Petition for Writ of Certiorari — King v. New York State Division of Parole (No. 08-149)

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o4 ‘Supre

\ oO p ine Court U.S.

Me: 08-149 AUG 4- 2008

In the OFFICE OF THE CLERK

Supreme Court of the Gnited States

—>><Gie><-—_—

- DARRYL KING,

Petitioner,

Vv.

NEW YORK STATE DIVISION OF PAROLE, NEW YORK STATE

BOARD OF PAROLE, ROBERT DENNISON,

Respondents.

On Petition For a Writ of Certiorari to the United States Court of

Appeals for the Second Circuit

PETITION FOR A WRIT OF CERTIORARI

BELDOCK LEVINE & HOFFMAN LLP

MYRON BELDOCK

99 Park Avenue, Suite 1600

New York, New York 10016

(212) 490-0400

Attorneys for Petitioner

August 4, 2008

DICK BAILEY SERVICE. (712) 608-7666 (718) 522-4363 (516) 222-2470 (914)682-0848 Fax (718) 522-4024

1-800-531-2028

QUESTIONS PRESENTED

1. Does a person granted complete termination

of his parole and sentence have a constitutionally

protected liberty interest in maintaining his

complete freedom such that he is entitled to duc

process when State officials withdraw _ the

termination?

2. Do Morrissey v. Brewer, 408 U.S. 471, 92 S.

Ct. 2593 (1972), and Young v. Harper, 520 U.S. 143,

117 S. Ct. 1148 (1997), govern the analysis of the

liberty interest of a person granted the complete

termination of his parole, as argued by Petitioner, or

does Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293

(1995), as implicitly applied by the Second Circuit,

govern?

3. Did the Second Circuit unconstitutionally

deny Petitioner relief when it fatled to apply Panetti

v. Quarterman, 127 S. Ct. 2842 (2007) (and other

Supreme Court cases analyzing 28 U.S.C. Sec.

2254(d)), and it denied Petitioner's habeas petition

because of “the total absence of authority on the due

process rights of an individual in King’s position,”

despite this Court’s decisions in Morrissey and

Young?

LIST OF PARTIES

Petitioner is Darryl King.

Respondents are the New York State Division of

Parole, the New York State Board of Parole and

Robert Dennison.

TABLE OF CONTENTS

Page

LAGE OR PARTIES foogoceccssssccscatescegecsevesserseccues i

TABLE OF CONTENTS. ou....ccccccssssesseessesseseessecseeee iii

TABLE OF AUTHORITIES ..0.....cccccccscesseeceessesseeee vi

APPENDIX INDIEX ...:c-c.cscsss-csescesesssoscosedesececesrnvee ix

OPENTORIS BELOW on ciccocsisccacussscseierssenssnsnentoorenete 1

STATEMENT OF JURISDICTION |.....0.cccccccccceesee- 2

STATUTORY PROVISIONS INVOLVED veesseccsece 2

PINT ROTIIC LION goose ssi diccecnhasaivcecesvcssesaesceses 2

STATEMENT OF THE CASE........:ccccccccesseeseesseeeees 7

A. History Of Petitioner’s Incarceration &

Withdrawal Of The Termination Of Parole ..7

:. Petitioner’s Incarceration And Parole

NR 8 oo als ae ee cs ee 7

& Petitioner's Absolute Discharge From

I no das oe et Ce ee ene 8

3. The Unlawful Withdrawal Of

Petitioner’s Absolute “Discharge From

PNG css sarin es ee 10

4. The Board’s. Subsequent Refusals To

Reinstate Petitioner's Discharge/ Parole

TOPTRIIEIN ic dcentsbstpneisesnes SAI LES Ve SHOR 12

B. Petitioner Exhausted His State Court

I 0 eae ee 0 aie ee 14

i. Petitioner Sought Relief From The New

OPT DUI CI asic scciccasscssiniviviiacsvs 14

4 The Trial Court Granted Relief .............: 14

3. New York's Intermediate Appellate Court

Reversed The Grant Of Relltef ................. 15

4. Petitioner Moved Unsuccessfully For

Leave To Appeal.To The New York State

I ie Pe ora ciciasveseshdivessscouiosaceauedts 16

C. Petitioner’s Federal Habeas _ Petition

And/Or Request For Relief Under Section

TE I I 6 hice sinned g heciactmtonc 17

D. Petitioner’s Parole Supervision Continues...20

REASONS FOR GRANTING THE WRIT ............. 2]

A. The Decision Of The Second Circuit Directly

Conflicts With This Court’s Decisions In

BOC RNORY FUE TORTIE ovis ccidncesencctnaccnverkinsenen 22

B. The Writ Should Be Granted Because

The Second Circuit And Other Circuits

Are Divided As To When A _ Sandin

Based Analysis Should Be Employed,

And When Morrissey And Young Are

Controlling When Assessing The Existence

Of A Liberty Interest For Non-incarcerated

PIRI ise citircsacinminnceccceunagecnnnnin 27

C. In Contravention Of Panetti, The Second

Circuit Incorrectly Interpreted 28 U.S.C.

Sec. 2254(d) To Require That Petitioner

Demonstrate That This Court Had Decided

A Factually Or Legally Identical Case ........32

D. The Writ Should Be Granted In The Interest

OE Tne PPIOISE oc cisessicccance sha sacieceresalduel eae anae

Are IE ide kasencceconctisnsnastnnincranectbenecndegmciaen 37

TABLE OF AUTHORITIES

Page

Cases

Anderson v. Recore (“Anderson I’)

Be te LG LO Cit, BOSD oacsccceciscsesccssssscccscsencide

Anderson v. Recore,

Oe ee CAE, i i crcsccksscscduccnsccnvensiaccnves: 30

Bd. of Regents of State Colleges v. Roth,

PE OEE vi vececeusevesdusadsdeyusvsvassecendavnne 23, 26

Biggs v. Terhune,

Se Br ANe EOE COPEED GIT. BOE) cccnccccvcccoscescsccccsecseincstO

Dominique v. Weld,

Te ©.0G EIGG1 1st Cir. 19GB)... 3.......0cccvccicccccccsecesess 29

Domka v. Portage County, Wis.,

ey ee Fe © FOEe SATs BOD 6. occ cons ce cc ccncccevsvccecnedss 30

Friedl v. City of New York,

ye we ee Ei RG A | |) 31

Gall v. United States,

a 5 ow sa rarnynlcaNcadinnnd caveeressecanentne’ 21

Gonzalez v. Thomas,

SN is ais ences cnn cvexveousasusvendonsanannnounons 6

Vil

Graziano v. Pataki, .

OE AIV ACLs) CRIN TD onc cevsvesescossevesunesvineesencnsocs 6

Greenholtz v. Inmates of Neb. Penal & Correctional

Complex,

442 U.S. 1, 99S. Ct. 2100 (1979)

SRI, 0, MUNIN oii <s s coccvsensecisuvecksndcxiasencstinns 19

Jago v. Van Curen,

NN ee I oaks 0555s iawn Pipievencdavataiainannaies cual 23

Kim v. Hurston,

eo Be” BRE Ek Ee AR | a er nr 31

King v. New York State Division of Parole,

306 A.D.2d 482, 761 N.Y.S.2d 515

Re Mr I is ints rads acy avammencsssysesss vencckukiodiciecenees ]

King v. New York State Division of Parole,

TAFT TR COD CIN. © cBOD cosessascsesecnsvanesssveeveessveeee 1]

King v. NYS Div. of Parole,

598 N.Y.S.2d 245, 190 A.D.2d 423

Cy Pe RS okra Seeder ain taieesdviestnen ivi enocernenneess 7

King v. NYS Div. of Parole,

Fe Fs Fee BEE GI, Ba BED civic vcsicncesisdivevscssseccesens 8

Maples v. Boyd,

2004 WL 1792775 (E.D. Pa. 2004)................00ss000 29

McQuillion v. Duncan,

306 F 30 G95 Gh Cir. ZOG2)........occccecccvcecssecsase 28, 30

Vill

Morrissey v. Brewer,

408 U.S. 471, 92 S. Ct. 2693.(1972).............. i, d, 21

Paige v. Hudson,

341 F.3d 642 (Tth Cir. 2008).......:scccscsseszoeees. ‘sical 29

Panetti v. Quarterman,

AST TS. CA, BEE CE incr scoecersccroteveereen oman 1,d

Sandin v. Conner,

515 U.S. 472, 115 S. Ct. 2298 (1995)....... 1, 3; 19, 27

Vitek v. Jones,

445: 43.5. SOO (ITSO) cds 22

Wilkinson v. Austin,

545 U.S. 209, 125 S. Ct. 2384 (2005) ................-... 24

Williams v. Taylor,

529 U.S. 362, 120 S. Ct. 1495 (2000)................5, 32

Wolff v. McDonnell,

SEG EL Ba a ikiiiicdiceneneeeee 22

Young v. Ilarper,

520 U.S. 148, 117 S. Ct. 1148 (1997)............ i, 3; 21

APPENDIX INDEX

Page

United States Court Of Appeals

For The Second Circuit Order

SS la-2a

United States Court Of Appeals

For Second Circuit Order

pated January 16, ZOOS ..................ccccccssseseees 3a-13a

United States District Court,

Eastern District New York

Opinion And Order Dated

ew es ceeewensewese l4a-34a

New York Court Of Appeals Denial Of

Leave Dated November 25, 2003..........................36a

Supreme Court, Appellate Division,

Second Department, New York Order

ED ES 37a-38a

Supreme Court Of The State

Of New York, County Of Kings

Decision Dated May 24, 2002....................... 39a-47a

OPINIONS BELOW

The unreported May 24, 2002 decision of the New

York State Supreme Court, Kings County, granting

Petitioner’s request for relief is reproduced at 38a-

47a.

The reported June 23, 2003 decision of the

Appellate Division, Second Department, New York

Supreme Court, King v. New York State Division of

Parole, 306 A.D.2d 482, 761 N.Y.S.2d 515 (2d Dep't

2003), which reversed the: grant of relief, is

reproduced at 36a-37a.

The reported November 25, 2003 order of the

Court of Appeals of the State of New York denying

leave to appeal, King v. New York State Division of

Parole, 807 N.E.2d 289 (N.Y. 2003) (Table), is

reproduced at 35a.

The unreported March 21, 2005 decision of the

United States District Court for the Eastern District

of New York denying Petitioner habeas corpus relief

is reproduced at 14a-34a.

The unreported January 16, 2008 decision of the

United States Court of Appeals for the Second

Circuit affirming the denial of habeas corpus relief is

reproduced at 3a-13a.

The unreported May 8, 2008 order of the United

States Court of Appeals for the Second Circuit

denying Petitioner’s request for rehearing en banc

review of the January 16, 2008 decision is

reproduced at la-2a.

