# Robles v. Dennison

> District Court, W.D. New York · October 13, 2010 · 745 F. Supp. 2d 244

URL: https://www.frixlaw.com/law-library/cases/2469487

## Case

- **Full name:** Richard ROBLES, Petitioner, v. Robert DENNISON, Chairman, N.Y.S. Division of Parole
- **Court:** District Court, W.D. New York
- **Decided:** October 13, 2010
- **Citations:** 745 F. Supp. 2d 244; 2010 U.S. Dist. LEXIS 109634; 2010 WL 4026814
- **Precedential status:** Published
- **Opinion:** Opinion by Bianchini
- **Judges:** Victor E. Bianchini
- **Cited by:** 5 later opinions in the Frix Law Library

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## Opinion text

DECISION AND ORDER
VICTOR E. BIANCHINI, United States Magistrate Judge.
I. Introduction
Pro se
petitioner Richard Robles (“Robles”), by this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 , challenges the constitutionality of decisions of the New York State Division of Parole (“the Parole Board”) repeatedly denying
*247
him parole. (Docket No. 1). The parties have consented to disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636 (c)(1).
1
Robles was first committed to the New York State Department of Corrections on January 12, 1966, following a jury trial in New York County Supreme Court for two counts of first degree murder. Robles initially was sentenced to a term of natural life in prison. However, in the 1970s, the New York State Legislature amended the law to make prisoners such as Robles eligible for parole after serving a minimum of twenty (20) years of his sentence.
According the papers submitted to this Court, Robles had his first parole hearing in November 1984. Since that time, Robles has appeared before the Parole Board every two years and, on each of these twelve (12) occasions, the Board has denied parole and ordered Robles held for another twenty-four months, the maximum time statutorily permitted between parole hearings.
Robles challenges a number of the Parole Board’s decisions denying parole. Respondent has asserted the defense of non-exhaustion with regard to all of the denials except the 2002 denial, as to which respondent concedes that Robles has exhausted his administrative and state-court remedies. Thus, the key parole denial before the Court in the instant habeas petition is that rendered on May 7, 2002. The Parole Board denied release in a perfunctory decision with language remarkably similar to all of its previous denials, and ordered that Robles be held for another 24 months (the maximum hold time possible) before he would again be eligible for another parole hearing. Represented by counsel, Robles pursued an unsuccessful administrative appeal of the 2002 parole denial was unsuccessful. Robles’ attorney then sought judicial review pursuant to Article 78 of the New York Civil Practice Law and Rules (“C.P.L.R.”) New York State Supreme Court, Wyoming County. The county court judge denied the petition in a written decision and order. The Appellate Division, Fourth Department, of New York State Supreme Court, unanimously affirmed the decision on appeal.
Robles v. Travis,
9 A.D.3d 919 , 779 N.Y.S.2d 377 (4th Dept.2004). The New York Court of Appeals denied leave to appeal on October 21, 2004.
Robles v. Travis,
3 N.Y.3d 610 , 786 N.Y.S.2d 813 , 820 N.E.2d 292 (N.Y. 2004).
On May 4, 2004, and again May 9, 2006, the Parole Division again denied Robles parole release. This Court recently has received correspondence from Robles indicating that his most recent parole hearing, held on May 8, 2008, resulted in, unsurprisingly, another denial of release.
Robles commenced this habeas proceeding on April 5, 2005, pursuant to 28 U.S.C. § 2254 , alleging that the Parole Division’s decisions denying him parole violated the
Ex Post Facto
Clause, Due Process Clause, and Equal Protection Clause of the United States Constitution.
The Court dismissed respondent’s preanswer motion to dismiss, and ordered re
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spondent to answer the petition. After receiving respondent’s answer and memorandum of law, and Robles’ reply brief, the Court requested additional information from the parties concerning, e.g., the specifics of the parole denials.
For the reasons that follow, the request for a writ of habeas corpus is denied and the petition is dismissed.
II. Factual Background and Procedural History
A. The Underlying Conviction and Post-Conviction Proceedings
In the late morning of August of 1963, while under parole supervision for a second-degree assault conviction, Robles entered an apartment in Manhattan through a window with the intent of burglarizing it. Once inside the apartment, which he thought was unoccupied, he encountered a young woman, who was in bed, sleeping. Robles forced the woman to perform oral sex on him; he then attempted to have anal intercourse with her but she asked him to stop. At about that time, one of the woman’s roommates entered the apartment. Robles bound them both and tied them up together. The second woman told Robles that she would remember his face and would make sure that the police caught him. At that point, Robles would later explain, he “snapped” and began striking the women with soda bottles, rendering them unconscious. He then stabbed them repeatedly with kitchen knives, killing them both.
See
Respondent’s Exhibit (“Resp’t Ex.”) CC at 2-7.
2
The women’s bodies were later discovered by the third roommate and the father of one of the victims.
Following a jury trial, Robles was convicted of two counts of first degree murder. He was sentenced in 1966 to term of life in prison.
See
Resp’t Ex. B. Following a change in New York’s penal law, Robles was re-sentenced in the 1970s to an indeterminate term of imprisonment of twenty (20) years to life.
See
Resp’t Ex. C at p. 2.
On May 8, 1969, the Appellate Division, First Department, of New York State Supreme Court unanimously affirmed Robles’ conviction but did not issue any opinion in connection therewith.
People v. Robles,
32 A.D.2d 741 , 300 N.Y.S.2d 510 (N.YApp. Div.1969). The New York Court of Appeals granted leave to appeal. The conviction was affirmed by a five-to-two divided panel on September 24, 1970.
People v. Robles,
27 N.Y.2d 155 , 314 N.Y.S.2d 793 , 263 N.E.2d 304 (N.Y.1970).
3
The Supreme Court denied
certiorari. Robles v. People,
401 U.S. 945 , 91 S.Ct. 959 , 28 L.Ed.2d 227 (1971). The New York Court of Appeals subsequently denied Robles’ motion for reargument.
B. Proceedings before the Parole Board
Beginning on November 5, 1984, the Parole Division periodically interviewed Ro
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bles pursuant to New York Executive Law (“Executive Law”) § 259-i to determine his suitability for parole release. As detailed more fully below, parole was denied in each instance.
1. The 1984 Parole Denial
Prior to Robles’ first parole hearing, Dr. Mayeed Rahman, a psychiatrist at Auburn Correctional Facility, examined Robles. Dr. Rahman issued a report containing the following conclusion:
On the basis of the interview and perusal of his records, the inmate does not appear to be mentally ill or dangerous at the present time. He has realistic plans for the future. I do not see any psychiatric contraindication to his release in the society at this time. However, he should continue to participate in some counselling [sic] in order to maintain the progress he has made during the period of his incarceration.
Petitioner’s Exhibit (“Pet’r Ex.”) 1-1.
Following a hearing, the Parole Board denied parole in the following decision:
Parole denied. Hold 24 months with a psych, [sic] (11/86 Bd.)
Based on the nature and circumstances of the current offenses, two counts of murder in the first degree, wherein two young women were stabbed to death— one sexually abused, and her naked body tied to the clothed body of the other victim. You were convicted by jury trial and although you deny the allegations, your appeals have been denied.
Note is made of your reduction of natural life sentence through Chapters 343 and 344, to twenty years to life. Your institutional record is extremely satisfactory as to program participation.
However, the gravity of the instant offense prechides release consideration.
Continue in constructive institutional programming. Statutory limitations preclude a longer hold. Guidelines are unspecified.
See
Resp’t Ex. E (emphasis supplied). The Parole Board did not make any mention of Dr. Rahman’s positive mental health evaluation of Robles, and his favorable opinion that Robles did not pose a future threat of dangerousness. Rather, the Parole Board relied solely on the nature of Robles’ crime to justify their decision to deny release.
2. The 1986 Parole Denial
Two years later, Robles had his second parole hearing. At the beginning of this hearing, Commissioner Mulhulland, one of the board members noted that Robles now had accepted responsibility for the offense, and complimented him:
In the institution I guess we couldn’t have a much better inmate. You have been with us for 22 years. Haven’t had a ticket in the last 10 years.... You appear to be well liked by the inmates .... I have not found anything negative about you in here....
See
Transcript of 1986 Parole Hearing, Resp’t Ex. F. Robles then was asked to talk about the crime. He related his actions on the morning of the burglary in a vivid narrative without any prompting. Robles talked about how when he first came to prison, telling the Parole Board that he was “a drug addict” filled with “[s]elf-loathing”, “destroying his own life and other lives.” He said that he “hated [him]self” at the time and explained the emotional difficulties he experienced growing up in an alcoholic family. Robles talked about how he “turned [his] feeling about [him]self around” as he “saw [him]self helping people” through his involvement in, for example, the inmate’s Liaison Committee and working with David Rothenburg of the Fortune Society.
See id.
Robles explained that he had gotten an
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education, and wished to pursue teaching art (he had taught both art and photography while in prison). He believed that he was a different person than he was 22 years ago, and the change was the result of helping himself by helping others.
See id.
The Parole Board’s only question of Robles was a hypothetical: “what would be the sanctions be for ... taking two other lives[?]” Robles answered that “[u]ntil this man is safe to release I would have to keep him locked up.” There were no further questions from the Parole Board.
Parole Board Chairman Rodriguez commented, “You have acquitted yourself well. You have been your own best advocate. This case is going to be a tough one to decide.”
Id.
Robles acknowledged that. The chairman continued,
It’s a rough one. We have to play with it and talk about it____It’s a real rough one. We could hold you for two years easily. We could look at you and make a decision [redacted] and let the next Board look at you under our rules. We can do a [sic] myriad of other things. But you are clearly someone who has advanced considerably in the years you have been in jail. You have helped yourself and helped other people. Ken Jackson and Dave Rothenburg have helped a lot of other people also ... I know them. They are good people. I am sure they helped you a lot. You help them. We have a person who did something terrible 22 years ago that was horrible. We have to work on what we think is the right thing to do. You want to leave us with a final comment?
Id.
To this question, Robles replied, “I am sure killing is terrible. What I did no doubt about it. I have lived with it a long time. It hurts. In my heart I know I did not maliciously kill. Not insanity, but close to it; that it wasn’t malicious.”
Id.
The parole commissioners denied parole in a summary decision, without giving any basis for their ruling; they merely ordered Robles held for “two months or earlier for a special psychiatric procedure.”
See
1986 Parole Denial, Resp’t Ex. G.
3. The 1987 Parole Denial
Robles underwent the required psychiatric evaluation, and his reappearance before the Parole Board occurred on January 16, 1987. The parole commissioners focused on Robles’ previous criminal history which they described as “extremely disturbing,” as well as the gruesome details of the crime for which he presently was incarcerated.
See
Transcript of 1987 Parole Hearing, Resp’t Ex. H.
The Parole Board focused on his criminal history prior to the double murder, commenting that the time of his arrest he “admitted to about 89 or 100 other burglaries and/or robberies of occupied apartments during the period of July 1959 through January of 1960. During one of these burglaries a woman, who was in the apartment, was apparently shot. Wounded. There was a person whom you must have been involved with that received stolen property from you who was also shot and wounded because that person threatened to turn you into the police.. So, I mean, you have already established a pattern of this type of behavior.... [Y]ou were paroled June the 3rd of 1963 and on August the 28th of 1963 you committed this crime. Following the exact same pattern you had followed in the past....” Resp’t Ex. H.
Robles attempted to explain why he did not admit to the stabbings earlier, stating that in 1984, when he first came up for parole, there were several prisoners at Auburn killed. Robles said he was being threatened by other inmates at the time. When he explained the situation to his attorney, he was told that he could maintain his innocence, “on advice of counsel”. Robles said that he “jumped on” that ad
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vice because he “felt threatened” by the situation at the prison, and admitted that it “was callousness” on his part to maintain his innocence.
Commissioner Buchanan criticized Robles for maintaining his innocence up until recently, and commented that the “tremendous amount of therapy” in which he had been involved was “totally valueless. As long as you were denying the crime, the therapy could not in anyway [sic] relate to the crime” Resp’t Ex. H at 11. Robles conceded the point, a factor which the Parole Appeals Unit focused on when upholding the denial of parole.
Id.
Robles explained that in 1984, he was still mentally “sick,” suffering the after-effects of watching his alcoholic father beat his mother when he was a child. Robles told the parole commissioners that the therapy essentially did not “click” until he got help in addressing the after-effects of growing up in that environment, which caused him to be overly sensitive to criticism, and to “do crazy things which is what this burglary and what [his] drug uses [sic] was about.”
Id.
at 12-14.
On his own initiative, Robles then discussed the underlying facts of the murders.
The day before this crime occurred my daughter was on the toilet bowl that was broken. I just moved my woman, my daughter into an apartment trying to be a macho man and all this image. She was on the toilet seat that was broken and it slipped and she hurt herself and I felt about this big. Very, very small. That was the catalyst that started me thinking about burglary. I had stayed away from drugs. I drank. I substituted.
