, thereby rendering his other motions moot. Additionally, pursuant to 28 U.S.C. § 2253(c)(2), Seltzer should be denied a certificate of appealability because he has failed to make a substantial showing of the denial of a constitutional right.
II. Facts
Seltzer's manslaughter conviction arose out of the related deaths of two individuals. On February 6, 1990, Seltzer, who at the time was fifteen years old, shot Melvin Campbell ("Campbell") in the back with a .22 caliber revolver. Seltzer alleges that he was acting in self-defense. Four months later, on August 18, 1990, while he was awaiting trial in connection with the first shooting, Seltzer ran into one of Campbell's friends. During a verbal altercation between Seltzer and that person, twenty-year-old Antoinette Lucky intervened, and Seltzer shot her in the chest with a handgun. Seltzer "admitted full responsibility" for this death. (Pet. ¶ 2, Ex. 1 at 2, 7; Tr. at 2-3, 6-7).
"Tr." refers to the transcript of the Board hearing held on October 17, 2001. (Id. Ex. 2).
On March 27, 1992, following his entry of a guilty plea, Seltzer was convicted on two counts of manslaughter in the first degree. (Id. Ex. 1 at 1, 5). Seltzer is now incarcerated at Mid-Orange, where he is serving an indeterminate sentence of seven and one-third to twenty-two years. (Id. ¶ 1). He appeared before the Board for the first time on October 20, 1997. (Id. ¶ 7). After the Board denied him parole, Seltzer filed an unsuccessful administrative appeal. (Id. ¶ 8). Thereafter, Seltzer was again denied parole in October 1999. (Id.). His habeas petition arises out of his third unsuccessful appearance before the Board on October 17, 2001. (See id.). Seltzer filed an administrative appeal from that denial, and in May 2002, the Board's decision was affirmed. (Resp't's Decl. Ex. F). Thereafter, he filed an Article 78 petition, raising a due process challenge to the Board's decision, alleging that it was arbitrary and capricious. (Id. Ex. G). Supreme Court Justice John G. Conner denied Seltzer's petition on October 3, 2002. (Id.). Seltzer did not appeal this decision to the Appellate Division. (See Pet. ¶ 25).
III. Discussion
A. Exhaustion
A court ordinarily may not grant a writ of habeas corpus to a person in state custody unless the applicant has exhausted all available state court remedies, or there is an absence of state corrective process, or circumstances render that process ineffective to protect the petitioner's rights. 28 U.S.C. § 2254(b)(1)(A), (B). The respondents argue that this Court should therefore decline to reach the merits of Seltzer's petition because: (a) in his Article 78 petition, Seltzer did not present his due process challenge in the terms that he now raises before this Court; (b) in any event, he did not appeal the denial of his petition to the Appellate Division; and (c) he has never presented his equal protection claim in state court. (See Resp't's Mem. at 13). In his reply papers, Seltzer counters that he "is statutorily exempted from the exhaustion requirement" because the process available in New York is "ineffective to protect his rights." (Pet'r's Reply Mem. at 2). He contends that the only appropriate remedy for an equal protection violation is release, but because the only relief available from a state court is another hearing, that remedy is meaningless and unable to protect adequately his right to equal protection of the law. (Id.).