STATEMENT OF JURISDICTION

The Second Circuit entered the decision that is

the subject of this petition for certiorari on January

16, 2008, 3a-13a, and denied Petitiener’s timely

petition for rehearing en banc on May 8, 2008, la-2a.

This timely petition is filed within 90 days of the

order refusing en banc rehearing. See Sup. Ct. R.

13.3.

This Court has jurisdiction pursuant to 28 U.S.C.

Sec. 2254(a).

STATUTORY PROVISIONS INVOLVED

Section 2254(d) of Title 28 of the United States

Code provides, in relevant part:

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 claim--

(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.

INTRODUCTION

The Second Circuit (Straub, Wesley, Livingston,

JJ.), held in a summary but precedential decision

that an individual whose parole and sentence were

unconditionally terminated, and who was released

from State custody to live without restrictions, but

who approximately a month after the termination

was told that the State had withdrawn the

termination of parole, lacks any liberty interest

entitling him to any due process. The Second Circuit

- should have determined that under Morrissey v.

Brewer, 408 U.S. 471, 92 S. Ct. 2593 (1972), and

Young v. Harper, 520 U.S. 143, 117 S. Ct. 1148

(1997), Petitioner had a protected liberty interest

_ entitling him to due process in which he could have

challenged. the illegality of the withdrawal and the

pretextual nature of the explanations given for that

withdrawal, and had the withdrawal reversed. The

_New York State appellate courts’ failure to grant

relief was accordingly unreasonable and contrary to

established Supreme Court law.

Under Morrissey and Young, a person who has

been released from incarceration to parole or pre-

parole, even if his sentence has not expired, has due

process rights under the Fourteenth Amendment if

the State seeks to reinstate incarceration. In

contravention of these cases, the Second Circuit

denied that Petitioner had a liberty interest in his

freedom. Rather than applying Morrissey and Young,

the Second Circuit implicitly applied -Sandin uv.

Conner, 515 U.S. 472, 115 S. Ct. 2293 (1995), under

which a prisoner’s due process rights are measured

by assessing whether the prisoner's status in

confinement is “atypical and_= significant” in

comparison to some baseline status. The Second

Circuit’s application of the Sandin standard

(although it did not cite to Sandin) expanded the

application of that case beyond prison situations and

required Petitioner, who was not incarcerated, to

show that he faced an “atypical and significant”

change in his status before the Court would

recognize his liberty. interest in ‘his complete

freedom. Specifically, in concluding that Petitioner

lacked a liberty interest, the Court wrote: “[T]here is

a significant difference between a parolee or pre-

parolee losing such status—and, thus, facing

reincarceration—and a_ recently and_ erroneously

discharged parolee who must return to his status of

only a few weeks before.” 7a. But Morrissey and

Young do not require--or even allow for--a

comparative analysis of Petitioner's “before” and

“after” status to identify a liberty interest; rather, a

free person necessarily has a liberty interest in his

freedom that is cognizable under the Constitution,

and he is entitled to due process if the State seeks to

take that freedom. The improper application of the

Sandin standard to a non-incarceration case is an

example of a split among the courts of appeals and

within the Second Circuit as to Sandin’s proper

scope, as discussed below. ©

The Second Circuit compounded its error by

holding Petitioner to an/impossible standard under

28 U.S.C. Sec. 2254(d), given that his circumstances

were unusual. The Court stated that Petitioner

has idéntified no decision by the Supreme

Court, this Court, or any other federal court

addressing a claim by a former parolee who

had been mistakenly discharged from parole.

[footnote omitted] Given the total absence of

authority on the due process rights of an

individual in [Petitioner]’s position, we cannot

conclude that the Appellate Division’s decision

was “contrary to, or involved an unreasonable

application of, clearly established Federal law”

within the meaning of 28 U.S.C. Sec.

2254(d)(1).

7a-8a. This analysis contravened Panetti uv.

Quarterman, 127 S. Ct. 2842 (2007), which requires

the unreasonableness of a state court’s application of

the law to the facts to be assessed in light of

generally stated holdings of this Court but does not

require that the exact same facts have been

previously presented to this Court. Id. at 2855

While Petitioner’s exact situation may be unusual,

around the country many individuals’ with

protectible liberty interests find themselves caught

in the interstices of their constitutional rights and

parole regulations and in need of due _ process

protections. Given Morrissey and Young, which held

that parolees and pre-parolees have liberty interests

in their non-incarcerated. status, it was logical to

extend these cases to Petitioner’s circumstances. See

Williams v. Taylor, 529 U.S. 362, 408-09, 412, 120 S.

Ct. 1495 (2000). Without the proper application of

these cases, neither Petitioner nor others deprived of

their liberty interests will be fairly, heard.

Additionally, the appellate courts made two

fundamental factual errors about Petitioner's case.

First, in deciding that Petitioner had no liberty

interest in the termination of his parole, they

accepted without question the State’s

representations that the parole termination had

been “mistakenly” or “erroncously” granted, 7a

which was precisely the issue that Petitioner would

have challenged if he had ever received any due

process. The State’s initial report proposing the

parole termination was only first produced by the

State in 2007, during the Second Circuit appeal, and

- was admitted to.the record by the Circuit. 4a n.1. It

shows that the two reasons that the State claimed as

the basis for its withdrawal of Petitioner’s

termination of parole were not correct. Second, the

appellate courts rejected out of hand, without any

due process or discovery, the possibility that political

considerations had influenced the withdrawal of the

parole termination, despite the fact that Petitioner

had long litigated with the State over his parole

rights, New York Governor George Pataki was weli

known to oppose parole benefits for convicted “cop

killers”, and there is a pending lawsuit challenging

the Pataki policies, see Graziano v. Pataki, 06-Civ.-

480(CLB) (SDNY).

Accordingly, the Second Circuit’s holding is

directly contrary to, and irreconcilable with, this

Court’s decisions in Morrissey, Young and Panetti.

Given the “obvious[ness]” of the Second Circuit's

error, this Court should grant this petition for

certiorari and summarily reverse. See Gonzalez v.

Thomas, 126 S. Ct. 1613, 1614 (2006). Alternatively,

and in view of the fact that the logic of the Second

Circuit’s decision has the potential as a practical

result to foreclose habeas relief to all individuals

whese. exact factual situation has not been

previously decided by this Court but whose liberty

interest arising from the Constitution is established

by their freedom from institutional incarceration,

this Court should grant this petition and set the case

for briefing and argument.

Petitioner was a free man the day his parole was

terminated. The State’s pretextually based, grossly

unfair and unlawful decision to require him to

submit to parole again without any due _ process

should not go unrectified.

STATEMENT OF THE CASE

A. History Of __ Petitioner's _Incarceration &

Withdrawal Of The Termination Of Parole

1. Petitioner’s Incarceration And Parole Release

In 1971, Petitioner Darryl King was convicted ‘of

felony murder for charyes relating to the fatal

shooting of an off-duty police officer during a robbery

by two men on May 25, 1970, and sentenced to 25

years to life. See King v. NYS Div. of Parole, 598

N.Y.S.2d 245, 248, 190 A.D.2d 423 (1st Dep't 1993).

In federal habeas proceedings, the Second Circuit

Court of Appeals invalidated Petitioner’s sentence.

See King v. Hoke, 825 F.2d 720 (2d Cir. 1987).

Although at trial the State had proceeded as if

Petitioner had been the shooter, it conceded in the

federal case that he had not fired the fatal shot. See

King, 598 N.Y.S.2d at 247. A New York state court

re-sentenced Petitioner to 20 years to life, making

Petitioner eligible for parole on May 28, 1990. 7d.

After Petitioner's parole requests were denied, he

brought a proceeding in New York State court, which

ruled for Petitioner and ordered that parole be

granted. (Second Circuit Record) R.6-21, 239. The

Appellate Division, First Department, affirmed but

remanded for a de-novo hearing before a different.

Parole Board panel. See King, 598 N.Y.S.2d at 521.

The New York Court of Appeals affirmed, stating

that the Board “must provide the inmate with a

proper hearing in which only the relevant guidelines

are considered ....As the record before us indicates,

that was not done here.” Kifig v. NYS Div. of Parole,

632 N.E.2d 1277, 1278 (N.Y. 1994).

After twenty-three years in prison, Petitioner was

placed on work release in 1993 and granted parole

release July 6, 1995. R.239. Following his release,

he worked tirelessly on criminal justice, community

development and offender rehabilitation issues. He

lectured locally and around the country, and

collaborated with community’ activists and

government officials on community-justice projects.

He received numerous honors. He is respected in his

field of community reintegration of former convicts.

He, his wife and family live in a home they own.

R.249-53.

2. Petitioner’s Absolute Discharge From Parole

In 1998, after serving three years of unrevoked

parole, Petitioner became eligible for an absolute

discharge under New York Executive Law § 259-),

which provided:

If the board of parole is satisfied that an

absolute discharge from ... parole is in the

best interests of society, the board may grant

such a discharge prior to the expiration of the

full term or maximum term to any person who

has been on unrevoked parole for at least

three consecutive years. A discharge granted

under this section shall constitute a

termination of the sentence with respect to

which it was granted.

Id. (emphasis added).

On or about August 22, 2000, Petitioner’s parole

officers submitted a parole discharge report on his

behalf. R.240; 4a n.l. A parole officer informed

Petitioner that an updated mental status report was

unnecessary. R.242.

The Division of Parole’s initial August 2000

report supporting the application for parole

termination was only produced in 2007 after

Petitioner filed his appeal with the Second Circuit.

The Second Circuit enlarged the record to include

this initial report. 4an.1. The “discharge summary”

portion of the report states that “[t]his subject is

eligible for discharge consideration,” and that “[a]

review of the subject’s supervision history to date

indicates that the subject is a suitable candidate for

an early discharge.” The first page of the form was

signed on August 16, 2000 by a parole officer, and on

August 18, 2000 by a senior parole officer and by

Louis Cali as an area supervisor. Above Mr. Cali’s

signature is the following statement: “The signature

below attests to the fact that there are no known

contra-indications to the above recommendation(s) at

the time this report was prepared.” Below his

signature is a notation indicating that the first page

is one of four pages of the report. Contrary to the

representations later made in the September 18,

2000 Division of Parole letter and the January 2,

2001 Cal memorandum, the initial report shows

that the Board was actually advised of Petitioner's

time on work release and parole. The report states

on its second page that Petitioner had spent 2 (two)

years on “intensive” supervision and 5 (five) years on

“regular” supervision. Its fourth page states:

“Attached: Mental Status Report (If applicable).”

A memorandum dated August 25, 2000 from the

Board to the Department of Corrections (“DOCS”)

reported that Petitioner and four other parolees had

been granted an “absolute discharge” pursuant to

Executive Law Section 259-j. It stated that “[t]his

Board action constitutes a termination of the

sentence(s) with respect to which it was granted.

Please make the annotation in the D.O.C.S. records

to reflect the satisfaction and termination of

sentence for those individuals listed.” R.22, 240.