I got in there [and] Janice Wylie [was a] ... total surprise. I didn’t expect anybody. I knocked on the door. I looked under the door. I rang the bell. I had no idea anybody was in there. When I got in there she was in there and ... thoughts hurt. They hurt. I’m really ashamed of this
I’ve been working on this 2 months. I don’t want to desensitize myself to this because I want to remember this is a terrible crime. I want to feel pain. I don’t know if it makes any sense to you, but I want to feel pain. Some things I want to feel pain about and some things I do. This shows how sick I was also. How really messed up to me to tell me how messed up I was. I looked at this woman and I started thinking don’t I wish I had a woman like this and the world could just be lovey dovey. I attempted to have sexual intercourse with her. She asked me not to and I did, in fact, stop. I tied her up and as I was leaving — ” Resp’t Ex. H at 18-19.
At that point, the Parole Board questioned Robles about whether he felt a feeling of “strength and power that this woman would become scared because of [him] now that [he] had this power?”
Id.
Robles admitted that this could have been the case, but stated that he was “not conscious of it” at the time.
Id.
at 19.
Robles continued his explanation: Wylie’s roommate came in, and he tied her up too so neither woman would call the police. Robles said that he was “just about going out the door and [the second woman] said, I’m going to remember your fact [sic]. I’m going to tell the police on you.”
Id.
at 21. Robles told the Parole Board, “I was anxious before that, but at that point, I more or less, snapped.”
Id.; see also id.
at 21-28. Robles said, “[w]hat happened to me in that apartment ... maybe it’s not enough for a court of law because it’s a criminal felony act. Not enough for a court of law, but it was clinical insanity that
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occurred that day to me. In my heart I know this.”
Id.
at 25.
Robles indicated that in the years that he had been in prison, he had initiated a Narcotics Anonymous group, and “Various TA [transactional analysis therapy] groups,” as well as a computer club.
Id.
He also had 57 credits towards an associate’s degree, and had pursued courses in welding, electronics, and was, as the parole commissioner noted, “a very skilled artist.”
Id.
at 26. Robles explained that it had been his “plan to help when I get out, to help others.” He had been offered a job at the Fortune Society two years ago, but had been unable to accept because he was denied parole.
Id.
Robles explained that he “wanted to become familiar with various trades ... so I could help advise youths.... ” He discussed his conversion from Roman Catholicism to the Quaker religion.
Id.
at 26-27. He also talked about his fiancée of ten years, who was a foster parent, and he was aware that he would not be able to live with her if she elected to continue to be care for foster children.
Id.
at 28-29 Robles also discussed his only daughter, who was twenty-seven years-old in 1987; he said that he had been writing to her since he became incarcerated, and recently they had started talking on the phone; he also talked to his son-in-law, but had not met his grandchildren. Robles noted that it was “a shaky relationship” but he “want[ed] to develop it.”
Id.
When asked if he had anything further he wanted to discuss, Robles said “[r]emorse.”
Id.
at 30. He talked about the horror and disgust with himself he felt after the stabbings, and said he “started hating [himjself from that moment.” Robles explained that he painted as a way to deal with the feelings and nightmares he has had.
Id.
at 31. The Parole Board asked why, if he felt that way, did he not turn himself in to the police immediately after the incident, and then questioned Robles about the fact that he was not arrested until an informant, who was supplying him with drugs, tape-recorded a conversation in which Robles incriminated himself.
Id.
at 31-35. Robles acknowledged those things, and explained that he was essentially imprisoned in his drug addiction to heroin.
Id.
at 36-37.
Based on the Parole Board’s questions and comments during the hearing, it became clear that they viewed everything Robles said with skepticism. They also apparently did not believe he had sufficiently internalized responsibility for his crime, which admittedly was heinous, since he did not start discussing the crime in therapy until several years beforehand. Thus, their terse denial was not a surprise:
Parole denied. Hold 24 months, 11/88 Board. With mental health status report. Reasons for denial: Denial is based on the
nature and circumstances of the current offenses, 2 counts of Murder 1°, wherein 2 young women were brutally stabbed to death, one sexually abused and her naked body tied to the clothed body of the other victim.
Denial of this crime has been consistent through 1984 and according to you on your attorney’s advise. Recently, you have begun to admit the crime. Throughout this period of incarceration you have been exposed to periods of extensive therapy related to your personal needs, however, not dealing with your criminal acts. Note is made of your institutional efforts and achievements.
Given the nature of the crime and the prior criminal history
discretionary release cannot be considered. Statutory limitations preclude a longer hold.
See
Resp’t Ex. H at 38 (emphases supplied). Again, the Parole Board’s denial
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rested principally on the severity of the crime.
4. The 1988 Parole Denial
The transcript of the 1988 hearing has not been provided as part of the state court records in this case. The decision issued reads as follows:
Parole is again denied by this panel of the Board of Parole after careful review of your records and an interview.
Your offense involves the brutal murder of two women in their home in the course of a burglary in which you were interrupted. You tied the unclothed body of one of the victims to the clothed body of the other after having sexually abused her. You were on parole supervision ivhen this crime occurred.
While the progress and accomplishments you have achieved while incarcerated, particularly in the last several years, are noted, it is the judgment of this panel that parole should be denied at this time.
See
1988 Parole Denial Resp’t Ex. K (emphasis supplied). The Parole Board’s decision thus was based solely on the nature of Robles’ offense. Robles was ordered held for another 24 months.
See id.
5. The 1990 Parole Denial
The transcript of his hearing is not available for review. The decision denying parole states in full as follows:
Again, this panel believes there is a possibility of reversion to crime if released.
So violent was your murder of two women during the commission of a burglary tvhile on parole for three months, that it does not offset the exceptional contributions you have made during these 26 years of imprisonment.
You cite in your presentation the fear of ever putting yourself in an unpredictable situation and, as those life situations are a reality, we believe your community release is not in the best interests of society.
See
1990 Parole Denial, Resp’t Ex. L (emphasis supplied). Once again, the Parole Board’s denial reflected its finding that the gravity of Robles’ crime to trump all other positive factors. Robles was given the maximum hold time and the next hearing date was set for November 1992.
See id.
His administrative appeal was unsuccessful.
See
Resp’t Ex. M.
6. The 1992 Parole Denial
This transcript also is not available for review. The decision denying parole issued by this panel was quite cursory:
The extreme gravity of the instant offense, the wanton murder of two young women during the course of a burglary, precludes early release.
The inmate was on parole at the time of the commission of this crime. The inmate has an outstanding institutional adjustment and we have attempted to consider that fact in our recommendation.
See
Resp’t Ex. N (emphases supplied). Again, the Parole Board denied release based entirely on the severity of the crime. Robles was ordered held for 18 months.
See id.
It appears that Robles requested a postponement of three months because there were legal matters that he wanted to resolve before reappearing before the Parole Division.
See
Resp’t Ex. O.
7. The 1994 Parole Denial
The next full parole hearing was held on July 12, 1994, at which point Robles had been incarcerated for
29%
years. He was 51 years-old at the time of the interview. When asked if he was “hostile about what the system” had done to him, “or where society ha[d] determined [he] belong[ed]” Robles responded, “I was dangerous, I was a time bomb, a ticking time bomb,” and “what has happened to me ... society has to put people away that are dangerous, it is as simple as that.” Resp’t Ex. P at 7-8. Robles explained that “[a]nything that occurred was threatening to [him], anything
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negative that occurred was threatening,” and he expressed those feelings “[w]ith drugs.”
Id.
at 8. The Parole Board noted that he had “had extensive substance abuse counseling” since his incarceration.
Id.
The Parole Board asked when he was able to internalize his guilt, i.e., accept responsibility. Robles explained when and how he was able to acknowledge responsibility for the crimes, in 1985 or 1986, during his participation in transactional analysis therapy. The Parole Board appeared view Robles’ crimes as primarily sexual in nature; they asked if there was “[a]ny particular reason” why the two victims were women.
Id.
at 9. Robles responded, “They were — I was in the wrong place at the wrong time, you know.”
Id.
When pressed on what this meant, Robles said, “I didn’t pick women, okay. They were just there. It was a burglary.” Resp’t Ex. P at 10. The Parole Board questioned Robles intensely on what he meant by being in the wrong place at the wrong time, noting, “It suggests to us, perhaps, that even though you have acknowledged responsibility, you might still be struggling with your internalization of guilt. Does it occur that way to you.”
Id.
at 10. Robles replied, “No, it hadn’t occurred that way to me. Perhaps I picked the wrong term, the terminology. It is just a phrase.”
Id.
The topic of the hearing turned to the programs Robles had been in to help him “gain insight into the extreme violence that was displayed in [his] crime.”
Id.
at 11. Robles explained that he had participated in the Alternatives to Violence Program, Aggression Replacement Therapy, and also had been seeing a psychologist, who was then deceased.
Id.
Robles had been married for three years to a woman in Saugerties, New York, who was a foster parent to five children. Robles explained that he had been accepted into the Cephas Program in Rochester, New York, a “structured release program” that had “everything.”
Id.
at 12.
Robles then asked permission to read a prepared statement. Robles stated that he had “a tremendous amount of empathy for them as a result of the fact that I, myself, have been a victim of numerous criminal acts and, thereby, likewise, suffered the torment of a crime victim. Those crimes include the death of my brother in a criminally-negligent tragedy.” Resp’t Ex. P at 14. After Robles finished his statement, which also touched on the challenges he had faced while in the prison system, and his letters of commendation, Commissioner Platt noted,
The record says that you have made an excellent adjustment. You have done extremely well as an inmate. You have participated in academic and vocational and therapeutic programs. You seem to have a viable release plan, you have done well. There is something that you said earlier, though, that concerns me, that is, you see yourself as a crime victim.
Resp’t Ex. P at 17. Robles explained, as he had in prior parole hearings, that when he was he was 11 or 12 years-old, he lived in an Irish-German neighborhood, and would get “jumped” by other students at his school who called him a “spic bastard” and cut with a knife in his neck and arm, and threatened to kill him.
Id.
at 17-18. Robles felt, as a result of his therapy, there was a strong relationship between what happened to him and his criminal acts.
Id.
Robles also saw himself as a relative of a crime victim, because he felt that his brother, who died in a parachuting accident while serving in the armed forces, had been the victim of criminally negligent homicide.
Id.
at 18-19.
When asked what kind of thoughts came to mind when he contemplated his two victims, Robles replied, “It never had to happen.”
Id.
at 20. Apparently, dissatis
*255
fied with this response (“That’s the only thought that comes to mind?”), the panel asked if he had thought about the fact that he had deprived them of life and the pursuit of their goals; Robles responded affirmatively.
Id.
Robles tried to explain that what he meant by “it never had to happen” was that the incident had started as a burglary and had escalated. Robles’ response was cut short by one of the commissioners, who noted that Robles had “done well” and “present[s][him]self well.... ”
Id.
at 21. The commissioner noted that because of the nature of the crime, the Board was required to “invoke the special psychiatric panel procedures.” The commissioner further stated after reviewing the mental status reports prepared on Robles, the Parole Board had found that they did “not provide any contraindication to [his] release.”
Id.
at 21.
Despite all of these favorable factors, this panel also denied parole and ordered Robles held for another 24 months in the following decision:
Following a thorough review of your record, a personal interview and deliberations by this Panel, we render the following decision: Parole is denied. At the interview, it was apparent that despite your participating in counseling and therapeutic programs, you have failed to fully internalize culpability for your criminal behavior. Though you verbalize remorse, you continue to struggle with acceptance of responsibility for your conduct. You presented various rationalizations for your behavior, and continue to self-identify as a crime victim. You are comfortable with shifting the genesis of your criminal behavior to causative factors and entities external to yourself. No genuine remorse or compassion or compassion [sic] for the victims was ascertainable.
You denied culpability for many years, and it appears that your superficial acceptance of responsibility in later years was intended more to impress this Board than as a true expression of your rehabilitative progress.
Your crime was truly heinous, representing a gross decompensation of human values. Extensive rehabilitative and incarcerative measures are appropriate. Your exceptional custodial adjustment and pragmatic [sic] achievements are noted.
Guidelines are unspecified.
(All Commissioners present concur.)
Resp’t Ex. Q at 23-24;
see also
Resp’t Ex. R.
The Appeals Unit upheld the parole denial in the following decision:
There is no entitlement to release, and release may only be granted where the Board has no reason to believe that the inmate could remain in the community without violating the law. The record of this proceeding clearly indicates that the panel discussed and considered the factors pertinent to the issues of release, including his criminality, institutional adjustment and release plans, as well as his attitude and statements as expressed during the interview. Therefore, the panel, having considered the statutorily appropriate factors, could rationally predict, for the reasons it stated in its decision, that release would be incompatible with the welfare of society.
Resp’t Ex. S.
4
8. The 1996 Parole Denial
Robles’ next parole hearing was conducted on May 1, 1996.
See
Resp’t Ex. T.