Section 2254(b)(2) of Title 28, United States Code, provides that an application for a writ of habeas corpus may be denied on the merits despite a petitioner's failure to exhaust all of the remedies available to him. In keeping with this provision, several judges of this Court have found it unnecessary to address the exhaustion requirement, instead electing to proceed directly to the merits of a Mid-Orange inmate's claims. See, e.g., Morel v. Thomas, 2003 WL 21488017, at *2-*3 (S.D.N.Y. June 26, 2003) (Baer, J.); Gittens v. Thomas, 2003 WL 21277151, at *1 (S.D.N.Y. May 30, 2003) (Martin, J.); Davis v. Thomas, 256 F. Supp.2d 190, 191 (S.D.N.Y. 2003) (Marrero, J.);Manley v. Thomas, 255 F. Supp.2d 263, 265-66 (S.D.N.Y. 2003) (Marrero, J.); Hairston v. Thomas, 2003 WL 1744728, at *1 (S.D.N.Y. Mar. 31, 2003) (Buchwald, J.); Defino v. Thomas, 2003 WL 1563253, at *4 (S.D.N.Y. Mar. 25, 2003) (Sweet, J.);Brown v. Thomas, 2003 WL 941940, at *1 (S.D.N.Y. Mar. 10, 2003) (Lynch, J.). But see Washington v. Thomas, 2003 WL 21262089, at *1 (S.D.N.Y. May 29, 2003) (Griesa, J.) (dismissing petition for failure to exhaust but also noting that "on the merits, petitioner has no case"). Here, too, there is no need to reach the exhaustion issue as Seltzer's claims plainly do not entitle him to habeas relief.
B. Merits
1. Due Process
In his due process claim, Seltzer alleges that the Board failed to take into account his excellent institutional record, including his participation in various rehabilitation programs and community work. (Pet. at 3-6). He contends that, notwithstanding these positive factors, the Board denied him parole based on the nature of his offense and its perception that "he had not served enough time." (Id. ¶ 16). This, Seltzer argues, constitutes a denial of due process. (Id. ¶ 18).
The New York parole system does not give any inmate a legitimate expectation that he will be released on parole.Marvin v. Goord, 255 F.3d 40, 44 (2d Cir. 2001); Barna v. Travis, 239 F.3d 169, 171 (2d Cir. 2001). Accordingly, to comply with the dictates of due process, all that the Board must do is (a) afford the inmate an opportunity to be heard, and (b) if parole is denied, advise him of the reasons for its decision.See Greenholtz v. Inmates of Neb. Penal Corr. Complex, 442 U.S. 1, 16 (1979); Gittens, 2003 WL 21277151, at *1.
The New York parole system meets these minimal requirements. Thus, at least one month before his parole eligibility date, an inmate must be interviewed by one or more members of the Board to determine whether parole should be granted; if it is not, the inmate must be given detailed written reasons for the denial within two weeks, and a date for reconsideration no more than twenty-four months later must be set. N.Y. Exec. L. § 259-i(2)(a). New York law specifically provides that parole is not a reward for good conduct in prison; rather, it is granted when there is a "reasonable probability" that the inmate will not violate the law upon his release, and his release is not inconsistent with societal welfare and "will not so deprecate the seriousness of his crime as to undermine respect for law."Id. § 259-i(2)(c)(A). In determining whether to grant parole, the Board may consider, among other factors, the offender's background, his criminal history, the severity of his offense and any prior offenses, and the manner in which he has adjusted to any prior release on probation or parole. Id.
The transcript of Seltzer's October 2001 parole hearing shows that the Board considered the circumstances leading to his conviction, his prior criminal record, his institutional adjustment, and his future plans. (Tr. 1-13). The transcript further indicates that the Board took notice of Seltzer's "clean disciplinary record since [his] last appearance." (Id. at 9-10). Subsequently, however, the Board denied parole based upon "the serious nature and circumstances" of Seltzer's crimes. (Id. at 14). As the Board explained, in its view, Seltzer's "violent criminal behavior, which resulted in the death of two people, evidence[d] a complete disregard for human life." (Id.). Furthermore, after taking into consideration all other factors, the Board determined that his release would be "incompatible with the public welfare." (Id.). "'[T]he Board was fully entitled to determine that the nature of the crime outweighed the positive aspects of his record.'" Manley, 255 F. Supp.2d at 267 (quoting Brown, 2003 WL 941940, at *2). Moreover, given the seriousness of Seltzer's crimes, there is no basis upon which this Court could conclude that the Board's decision was arbitrary and capricious or based upon impermissible considerations. Thus, although Seltzer disagrees with the outcome, he was afforded all the due process that the Constitution requires.