Petitioner was advised of the Board’s decision.

3. The Unlawful Withdrawal Of Petitioner’s

Absolute Discharge From Parole

By letter dated September 18, 2000 and signed by

Senior Parole Officer Flot, the Division of Parole

informed Petitioner that it had “withdrawn” his

discharge:

it has been necessary for the Board of Parole

to withdraw it’s [sic] authorization for your

early discharge and that you are to effectively ,

continue to comply with the conditions

governing your parole supervision.

This decision was based upon the Board’s

finding errors and omissions in the discharge

summary.

By Division of Parole policy, it is necessary

that a current Mental Status Report be

completed and submitted to the Board.

Please be advised that as soon as the mental

status evaluation is completed, the report will

be re-submitted tothe Board for it’s [sic]

consideration.

I recognize that this may be a readjustment

for you and encourage you to continue

positively with your parole supervision.

R.23, 241. The alleged “errors and omissions’ were

not then disclosed to Petitioner. R.241.

Petitioner’s attorney inquired about the alleged

“errors and omissions.” On October 5, 2000, he was

informed that they related to the dates of

Petitioner's parole and work release, and to a mental

status report, and that once a mental status report

was submitted, the matter would return to the

Board for the discharge to be republished, R.45-46,

241-242. On November 20, 2000, a Board-certified

psychiatrist examined Petitioner and recommended

parole termination in a mental status report. R.24,

242. Petitioner and his attorney were told that the

parole and work release date errors had _ been

corrected and that there was. no other open issue

except for the mental status examination, which had

been updated. R.45, 243.

On January 2, 2001, Lou Cali, a Deputy Regional

Director-Metro 2 for Parole, wrote to the Board:

Please note that the final discharge on Darryl

King had been granted effective 8/25/00.

However, that action had to be withdrawn due

to errors on the initial submission.

1) The report had indicated the release

date as 7/6/93, which credited 84

months of parole supervision. ‘The

calculation included time spent on work

release, which should not have been

included as parole time. The corrected

report, now indicated a release date of

7/6/95" and 66 months of parole

supervision.

2) The initial report failed to include a

current Mental Status Evaluation, as

required under the Division’s Policy and

Procedure Manual, item number

8340.00 and 9208.02. Please note that

the Psychiatric Evaluation is now

annexed.

R.31, 242. (Neither Petitioner nor his attorney

learned of this memorandum until December 2001,

when it was submitted in opposition to Petitioner's

petition in the New York State court.)

4. The Board’s Subsequent Refusals ‘lo Reinstate

Petitioner’s Discharge / Parole Termination

In June 2001, Petitioner's parole officers and

their area supervisor submitted another discharge

request on his_ behalf. The Board. deferred

consideration and directed the Brooklyn Parole

Office to resubmit on January 2, 2003. R.32. A

Board memorandum dated June 13, 2001 stated:

Subject’s discharge is denied due to the

extremely violent nature of the instant

offense, during the course of which a human

life was taken (off duty NYC police officer). To

release the subject from the supervision at

this juncture would deprecate the seriousness

of his criminal act. His positive adjustment is

noted however a longer period of supervision

is necessary.

R.32, 243. This memorandum was_ sent. to

Petitioner's attorney with a letter dated July 26,

2001. These circumstances painfully echoed the

legal battle Petitioner had waged all the way to the

New York Court of Appeals in order to compel the

Board to adhere to the proper standards for his

parole determination, and ultimately to secure

parole despite his felony murder conviction involving

the death of a police officer. See Section A(1), supra.

In March 2003, after Petitioner had received a

favorable ruling on his Article 78 petition which

ordered the Board to reconsider the withdrawal of

his parole discharge, see Section B(1), infra, the

Board again denied his discharge. R.54-61, 244. It

deferred consideration until March 19, 2005, stating:

Upon review of the file, the parolee’s discharge

is denied as it is not in the best interests of

society. The extreme seriousness of the

instant offense wherein an off duty police

officer was shot to death militate against an

absolute discharge. While the parolee has

made a’ positive adjustment to supervision,

discharge at this time would deprecate the

seriousness of his crime as*to undermine

respect for the law. Accordingly, a longer

period of supervision is warranted.

R.147, 247.

B. Petitioner Exhausted His State Court Remedies

1. Petitioner Sought Relief From The New York

Supreme Court

On November 21, 2001, Petitioner commenced an

Article 78 proceeding in the New York Supreme

Court based on violations of Petitioner's federal and

state constitutional rights and of New York statutes.

R.33, 244. Petitioner claimed that the Board's

unlawful actions violated, inter alia, his rights to be

free from arbitrary government controls; to be free

from irrational, arbitrary and capricious government

actions, including those taken to advance a political

agenda; and to receive due process. R.41. His

petition stated that the State’s “order of July 26,

2001 denying Petitioner's request for discharge from

parole was illegal, unlawful, arbitrary, capricious,

and a denial of due process of law under the

Constitutions of the United States and of the State

of New York, in that inter alia, Petitioner's discharge

from parole was denied and rescinded in violation of

due process of law.” R.41, 48-49.

Petitioner cited cases recognizing a_ parolee’s

liberty interest, including Morrissey v. Brewer, 408

U.S. 471 (1972), and argued that he had a protected

liberty interest in his freedom from parole. He also

contended that the Board had acted against him for

political reasons, and stated that “[t}hat course of

events is arbitrary, capricious, irrational and grossly

improper by definition, and cannot be allowed to

stand.” R.50.

2. The Trial Court Granted Relief

On May 24, 2002, the trial court granted relief:

In the unique circumstances presented here,

including the failure of the Board to apply the

proper statutory. guidelines in reaching its

determination, and the past history of this

case, it is apparent that respondents acted

irrationally and their determination cannot be

upheld.

45a. The Court stated that “liJt is apparent that the

respondents June 2001 determination denying the

reapplication of the local parole board to discharge

the petitioner from parole had no connection to the

two reasons advanced in January 2001.” 46a. It

continued:

Since the Parole Board failed to apply the

proper ‘statutory standard, and _ denied

discharge for reasons having nothing to do

with the reasons advanced why the August

2000 discharge was “withdrawn,” the Parole

Board’s determination is irrational, arbitrary

and capricious and must be vacated. The

arbitrary and capricious nature of the Board's

determination is reinforced by the extensive

history of these proceedings.

46a-47a. The Court vacated the determination and

directed the Board to reconsider the reapplication for

discharge within 30 days. 47a.

3. New York’s Intermediate Appellate Court

Reversed The Grant Of Relief

The State appealed. Petitioner opposed, arguing

that “[t]his is a case, as the Court below recognized,

of whether, once Petitioner's parole had _ been

terminated through that process and due process

liberty interests in his release were thereby created,

the Board could, for pretextual reasons, rescind the

release and then justify its arbitrary decision by

shifting from a_procedurally based excuse for

rescission to a different excuse for denial.” R.93,

103-107. He argued that “(|blecause Petitioner has a

liberty interest in his discharge, he was entitled to

due process protections. Once the discharge was

granted, liberty interests were created, and they

could not be withdrawn without due _ process

protections and an_ evidentiary hearing, with

representation by counsel.” R.106, 108-109, 115.

On June 23, 2003, the Appellate Division

reversed. 36a-37a. It stated that “the petition is

denied, the determination is confirmed, and the

proceeding is dismissed on the merits.” 37a. The

Court continued:

The discretionary determination of the New

York State Division ‘of Parole to deny the

petitioner a discharge from parole was made

in accordance with the law and, therefore, is

not subject to judicial review.

Id. (internal citations omitted).

4. Petitioner Moved Unsuccessfully For Leave To

Appeal To The New York State Court Of

Appeals

On July 31, 2003, Petitioner timely filed a motion

for leave to appeal to the New York Court of

Appeals, raising federal constitutional and state law

claims. R.150-207. On November 25, 2003, the

Court of Appeals denied leave to appeal. 35a.

C. Petitioner's Federal Habeas Petition And/Or

Request For Relief Under Section 1983 Was

Denied

On June 23, 2004, Petitioner filed a petition for

habeas corpus relief or relief under 42 U.S.C. Sec.

1983. The grounds were constitutional due process,

the right to equal protection under the law, and the

right to freedom from unlawful seizure. R.230.

On March 21, 2005, the district. court denied

relief, repeating the errors made by the Appellate

Division. 14a-34a. First, it did not acknowledge

Petitioner's liberty interest, comparing him to an

inmate seeking release from prison, rather than to a

parolee already released, thus relying on the .wrong

line of constitutional cases. 29a-30a. It held that

Petitioner could not establish that federal law

required proof of a “quantum of evidence” before a

parole-related benefit may be rescinded. 29a. This

ignored Petitioner's fundamental objection that the

question of the amount of evidence had never been

reached because no evidence whatsoever had been

taken in support of the withdrawal, as no hearing

had been held.

Petitioner filed a notice of appeal and motion for

a certificate of appealability, which was granted.

On January 16, 2008, the Second Circuit affirmed

the denial of Petitioner's habeas petition. 3a-13a.

The Court stated that Petitioner argued that “the

Board’s revocation of his discharge from parole in

September 2000 violated his due process rights

because he was allegedly deprived of a protectible

liberty interest with no pre-deprivation hearing.”

6a. The Court continued: “Due to the fact that the

Appellate Division of the New York Supreme Court

considered and rejected this claim on the merits, we

must decide whether that state court proceeding was

‘contrary to or an ‘unreasonable application of

clearly established federal law.” Id. (citation

omitted). The Court briefly reviewed Morrissey and

Young, then reported:

[blased upon these decisions identifying a

‘liberty interest’ in such circumstances, [King]

argues that a parolee who has been informed

of his discharge from parole surely must also,

have such a liberty interest. [Footnote

omitted.| However, there is a _ significant

difference between a parolee or preparolee

losing such status—and, thus, facing

reincarceration—and a recently and

erroneously discharged parolee who must

return to his status of only a few weeks before.

Regardless, King has identified no decision by

the Supreme Court, this Court, or any other

federal court addressing a claim by a former

parolee who had been mistakenly discharged

from parole. Given the total absence of

, authority on the due process rights of an

individual in King’s position, we cannot

conclude that the Appellate Division’s decision

was ‘contrary to, or involved an unreasonable

application of, clearly establish Federal law’

within the meaning of 28 U.S.C. § 2254(d)(1).

Ja-8a.

Despite its citation to Morrissey and Young, the

Second Circuit's analysis of Petitioner’s liberty

interest applied an analysis derived from Sandin v.

Conner, 515 U.S. 472, 115 S. Ct. 2293 (1995), which

was the completely wrong approach. It assessed the

existence of Petitioner's liberty interest using a

comparative analysis, stating that his loss was less

than that of a parolee or pre-parolee who faced re-

incarceration such that he did not have a liberty

interest in the parole termination. 7a. The Court

should have recognized that the “nature” of

Petitioner’s liberty interest, the complete enjoyment

of freedom unfettered by any state restriction, is a

right recognized and protected by due process, and it

should not have conducted a comparative analysis.