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The panel orally rendered their decision denying parole at the close of the hearing, after Robles had been excused:
[Parole is] Denied. [Hold for] 24 months. [Reappearance in] May '98. Originally sentenced to term of life imprisonment (which did[,] under the law at that time[,] provide for the possibility of parole consideration) as the result of your conviction by verdict for the stabbing deaths during August 1963 of two women in their New York City apartment, your sentences subsequently were modified by legislative changes to 20 years to life, making you originally eligible for parole during January 1985. Several Parole Board appearances are noted since the end of 1984. On parole at the time of the August 1963 homicides for about three months, you were not arrested until January 1965. In between, you had been returned to prison for parole violation and then reparoled. Your prior DOCS term as a Y.O. was imposed in 1960 and was related to similar behavior that led to your current incarceration for homicide in that the earlier criminal behavior involved residential burglaries that at times included accosting and threatening victims in their homes.
In the August 1963 crime, you encountered two young women in their apartment, bound them to each other and viciously stabbed your immobilized victims. Previously you had forced sexual contact upon one of the victims. Your multiple stabbing of both victims while they were bound suggests a rage and uncontrolled anger that, along with your previously-established pattern of willingness to risk confronting victims in their homes is of great concern to us.
We note your extremely positive adjustment as an inmate in terms of behavior and program efforts, and we note your
plans for release and the availability of support in the community. We also note your age and the length of your confinement.
Still, given the other factors cited above, we are concerned that return to the community entails too great a risk of return to the negative behavior that led to the 1963 brutalization and deaths of two young women.
Guidelines are unspecified in this case.
See
Resp’t Ex. T at 26-27 (emphases supplied);
see also
Resp’t Ex. U.
9. The 1998 Parole Denial
Robles next parole hearing was held on April 29, 1998.
See
Resp’t Ex. Y. At the beginning of the hearing, Commissioner Graber astutely commented, “33 years is a long time to be in jail.” Resp’t Ex. W at 7. The commissioners spent much of the hearing focused the details of the crime, questioning Robles at length about the nature of the sexual contact between him and the first victim. The commissioners described the offense as an “awful brutal crime, two women tied together, helpless,” and asked him why he had done that.
The panel issued a decision on the record after Robles left the hearing:
[Hold for] 24 months. [Re-hearing in] 5/2000. Instant convictions for murder first are very serious. Two young women were brutally stabbed to death. One was sexually abused and her naked body ■ tied to the clothed victim. Both women were bound by the feet and wrists. While they were tied they were stabbed to death. Instant conviction is heinous and represents a depraved indifference towards human life. Two women were tied up, rendered helpless, then they were brutally killed.
Discretionary release in light of the aforementioned factors, has been deter
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mined to be incompatible with the public welfare. Further, discretionary release would deprecate the gravity and seriousness of the crime. This determination has been made after a review of your entire case file and in consideration of today’s interview.
Finally, it is noted that you were under parole supervision when instantly [sic] involved. We note your accomplishments while incarcerated, and they have been considered when arriving at today’s decision.
See
Resp’t Ex. W at 25;
see also
Resp’t Ex. X; Pet’r Ex. 6-8.
Robles appealed this adverse determination to the prison appeals unit on the bases that his due process rights were violated, that the application of Executive Law § 259 — i was a violation of the
ex post facto
clause, and that the Parole Board was improperly influenced by public pressure opposing his release.
10. The 2000 Parole Denial
Robles appeared before the Parole Board again on April 26, 2000. The decision denying release read as follows:
Parole Decision: Denied — Hold for 24 months, next appearance date: 05/2000. Conditions of Release/Reasons for Denial: Parole is again denied due to the violent and heinous nature of the I.O. [instant offense], murder 1st (2 counts), wherein you raped and sodomized one victim and stabbed to death two defenseless women.
We note all your positive programming throughout the years and community support but find more compelling, your total disregard for the life of others. Comments: Following deliberation, this decision is based on review of the case record as well as the interview with parole board members.
Pet’r Ex. S-9. Again, the Parole Board based its denial on the nature of Robles’ crimes.
11. The 2002 Parole Denial
Robles’ next appearance was on May 7, 2002. The decision denying parole read as follows:
Parole Decision: Denied — Hold for 24 months, next appearance date: 05/2004 Conditions of Release/Staff Instructions/Reasons for Denial: After a careful review, parole is again denied. Your conduct in committing this vicious crime of murder (2 counts): You illegally entered the female victim’s apartment where you forced her to commit an act of oral sodomy on yourself. Subsequently, another female arrived. Both were tied with bed sheets and you stabbed and killed them. Your record reflects other criminal conduct on your part with a parole failure.
Your overall conduct leads the panel to conclude your release would make a mockery of the criminal justice system, therefore, you are not an acceptable candidate for discretionary release. Your were on parole supervision at the time you committed the instant offense. Comments: Following deliberation, this decision is based on review of the case record as well as the interview with parole board members.
Pet’r Ex. S-10. The Parole Board once more based its denial on the nature of Robles’ crimes, and did not even mention any positive factors, such as his rehabilitation efforts, in its decision.
12. The 2004 Parole Denial
The decision denying parole after the May 2004 hearing read as follows:
Parole Decision: Denied — Hold for 24 months, next appearance date: 05/2006 Conditions of Release/Staff Instructions/Reasons for Denial: Parole is denied. You continue to serve 20 years to life for two counts of murder. This
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involved you causing the death of two female victims who were brutally and repeatedly stabbed inside them apartment. While the panel notes your positive program adjustment, due to the extremely serious and violent nature of these crimes, the panel concludes that your release would not be appropriate at this time.
Comments: Following deliberation, this decision is based on review of the case record as well as the interview with parole board members.
Pet’r Ex. S — 11. Again, the Parole Board based its denial on the nature of Robles’ crimes.
13. The 2006 Parole Denial
Robles’ next appearance was in May of 2006. The decision denying parole read as follows:
Parole Decision: Denied — Hold for 24 months, next appearance date: 05/2008 Conditions of Release/Staff Instructions/Reasons for Denial: After a review of the record and interview, the Panel has determined that if released at this time, there is a reasonable probability that you would not live and remain at liberty without again violating the law. Your release at this time would be incompatible with the welfare of society and would so deprecate the serious nature of the crime as to undermine respect for the law. This decision is based on the following factors. Your instant offense is murder (2 counts) in which you, while committing one of your many burglaries, sexually assaulted one victim at knifepoint and then a second victim entered the apartment, you tied up both victims and after one victim stated she would remember you and have you arrested you mercilessly beat and repeatedly stabbed your two helpless, unarmed, tied up victims in such an excessively brutal and viscious [sic] manner you broke several knives killing them, while on numerous occasions denied your guilt and allowed an innocent man to take the blame for your evil crime. The incredibly heinous and brutal nature of your offenses, and your past criminal behavior clearly indicate you are a poor candidate for release. Note is made of your programming and clean disciplinary record. Parole is denied.
Pet’r Ex. S-12. The Parole Board, once again, based its denial on the nature of Robles’ crimes.
C. The Exhaustion of State Court Remedies and Petitioner’s Administrative and Judicial Appeals at the State Level
A prisoner challenging his custody pursuant to a conviction in state court must first exhaust all state-court remedies “unless state corrective process is unavailable or the process that is available would be ineffective.”
Scales v. New York State Division of Parole,
396 F.Supp.2d 423, 428 (S.D.N.Y.2005) (citing 28 U.S.C. § 2254 (b)(1)). Nevertheless, a federal court may entertain a petition for a writ of habeas corpus if “it appears that (i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254 (b)(1)(B). Pursuant to the 1996 amendments to the habeas statute, “[a]n 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) (emphasis supplied).
■ In order to exhaust claims stemming from a denial of parole under New York law, a habeas petitioner must first file an administrative appeal with the Division of Parole’s Appeals Unit.
Morel v.
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Thomas,
No. 02 CV 9622(HB), 2003 WL 21488017 , at *2 n. 3 (S.D.N.Y. June 26, 2003) (citing N.Y. Comp. Codes. R.
&
Regs. tit. 9, § 8006.1). If that appeal is denied, he must seek relief in New York State Supreme Court pursuant to Article 78 of New York’s Civil Practice Law and Rules (“C.P.L.R.”).
Id.
(citing
Desire v. New York Division of Parole,
2001 U.S. Dist. LEXIS 13784 , at *6 (S.D.N.Y. Aug. 22, 2001));
see also Scales,
396 F.Supp.2d at 428 (describing steps habeas petitioner must take in order to exhaust claim of erroneous parole revocation). Assuming his Article 78 petition is denied by a justice of the Supreme Court, the inmate must then appeal the denial to New York’s intermediate appellate court, the Appellate Division.
See Morel,
2003 WL 21488017 , at *2 n. 3 (“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.”) (citation to record omitted).
Respondent argues that the 2002 parole denial is the only Parole Board decision as to which Robles has exhausted his state court remedies by completing one full found of New York’s established review procedures. The Court agrees that Robles has fully exhausted his state court remedies with regard to the 2002 parole denial.
With regard to the other parole decisions, the exhaustion issue is more complicated. Robles contends that the process for appealing a parole denial is ineffective because he will be eligible for a new hearing before he has exhausted his appeal, and thus his appeal will be moot.
See, e.g., Morel v. Thomas,
2003 WL 21488017 , at *2 (inmate denied parole made these arguments in response to respondent’s assertion of non-exhaustion of claims) (citing
Brown v. Thomas,
No. 02 Civ. 9257, 2003 WL 941940 , at *1 (S.D.N.Y. Mar. 10, 2003);
Defino v. Thomas,
No. 02 Civ. 7413, 2003 WL 40502 , at *3 (S.D.N.Y. Jan. 2, 2003);
Hairston v. Thomas,
2003 WL 1744728 , 2003 U.S. Dist. LEXIS 5020 (S.D.N.Y. Mar. 31, 2003);
Manley v. Thomas,
255 F.Supp.2d 263 (S.D.N.Y.2003)). Robles also contends that the state remedy is ineffective because the only remedy available to him is a
de novo
hearing before the Parole Board.
I note that a number of other New York state prisoners have raised essentially the same argument in their § 2254 habeas petitions challenging decisions by the New York Division of Parole-namely, that the futility of the state court procedures for obtaining meaningful review of the Parole Board’s actions constitutes circumstances “that render such process ineffective to protect the rights of the applicant,” 28 U.S.C. § 2254 (b)(1)(B)(ii).
See Brown v. Thomas,
No. 02 Civ. 9257, 2003 WL 941940 , at *1 (S.D.N.Y. Mar. 10, 2003);
(Washington v. Thomas,
No. 03 Civ. 363, 2003 WL 21262089 , S.D.N.Y. May 29, 2003);
Defino v. Thomas,
No. 02 Civ. 7413, 2003 WL 40502 , at *3 (S.D.N.Y. Jan. 2, 2003) (“Finally, Defino challenges the efficacy of the state court proceeding because the only remedy available is a “so called de novo hearing” before the Parole Board. Further, he argues that if the petitioner is denied parole again at that de novo hearing, ‘the absurd procedural merry-go-round of sham hearings and meaningless state court review is given another spin.’ ”) (quotation to record omitted) (cited in
Bod-die,
285 F.Supp.2d at 427). The district court in
Defino
characterized such an argument as “potentially powerful.”
Defino,
2003 WL 40502 , at *3 (quoted in
Brown,
2003 WL 941940 , at *1). In
Boddie,
the district court held that this “thorny issue” did not need to be addressed because petitioner’s substantive claims clearly were
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without merit, and it was more efficient to dispose of the petition in that way.
Boddie,
285 F.Supp.2d at 428 (citing
Brown,
2003 WL 941940 , at *1 (“[I]n 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.”). In all of these cases, the district court dismissed the due-process and equal-protection claims on substantive grounds and declined to rule on the procedural question of exhaustion.
Morel v. Thomas,
2003 WL 21488017 , at *2-3 (“[T]his 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.”) (citations omitted).
As detailed throughout this opinion, it does not appear that any of the subsequent parole hearings cured the constitutional infirmities that Robles alleges occurred at the during the previous hearings. Given that I do not believe Robles’ due process claim is clearly without merit, I am persuaded by Robles’ argument concerning the futility of exhaustion under the circumstances present here.
Cf. Rosenkrantz v. Marshall,
444 F.Supp.2d 1063, 1087 (C.D.Cal.2006) (granting habeas relief and ordering that “[b]eeause petitioner’s parole date has been twice determined under California law, and because both of those dates ... have long since passed, respondent should be directed to release petitioner on parole within thirty (30) days of the date of entry of judgment[,]” rather than remanding for a new parole hearing) (citing
McQuillion v. Duncan,
342 F.3d 1012, 1015-1016 (9th Cir.2003) (affirming grant of relief on appeal after remand, and explaining that proper relief is immediate release rather than remand for further parole proceedings where no evidence in the record supported the [Board of Prison Terms]’s determination that the petitioner was not suitable for parole)).
III. General Legal Principles
A. Standard of Review
“While one might second-guess the Parole Board’s decision, and state court’s approval of it,” and I certainly do, in this case, I recognize that “it is not the role of the federal courts to do so.”