This case is different than Chan v. Travis, Index No. 3045-02 (Sup.Ct., Albany County, Feb. 7, 2003), which is cited in Seltzer's reply memorandum. (See Pet'r's Reply Mem. at 5-8). In that Article 78 proceeding, the Board suggested that it was precluded from granting parole to the petitioner. Finding that conclusion contrary to the law, the state court judge remanded the case to the Board for a rehearing. No such preclusion language was used by the Board in its decision concerning Seltzer.
2. Equal Protection
Seltzer's second claim is that he was denied equal protection because the Board granted parole to several other inmates convicted of "intentional murder" without presenting a legitimate reason for treating him differently. (Pet. ¶¶ 19-20). As Judge Lynch has noted, this argument is "in tension with [Seltzer's] first argument[,] that the Board applied an inflexible and impermissible policy of denying parole to inmates based on their offense of conviction, [because it] asserts that the Board in fact has granted parole to offenders convicted of [intentional murder], but arbitrarily rejected [his] application." Brown, 2003 WL 941940, at *2. In any event, a selective enforcement claim requires that "([a]) the person, compared with others similarly situated, was selectively treated; and ([b]) that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person." Giordano v. City of New York, 274 F.3d 740, 750-51 (2d Cir. 2000) (quotingLisa's Party City, Inc. v. Town of Henrietta, 185 F.3d 12, 16 (2d Cir. 1999)). Here, Seltzer presents no evidence that the denial of his parole application was based on any constitutionally impermissible considerations. Instead, Seltzer claims that his parole denial was the result of "political pressure" on the part of Governor Pataki, who has conducted an "overt and covert campaign to eliminate parole for all so-called 'violent felony offenders.'" (Pet. ¶¶ 21-22). Assuming that this is true, it does not constitute an impermissible ground for the denial of parole. Indeed, as Judge Baer has observed, "the motive and animus that [Seltzer] 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 the offense as to undermine respect for law.'" Morel, 2003 WL 21488017, at *5.
By letter dated June 5, 2003, Seltzer argues that he is entitled to prevail because the Second Circuit's recent decision in DeMuria v. Hawkes, 328 F.3d 704, 707 (2d Cir. 2003), eliminated any requirement that a plaintiff alleging that he is a member of a "class of one" plead the details of others who received disparate treatment or that he was the victim of discriminatory animus. To prevail on a "class of one" equal protection claim, a petitioner must show that "[(a]) [he] received different treatment than others similarly situated, and that this disparate treatment was [(b]) irrational and wholly arbitrary and [(c]) intentional." Morel, 2003 WL 21488017, at *5 (citing Giordano, 274 F.3d at 751, and DeMuria, 328 F.3d at 706-07). Even if the pleading requirements applicable to this claim have been liberalized, Seltzer has not shown, as he must, that the Board's determination in his case was irrational and wholly arbitrary, nor, given the numerous factors that can appropriately be considered, is it likely that he could. Furthermore, Seltzer has not alleged that the Board's decision to deny him parole but grant it to others who were similarly situated was intentional. In fact, his petition alleges precisely the opposite: that the Board has succumbed to political pressure by denying parole to all violent offenders. It follows that if other violent offenders were released, the Board's decision to do so must have been unintentional. See id. at *5-*6. Seltzer therefore cannot prevail on his "class of one" equal protection claim.
IV. Conclusion
For the foregoing reasons, Seltzer's petition for a writ of habeas corpus should be denied. Additionally, his applications for discovery, release on bail, and appointment of counsel should be denied as moot. Finally, because Seltzer has not made a substantial showing of the denial of a constitutional right, a certificate of appealability should not be issued. See 28 U.S.C. § 2253(c)(2).
V. Notice of Procedure for Filing of Objections to this Report and Recommendation
The parties are hereby directed that if they have objections to this Report and Recommendation, they must, within ten days from today, make them in writing, file them with the Clerk of the Court, and send copies to the chambers of the Honorable Laura Taylor Swain at the United States Courthouse, 40 Centre Street, New York, New York, 10007, to the chambers of the undersigned, at 500 Pearl Street, New York, New York, 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Swain. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b).