See Greenholtz v. Inmates of Neb. Penal &

Correctional Complex, 442 U.S. 1, 24-25, 99 S. Ct.

2100, 2112-2113 (1979) (Marshall, J., dissent). The

Court’ also erroneously accepted the State’s

argument that Petitioner had been “erroneously”

‘discharged, 7a, although the State offered no

evidence to support this view and the expanded

. record disproved it. 4a.

The Second Circuit rejected Petitioner’s alternate

argument that his due process rights were violated

by the irrational, arbitrary, capricious nature of the

Board’s actions in revoking his discharge from parole

and refusing to reinstate it later. 10a-1la. The Court

held that it was not irrational, arbitrary or

capricious for the Board to have withdrawn the

termination of parvle, and to have denied on

subsequent reviews the reinstatement of the

termination for reasons in conflict with the August

2000 grant. 12a. The Second Circuit made this

conclusion despite the fact that there had been no

meaningful change in Petitioner's status between

August 2000 and June 2001, and through 2003,

except for Petitioner’s additional years satisfactorily

served on parole.

D. Petitioner’s Parole Supervision Continues

Petitioner seeks to reinstate the August 2000

termination of his New York~ State parole

supervision. R.253-254. As a parolee, he is subject to

many restrictions. For example, he is required to

meet with his parole officer once a month and share

with him details of his public and private life. /d.

He is periodically frisked, required to submit to

urine tests, and required to get a letter of permission

from his parole officer to travel outside of New York

City. Id. Being subject to parole is not a de minimis

burden, but rather an enormous’ burden on

Petitioner.

Although Petitioner has met the requirements

without incident, they limit his freedom and are a

significant limitation on his free enjoyment of life

and orderly pursuit of happiness. Petitioner reports:

Because I have seen and experienced the

unfettered discretion of the Board in making

determinations, such as denying me parole

and rescinding my discharge from parole, I am

always in fear that I could walk into the

parole office and never walk out. After the

Board released me from parole and put me

back on parole, I fear they have the power to

come up with charges against me and put me

back in prison. I have a great relationship

with my parole officer and senior parole

officer--|]| they submitted my application for

discharge--but I fear such directives could

come from their superiors.

R.253: See, e.g., Gall v. U.S., 128 U.S. 586, 595-96

(2007).

REASONS FOR GRANTING THE WRIT

The Second Circuit's decision and that of the

Appellate Division entirely misapplied the law of

this Court and should be reversed. The writ should

be granted for four reasons, each of which is

explained below.

First, the Second Circuit’s ruling directly conflicts

with this Court’s decisions in Morrissey v. Brewer,

408 U.S. 471, 92 S. Ct. 2593 (1972), and Young uv.

Ilarper, 520 U.S. 1438, 117 S. Ct. 1148 (1997). In

Morrissey, the Court held that a parolee is entitled to

due process protections before parole is revoked. By

logical extension, Petitioner, too, is entitled to due

process because he enjoyed the freedoms available to

a person whose sentence has been fully served or

terminated.

Second, the Second Circuit's application of a

Sandin-driven analysis to examine a_ former

parolee’s liberty interest is blatantly incorrect and

an example of one of several cases in which courts

have incorrectly used Sandin to analyze the liberty

interest of individuals under sentence but free from

incarceration, rather than Morrissey and Young,

creating a split.in the decisions of the courts of

appeals.

Third, the Second Circuit incorrectly interpreted

28 U.S.C. Sec. 2254(d) to require Petitioner to

demonstrate that this Court had previously decided

a faetually identical case. The correct interpretation

of iat statute is as articulated by this Court in

Williams and more recently, in Panetti, which does

not require that a case be based on _ factually

identical circumstances before a holding of this

Court must be applied.

Fourth, the writ should be granted to protect’ due

_ process. New York State should not be permitted to

exercise control: over Petitioner without lawful

authority or justification. Petitioner has suffered

repeated abuses of executive power; he deserves to

have this Court determine that such abuses will not

be tolerated in a society governed by the rule of law.

A. The Decision Of The Second Circuit Directly

Conflicts With This Court’s Decisions In

Morrissey And Young

The Fourteenth Amendment’s Due _ Process

Clause protects persons against deprivations of life,

liberty, or property; those who seek to inyoke its

procedural protection must establish that one of

these interests is at stake. A liberty interest may

arise from the Constitution by reason of guarantees

implicit in the word “liberty,” see, e.g., Vitek v. Jones,

445 U.S. 480, 493-94 (1980), or from an expectation

or interest created by state laws or policies, see, e.g.,

Wolff v. McDonnell, 418 U.S. 539, 556-58 (1974).

Morrissey uv. Brewer, 408 U.S. 471, 480 (1972),

considered the availability of due process for a

parolee facing parole revocation and answered

affirmatively that a parolee has a vested. liberty

interest in maintaining. his increased freedom. The

Court stated:

Whether any procedural protections are due

11 parole revocation] depends on the extent to

which an individual will be condemned to

suffer grievous loss. . . . The question 1s not

merely thé weight of the individual's interest,

but whether the nature of the interest is one

within the contemplation of the lberty or

property language of the Fourteenth

Amendment.

* KOK

We turn to an examination of the nature of

the interest of the parolee in his continued

liberty. The liberty of a parolee enables him to

do a wide range of things open to persons who

have never been convicted of any crime. * * *

[Footnotes omitted.] The parolee has relied on

at least an implicit promise that parole will be

revoked only if he fails to live up to the parole

conditions. In many cases, the parolee faces

lengthy incarceration if his parole is revoked.

We see, therefore, that the liberty of a parolee,

although indeterminate, includes many of the

core values of unqualified liberty and its

termination inflicts a ‘grievous loss' on the

parolee and often on others. * * * By whatever

name, the liberty is valuable and must be seen ~

as within the protection of the Fourteenth

Amendment. Its termination calls for some

orderly process, however informal.

Morrissey, 408 U.S. at 481-83, 92 S. Ct. at 2600-

2601; see Jago v. Van Curen, 454 U.S. 14, 20-n.2

(1981); Bd. of Regents of State Colleges v. Roth, 408

U.S. 564, 572 (1972).

Under Morrissey, the question thus is not what

state-created right does a parolee enjoy, as suggested —

below by the State, but what is the “nature” of the

-interest which Petitioner enjoyed. 408 U.S. at 481-

83; see Wilkinson v. Austin, 545 U.S. 209, 221, 125.S.

Ct. 2384, 2393. (2005). Petitioner had a _ liberty

interest in his discharge because with discharge, he

was completely free of the State’s supervisory

authority after almost thirty years in State custody:

R.253-254.

Young v. Harper, 520 U.S. 143 (1997), confirmed

that the liberty interests of those free of

incarceration are subject to an assessment of the

“nature” of their interests; not to an analysis based

on the scope of the state rules that allegedly created

their interests, or by way of comparison of their

status with the status of others also subject to state

sentences. In Young, the Court held that the liberty

interest identified in, and the due process required

by, Morrissey applied where a prisoner had been

released on the prison’s initiative onto “pre-parole’,

but the governor sought to revoke that status

without any wrongdoing by the parolée. Oklahoma's

pre-parole program conditionally released prisoners

to parole, and the governor later reviewed the

release decisions, either approving or revoking them.

The parole board had recommended the petitioner

for parole and released him to parole after he had

then served 15 years of a life sentence. After the

parolee spent five months outside the penitentiary,

the governor denied approval of his parole. This

Court held that Morrissey controlled, and that the

petitioner was entitled to due process before being

re-incarcerated. The Court rejected Oklahoma's

argument that parole and pre-parole were so

different that a pre-parolee lacked a liberty interest.

Id. at 149-51. Young applies here: a parolee has a

liberty interest in his freedom from restraints, even

if that freedom was granted on the State’s initiative

without the necessary approvals, and the State

cannot revoke that freedom, if at all, without

providing due process. Petitioner faced almost an

identical situation; and should have received the

same process, at least.

Under Morrissey and Young, Petitioner is entitled

to meaningful procedural protections because he is

akin to either a prisoner granted a parole release

date but facing. rescission or a parolee facing parole

revocation, and not, as the federal and_ state

appellate courts held, an inmate without a parole

date hoping for, but without a right to, parole. Ata

minimum, Petitioner is entitled to a_ parole

applicant’s. rights, which would include due process

with a rational rather than arbitrary, capricioms or

irrational review of his claims. Once Petitioner was

advised in writing by the Board that he had been

discharged, he accepted the decision as permanent —

and enjoyed his new freedom.-R.240-241. As a former

parolee, he had a liberty interest in his freedom from

restraints.

Once Petitioner's liberty interest is

acknowledged, protections are necessary to insure

that the right is not arbitrarily abrogated. The

' requirements of due process are “flexible and call]

for such procedural protections as. the particular

situation demands.” Morrissey, 408 U.S. at. 481.

Morrissey provided for a revocation hearing for

parolees facing the loss of parole, with several due

process protections, id. at 483-84, none of which

Petitioner received. At a minimum, due process

guarantees a decision that is not irrational, arbitrary

or capricious because the Fourteenth Amendment

protects individuals from unrestrained government

violations of their rights. See Roth, 408 U.S. at 584.

-Here, due process would have allowed Petitioner

to challenge the grounds given for the withdrawal of

his termination in 2000 and refusal to reinstate it in

2001, in line with the decision of the New York trial

court. Instead, the Second Circuit decided, without

any evidence offered by the State, that Petitioner

had been “erroneously” or “mistakenly” released

from parole. 7a. By answering the question of

whether the termination had been proper or not

before allowing Petitioner the opportunity to be

heard and present evidence before a_ neutral

factfinder, the Second Circuit upended the “due”

aspect of process and made the process seem

unnecessary.

Finally, the June 2001 and March 2003 Board

decisions claimed pretextual reasons for the denial:

the seriousness of the underlying offense and the

victim’s status as a police officer. The State’s

reliance on these factors indicated that its decisions

were pre-determined because these facts were never

going to change. R.54-61. This sort- of decision-

making was arbitrary, capricious, improper,

unlawful, and irrational, and blatantly violated

Petitioner's due process rights.

B. The Writ Should Be Granted Because The Second

Cireuit And Other Circuits Are Divided As To

When A Sandin-Based Analysis: Should Be

Employed, And _When_Morrissey And Young Are

Contrelling When Assessing The Existence Of A

Liberty Interest For Non-inearcerated Individuals

Respondents argued below that Petitioner had no

liberty interest in his freedom because he faced

rescission, in which discharge is granted in error,

rather than revocation, in which a parolee’s conduct

leads to the end of the parole grant and returns the

parolee to prison. This argument introduced the

Sandin-driven error that permeates the Second

Circuit’s decision: that Petitioner’s liberty interest

arose from the State’s exercise of its discretion to

grant the termination of parole, leaving the State

unrestricted’in its authority to withdraw that grant

because Petitioner’s loss was no greater than that of

an individual hoping for parole, and certainly not as

great as the loss faced by a parolee facing revocation.