Hunterson v. DiSabato,
308 F.3d 236, 244 (3d Cir.2002). On federal habeas, this Court’s review “is quite distinct from that of the state appellate courts.”
Id.
at 244-45 . The Supreme Court has explained that because habeas review is collateral, and not supervisory, “not every trial error or infirmity which might call for application of supervisory powers correspondingly constitutes a ‘failure to observe that fundamental fairness essential to the very concept of justice.’ ”
Donnelly v. DeChristoforo,
416 U.S. 637, 642 , 94 S.Ct. 1868 , 40 L.Ed.2d 431 (1974) (citation omitted) (quoted in
Hunterson,
308 F.3d at 244 ). This Court’s review is further curtailed by AEDPA, as Robles filed his petition after its enactment. AEDPA provides that “(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the elaim(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)(1), (2).
B. Procedural Due Process in the Parole Context
“The Fourteenth Amendment’s Due Process Clause protects persons against deprivations of life, liberty, or property;
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and those who seek to invoke its procedural protection must establish that one of these interests is at stake.”
Wilkinson v. Austin,
545 U.S. 209, 221 , 125 S.Ct. 2384 , 162 L.Ed.2d 174 (2005). The Constitution itself may give rise to a liberty interest “by reason of guarantees implicit in the word ‘liberty.’ ”
Id.
(citing
Vitek v. Jones,
445 U.S. 480, 493-494 , 100 S.Ct. 1254 , 63 L.Ed.2d 552 (1980) (finding that there is a liberty interest in avoiding involuntary psychiatric treatment and transfer to mental institution)). A liberty interest also “may arise from an expectation or interest created by state laws or policies.”
Wilkinson,
545 U.S. at 221 , 125 S.Ct. 2384 (citing
Wolff v. McDonnell,
418 U.S. 539, 556-558 , 94 S.Ct. 2963 , 41 L.Ed.2d 935 (1974)) (finding that a state inmate possessed a liberty interest in avoiding withdrawal of state-created system of good-time credits).
In the parole context, the Supreme Court has held that “[t]here 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 Nebraska Penal and Correctional Complex,
442 U.S. 1, 7 , 99 S.Ct. 2100 , 60 L.Ed.2d 668 (1979). Although there is no constitutional right to parole, a state may create a liberty interest in parole by means of its statutes and regulations governing the parole decision-making process.
See id.
at 12 , 99 S.Ct. 2100 ;
accord Board of Pardons v. Allen,
482 U.S. 369, 371 , 107 S.Ct. 2415 , 96 L.Ed.2d 303 (1987)
(“Allen
”) (“In
Greenholtz
the Court held that, despite the necessarily subjective and predictive nature of the parole-release decision, ..., state statutes may create liberty interests in parole release that are entitled to protection under the Due Process Clause.”). The Supreme Court determined in
Greenholtz
that a state creates an expectation of release to parole supervision, rising to the level of a liberty interest within the meaning of the Due Process Clause, if its parole system mandates release whenever a parole board or similar authority determines that the necessary statutory prerequisites exist.
Board of Pardons v. Allen,
482 U.S. at 376 , 107 S.Ct. 2415 (citing
Greenholtz,
442 U.S. at 12 , 99 S.Ct. 2100 ).
In
Greenholtz ,
the Supreme Court agreed with Nebraska inmates who argued that the state’s parole statute, which mandated parole if certain requirements were met, created a liberty interest in parole release. The petitioners relied upon the following section of the Nebraska statute to argue that the statutory language itself creates a an expectation of parole release:
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.
Greenholtz,
442 U.S. at 7 , 99 S.Ct. 2100 (quoting Neb.Rev.Stat. § 83-1,114(1) (1976) (emphasis supplied; quotation marks omitted)).
5
The
Greenholtz
court
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“accepted] [the inmates’] view that the expectancy of release provided in this statute is entitled to some measure of constitutional protection.”
Id.
Later, in
Allen ,
the Supreme Court affirmed the
Greenholtz
methodology of analyzing the statutory scheme to determine if it created a constitutionally protected liberty interest. Of significance was the “mandatory language — the use of the word ‘shall’ — and the presumption created — that parole release must be granted unless one of four designated justifications for deferral is found.”
Allen,
482 U.S. at 374 , 107 S.Ct. 2415 (citing
Greenholtz,
442 U.S. at 11-12 , 99 S.Ct. 2100 );
see also id.
at 374 n. 4, 107 S.Ct. 2415 (citing
Hewitt v. Helms,
459 U.S. 460, 471-72 , 103 S.Ct. 864 , 74 L.Ed.2d 675 (1983) (relying upon “the State’s use of ‘language of an unmistakably mandatory character’ and its specification of ‘substantive predicates’ to confinement — ‘the need for control,’ or ‘the threat of a serious disturbance’ ” — to find that “Pennsylvania’s administrative segregation statutes and regulations created a protected liberty interest in remaining in the general prison population”)).
That the Nebraska statute, like most parole statutes, “vest[ed] very broad discretion in the Board,”
Greenholtz,
442 U.S. at 13 , 99 S.Ct. 2100 , did not foreclose a finding of a due process right. The
Greenholtz
court explicitly rejected the parole board’s argument “that a presumption [of release] would be created only if the statutory conditions for deferral were essentially factual, ... rather than predictive.”
Id.
at 12 , 99 S.Ct. 2100 ;
accord Allen,
482 U.S. at 375 , 107 S.Ct. 2415 . As explained by Justice Brennan,
Greenholtz
held that “the presence of general or broad release criteria — delegating significant discretion to the decisionmaker — did not deprive the prisoner of the liberty interest in parole release created by the Nebraska statute.”
Allen,
482 U.S. at 375 , 107 S.Ct. 2415 .
Greenholtz
essentially “made a distinction between two entirely distinct uses of the term discretion.”
Id.
As this Court believes that Justice Brennan’s point is a critical one to bear in mind, it is repeated in full here:
In one sense of the word, an official has discretion when he or she “is simply not bound by standards set by the authority in question.” R. Dworkin, Taking Rights Seriously 32 (1977). In this sense, officials who have been told to parole whomever they wish have discretion. In
Greenholtz ,
the Court determined that a scheme awarding officials this type of discretion does not create a liberty interest in parole release. But the term discretion may instead signify that “an official must use judgment in applying the standards set him [or her] by authority”; in other words, an official has discretion when the standards set by a statutory or regulatory scheme “cannot be applied mechanically.” Dworkin,
supra,
at 31, 32;
see also id.,
at 69 (“[W]e say that a man has discretion if his duty is defined by standards that reasonable [people] can interpret in different ways”).
Allen,
482 U.S. at 375-76 , 107 S.Ct. 2415 .
Greenholtz
thus held “that the presence of official discretion in this sense is not incompatible with the existence of a liberty interest in parole release when release is required after the Board determines (in its broad discretion) that the necessary prerequisites exist.”
Id.
at 376, 107 S.Ct. 2415 .
Following
Greenholtz ,
the Supreme Court in
Allen
went on to determine that the Montana parole statute, like the Nebraska statute, created a liberty interest in parole release. Montana’s law provided in pertinent part as follows:
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“Prisoners eligible for parole. (1) Subject to the following restrictions, the board
shall
release on parole ... any person confined in the Montana state prison or the women’s correction center ... when in its opinion there is reasonable probability that the prisoner can be released without detriment to the prisoner or to the community])]”
“(2) A parole shall be ordered only for the best interests of society and not as an award of clemency or a reduction of sentence or pardon. A prisoner shall be placed on parole only when the board believes that he is able and willing to fulfill the obligations of a law-abiding citizen.”
Allen,
482 U.S. at 377 , 107 S.Ct. 2415 (quoting Mont.Code Ann. § 46-23-201 (1985) (emphasis in original)). The Supreme Court explained that “[sjignificantly, the Montana statute, like the Nebraska statute, uses mandatory language (“shall”) to ‘creat[e] a presumption that parole release will be granted’ when the designated findings are made.” 482 U.S. at 378 , 107 S.Ct. 2415 (quoting
Greenholtz,
442 U.S. at 12 , 99 S.Ct. 2100 ). Thus, the Supreme Court found in the Montana statute, as in the Nebraska statute, a liberty interest protected by the Due Process Clause.
Id.
at 381, 107 S.Ct. 2415 .
In sum,
Greenholtz
and
Allen
stand for the proposition that
while there is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence, a state’s statutory scheme, if it uses mandatory language, creates a presumption that parole release will be granted when or unless certain designated findings are made, and thereby gives rise to a constitutional liberty interest.
McQuillion v. Duncan,
306 F.3d 895, 901 (9th Cir.2002) (internal quotation marks and citations omitted) (quoted in
Biggs v. Terhune,
334 F.3d 910, 914 (9th Cir.2003)),
overruled on other grounds by Hayward v. Marshall,
603 F.3d 546, 555 (9th Cir.2010).
See also Skowronek v. Brennan,
896 F.2d 264 , 268 n. 7 (7th Cir.1990) (“In general, parole statutes may create an expectation of parole. This expectation stems from mandatory language authorizing parole when certain findings regarding the inmate have been made.”);
Huggins v. Isenbarger,
798 F.2d 203, 205 (7th Cir.1986)
(per curiam).
IV. Analysis of Petitioner’s Claims
A. Denial of Procedural Due Process (Claim One of the Petition)
Robles argues that the version of New York’s Parole Statute (former Correction Law § 213) (“Corr. Law § 213”), which was in effect at the time he was convicted and sentenced created a protected liberty interest in the same fashion as did the Nebraska and Montana statutes discussed in
Greenholtz
and
Allen ,
respectively. Respondent argues that Corr. Law § 213 did not create such an interest warranting procedural due process protection.
1. Did New York’s Parole statute in effect at the time petitioner was convicted, sentenced, and incarcerated (Former Correction Law § 213) create a protected liberty interest?
Parole in New York is, and always has been, “entirely a creature of statute.”
Graziano v. Pataki,
No. 06-CV-0840, 2006 WL 2023082 , at *4 (S.D.N.Y. July 17, 2006) (citing N.Y. Exec. Law § 259 (1) (“There shall be in the executive department of state government a state division of parole. The chairman of the state board of parole shall be the chief executive officer of the division.”)). Up until December 31, 1977, Corr. Law § 213 codified the standard to be used by the New York State Board of Parole in making decisions regarding a
*264
prisoner’s release on parole. Corr. Law § 213 provided in relevant part as follows:
Discretionary release on parole shall not be granted merely as a reward for good conduct or efficient performance of duties assigned in prison, but only if the board of parole is of the opinion that there is a reasonable probability that, if such prisoner 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.
If the board of parole shall so determine, such prisoner shall be allowed to go upon parole
outside of prison walls and inclosure upon such terms and conditions as the board shall prescribe, but to remain while thus on parole in the legal custody of the warden of the prison from which he is paroled, until the expiration of the maximum term specified in his sentence.
N.Y. Corr. Law § 213 (McKinney 1968) (Repealed L. 1977, c. 904, § 2, eff. Jan. 1, 1978) (quoted in Respondent’s Memorandum of Law (“Resp’t Mem.”) at 17-18) (emphases supplied) (Docket No. 20);
see also
Petitioner’s Memorandum of Law (“Pet’r Mem.”).
There is no question that the wording of former N.Y. Corr. Law § 213 -in particular the language that this Court has set out in italics' — closely parallels the language in the Nebraska and Montana parole statutes, which were addressed in
Greenholtz
and
Allen ,
respectively.
Compare
Former N.Y. Corr. Law § 213
with
Neb.Rev.Stat. §§ 83-1,114(1) (1976) (whenever a prisoner is considered for parole the Board
“shall
order his release unless it is of the opinion that his release should be deferred ... ”) (emphasis added); Mont.Code Ann. § 46-23-201 (1985) (“the board
shall
release on parole ...”) (emphasis added). Therefore, using the analytical method set forth in
Greenholtz ,
this Court finds it clear that former N.Y. Corr. Law § 213 gave rise to a cognizable liberty interest in release on parole.
Compare with McQuillion v. Duncan,
306 F.3d 895, 902 (9th Cir.2002) (finding that the following language of California Penal Code § 3041(b) “clearly paralleled]” the language in
Greenholtz
and
Allen
and therefore gave rise to a liberty interest: “ ‘The panel or board
shall
set a release date unless it determines that the gravity of the current convicted offense or offenses ... requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting.’ ”) (quotation to California parole statute omitted). In other words, Corr. Law § 213 “use[d] mandatory language (“shall”) to ‘ereat[e] a presumption that parole release will be granted’ when the designated findings are made.”
Greenholtz,
442 U.S. at 7 , 99 S.Ct. 2100 .
Respondent has not addressed the obvious similarities between former Corr. Law § 213 and the statutes in
Greenholtz
and
Allen .
Rather, respondent argues that this Court is bound by an “extensive body of state case law interpreting the scope of the interests that Correction Law § 213 and Executive Law § 259 — i were intended to afford.” Resp’t Mem. at 20 (citing
Mahon v. Warden,
1 Misc.2d 267 , 144 N.Y.S.2d 837 (N.Y.Sup.Ct.1955),
affd
2 A.D.2d 876 , 156 N.Y.S.2d 1001 (1st Dept. 1956) (quoting
Cecere v. Jennings,
250 N.Y. 239, 241 , 165 N.E. 277 (N.Y.1929)) and
Johnson v. Denna,
40 Misc.2d 717, 718 , 243 N.Y.S.2d 797 (N.Y.Sup.Ct.1963)). According to respondent, Corr. Law § 213 “never afforded prisoners a liberty interest.”
Id.
First, in this Court’s view, none of the cases cited by respondent either implicitly or explicitly held that Corr. Law § 213 did
not
afford inmates a liberty interest in parole. Furthermore, the Court declines to characterize three cases as an “extensive body of state case law.”
Matter of Cummings v. Regan,
76 Misc.2d 357 , 350 N.Y.S.2d 842 (N.Y.Sup.Ct.1973).
*265
Most important, the Supreme Court has rejected the same argument urged by respondent here-namely, that a state’s characterization of parole as a “privilege” precludes a prisoner from having a liberty interest in the possibility of parole under a particular statute.
See Allen,
482 U.S. at 378 , 107 S.Ct. 2415 . In
Allen ,
after having found that the language of Montana’s parole statute created a liberty interest, the Supreme Court addressed the parole board’s argument that it was “bound by statements of the Montana Supreme Court that parole is a privilege, a matter of grace, not of right.”
Id.
The Supreme Court conceded that it was “true that a State has no duty to establish a parole system or to provide for parole for all categories of convicted persons,
see Greenholtz,
442 U.S. at 7 , 99 S.Ct. 2100 , and that a State may place conditions on parole release[.]” 482 U.S. at 378 , 107 S.Ct. 2415 . However, it said, “only in this sense is parole a privilege, not a right.”
Id.
at n. 8. The Supreme Court found it significant that “[n]one of the Montana cases cited by the Board decide whether parole release is mandatory for an eligible inmate upon a finding that the statutory prerequisites have been met.”
Id.
So too is the case with the decisions cited by respondent here. The Court believes that
Allen
allows for the co-existence of two propositions-that a prisoner in New York had a due process right in an expectancy of parole release once certain conditions were met under former New York Correction Law § 213, and that the discretion vested in the parole board to determine whether those conditions were met was nevertheless “very broad.”
Greenholtz,
442 U.S. at 13 , 99 S.Ct. 2100 . Thus, the Court cannot agree that the statement in
People v. Jennings,
250 N.Y. at 241 , 165 N.E. 277 , that “[pjarole is not a right, but a privilege” necessitates the result which respondent urges. Accordingly, I accept Robles’s argument that under
Greenholtz
and
Allen ,
former Correction Law § 213 should be interpreted to have provided for a liberty interest in parole release.
2. What is the effect of the New York Legislature’s repeal of Correction Law § 213 in 1977?
Contemporaneously with, and perhaps in response to, the Supreme Court’s seminal decision in
Greenholtz v. Nebraska
in 1977, the New York State Legislature moved to repeal Corr. Law § 213. Its replacement is New York Executive Law (“Exec. Law”) § 259 — i which became effective January 1, 1978, and is still in effect. Resp’t Mem. at 18 (citing 1977 N.Y. Laws, ch. 904). Exec. Law § 259 — i provides in relevant part as follows:
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.
N.Y. Exec. L. § 259 -i(2)(c)(A) (emphases supplied);
see also
N.Y. Comp.Code R.
&
Regs., tit. 9, § 8002.1.
In comparing the repealed section to the current statutory language, one sees that Exec. Law § 259 — i and former Corr. Law § 213 are substantially the same, to the extent they (1) indicate that parole is not a “reward” and (2) employ a “reasonable probability” standard to the Parole Board’s judgment. There are, however, two critical differences between the two. First, Corr. Law § 213’s mandatory “shall ... unless” language was stricken from Exec. Law § 259 — i. That is, the new law deleted the following language, which was found in former Corr. Law § 213: If the
*266
Parole Board
“shall so determine
[that there is a “reasonable probability” the prisoner “will live and remain at liberty without violating the law and that his release is not incompatible with the welfare of society”],
such prisoner shall be allowed to go upon
parole.... ”
Compare
former N.Y. Corr. Law § 213
with
N.Y. Exec. Law § 259 — i(2) (c) (A). The removal of this language is pertinent to the due process analysis, as discussed further below.
The second major difference is that the New York Legislature added a new retributive and deterrent factor to N.Y. Exec. Law § 259 -i-the so-called “deprecation” requirement.
Cf. Shepard v. Taylor,
556 F.2d 648, 653 (2d Cir.1977) (describing as “factors of general deterrence and retribution” several criteria in 18 U.S.C. §§ 4206 (1) & (2) governing release of adult federal prisoners on parole; these factors required determining that “that release would not depreciate the seriousness of his offense or promote disrespect for the law” and “that release would not jeopardize the public welfare ... ”). Under Exec. Law § 259-i(2)(c)(A), the Parole Board now must find not only that there is a reasonable probability that the prisoner will be able to live at liberty without violating the law and that his release is not incompatible with the welfare of society, but also that releasing him on parole “will not so deprecate the seriousness of his crime as to undermine respect for law.” N.Y. Exec. Law § 259 -i(2)(c)(A). In other words, the Parole Board is permitted to ask itself whether the inmate has been incarcerated for a long enough period of time to punish him and vindicate the victims. Thus, the Parole Board is now authorized to take a punitive or retributive factor into consideration, by asking whether the nature of the prisoner’s crime
ever
makes release from incarceration to parole appropriate. While other factors that the Parole Board must consider are predictive, the “nature of the crime” is a static factor; it will never change. This factor entails an inquiry of a judicial nature and typically is performed by the sentencing court when it determines how long an inmate’s sentence should be.
See Tarter v. State of New York,
68 N.Y.2d 511, 517-18 , 510 N.Y.S.2d 528 , 503 N.E.2d 84 (N.Y.1986) (noting that the functions of the Parole Board, in fitting the inmate’s factual circumstances within the guidelines and using
discretion
to dispose of the matter, are classically judicial tasks). As a consequence of this “deprecation” amendment, the parole commissioners can deem certain crimes to be so brutal and heinous the nature of the crime can outweigh other factors and might never be overcome by genuine inmate rehabilitation efforts, thereby nullifying the possibility of parole.
3. How did the enactment of Exec. Law § 259 — i and repeal of Corr. Law § 213 affect the former liberty interest in parole?
The Court next turns to the question of whether the liberty interest under former New York Correction Law § 213, a state-created due process right, survived repeal of the statute that created it. Robles argues that the “saving provision” contained in the law which repealed the Correction Law provisions applicable to parole “saves” the liberty interest created by former Correction Law § 213. The legislation enacting the new parole statute (L. 1977, c. 904, §§ 4 to 17) provided in relevant part as follows: “§ 13. Existing rights and remedies preserved. No existing right or remedy of any character shall be lost, impaired or affected by reason of this act.”
Several preliminary questions arise: The Court must ask whether a state legislature, after having created a statutory entitlement or liberty interest, may alter or terminate the entitlement by a later enactment. If not, there is no need to resort to interpretation of the “saving pro
*267
vision”. On the other hand, if repeal of the old statute extinguished the liberty interest, then the Court must turn to an inquiry into the effect, if any, of the saving provision in § 13 of New York L. 1977, c. 904.
There does not appear to be any question that whatever liberty interest in parole existed under Corr. Law § 213 inhered in the statutory language-which was repealed by Exec. Law § 259 — i. If a liberty interest resides in a statute’s language, and the statute is effectively obliterated, then logically, it seems, so too does the liberty interest. The cases that the Court has found are to this effeCt.
See Toussaint v. McCarthy,
801 F.2d 1080, 1093 (9th Cir.1986);
Clark v. Brewer,
776 F.2d 226, 228-30 (8th Cir.1985). In
Toussaint ,
the petitioners sought to rely upon a previous holding of a district court that prisoners at state prison had a liberty interest in remaining in the general population of the correctional facility where they were housed. The Ninth Circuit refused to treat this favorable district court opinion as the law of the case on'appeal from a subsequent grant of injunctive relief where the two premises upon which the district court had relied in finding a liberty interest had been altered by intervening Supreme Court decisions and changes in state regulations. In particular, the statutory provision upon which the district court had relied had been Repealed. The Ninth Circuit stated that the district court’s holding based on the repealed section was entitled to no deference: “A state-created liberty interest exists only as long as the statute or regulation creating it remains effective. If the state repeals the statute or eliminates the regulation, the liberty interest ceases to exist.”
Id.
(citing
Clark v. Brewer,
776 F.2d at 232 ) (“We note simply that as the law now exists, the policies adopted by the Department of Corrections and the I.S.P. create a liberty interest in remaining in or returning to the general penitentiary population. However, contrary to the state’s assertion, that decision does not permanently bind the state’s discretion. Rather, the state is entirely free to modify or repeal the policies at issue in order to remove the substantive limitations on official discretion that now exist.”);
see also Nolan v. Thompson,
No. 05-4237-CV-C-SOW, 2007 WL 148815 , at *4 (W.D.Mo. Jan. 16, 2007).
In
Nolan ,
the plaintiff brought a civil rights action under 42 U.S.C. § 1983 . Nolan asserted, as Robles does here, that he had “a continued liberty interest in having his parole hearings conducted pursuant to the repealed state statute and regulations in effect at the time of his offenses.....” 2007 WL 148815 , at *4. The district court explained that the proposition urged by plaintiff was “not the law” since “[pjlaintiff was not entitled to parole under the old law prior to the time it was amended[,]” and “[t]the legislature that creates a statutory entitlement (liberty interest) is not precluded from altering or terminating the entitlement by a later enactment.”
Id.
(citing
Cavallaro v. Groose,
908 S.W.2d 133, 134, 135-36 (Mo.1995);
Delay v. Missouri Bd. of Probation and Parole,
174 S.W.3d 662, 665 (Mo.App. W.D.2005)).
The district court in
Nolan
held that
the Missouri Legislature in 1982 was within its power to terminate the statutorily created parole entitlement that plaintiff now claims because plaintiff had no liberty interest at the time of the change.
Delay,
174 S.W.3d at 665 . A state-created entitlement does not create a substantive due process right that the state cannot rescind.
Cavallaro [v. Groose
], 908 S.W.2d [133,] 135-36 [ (Mo.
banc
1995) ]. Thus, any expectation of liberty plaintiff had in the use of the old parole statute and regulations was extinguished by the enactment of new law. Plaintiff never acquired a liberty interest which was protected under the Due Process Clause of the Constitution.
Id.
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Plaintiff is not entitled to a perpetual application of Missouri’s old parole statute and regulations in all his subsequent parole hearings.
Id.
Based upon the undisputed material facts, plaintiff has no due process claim as a matter of law.
Nolan v. Thompson,
2007 WL 148815 , at *4;
see also State v. Darden,
12 S.W.3d 455, 459 (Tenn.2000) (“While a statute may-give rise to rights protected by article I, section 8 of the Tennessee Constitution and the Due Process Clause of the Fourteenth Amendment to the United States Constitution, the rights are not perpetual but exist only as long as the General Assembly retains the language affording the right.... The General Assembly may enact statutes that afford such rights, but the General Assembly is also free to amend these statutes, even where the amendment eliminates the formerly protected interests.”) (citing
Toussaint v. McCarthy,
801 F.2d at 1092 ).
In both
Nolan
and
Cavallaro ,
the prisoners were not asserting that they met the statutory requisites for release
prior
to the new parole statutes being enacted but were nevertheless refused parole. This is because at the time the new statutes were enacted, they had not yet served their minimum periods of imprisonment so as to make them eligible for consideration for parole when the prior statute was still in effect. Rather, the inmates in those cases were “asserting] a special kind
of
liberty interest: the continuing right to parole hearings governed by the old statute in effect at the time of [their] crimes,”
Cavallaro,
908 S.W.2d at 135 , which would effectively be “a
substantive
due process right that the state cannot rescind,”
id.
(emphasis supplied). The
Cavallaro
court rejected this proposition, relying on the Supreme Court’s consistent teachings that the substantive component of the Due Process Clause protects only “fundamental” rights, that is, those “implicit in the concept of ordered liberty.”
Palko v. Connecticut,
302 U.S. 319, 325 , 58 S.Ct. 149 , 82 L.Ed. 288 (1937),
overruled on other grounds by Benton v. Maryland,
395 U.S. 784 , 89 S.Ct. 2056 , 23 L.Ed.2d 707 (1969);
accord Washington v. Glucksberg,
521 U.S. 702, 721 , 117 S.Ct. 2302 , 138 L.Ed.2d 772 (2005).
In
McKinney v. Pate,
20 F.3d 1550 (11th Cir.1994), also relied upon by the
Cavallaro
court, the Eleventh Circuit explicitly held that where the right exists only by state law, it is not protected by
substantive
due process and “may constitutionally be rescinded so long as the elements of
procedural
due process are observed” in the repeal process.