7a. To the contrary, Petitioner’s liberty interest

arose from his experience of liberty after the

termination of his sentence; the State’s authority to

grant that freedom initially and a comparison of

Petitioner’s experience to that of other parolees are

irrelevant to whether he had a liberty interest. See

Young, 520 U.S. at 151.

The Second Circuit’s implicit use of a Sandin-

based analysis in its examination of Petitioner's

rights was incorrect and an example of one of several

cases in which courts have incorrectly analyzed the

rights of individuals free from incarceration under

Sandin, rather than under Morrissey and Young.

The Circuit’s decision is symptomatic of a growing

misinterpretation of these due process cases and a

split among the circuits.

In Sandin v. Conner, 515 U.S. 472, 115 S. Ct.

2293 (1995), this Court held that the due process

liberty interests created by MHawai’’s_ prison

regulations will be generally limited to freedom from

restraint which, while not exceeding a sentence term

in such an unexpected manner as to give rise to

protection by the Due Process Clause of its own

force, nonetheless imposes atypical and significant

hardship on an inmate in relation to the ordinary

incidents of prison life. The prisoner's discipline in

segregated confinement did not exceed similar, but

totally discretionary, confinement in either duration

or degree of restriction, and thus did not implicate a

due process liberty interest. Sandin’s comparative

analysis requiring a court to look for “atypical and

significant” hardships is properly limited to either

cases in which the petitioner is incarcerated or to

those where the liberty interest in dispute arises

from prison. regulations, and should not be extended

to those cases where the interest arises by its

“nature” under the Constitution or where the

individual is no longer incarcerated. See McQuillion

v. Duncan, 306 F.3d 895, 903 (9th Cir. 2002). The

Second Circuit assessed Petitioner's liberty interest

by way of comparison with others’ possible loss of

freedom, thus imposing the Sandin test where

Morrissey and Young should have been used.

This confusion in the proper standard for

assessing the liberty interests of convicts who are no

longer inearcerated has relevance for other, more

common, factual situations where courts must assess

whether a non-incarcerated individual has a liberty

interest arising from the Constitution. As discussed

below, some courts have applied Sandin to claims

relating to work release or other “pre-parole’

programs while others have found it inapplicable to

non-incarceration scenarios.

Some courts have found protectible liberty

interests in. work release, while others have not. In

Asguith v. Dep't of Corrections, 186 F.3d 407, 411 (3d

Cir. 1999), the Third Circuit performed a dual

analysis and held that an inmate participating-in a

residential work release program was not entitled to

the protections of Young, and under Sandin lacked a

liberty interest under either the Constitution or

state regulations. See Maples v. Boyd, 2004 WL

1792775, at *6 (E.D. Pa. 2004) (considering that a

transfer from a residential treatment program to

incarceration may be subject to analysis under

Sandin, Young or Morrissey). In Dominique v. Weld,

73 F.3d 1156, 1161 (1st Cir. 1996), the. First Circuit

concluded that a prisoner on work release status-was

not entitled to a. hearing prior to revocation of that

status and re-incarceration because he had no state-

created liberty interest under Sandin.

In Paige v. Hudson, 341 F.3d 642, 643 (7th Cir.

2003), the Seventh Circuit applied Sandin to the

question of “whether being removed from a home-

detention program into jail is a sufficiently large

incremental reduction in freedom to be classified as

a deprivation of liberty under the Sandin doctrine”

such that due process was available. The Court

concluded: “We think it is'a sufficient reduction,

while acknowledging that it is less than the

reduction of liberty that comes about when someone

on parole or equivalent status is reincarcerated.” Jd.

In Domka v. Portage County, Wis., 523 F.3d 776, 781

(7th Cir. 2008), the Seventh Circuit “saveld] for

another day the narrow question of whether a

prisoner--as opposed to a probationer, parolee or pre-

parolee--has a liberty interest in a home detention

program” under Sandin, Morrissey, or Young.

The Ninth Circuit has been much less equivocal

about Sandin’s limited scope. In McQuillion uv.

' Duncan, 306 F.3d 895, 903 (9th Cir. 2002), the Ninth

Circuit stated that “liJt is clear from the Court's

framing of the problem in Sandin, and from the fact

that Sandin cited Allen with approval, see id., that

Sandin's holding was limited to internal prison

disciplinary regulations. Courts and commentators

that have considered the question in the wake of

Sandin have reached this conclusion.” Jd. (citations

omitted). In Biggs v. Terhune, 334 F.3d 910, 914-15

(9th Cir. 2003), the Ninth Circuit stated that

“Sandin dealt with internal prison disciplinary

regulations, and does not affect the creation of

liberty interests in parole... .” /d. (internal citations

omitted).

This error also merits correction for the Second

Circuit because its own cases conflict as to whether

Sandin applies to non-incarceration claims. Its more

recent work release decision cited its earlier cases of

Anderson I and Friedl to hold that “[tlhere is no

question that Anderson had a liberty interest in

continuing his participation in the temporary release

program, although the cited cases use entirely

different analyses. See Anderson v. Recore, 446 F.3d

324, 328 (2d Cir. 2006). In Anderson v. Recore

(“Anderson I’), 317 F.3d 194, 201 (2d Cir. 2003), the

Court stated that “the lack of relevance Sandin has

to work release and similar programs became even

more apparent--albeit after the actions under review

on this appeal--when the Supreme Court decided

Young.” In Kim v. Hurston, 182 F.3d 113, 118 (2d

Cir., 1999), the Second Circuit wrote that “[t]he work

release program in which Kim participated, at least

the final phase in which she lived at home and

worked at a job, while regularly reporting to

Parkside, is virtually indistinguishable from either

traditional parole or the Oklahoma _ program

considered in Young. While participating in this

phase of the TRP, Kim enjoyed a liberty interest, the

loss of which imposed a_= sufficiently ‘serious

hardship’ to require compliance with at least

minimal procedural due process.” In Friedl v. City of

New York, 210 F.3d 79, 84 (2d Cir. 2000), the Court

held that “[p]risoners on work release have a liberty

imterest in continued participation in such

programs,” but supported its decision by saying that

“(t]he Due Process Clause protects inmates against

‘atypical and significant’ deprivation of liberty,

Sandin v. Conner, 515 U.S.. 472, 484, 115 S. Ct.

2293, [| including withdrawal of work release. Thus,

prisoners ‘are entitled to procedural due process

before they are subjected to such a deprivation of

liberty.” To the extent the later cases moved toward

limiting Sandin’s application, the present case

returns the Second Circuit to, an overly broad

application of Sandin. 4

It would be appropriate for this-Court to make

clear when a Sandin-driven analysis applies in the

non-incarceration context, if ever, and to confirm its

limits, including that it should not have been

implicitly applied to Petitioner's case.

We note that the Appellate Division did not

engage in as sophisticated an analysis of the liberty

interest as did the Second Circuit and thus did not

explicitly make this same crror. Nonetheless, by

comparing Petitioner to parolees anticipating parole,

rather than _ individuals’ enjoying parole, it

erroneously and unreasonably analyzed his due

process rights as those of someone who anticipated

but did not yet enjoy his liberty. 36a-37a. This

effectively led to the same result as the Second

Circuit's application of a Sandin-inspired analysis: it

did not identify Petitioner’s liberty interest.

C. In _Contravention Of Panetti, The Second Circuit

Incorrectly Interpreted 28 U.S.C. Sec. 2254(d) To

Require That Petitioner Demonstrate That This

Court Had Decided A_ Factually Or_ Legally

Identical Case

Under the “contrary to” clause of 28 U.S.C. Sec.

2254(d), a federal habeas court may grant the writ if

the state court arrives at a conclusion opposite to

that reached by this Court on a question of law or if

the state court decides a case differently than this

Court has on a set of materially indistinguishable

facts. Under the “unreasonable application” clause, a

federal habeas court may grant the writ if the state

court identifies the correct governing legal principle

from this Court's decisions but unreasonably applies

that principle to the facts of the prisoner's case. See

Williams v. Taylor, 529 U.S. 362, 413, 120 S. Ct.

1495, 1523 (2000) (Connor, J.).

In Panetti v. Quarterman, 127 S. Ct. 2842, 2855

(2007), the Court explained the proper application of

Section 2254 in greater detail. The petitioner

claimed that the Eighth and_ Fourteenth

Amendments of the Constitution, as elaborated by a

prior Supreme Court case, entitled him to certain

procedures not provided in the state court. This

Court agreed that no deference was due the state

court decision:

That the standard is stated.in general terms

does not mean the application was reasonable.

AEDPA does not “require state and federal

courts to wait for some nearly identical factual

pattern before a legal rule must be applied.”

Nor does AEDPA prohibit a federal court from

finding an application of a_ principle

unreasonable when it involves a set of facts

different from those of the case in which the

principle was_ established. The _ statute

recognizes, to the contrary, that even a

general standard may be applied in an

unreasonable manner. These principles guide

a reviewing court that is faced, as we are here,

with a record that cannot, under any

reasonable interpretation of the controlling

legal standard, support a certain legal ruling.

Under AEDPA, a federal court may grant

habeas relief, as relevant, only if the state

-ourt's “adjudication of [a] claim on the merits

. resulted in a decision that... involved an

unreasonable application” of the relevant law.

When a state court's adjudication of a claim is

dependent on an antecedent unreasonable

application of federal law, the requirement set

forth in § 2254(d)\(1) is satisfied. A federal

court must then resolve the claim without the

deference AEDPA otherwise requires.

Id. at 2858-59 (internal citations & quotations

omitted).

The Second Circuit failed to abide by this

standard in denying relief to Petitioner:

Regardless, King has identified no decision by

the Supreme Court, this Court, or any other

federal court addressing a claim by a former

parolee who had been mistakenly discharged

from parcle. Given the total absence of

authority on the due process rights of an

individual in King’s position, we cannot

conclude that the \ppellate Division’s decision

was “contrary to, or involved an unreasonable

application of, clearly established Federal law”

within the meaning of 28 U.S.C. § 2254(d\{1).

7a-8a (footnote omitted).

The Second Circuit reasoned that the Appellate

Division’s decision was not an _ “objectively

unreasonable” application of federal law because the

Supreme Court has not decided a rescission of

discharge case. This analysis is incorrect. The

“unreasonable ~ application” prong of Section

2254(d)(1) requires the court to look to the holdings

of the Supreme Court and apply them by close

analogy to the facts presented. As noted above, in

Young, the Supreme Court rejected the kind of

excuses offered by the Board and held that the

inmate on pre-parole release had a liberty interest in

his freedom. By analogy, Petitioner had a similar

liberty interest.

Accordingly, the Second Circuit’s analysis does

not follow Panetti. It applied the wrong standard to

the extent it drew on § :ndin. To the extent it relied

on Morrissey and Young, it was unreasonable to hold

that those cases do not require the concivsion that

Petitioner as a former parolee had a liberty isterest

in his parole termination. For the reasons explained

above, it was unreasonable to deny Petitioner the

process owed under the analogous circumstances

addressed in Morrissey and Young.

The Appellate Division’s decision was _ also

contrary to clearly established federal law and an

unreasonable application of such law because it

relied on state court cases in which the appellants

did not have a liberty interest and were not entitled

to review, rather than federal cases like Morrissey in

which the petitioner had a liberty interest and was

entitled to due process. The cases cited by the

Appellate Division mainly discussed petitioners who

sought parole or release from prison. It was plainly

contrary to clearly established law to. treat

Petitioner’s constitutional ‘issues as if they were

merely discretionary parole release issues which

ordinarily do not involve liberty interests. The

Appellate Division’s misclassification of Petitioner as

an individual without a liberty interest and failure

to accord him due process was unreasonable and

contrary to federal law.

According to Panetti, the Appellate Division

should have applied legally and factually analogous,

though not identical, decisions of this Court to hold

that the cecisions of the federal courts and New

York appellate courts violated the Supreme Court's

holdings.

D. The Writ Should Be Granted In The Interest Of

Due Process

Petitioner had to litigate for years the right to be

given fair consideration for parole, establishing the

leading case in New York on parolees’ -rights in the

parole determination process. He has been a model

citizen during his incarceration and since he has

been on parcle. He has now been litigating the

unlawful withdrawal of the termination of his parole -

for almost cight years. He was a free man for almost

a month and his sentence had been terminated, yet

New York State has continued unlawfully to exercise

control over his life. The Second Circuit's decision

stated that Petitioner had been “erroneously”

granted the termination of his parole. 7a. This

statement begs the very question that would have

been determined at a due process hearing. It is

Petitioner's view that, on the contrary, a due process

hearing would show, not that his parole was

“erroneously” terminated, but that the reasons given

for its withdrawal were pretextual, that it was

withdrawn for political expediency, and that the

termination of his parole was properly granted and

should be reinstated.

CONCLUSION

The Second Circuit’s decision is both plainly

wrong and, in real-world terms, quite significant.

The Appellate Division was similarly wrong. This

Court should grant the petition for certiorari and

either summarily reverse or set the case for briefing

and argument.

Dated: New York, New York

August 4, 2008

Respectfully submitted,

Myror Beldock

Beldock Levine & Hoffman LLP

99 Park Avenue, Suite 1600

New York, New York 10016

(212) 490-0400

On the brief:

Vera M. Scanlon

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Thurgood Marshall U.S. Court House

40 Foley Square, New York, N.Y. 10007

Catherine O'Hagan Wolfe

CLERK OF COURT

At a stated term of the United States Court of

Appeals for the Second Circuit, held at the Daniel

Patrick Moynihan. United States Courthouse, 500

Pearl Street, in the City of New York, on the 8' day

of May two thousand and eight,

Darry! King,

Petittoner-Appellant,

New York State Division of Parole, New York State

Board of Parole, Robert Dennison,

Respondent-Appellees.

ORDER

No. 05-1860-pr

Darryl King having filed a petition for panel

rehearing, or, in the alternative, for rehearing en

banc, and the panel that determined the appeal

having considered the request for panel rehearing,

and the active members. of the court having

considered the request for rehearing en banc,

IT 1S HEREBY ORDERED that the petition is

denied.

For the Court

Catherine O'Hagan Wolfe, Clerk

eer

a 1 4] _—

FranKfPerez, Deputy Clerk 77

Myron Beldock Esq.

Beldock Levine & Hoffman LLP

99 Park Avenue

New York, NY 10016

King v. New York State Div. of Parole C.A.2 (N.Y.),

2008.

This case was not selected for publication in the

Federal Reporter.

United States Court of Appeals, Second Circuit.

Darryl KING,

Petitioner-Appellant,

Vv.

NEW YORK STATE DIVISION OF PAROLE,

New York State Board of Parole, & Robert Dennison,

Respondents-Appellees.

No. 05-1860-pr.

Jan. 16, 2008.

AFTER ARGUMENT AND UPON DUE

CONSIDERATION, IT IS HEREBY. ORDERED,

ADJUDGED, AND DECREED that the judgment of

the District Court is AFFIRMED.

Myron Beldock, Vera M. Scanlon, Beldock Levine &

Hoffman LLP, New York, NY, for Petitioner-

Appellant.

Lisa Fleischmann, Assistant Attorney General

(Andrew M. Cuomo, Attorney General of the State of

New York, Barbara D. Underwood, Solicitor General,

Luke Martland, Assistant Attorney General, on the

brief), New York, NY, for Respondents-Appellees.

PRESENT: Hon. CHESTER J. STRAUB, Hon.

RICHARD C. WESLEY, Hon. DEBRA ANN

LIVINGSTON, Circuit Judges.

SUMMARY ORDER

**] Petitioner Darry! King appeals from the

judgment of the United States District Court for the

Eastern District of New York (Allyne R. Ross, Judge)

denying his petition for a writ of habeas corpus

pursuant of 28 U.S.C. § 2254. On appeal, King

argues that the District court erred in concluding

that the September 2000 decision by the New York

State Board of Parole (the “Board”) to revoke his

erroneously granted discharge from _ supervised

parole and its denials in June 2001 and March 2003

of his discharge requests did not violate King’s rights

protected by the Due Process and Equal Protection

Clauses of the Fourteenth Amendment to the United

States Constitution.*-N! We presume the parties’

familiarity with the underlying facts and procedural

history of the case.

FN1. On March 2, 2007, King submitted a

motion to expand the record to include

documents previously requested from, but not

provided by, Respondents-Appellees. We grant

Kings motion and have considered the

documents in question.

We review a district court's denial of a petition for a

writ of habeas corpus de novo. Eze v. Senkowski, 321

F.3d 110, 120 (2d Cir. 2003). If a state court has

already adjudicated a claim on the merits, we may

not grant the writ unless the state court proceedings

either:

(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). A_ state court decision is

“contrary to ... clearly established Federal law” if the

state court reached a “conclusion opposite to that

reached by |the Supreme] Court on a question of

law,’ or if the state court “confronts facts that are

materially indistinguishable from a_e relevant

Supreme Court precedent and arrives at a result

| opposite to” that precedent. Williams v. Taylor, 529

U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389

(2000). A state court decision constitutes an

“unreasonable application” of such precedent when

the state court “identifies the correct governing legal

rule” but “unreasonably applies it to the facts” of the

case, “unreasonably extends a legal principle rom

[Supreme Court] precedent to a new context where it

should not apply or unreasonably refuses to extend

that principle to a new context where it should

apply.” /d. at 407, 120 S.C.t. 1495. To be an

“unreasonable application” of clearly established

federal law, the state court decision must be

“objectively unreasonable’ and not merely “incorrect

or erroneous.” Lockyer v. Andrade, 538 U.S. 63, 75,

123 S.Ct. 1166, 155 L.Ed.2d 144 (2003).

In his petition, King does not argue that the

Appellate Division reached any unreasonable factual

determinations in his case. Instead, King argues

that the Appellate Division failed to apply existing

law governing his rights under the Due Process and

Equal Protection Clauses of the Fourteenth

Amendment to the United States Constitution. With

regard to his Due Process claim, King advances two

theories of relief. The first is that the Board's

revocation of his discharge from parole in September

2000 violated his due process rights because he was

allegedly deprived of a protectible liberty interest

with no pre-deprivation hearing. Due to the fact that

the Appellate Division of the New York Supreme

Court considered and rejected this claim on the

merits, we must decide whether that state court

proceeding was “contrary to” or an “unreasonable

application of” clearly established federal law. 28

U.S.C. § 2254(d)(1).

“2 The Supreme Court has instructed that whether

a purported right is protected by the Due Process

Clause of the Fourteenth Amendment depends on

the “nature of the’ interest at stake.” Bd. of Regents

v. Roth, 408 U.S. 564, 571, 92 S.Ct. 2701, 33

L.Ed.22d 548 (1972). Specially, in order te consider a

right protectible; “a person clearly must have more

than an abstract need or desire for it. He must have

more than a unilateral expectation of it. He must,

instead, have a legitimate claim of entitlement to it.

Id. at 577, 92 S.Ct. 2701. In arguing that he had

such an entitlement to his discharge from parole

once it had been given, erroneously or not, King

relies primarily upon two Supreme Court decisions.

In Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593,

33 L.Ed.2d 484 (1972), the Court held that a parolee

must be given a hearing prior to having his parole

status revoked and being incarcerated again.

Similarly, in Young v. Harper, 520 U.S. 1438, 117

S.Ct. 1148, 137 L.Ed.2d 270 (1997), the Court

extended the holding of Morrissey to revocations of

“preparole’-a temporary status conferred on certain

Oklahoma inmates by which the state parole board

would release the inmate and subject him to normal

parole conditions and supervision. /d. at 145, 149-53,

117 S.Ct. 1148. The Oklahoma governor would

eventually decide whether the preparolee deserved

full parole status: if not, the preparolee would be

returned to incarceration. /d. (holding that a

preparolee deserved a pre-deprivation hearing).

Based upon these decisions identifying a

“liberty interest” in such circumstances, King argues

that a parolee who-has been informed of his

discharge from parole surely must also have such a

liberty interest.*N? However, there is a significant

difference between a parolee or preparolee losing

such status - and, thus, facing reincarceration-and a

recently and erroneously discharged parolee who

must return to his status of only a few weeks before.

Regardless, King has identified no decision by the

Supreme Court, this Court, or any other federal

court addressing a claim by a former parolee who

had been mistakenly discharged from parole.*N%

Given the total absence of authority on the due

process rights of an individual in King’s position, we

cannot conclude that the Appellate Division’s

decision was “contrary to, or involved’=§ an

unreasonable application of, clearly established

Federal law’ within the meaning of 28 U.S.C. §

2254(d)(1).

FN2. In a similar vein, King argues that

regulations governing Board decision to

rescind an individual’s parole status “should

have at least guided” the Board in its decision

to revoke his discharge from parole. In

advancing this argument, King cites decisions

by the New York courts interpreting such

regulations and considering the process due to

a parolee whose parole status may be

rescinded. However, King fails to identify any

regulation specifically addressing the

revocation of a parolee’s erroneous discharge

from parole. Indeed, the only apparently

applicable regulation simply provides that

“lijn its discretion, the [B]oard may revoke or

modify any of its decision or determinations.”