McKinney,
20 F.3d at 1556 (emphases added in Cavallaro). Accordingly, the court in
Cavallaro
found, “any continuing liberty interest in the use of the old parole statute was extinguished by enactment of the new law,”
Cavallaro,
908 S.W.2d at 135-36 , because “ ‘[t]he legislature that creates a statutory entitlement ... is not precluded from altering or terminating the entitlement by a later enactment,’ ”
id.
(quoting
Packett v. Stenberg,
969 F.2d 721, 726 (8th Cir.1992) (“While the legislative alteration or elimination of a previously conferred property interest may be a deprivation, the legislative process itself provides citizens with all the process they are due.”)).
The weight of the relevant authority, e.g.,
Nolan v. Thompson,
2007 WL 148815 , at *4, considering claims virtually identical to those asserted by Robles here,
6
strongly
*269
supports the conclusion that as a general rule, when a legislature statutorily creates a liberty interest, there is no prohibition against it later altering or terminating the statutory entitlement. Further, these courts have found that an inmate is not entitled as a matter of due process to the perpetual application of the parole statute and regulations in effect at the time he committed his crimes.
See Delay, supra; Cavallaro, supra.
Robles argues that despite the repeal of Corr. Law § 213, the saving provision in Section 13 of the enacting legislation for Exec. Law § 259 — i preserves the liberty interest in parole release that he had under Corr. Law § 213. Robles correctly points out that the repealing act applicable in his case does have a saving clause, which provides that “[n]o existing right or remedy of any character shall be lost, impaired or affected by reason of this act.”
7
“[W]hen interpreting state statutes federal courts defer to state courts’ interpretation of their own statutes.”
United States v. Fernandez-Antonia,
278 F.3d 150, 162 (2d Cir.2002) (quoting
Bush v. Palm Beach County Canvassing Bd.,
531 U.S. 70, 76 , 121 S.Ct. 471 , 148 L.Ed.2d 366 (2000)
(per curiam)
(“As a general rule, this Court defers to a state court’s interpretation of a state statute.”) and citing
Lander v. Hartford Life & Annuity Ins. Co.,
251 F.3d 101, 119 (2d Cir.2001) (noting that it “must defer to the [state] [s]upreme [c]ourt on issues of state law”)). Resolution of this issue is “guided not only by the language of the statute itself but also by New York courts’ interpretation of the statute.”
Fernandez-Antonia,
278 F.3d at 162 . Because the Court found no cases by New York State court interpreting this saving provision in particular, the Court proceeded by examining the available case law in New York considering saving clauses in general.
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The New York Court of Appeals has stated that “[a] repealing statute which preserves rights contemplates definite and substantial ones which are, or are in the nature of, vested property rights and not merely inchoate personal privileges to which in a legal sense one has no indefeasible vested claim[.]”
Matter of Wentworth,
230 N.Y. 176, 187 , 129 N.E. 646, 649 (N.Y. 1920) (quoted in
Kelly v. State,
57 A.D.2d 320, 323 , 395 N.Y.S.2d 311, 314 (App.Div. 4th Dept.1977)). Similarly, the catch-all saving clauses in the General Construction Law (“G.C.L.”) have been said to refer to “vested rights or acts already taken or completed” (G.C.L. § 93), and “actions and proceedings involving substantive rights created by statutory law” (G.C.L. § 94). The resolution of this issue in other contexts has turned on whether the interest at issue “is a vested right preserved rather than an inchoate right divested by the statute’s repeal,”
People v. Mack,
148 Misc.2d 306, 308 , 560 N.Y.S.2d 607, 609 (N.Y.City Crim.Ct.1990). Thus, in Robles’ case, the issue is whether his asserted liberty interest under form Correction Law § 213 can constitute a “vested right.”
In the parole context, as discussed above in this Decision and Order, the Supreme Court has held that a prisoner is entitled to a due process protection for his liberty interest when such interest is created by a statutory authority.
E.g., Allen,
482 U.S. at 371 , 107 S.Ct. 2415 (citation omitted). “However, the scope of the liberty interest is confined to the inmate’s
expectation
of the parole release.”
(People ex rel. Hunter v. Bara,
144 Misc.2d 750, 752 , 545 N.Y.S.2d 65, 66 (N.Y.Sup.Ct.1989) (emphasis supplied) (citing
Allen,
482 U.S. at 373 , 107 S.Ct. 2415 ;
Greenholtz,
442 U.S. at 7 , 99 S.Ct. 2100 )). The Supreme Court’s teachings in
Greenholtz
and
Allen
lead this Court to conclude that any liberty interest a prisoner may have under a state’s parole statute is not a vested right to immediate release, but merely the possibility of early release to parole.
Accord People v. Bara,
144 Misc.2d at 752 , 545 N.Y.S.2d 65 (assuming a liberty interest in the prison regulations ( N.Y. Core. Law § 805 ) regarding the certificate of earned eligibility which, when received, requires the grant of a hearing to permit an inmate to appear before the parole board, but rejecting habeas petitioner’s contention that it was a “vested right”) (citing
Allen,
482 U.S. at 373 , 107 S.Ct. 2415 ;
Greenholtz,
442 U.S. at 7 , 99 S.Ct. 2100 ).
Here, the mere possibility of early release for Robles did not “vest” during the time when former Corr. Law § 213 was still in effeCt. This is because Robles did not complete his minimum term of imprisonment, and thereby become eligible for a parole hearing, until 1984 — seven years after Corr. Law § 213 was repealed on August 11, 1977.
8
Robles never had a parole hearing under the old statute; Exec. Law § 259 — i had been in effect for seven years by the time Robles first appeared before the Parole Board in 1984.
For the reasons stated above, I am compelled to conclude that the due process liberty interest created by former Corr. Law § 213 was not the type of “right or remedy” to which the savings provision was intended to apply. Therefore, any liberty interest Robles had under the old statute did not survive its repeal, and the provisions of the new parole statute, Exec.
*271
Law § 259-i, accordingly apply to Ms parole hearings.
4. Does New York’s current parole statute, Executive Law § 259-i, give rise to a constitutionally protected liberty interest?
a. Overview of New York’s Current Parole Statute, Executive Law § 259-i
Corr. Law § 213 was repealed in 1977, and was replaced by Exec. Law § 259-i which became effective January 1, 1978. Resp’t Mem. at 18 (citing 1977 N.Y. Laws, ch. 904). As an initial matter, the Court notes that a comparison of the repealed section (former Corr. Law § 213) with the current statutory language (Exec. Law § 259-i) reveals that they are the same to the extent they indicate that parole is not a “reward” and employ a “reasonable probability” standard to the board’s judgment. However, a critical alteration in Exec. Law § 259-i is that Corr. Law § 213’s mandatory “shall ... unless” language, found to be integral to the Supreme Court’s due process analysis in
Greenholtz
and
Allen ,
was stricken from Exec. Law § 259-i, which provides in relevant part as follows:
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.
N.Y. Exec. Law § 259 -i(2)(c)(A) (emphases supplied). Exec. Law § 259-i(2)(e)(A) directs the Parole Division to consider certain specified factors, providing that “[i]n 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. Law § 259 -i(2)(c)(A) (“Procedures for the conduct of the work of the state board of parole”) (emphasis added);
see also
N.Y. Comp. Code R. & Reg. Tit. 9, §§ 8001.3 (“[the Parole] Guidelines”) (eff. March 23, 1978), 8002.3(b) (“Parole release decision”) (eff. March 23, 1978).
Here, petitioner’s institutional record, Ms release plans, and any statements made by the crime victims’ families are the pertinent considerations under Exec. Law § 259-i(2)(c)(A).
See
N.Y. Exec. Law § 259 — i(2)(c)(A)(i), (iii),
&
(v). There is no deportation order in place, and Robles has not been eligible to participate in a temporary release program, so subsections (ii) and (iv) if Exec. Law § 259-i are not relevant.
Respondent notes that in addition, because this is a situation where the inmate’s minimum sentence was imposed by a court, the Parole Division must also consider “(i) the seriousness of the offense with due consideration to the type of sen
*272
tence, length of sentence and recommendations of the sentencing court, the district attorney, the attorney for the inmate, the pre-sentence probation report as well as consideration of any mitigating and aggravating factors, and activities following arrest and prior to confinement; and (ii) prior criminal record, including the nature and pattern of offenses, adjustment to any previous probation or parole supervision and institutional confinement.” N.Y. Exec. Law § 259 — i(l)(a) (incorporated by reference into N.Y. Exec. Law § 259 -i(2)(c)(A)).
See Matter of King v. New York State Division of Parole,
83 N.Y.2d 788, 790 , 610 N.Y.S.2d 954 , 632 N.E.2d 1277 (N.Y.1994) (“In addition, where, as here, the sentencing court, and not the Board of Parole, has set the minimum sentence of imprisonment, the Board must also consider the seriousness of the offense and the inmate’s prior criminal record[.]”) (citing N.Y. EXEC. LAW §§ 259 -i(l)(a), (2)(0).
b. State and Federal cases interpreting Exec. Law § 259-i from a procedural due process standpoint
Within a few months of the Supreme Court’s decision in
Greenholtz
finding a liberty interest in Nebraska’s parole statute, the Second Circuit determined that New York’s then — new parole scheme ( N.Y. Exec. Law § 259 -i and N.Y. Comp. Code R. & Reg. tit. 9, § 8001.3) did not create a due process liberty interest in parole.
See Boothe v. Hammock,
605 F.2d 661, 664 (2d Cir.1979);
accord Barna v. Travis,
239 F.3d 169, 170 (2d Cir.2001). Relying upon the methodology employed in
Greenholtz
and
Allen of
analyzing the language of the parole statute, the Second Circuit compared the Nebraska and Montana statutes to Exec. Law § 259-i and found New York’s law to be legally distinguishable. In
Boothe ,
for example, Second Circuit opined that it was “apparent that New York’s parole provisions ... do not establish a scheme whereby parole
shall
be ordered
unless
specified conditions are found to exist.”
Boothe,
605 F.2d at 664 (emphases added);
accord Bama,
239 F.3d at 171 . Therefore, the Second Circuit ruled, the New York parole scheme as currently formulated in Exec. Law § 259-i “is not one that creates in any prisoner a legitimate expectancy of release,” meaning that New York prisoners “have no liberty interest in parole, and the protections of the Due Process Clause are inapplicable.”
Barna,
239 F.3d at 171 ;
see also id.
at 170 (“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.”) (citing,
inter alia, Greenholtz,
442 U.S. at 11-13 , 99 S.Ct. 2100 );
Carrion v. Smith,
No. 09-3717-pr, 2010 WL 445611 (2d Cir. Feb. 8, 2010) (summary order) (“Although Petitioner is
eligible
for release, the decision to actually grant him parole remains within the discretion of the Parole Board. Inmates in New York have no liberty interest in parole because under New York law there is no entitlement to release.”) (citing
Barna,
239 F.3d at 171 ) (emphasis in original).
Accord, e.g., Green v. McCall,
822 F.2d 284, 290 (2d Cir.1987) (noting that
Boothe v. Hammock,
605 F.2d 661 , “involved (1) prisoners who had no release date set, (2) statutes that did not use the Nebraska ‘shall ... unless’ structure found persuasive in
Greenholtz ,
and (3) decisions that were wholly discretionary”).
The New York Court of Appeals had not considered whether New York’s parole system gave rise to a protected liberty interest, prior to the Second Circuit’s decision in
Boothe v. Hammock
interpreting Exec. Law § 259-i. Shortly after
Boothe ,
however, the New York Court of Appeals held,
What the New York statute promises, simply put, is that guidelines shall be established and followed unless reasons are given for not following them. That
*273
guidelines are provided does not mean they cannot be deviated from or create an entitlement to release at any particular time; the system is thus discretionary and holds out no more than the possibility of parole.... [Exec. Law § 259 — i] holds out no more than the possibility of parole and does not treat like situated persons differently. That being so, petitioner has demonstrated no protected liberty interest which would implicate the due process guarantee^]
Russo v. New York State Bd. of Parole,
50 N.Y.2d 69, 76 , 427 N.Y.S.2d 982 , 405 N.E.2d 225 (N.Y.1980) (citing
Greenholtz,
442 U.S. at 12 , 99 S.Ct. 2100 ;
Boothe,
605 F.2d at 664 ;
Walker v. Oswald,
449 F.2d 481, 485 (2d Cir.1971)).
Notably, the “Legislative Findings and Purpose which accompany the adoption of Executive Law Article 12-B (L. 1977 ch. 904, s 1, eff. Jan. 1,1978) provides that ‘the exercise of discretion, which is inherent in the parole system, must be structured and administered consistent with notions of due process....”’
Rogers v. Hammock,
100 Misc.2d 280, 283 , 418 N.Y.S.2d 835, 837 (N.Y.Sup.Ct.1979). That legislative finding is in tension with the courts’ conclusions that Exec. Law § 259 — i nevertheless does not create a liberty interest in parole warranting due process protection.