9 N.Y.C.R.R. § 8000.4. Lacking any basis that

the Board violated its own regulations in his

case, King’s argument here is largely the same

as his argument that a parolee who has been

erroneously discharged has the same due

process rights as a parolee or preparolee

whose status may be rescinded.

FN3. King also relies upon Earley v. Murray,

451 F.3d 71 (2d Cir.2006), where we held that

a state agency may not administratively alter

a sentence imposed by a state court without

violating the Due Process Clause. /d. at 75-76.

However, such a situation is distinguishable

from the instant case, where an agency

erroneously provides discretionary relief from

a proper sentence, recognized its error, and

reverses its decision.

King’s second due process argument is that

the Board violated his due process rights when it

revoked his discharge status in September 2000 and

denied his discharge request in June 2001 and

March 2003; King argues that these decisions were

“irrational, arbitrary or capricious.” See Hamdi v.

Rumsfeld, 542 U.S. 507, 529, 124 S.Ct. 2633, 159

L.Ed.2d 578 (2004). King presented this claim to the

Appellate Division and it was rejected on its merits.

Therefore, we review the decision of the Appellate

Division to determine whether it was “contrary to, or

involved an unreasonable application of, clearly

established Federal law.” 28 U.S.C. § 2254(d)(1).

With regard to the September 2000 revocation, King

disputes the legitimacy of the two _ rationales

provided by the Board: (1) the absence of a mental

status report in his file, and (2) a miscalculation by

the Board of the number of months King had spent

on supervised parole or work-release. lrrespective of

the number of months King had been a supervised

parolee, he offers no persuasive argument why it

was “irrational, arbitrary or capricious’ for the board

to revoke his discharge while completed and

submitted a mental status report. On this point,

King only cites his own affidavit as evidence that an

unidentified parole officer had informed King that

10a

such a report was necessary. Such a paucity of

evidence is insufficient to demonstrate that the

Board’s decision was “irrational, arbitrary or

capricious.”

**3 As to the subsequent denials of his discharge

requests King argues that the Poard provided

“improper reasons’ for these decisions that were

“entirely different” from those used to justify the

revocation of his discharge. However, the relevant

statute provided the Board with broad authority to

grant a discharge from parole if the Board was

“satisfied” that such action would be “in the best

interests of society.” N.Y. Exec. Law § 259-}(4). The

Board based its June 2001 denial of King’s request

for a discharge upon the “extremely violent nature of

the instant offense, during the course of which a

human life was taken (off duty NYC police officer).”

In March 2003, the Board denied King’s request on

the ground that his discharge “is not in the best

interests of society: due to the “extreme seriousness

of the instant offense wherein an off duty - police

officer was shot to death.” At that time, the Board

recognized that King “has made a_ positive

adjustment to supervision,” but it stated that

granting his “discharge would deprecate the

seriousness of his crime as to undermine respect for

the law.” King characterizes these rationales as “old

facts [that] will never change, no matter how long

Mr. King stays on parole as a model parolee.” In

addition, King speculates that another motivation

behind the denials of his discharge requests was the

“anti-parole policy” of the New York governor. In

advancing these arguments, King essentially

lla

questions the fairness of the New York parole

statute for parolees, like himself, who have been

convicted of violent crimes and speculates that

political considerations affect the Board’s decision-

making. King also argues that the Board’s expressed

rationale for denying his discharge request cannot be

the true motivation because it differs from the

reasons provided by the Board ten months earlier in

rescinding his discharge from parole on the ground

that it was erroneously given. However, it should not

be surprising that the Board would articulate

different rationales for different agency decisions in

different contexts, and King has identified ao

statutory or regulatory requirement that the Board

must always apply the identical justifications to all

of its decisions regarding the same parolee. As with

his challenge to the September 2000 revocation of

his discharge from parole, King cannot rely upon

mere speculation and conjecture in arguing that the

subsequent denials of his discharge requests were

“irrational, arbitrary or capricious.’

King’s Equal Protection claim does not require

lengthy analysis.*N4 In asserting a claim based upon

the Equal Protection Clause, King relies upon the

“class of one” theory articulated in Vill. of

Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073,

145 L.Ed.2d 1060 (2000). In the decision, the

Supreme Court recognized the viability of an Equal

Protection claim “where the plaintiff alleges that she

has been intentionally treated differently from

others similarly situated and that there is no

rational basis for the difference in treatment.” Jd. at

564, 120 S.Ct. 1073. We have subsequently held that

12a

“the level of similarity between [such] plaintiffs and

the persons with whom they compare themselves

must be extremely high.” Neilson v. D’Angellis, 49

F.3d 100, 104 (2d Cir. 2005). Here, as the District

Court observed, King has failed to identify a single

individual with whom he can be compared Equal

Protection purposes. As a result, this claim is wholly

deficient, and the District court did not err in

denying King’s petition on this ground.FN®

FN4. We agree with the District Court that

King’s Equal Protection claim is unexhausted

because he did not raise it before the

Appellate Division. However, like the District

Court, we reach the merits of King’s clam. 28

U.S.C. § 2254(b)(2).

FN5. King attempts to redeem his Equal

Protection claim by arguing that the District

Court erred in denying his request for

discovery on this claim. However, the District

Court did not exceed its allowable discretion

in its regard because King’s request appears

overly broad and vague. As such, King failed

to demonstrate “good cause” for the discovery.

See Rules Governing Secition 2254 Cases,

Rule 6(a), 28 U.S.C.A. § 2254. Therefore, the

District Court properly denied his request.

**4 In sum, we have considered all arguments

presented by King in this appeal and find them to be

without merit. For the foregoing reasons, we GRANT

King’s motion to expand the record and AFFIRM the

judgment of the District Court.

C.A.2 (N.Y.),2008

King v. New York State Div. of Parole

260 Fed.Appx. 375, 2008 WL 145504 (C.A.2 (N_Y.))

14a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

DARRYL KING,

Petitioner,

-against-

NEW YORK STATE DIVISION OF PAROLE, et al:,

Respondent.

04 CV 2592 (ARR)

NOT FOR

PUBLICATION

OPINION AND ORDER

ROSS, United States District Judge:

Petitioner Darryl King (“King” or “petitioner’)

filed the instant petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254 on June 23, 2004.

Petitioner challenges the state Parole Board's

rescission Of his discharge from parole and _ its

subsequent denial of discharge. Petitioner claims

that respondent's actions: (1) violated his liberty

interest in the discharge that arose when it was

originally granted; (2) were irrational, arbitrary and

capricious, in violation of his due process rights; (3)

deprived him of his right to equal protection under

the Fourteenth Amendment; and _ (4) were

illegitimate and outside the scope of the Parole

Board's authority. For the reasons stated below, the

court denies the petition for a writ of habeas corpus.

ISa

BACKGROUND

Petitioner's case has a long and serpentine

procedural history. Petitioner was _ originally

convicted on May 24, 1971 in Supreme Court, Kings

County, of murder, second degree manslaughter,

attempted robbery in the first degree, attempted

grand larceny in the third degree, two counts of

assault in the first degree, and a weapons possession

charge. The charges arose out of the shooting death

of an off-duty police officer during the robbery of a

fast food restaurant by two men on May 25, 1970.

Petitioner was the only person arrested and tried for

the. crime. Petitioner's conviction was affirmed on

appeal to the Appellate Division, People v. King, 42

A.D.2d 587 (2d Dep't 1973), and the Supreme Court

of the United States ultimately denied certiorari.

King v. New York, 419 U.S. 858 (1974). Petitioner

thereafter sought to collaterally attack his conviction

through at least two section 440 motions, neither of

which was successful. People v. King, 79 A.D.2d 992

(2d Dep't 1981), leave to appeal denied, 53 N.Y.2d

709 (1981).

Under then-applicable New York law, a

hearing was held on April 23, 1971 to determine

whether the jury would impose the death penalty or

life imprisonment. If the jury did not impose the

death penalty, petitioner would be sentenced to life

imprisonment and the judge would determine,

within statutory limits, a minimum period of

imprisonment (MPI) after which the petitioner

would be eligible for parole. See King v. Hoke, 825

F.2d 720, 721 (2d Cir. 1987). After the sentencing

l6a

judge explained to the jury the law that would guide

his determination of the MPI, the jury voted for life

imprisonment. On habeas review, the Second Circuit

determined that the sentencing judge had an

incorrect view of the applicable parole law and

directed the federal district court to conditionally

vacate King's sentence unless the state arranged for

resentencing within ninety days. /d. at 724-25.

Petitioner was thereafter resentenced to a term of

imprisonment of twenty years to life, making him

first eligible for parole release on May 28, 1990.

King v. New York State Div. of Parole, 190 A.D.2d

423, 425 (1st Dep't 1993).

Petitioner's first appearance before the Parole

Board resulted in a denial of his application, a

determination that was subsequently vacated on the

basis that a commissioner had served improperly on

both the original panel and the appellate panel. Jd.

Petitioner was granted a new hearing, which took

place in October 1991, and his application was again

denied. His next appearance before the Parole

Board occurred only four months later, on February

14, 1992. The board denied petitioner's application.

Petitioner then commenced an Article 78 proceeding

challenging the board's determination. By order

entered January 12, 1993, the Supreme Court, New

York County granted the petition, annulled the

board's determination, and ordered that petitioner

be released to parole supervision. 190 A.D.2d 423.

On appeal, the Appellate Division determined that

the Board had failed to give fair consideration to the

statutory factors governing parole decisions. The

court reversed the Supreme Court's order requiring

17a

respondent to release’ petitioner to _ parole

supervision, however, remanding the matter for a de

novo hearing before a new panel of the Parole Board.

Id. at 435. The Court of Appeals affirmed the

Appellate Division's ruling by order dated June 3,

1993, finding that petitioner had not been afforded a

proper hearing because one of the commissioners

had considered factors outside the scope of the

applicable statute. King v. New York State Division

of Parole, 83 N.Y.2d 788 (1994).

Of greatest relevance to the instant petition is

a decision of the Parole Board dated June 7, 2001

denying petitioner a discharge from _ parole.

Petitioner had been released to parole supervision on

July 6, 1995. The Parole Board thereafter granted

petitioner an absolute discharge from parole on

August 25, 2000, but rescinded that determination

one month later on September 18, 2000. The Board

denied petitioner's request for an absolute discharge

on June 7, 2001. Petitioner later learned, through a

letter dated January 2, 2001, that the Board had

rescinded his discharge because the report on which

the discharge was based (1) indicated 84 months of

parole supervision rather than the actual 66 months

of parole supervision and 18 months of work release,

and (2) failed to include a current mental status

evaluation. Respondent's Exhibit E. Petitioner also

learned that the Board had denied his discharge

request on June 7, 2001, after his discharge had

been rescinded, on the basis of “the extremely violent

nature’ of his offense and because “to release the

subject from supervision at this juncture would

18a

depreciate the seriousness of his criminal act.”

Respondent's Ex. F.