This Court is bound by the Second Circuit’s case law holding that New York’s current parole system, as embodied in Exec. Law § 259 — i, does not give inmates a constitutionally protected liberty interest in parole release.
c. If there were a cognizable liberty interest in parole release, to what kind of procedural due process would a New York inmate be entitled?
If there were a protected liberty interest embodied in Exec. Law § 259 — i, the next considerations would be (1) what process is due to the prisoner in protecting that interest, and (2) whether the Parole Board’s actions concerning the parole release decision accorded him such process.
Greenholtz,
442 U.S. at 16 , 99 S.Ct. 2100 ;
see also Wilkinson v. Austin,
545 U.S. 209, 224 , 125 S.Ct. 2384 , 162 L.Ed.2d 174 (2005) (“A liberty interest having been established [in avoiding “Supermax” confinement], we turn to the question of what process is due an inmate whom Ohio seeks to place in [that type of confinement].”) (citing
Morrissey v. Brewer,
408 U.S. 471, 481 , 92 S.Ct. 2593 , 33 L.Ed.2d 484 (1972) (stating that the requirements of due process are “flexible and cal[l] for such procedural protections as the particular situation demands”)).
In
Greenholtz ,
the Nebraska statute at issue afforded a prisoner with a protected liberty interest in the possibility of parole-release, the Supreme Court held that the statute provided sufficient process to satisfy the prisoners’ procedural due process rights:
[W]e find nothing in the due process concepts as they have thus far evolved that requires the Parole Board to specify the particular “evidence” in the inmate’s file or at his interview on which it rests the discretionary determination that an inmate is not ready for conditional release. The Board communicates the reason for its denial as a guide to the inmate for his future behavior.
See Franklin v. Shields,
569 F.2d, at 800
(en banc).
To require the parole authority to provide a summary of the evidence would tend to convert the process into an adversary proceeding and to equate the Board’s parole-release determination with a guilt determination. The Nebraska statute contemplates, and experience has shown, that the parole-release decision is, as we noted earlier, essentially an experienced prediction based on a host of variables.
See Dawson,
The Decision to Grant or Deny Parole: A Study of Parole Criteria in
*274
Law and Practice, 1966 Wash. U.L.Q. 243, 299-300.... 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.
Greenholtz,
442 U.S. at 15-16 , 99 S.Ct. 2100 ;
accord Green v. McCall,
822 F.2d at 291 (“The
Greenholtz
Court did not purport to establish what procedures might or might not be required for the protection of even the very limited liberty interest at stake in
Greenholtz
.... ”). The Supreme Court specifically rejected the Nebraska inmates’ argument that the Parole Board was required to “specify the particular ‘evidence’ in the inmate’s file or at his interview on which it rests the discretionary determination that an inmate is not ready for conditional release.”
Greenholtz,
442 U.S. at 15 , 99 S.Ct. 2100 .
Under New York’s current statute and regulations regarding parole determinations, an inmate is entitled to the following process: an interview conducted by a panel of at least two members of the Board of Parole,
see
N.Y. Comp.Code R.
&
Regs., tit. 9, § 8002.2(a), (b); and, if parole is denied, a written statement provided “within two weeks of his interview, of the factors and reasons in detail for such denial” and which specifies “[a] date for reconsideration [of parole]” “within 24 months” of the previous hearing,
see
N.Y. Exec. Law § 259 — i(2)(a); N.Y. Comp.Code R. & Regs., tit. 9, § 8002.3(d). Robles does not contend that he was denied these procedural protections in regard to any of his parole determinations. As noted above, the Supreme Court has held that where a statute
does
confer a liberty interest in parole, due process is satisfied simply by an opportunity to be heard and a statement of the reasons for denial of parole.
See Greenholtz,
442 U.S. at 16 , 99 S.Ct. 2100 (stating the due process does not require more than the procedures provided by the Nebraska parole statute, namely, “an opportunity to be heard,” and when parole is denied, to be “inform[ed] ... in what respect he falls short of qualifying for parole”). Robles similarly was afforded those procedural protections deemed to be adequate in
Greenholtz :
He had an opportunity to be heard and to present evidence at his interviews before the Parole Board panels; the Parole Board has issued written, statements of denial, giving statutorily recognized reasons for its decision; notwithstanding that the decisions have more often than not been quite perfunctory and devoid of any truly individualized assessment of Robles as a parole candidate.
In addition, the Parole Board’s determination was reviewed and affirmed by an administrative appeals board, and that determination was reviewed in an Article 78 proceeding in New York State Supreme Court.
Accord, e.g., Tatta v. Miller,
No. 05-CV-1205 (FB)(MG), 2005 WL 2806236 , *3 (E.D.N.Y. Oct. 27, 2005);
see also Schwartz v. Dennison,
518 F.Supp.2d 560, 573 (S.D.N.Y.2007) (in a proceeding pursuant to 42 U.S.C. § 1983 , district court rejected procedural due process claims by inmate denied parole under Correction Law § 805, “confirm[ing] what was stated in
Greenholtz :
an opportunity to be heard and a statement of the reasons for denial of parole ‘affords [all] the process that is due’ where a parole statute creates a protected liberty interest”);
Blackett v. Thomas,
No. 02 Civ.9258 RMB FM, 2003 WL 21744080 , at *3 (S.D.N.Y. July 14, 2003) (“The New York parole system meets these minimal [due process] requirements [as stated in
Greenholtz].”).
It bears noting again that in cases where courts have found a protected liberty interest in parole, such as
Greenholtz ,
all that the Constitution required was certain procedures-not a particular outcome as a result of the process.
Accord, e.g., Tatta
*275
v. Miller,
2005 WL 2806236 , at *3 (E.D.N.Y. Oct. 27, 2005) (“Moreover, regardless of whether New York’s parole scheme gives rise to a legitimate expectation of release, the denial of Tatta’s application for parole comported with procedural due process, which, in this context, requires only that the inmate be given an opportunity to be heard and informed of the reasons for the denial of parole.
See Greenholtz,
442 U.S. at 16 , 99 S.Ct. 2100 . Tatta received both a hearing and the reasons for the denial of parole.”) (internal parenthetical omitted);
Morel v. Thomas,
No. 02 CV 9622(HB), 2003 WL 21488017 , at *4 (S.D.N.Y. June 26, 2003) (“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.”) (citing
Greenholtz,
442 U.S. at 16 , 99 S.Ct. 2100 ) (parenthetical omitted),
d. Is there the possibility of a limited liberty interest in parole based upon
Rodriguez v. Greenfield,
7 Fed. Appx. 42 (2d Cir. 2001)?
Notwithstanding its decision in
Barna v. Travis,
the Second Circuit has held that an inmate denied parole, who alleged that the Parole Board improperly failed to consider sixteen years of missing prison records and a presentence investigations report, in contravention of N.Y. Exec. Law § 259 — i and 9 N.Y. Comp. Reg. & R., tit. 9, § 8001.3(a), might be able to state a due process claim for purposes of maintaining a civil rights suit under 42 U.S.C. § 1983 .
Rodriguez v. Greenfield,
7 Fed.Appx. 42, 45 (2d Cir.2001). The Second Circuit in
Rodriguez
cited favorably to
Monroe v. Thigpen,
932 F.2d 1437 (11th Cir.1991),
9
in which an Alabama inmate alleged that parole board improperly relied upon materially false information in his file. The Second Circuit found it significant that a New York State Supreme Court had invalidated one of Rodriguez’s parole denials after finding that the Parole Board had engaged in “unauthorized activities by making parole determinations absent a complete record[.]”
Rodriguez,
7 Fed.Appx. at 45 .
The
Rodriguez
panel acknowledged the Circuit’s earlier holding in
Barna v. Travis,
that no liberty interest exists in New York State’s parole scheme because the statute is purely discretionary and does not create a legitimate expectancy of release. 7 Fed.Appx. at 44 . The Second Cir
*276
cuit distinguished
Bama
and found that it did not answer the question before it in
Rodriguez ,
namely, whether a New York state prisoner has a liberty or property interest in having the Parole Board comply with its own statutory and regulatory guidelines in determining whether to grant or deny parole. In Rodriguez’s particular case, the issue was whether Rodriguez had a due process right to have the Parole Board make its parole decisions after reviewing the missing prison records and presentence investigation report in conformance with the procedures explicitly dictated by state statute in N.Y. Exec. Law § 259 — i and N.Y. Comp. Reg. & R., tit. 9, § 8001.3(a). The discretionary nature of New York’s parole statute did not foreclose Rodriguez from stating a cause of action because, the Second Circuit reasoned, the Parole Board could not possibly have exercised its discretion to consider the relevant parole-suitability factors in Exec. Law § 259 — i where it did not have information concerning those factors for at least sixteen of the thirty years in which plaintiff had been incarcerated.
Rodriguez,
7 Fed.Appx. 42, at 44-45 . Noting that the particular due process issue raised by Rodriguez with respect to parole decisions based upon missing records was an unsettled question, the Second Circuit therefore vacated the dismissal of plaintiffs § 1983 claim concerning the parole denial and remanded it to the district court for further briefing.
Id.
There are no further reported or unreported decisions in this matter — either by the district court or the Second Circuit.
The Court reads
Rodriguez
as providing support for the proposition that even in the absence of a general liberty interest in parole-release, “flagrant or unauthorized action,”
Monroe,
932 F.2d at 1441 (quotation omitted), by a Parole Board “becomes constitutionally offensive]!,]”
id.
(cited with approval in
Rodriguez,
7 Fed.Appx. at 45 ). However, this Court, which must evaluate Robles’ habeas petition through the deferential lens of AEDPA, may only grant relief if the state court unreasonably applies, or issues a decision contrary to, clearly established
Supreme Court
precedent.
See Kruelski v. Connecticut Superior Court For Judicial Dist. of Danbury,
316 F.3d 103, 105 (2d Cir.2003) (“Among the AEDPA’s new conditions is the requirement that an application for a writ of habeas corpus may be granted only if (1) the state decision ‘was contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States
[.]’ ”) (emphasis supplied). The Court cannot grant relief based upon a state court ruling which amounts to an incorrect application of Circuit precedent alone.
See Renico v. Lett,
— U.S.—, 130 S.Ct. 1855, 1865-66 , 176 L.Ed.2d 678 (2010) (“The Sixth Circuit also erred in relying on its own
Fulton v. Moore
[ 520 F.3d 522 (6th Cir.2008) ] decision for the proposition that Arizona v. Washington sets forth three specific factors that determine whether a judge has exercised sound discretion. Because
Fulton [,
a circuit court decision] does not constitute “clearly established Federal law, as determined by the Supreme Court,” § 2254(d)(1), failure to apply it does not independently authorize habeas relief under AEDPA.”).
Here, the decision in
Rodriguez v. Greenfield
was not published, and, under the Circuit’s rules, it may not be considered precedential or binding authority. It is troublesome to this Court, -however, that Robles’ claim that the Parole Board acted outside of its authority is not entirely unfounded. Ultimately, however, as discussed in the following paragraphs, I could not grant habeas relief upon on it, even if I could consider
Rodriguez .
*277
Robles asserts that the Parole Board has acted in contravention of Exec. Law § 259-i by considering an “impermissible” factor to deny him parole — namely, public pressure on the Parole Board to keep him forever incarcerated. The records submitted by Robles include a letter from Ed Koch, written during his tenure as the mayor of New York City, in which Koch urges the Parole Board to deny Robles parole based upon the heinousness of his crimes. Robles also points to an article from the New York Times in which the reporter discusses the campaign by one victim’s cousin, Michael Wylie, to see that Robles never gets released on parole.
The parole statute specifically does permit the Parole Board to consider statements by the crime victim, or, as in this case, the decedent’s relatives. Thus, any statements from Mr. Wylie on behalf of his deceased cousin may be considered by the Parole Board. However, as Robles points out, nowhere in the parole statute and regulations does it say that general public opinion is a factor that may or should be considered by the Parole Board. Thus, if the Parole Board is taking into account the opinion of former Mayor Koch, as expressed in his letter, in this Court’s opinion it is doing so illegally. The Court notes that the Parole Board has never specifically discussed the Koch letter or the Wylie statements in either the parole hearings or the parole decisions. The Parole Board has discussed the notoriety of the case at Robles’ parole hearings in n. 1986, 1990, 1992, and 1996, as respondent concedes.
See
Pet’r Exs. C, H, I
&
J (copies of the transcripts from the 1986, 1990, 1992, and 1996 parole hearings); Resp’t Mem. at 26-27.
Respondent argues that petitioner’s claims with respect to those earlier parole proceedings are unexhausted,
see
28 U.S.C. § 2254 (b)(1), and also time-barred under the one-year statute of limitations set forth by AEDPA, specifically, 28 U.S.C. § 2244 (d)(1)(A). Resp’t Mem. at 26. As noted above, the Court finds Robles’ argument concerning the futility of exhaustion to be persuasive. Nevertheless, the Court is constrained to agree with respondent that the claims pertaining to the 1986, 1990, 1992, and 1996 parole proceedings are untimely.
Respondent argues that in any event, the claims are not substantiated when the transcripts and the decisions from 1986, 1990, 1992, and 1996 are viewed in their entirety. Resp’t Mem. at 26-27. First, during the 1986 parole interview, the Parole Board did refer to the publicity surrounding Robles’ case. One commissioner remarked, “The offense we are talking about was one that had some publicity attached to it in August of 1968.” Ex. F at 2-3 (quoted in Resp’t Mem. at 26). However, as respondent points out, the complete transcript of the proceeding shows that the Parole Board devoted nearly all of the interview to a discussion of Robles’ criminal history; the facts and circumstances surrounding the two murders and Robles’ motives in committing them; Robles’ activities and behavioral record at the prison; his relationships with other inmates; and his plans in the event he were released from prison. Ex. F at 2-10 (quoted in Resp’t Mem. at 26). The Parole Board did not refer to the publicity of the case in its decision denying parole.
See
Ex. G.
At the 1990 hearing, the Parole Board asked Robles, “How about the notoriety?” Pet’r Ex. H. Robles responded that he was contemplating a name change and was concerned about being able to find work. Taking the question in context, it appears that the Parole Board was inquiring into Robles’ ability to handle the likely pressures and problems he would face upon release. I agree with respondent that the
*278
question did not indicate that the Parole Board believed that the notoriety, in and of itself, was a reason to deny parole.
See
Resp’t Mem. at 27. In addition, this topic was not mentioned in the decision denying parole.
During the 1996 interview, the Parole Board commented to Robles, “We know that your case is a notorious case in the sense of press coverage for a number of reasons, some of which have nothing to do with you.” Ex. T. As one commissioner noted, the case had generated a great deal of publicity due to the identity of the victims and the coercive police tactics used in connection with the arrest of the first individual tried and convicted for the crimes, a man who had falsely confessed and whose conviction was later overturned. However, the commissioner then stated, “[T]hose issues are not relevant to our decision today.” Ex. T at 11-12.
With regard to the 1992 interview, respondent concedes that the transcript “suggests that the publicity surrounding the case may have figured into the Panel’s decision to deny petitioner parole.” Resp’t Mem. at 27. During that interview, one parole commissioner remarked, “Well, you’re aware of all the publicity, I’m sure. It’s a tough case for us. It’s a long time ago. It’s a serious offense.” Pet’r Ex. I. Respondent correctly points out that the Parole Board also questioned petitioner at length about (1) how and where he would live after his release from prison; (2) his motive in committing the murders; (3) the facts relating to the crimes; and (4) his age at the time of the murders. In addition, the Parole Board did not refer to concerns about negative publicity in its decision denying parole.
After reading the transcript from the 1992 hearing, the Court believes that Robles’ argument is well-founded; this Parole Board considered the notoriety of Robles case, apparently in connection with the negative publicity that the Board feared would redound to it in the event Robles was released. The only outside opinions that the Parole Board is statutorily authorized to consider are those of the victims, or their representatives if the victims are deceased; the parole statute specifically mentions these “victim impact” statements as a factor that may be considered. However, the statute does not authorize the Parole Board to take into account the opinion of the general public about a particular inmate’s release or, for that matter, the release of violent felons as a group, when it is conducting the required
individualized
assessment of an inmate’s suitability for parole.
Respondent points out that courts in this Circuit, including courts from this District, have held that the Parole Board’s decision to “get tough” on violent offenders because of public and political pressure is “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.’ ” Resp’t Mem. at 27-28 (quoting
Morel v. Thomas,
No. 02 CV 9622(HB), 2003 WL 21488017 , at *5, 2003 U.S. Dist. LEXIS 10935 , at *19-20 (S.D.N.Y. June 26, 2003)) (quoting Executive Law § 259-i(2)(e)(A));
accord Harris v. Travis,
No. 04-CV-911A(F), 2007 WL 1362634 , at *3, 2007 U.S. Dist. LEXIS 33457 , at *11 (W.D.N.Y. May 7, 2007) (“Additionally, a parole board’s denial of parole resulting from political pressure to ‘get tough on violent felony offenders,’ is based on a permissible consideration and does not violate a prisoner’s federal equal protection rights, absent any claim that the denial was based on race, religion, or intent to punish or inhibit the exercise of constitutional rights, or malicious or bad faith
intent to
injure a person.”) (quoting
Seltzer,
2003 WL 21744084 , *4 and citing
*279
Blackett v. Thomas,
293 F.Supp.2d 317, 320 (S.D.N.Y.2003) (holding denial of parole does not violate equal protection rights, even if parole denial was the result of “political pressure” on the part of the state governor, who had allegedly conducted an “overt and covert campaign to eliminate parole for all so-called ‘violent felony offenders’ ”)), adopted by 2007 U.S. Dist. LEXIS 39143 (W.D.N.Y. May 30, 2007);
Salahuddin v. Unger,
No. 04 CV 2180(JG), 2005 WL 2122594 , at *7-8, 2005 U.S. Dist. LEXIS 18865 , *22-23 (E.D.N.Y. Sept. 2, 2005).
Seltzer v. Thomas,
No. 03 Civ.00931 LTS FM, 2003 WL 21744084 , *4 (S.D.N.Y. July 29, 2003) (“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.’ ” 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.’ ” ”) (quoting
Morel v. Thomas,
2003 WL 21488017 , at *5).
The Court has reviewed the foregoing cases cited by respondent. Although instructive, the Court does not believe the quoted sections are directly apposite since the quotations relied upon by respondent occurred in the district courts’ discussions of the inmates’ equal protection claims, not due process claims. The Court has carefully reviewed Exec. Law § 259 — i, and does not read it as indicating, either implicitly or explicitly, that public opinion or notoriety of the crime are factors to be considered by the Parole Board. In any event, the Court does not have occasion here to resolve this particular issue of whether public opinion and the fear of negative publicity improperly factored into the Parole Board’s decision-making process. This is because, as noted above, Robles’ constitutional claims regarding the 1986, 1990, and 1992 parole denials are untimely in the context of his 2005 habeas petition.
With regard to the 2002 parole denial (the one, timely claim as to which respondent concedes exhaustion), respondent argues that the record refutes petitioner’s claim that political pressure and public opinion tainted the Board’s decision. Resp’t Mem. at 25. The Court has reviewed the 2002 transcript and respondent is correct that the 2002 Parole Board made no mention of the publicity surrounding the case in either its interview questions to petitioner or its decision denying him parole.
Id.
(citing Resp’t Exs. CC & DD).
Robles has alleged that political pressure and public opinion tainted the 2002 parole proceeding. The Court agrees with Robles that these factors are not among those which the Parole Board is statutorily authorized to consider. Even assuming that such a limited liberty interest exists, the Court cannot grant habeas relief here. As respondent argues, this contention is not supported by the record; the 2002 Parole Board did not mention the publicity surrounding Robles’ case in either its interview questions to petitioner or its decision denying him parole.
See
Resp’t Exs. CC
&
DD; Resp’t Mem. at 26. Thus, in order to find that the 2002 hearing was tainted by the Parole Board’s improper consideration of public opinion and notoriety would require the Court engage in speculation. To the extent that Robles argues that the records of the 1986, 1990, 1992, and 1996 parole proceedings show
*280
that the Board improper was swayed by political pressure and public opinion, any claims regarding those parole denials are time-barred by the one-year statute of limitations set forth in 28 U.S.C. § 2244 (d)(1) (A), as respondent argues.
See
Resp’t Ex. at 26-28.
e. Has Robles demonstrated a violation of New York’s standard, that is, has the Parole Board acted arbitrarily and capriciously with an irrationality bordering in impropriety?
On the basis that parole release is a discretionary function of the Parole Board, courts in New York sitting in appellate review generally have declined to disturb a determination regarding parole release absent a showing that the Board’s decision was “irrational ‘bordering on impropriety’ and that the determination was, thus, arbitrary and capricious[.]”
Rios v. New York State Division of Parole,
No. 31731/06, 15 Misc.3d 1107(A) , 836 N.Y.S.2d 503 , 2007 N.Y. Slip Op. 50529 2007 WL 846561 , at * (N.Y.Sup.Ct. Mar. 12, 2007) (unreported opn.) (citing
Matter of Silmon v. Travis,
95 N.Y.2d at 476, 718 N.Y.S.2d 704 , 741 N.E.2d 501 ). The New York Court of Appeals has explained,
Our jurisprudence also is well settled as to the authority of the Parole Board. Judicial intervention is warranted only when there is a “showing of irrationality bordering on impropriety”
(see, Matter of Russo, supra,
50 N.Y.2d at 77 , 427 N.Y.S.2d 982 , 405 N.E.2d 225 (1980);
Matter of Briguglio v. New York State Bd. of Parole,
24 N.Y.2d 21, 29 , 298 N.Y.S.2d 704 , 246 N.E.2d 512 (1969)). Thus, we review whether the Board’s decision to deny parole was arbitrary or capricious.
Matter of Silmon v. Travis,
95 N.Y.2d 470, 476 , 718 N.Y.S.2d 704 , 741 N.E.2d 501 (N.Y.2000);
accord Matter of King v. New York State Div. of Parole,
190 A.D.2d 423 , 598 N.Y.S.2d 245 (N.Y.App.Div. 1st Dept. 1993),
affd,
83 N.Y.2d 788 , 610 N.Y.S.2d 954 , 632 N.E.2d 1277 (N.Y.1994);
Matter of Weinstein v. Dennison,
7 Misc.3d 1009(A) , 2005 WL 856006 (N.Y.Sup.Ct. 2005);
Matter of Coaxum v. New York State Div. of Parole,
14 Misc.3d 661, 667-72 , 827 N.Y.S.2d 489 , 493-98, 2006 N.Y. Slip Op. 26493 (N.Y.Sup.Ct.2006).
Although the Parole Board must consider all of the relevant statutory factors, the statute,
see
N.Y. Exec. Law § 259 — i, does not specify the weight to be attached to each factor.
Mitchell v. Conway,
No. 04 CV 1088, 2006 WL 508086 , at *4 (E.D.N.Y. Mar. 1, 2006) (observing that N.Y. Exec. Law § 259 -i(2)(c)(A) simply enumerates the factors the Parole Board must consider). New York state courts have “it is well settled that the weight to be accorded to each of the factors lies solely within the discretion of the Parole Board[.]”
Garcia v. New York State Division of Parole,
239 A.D.2d 235, 239 , 657 N.Y.S.2d 415 (App.Div. 1st Dept.1997) (citing,
inter alia, Klein v. New York State Division of Parole,
202 A.D.2d 319, 320 , 609 N.Y.S.2d 208 (App.Div. 1st Dept.1994)) (citing
Matter of Russo v. New York State Board of Parole,
50 N.Y.2d at 77 , 427 N.Y.S.2d 982 , 405 N.E.2d 225 ).
“While a Parole Board need not expressly discuss each of these guidelines in its determination, it must provide the inmate with a proper hearing in which only the relevant guidelines are considered.”
Matter of King v. New York State Div. of Parole,
83 N.Y.2d 788, 791 , 610 N.Y.S.2d 954 , 632 N.E.2d 1277 (N.Y.1994) (internal citations omitted). The New York Court of Appeals has stated that the Parole Board must provide an inmate with a
proper
hearing in which
only
the relevant guidelines are considered.
Id.
And, although it need not discuss every statutory factor set forth in Executive Law § 259-i, the Parole Board must consider these fac
*281
tors “as to every person who comes before it.”
Rios v. New York State Div. of Parole,
No. 31731/06, 15 Misc.3d 1107(A) , 2007 WL 846561 , at *4 (N.Y.Sup.Ct. Mar. 12, 2007) (citation and internal quotation marks omitted).
Although “the ultimate decision to parole a prisoner is discretionary[,]”
Silmon v. Travis,
95 N.Y.2d at 476-77 , 718 N.Y.S.2d 704 , 741 N.E.2d 501 , “consideration of these guidelines [as set forth in Exec. Law § 259-i(2)(c)(A) ] is mandatory,
id.
10
Importantly, the Parole Board’s “discretion is not unfettered” and “[t]he main limitation is that the Board cannot base its determination solely on the serious nature of the crime.”
Almonor v. People,
16 Misc.3d 1126 , 847 N.Y.S.2d 900 , 2007 WL 2379719 , at ***4, N.Y. Slip. Op. 51588(U) (N.Y.Sup.Ct. Aug. 21, 2007) (unpublished opn.) (citing
Guzman v. Dennison,
32 A.D.3d 798 , 821 N.Y.S.2d 208 (N.Y.App. Div. 1st Dept.2006) (affirming County Court’s decision denying parole, where additional factors, besides the circumstances of the crime, were set forth as basis for denial);
Rios v. New York State Div. of Parole,
Index No. 31731/06 (Sup. Ct. Kings County March 12, 2007), 15 Misc.3d 1107(A) , 2007 WL 846561 , at *4) (citation and internal quotation marks omitted);
Prout v. Dennison,

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2469487. Public record. Not legal advice.