Petitioner commenced an_= Article 78

proceeding to review the Board's determination. By

order dated May 24, 2002, the Supreme Court, Kings

County, vacated the determination and directed the

New York State Division of Parole to reconsider

petitioner's application for discharge. On appeal, the

Appellate Division reversed the lower court's order,

confirmed the Board's determination, and dismissed

the proceeding on the merits. King v. New York

State Div. of Parole, 306 A.D.2d 482 (2d Dep't 2003).

The court found that “(tlhe discretionary

determination of the New York State Division of

Parole to deny the petitioner a discharge from parole

was made accordance with the law and, therefore, is

not subject to judicial review.” /d. (citations omitted).

The Court of Appeals denied leave to appeal by order

dated November 25, 2003. King v. New York State

Div. of Parole, 1 N.Y.3d 502 (2003). Petitioner filed

the instant petition for a writ of habeas corpus on

June 23, 2004, within the one year statute of

limitations.

DISCUSSION

[. AEDPA Standard of Review

The Anti-Terrorism and Effective Death

Penalty Act (“AEDPA”), enacted in 1996, established

a deferential standard that federal habeas courts

must apply when reviewing state court convictions.

28 U.S.C. § 2254(d). The .statute provides, in

pertinent part:

19a

(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 claim — (1) resulted in a

decision that was eegtrary 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.

“{C}learly established Federal law, as determined by

the Supreme Court of the United States” “refers to

the holdings, as opposed to the dicta, of [the

Supreme] Court's decisions as of the time of the

relevant state-court decision.” Williams v. Taylor,

529 U.S. 362, 442 (2000). A state court decision is

“contrary to” clearly established Supreme Court

precedent if “the state court applies a rule that

contradicts” Supreme Court precedent or if “the state

court confronts a set of facts that are materially

indistinguishable from a decision of thle] Supreme

Court and nevertheless arrives at a result different

a from that precedent.” /d. at 405-06. With respect to

the “unreasonable application” clause, “a federal

habeas court...should ask whether the state court's

application of clearly established federal law was

objectively reasonable.” /d. at 409. In determining

20a

whether an application was objectively

unreasonable, “the most important: point is that an

unreasonable application of federal law is different

from an incorrect application of federal law.” Jd. at

410. Interpreting Williams, the Second Circuit has

added that although “[slome increment of

incorrectness beyond error is required . .. the

increment heed not be great; otherwise, habeas relief

would be limited to state court decisions so far off

the mark as to suggest judicial incompetence.”

Frances S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)

(internal quotation marks and citations omitted).

This deferential standard applies whenever the state

court has adjudicated the federal claim on the

merits, even if it did not explicitly refer to the federal

claim or discuss the reasoning for fts decision, as

long as the decision finally resolved a party's claims

and was based on the substance of the claim

advanced, rather than on a procedural ground.

Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001).

LT. Exhaustion

In the past, a state prisoner's federal habeas

petition had to be dismissed if the prisoner did not

exhaust available state remedies as to any of his

federal claims. Sée Rose v. Lundy, 455 U.S. 509,522

(1989). “This exhaustion requirement is

grounded in principles of comity; in a federal system,

the States should have the first opportunity to

address and correct alleged violations of [a] state

prisoner's federal rights.” Coleman v. Thompson, 501

U.S. 722, 731 (1991). The exhaustion requirement

requires the petitioner to have presented to the state

21a

-court “both the factual and legal premises of the

claim he asserts in federal court.” Dave v. Attorney

General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc).

Pursuant to AEDPA, a district court may now, in its

discretion, deny on the merits habeas petitions

containing unexhausted claims — so called “mixed

petitions.” See 28 U.S.C. § 2254(b\2) (“An

application for a writ of habeas corpus may be

denied on the merits, notwithstanding the failure of

the applicant to exhaust the remedies available in

the courts of the state.”).

Exhaustion of a federal: constitutional claim in

state court does not invariably require citation of

“book and verse on the federal constitution.” Picard

v. Connor, 404 U.S. 270, 278 (1982) (internal

quotations omitted). A claim may be presented for

habeas review even if the federal grounds were not

explicitly asserted before the state courts if the

petitioner, in asserting his claim before the state

court, relied on pertinent federal cases employing

constitutional analysis, relied on _ state cases

employing constitutional analysis in like fact

situations, asserted his claims in terms so particular

as to call to mind specific rights protected by the

constitution, or alleged a pattern of facts well within

mainstream of constitutional litigation. See Dave,

696 F.2d at 186.

Ill. Equal Protection

Petitioner raises an equal protection claim for

the first time in his habeas petition, having failed to

assert such a claim in state court. Petitioner invokes

22a

the “class of one” equal protection theory established

by the Supreme Court's holding in Village of

Willowbrook v. Olech, 528 U.S. 562 (2000).

Specifically, petitioner claims that the Parole Board

violated his equal protection rights when it

rescinded his discharge from parole, purportedly on

the basis of political pressure from the governor that

violent offenders not be discharged from parole and

in order to retaliate against him for his previous

challenges to the Board's rulings. Because petitioner

never raised an equal protection claim in state court,

the claim is unexhausted. Respondent concedes that

the claim concerns off-the-record matters and that

petitioner could still raise the claim in state court in

a section 440 motion. The court may, however, deny

an unexhausted claim on the merits. 28 U.S.C. §

2254(b\X2); Aparacio v. Artuz, 269 F.3d 78, 90 n.5 (2d

Cir. 2001).

The Second Circuit has determined that to

succeed on a “class of one” equal protection theory, a

claimant must establish: (1) that he or she has been

treated differently from others similarly situated; (2)

that the conduct was irrational and wholly arbitrary;

and (3) that there existed intentional disparate

treatment. Renis v. Thomas, No. 02 Civ. 9256

(ABRLE), 2003 WL 22358799, at *5 (S.D.N.Y. Oct.

16, 2003) (internal quotations and citations omitted).

As a preliminary matter, the court notes that

petitioner has alleged disparate treatment from

others similarly situated without identifying anyone

in particular or otherwise specifying the nature of

the disparate treatment. In fact, petitioner seems to

request discovery of statistics and other information

23a

relating to respondent's parole discharge

determinations. Petitioner's Repiy Brief at 27 n.7.

Habeas petitioners, however, are not usually entitled

to discovery. Bracy v. Gramley, 520 U.S. 899, 904

(1997). Rule 6(a) of the Rules Governing § 2254

Cases provides that a habeas petitioner-is entitled to

discovery “if, and to the extent that, the judge in the

exercise of his discretion and for good cause shown

grants leave to do so, but not otherwise.”

Generalized statements regarding the possibility of

the existence of discoverable material cannot yield

“good cause.” Renis, 2003 WL 22358799, at.*1

(citation omitted). In the absence of specific evidence

that the requested discovery would support the »

instant habeas petition, the court will not grant such

discovery. The court is not convinced that petitioner

has satisfied, or indeed can satisfy, the requirement

that he has been treated differently from similarly

situated parties: The court finds petitioner's claim of

disparate treatment infirm for the same reason that

it finds dubious petitioner's . claims about

respondent's intent. The rature of petitioner's claim

undermines any possible contention that he received

treatment that was intentionally different from the

treatment others received. Throughout his papers,

petitioner emphasizes that the Board has succumbed

to political pressure by denying “parole-related

benefits” to violent offenders. Petitioner's Reply

Brief at 27. It follows that when violent. offenders

have been discharged from parole, the Board's

decision in those cases must have been

unintentional. It also follows that petitioner has.not

sufficiently established disparate treatment. Finally,

petitioner has not established that the Board's

“

24a

decision was “irrational” and “arbitrary.” District

courts in this circuit have held on numerous

occasions that the Parole Board had a rational basis

to deny parole to violent offenders when it stated

that. to do otherwise would “depreciate the

seriousness of the crime.” See, e.g., Morel v. Thomas,

No. 02 Civ. 9622 (HB), 2003 WL 21488017, at *5

(S.D.N.Y. June 26, 2003). Thus, petitioner cannot

show that the Board's determination was irrational

or wholly arbitrary. Habeas relief is not warranted

on this claim.

IV. Due Process

While King's petition and his brief are not a

model of clarity, they seem to state two due process

claims. First, petitioner. argues that, once the

discharge from parole was granted, a liberty interest

was created that entifled him to a pre-deprivation

hearing. Second, petitioner claims that his due

process rights were violated because respondent's

action was: (1) taken without evidence; (2) irrational;

and (3) arbitrary,and capricious. The court will

address these two due process claims in reverse

order.

A. Irrational, Arbitrary, and Capricious Claim

The court notes preliminarily that petitioner's

umbrella due process claim, asserting that the

Parole Board's refusal to grant him a discharge after

having rescinded ané_e original discharge was

irrational, arbitrary and capricious, and that the

rescission lacked evidentiary basis, bears the

25a

hallmark of a claim properly brought in a state court

Article 78 proceeding. N.Y. C.P.L.R. § 7803. With

respect to petitioner's claim that the Board's actions

were irrationa:, arbitrary, and capricious, petitioner

did not explicitly invoke federal law or cite a single

federal case when he raised that claim before the

Appellate Division. Moreover, only one of the four

New York state cases cited in his brief to the

Appellate Division in support of the argument even

cited a federal case or employed _ federal

constitutional analysis, and the _ constitutional

analysis in that case did not address the “irrational,

arbitrary, and capricious” claim. Thus, rather than

asserting his claim before the state court in terms so

particular as to call to mind specific rights protected

by the constitution, petitioner asserted this claim in

the state court specifically in the idiom of Article 78

proceedings. Even in his brief to this court on federal

habeas review,.petitioner has relied on state court

decisions engaging in Article 78 review of parole

determinations..The court would be hard-pressed to

find that petitioner has presented a_ federal

constitutional claim that respondent's actions were

irrational, arbitrary, and capricious either to the

highest state court or in his habeas petition. As a

result, petitioner's claim would thus be unexhausted

and, in any event, not cognizable on federal habeas

review.

In fact, petitioner seems unaware of any

federal habeas court having reviewed a state parole

determination under an “irrational, arbitrary, or

capricious’ standard. That several district courts in

this circuit have done so recently does not transform

26a

petitioner's Article 78 claim into an exhausted

federal claim that this court may consider on habeas

review. The court will consider those cases

nonetheless, out of an abundance of caution, to

determine their applicability to petitioner's claim.

Several district courts have recognized that, because

the New York parole system does not create in any

prisoner a legitimate expectancy of release, citing

Barna v. Travis, 239 F.3d 169, 171 (2d Cir. 2001),

petitioner's federally-protected liberty interest ‘s

limited to not being denied parole for arbitrary and

capricious or impermissible reasons. Brown ov.

Thomas, No. 02 Civ. 9257 (GEL), 2003 WL 941940,

*1 (S.D.N.Y. March 10, 2003); Boddie v. New York

State Division of Parole, 288 F. Supp. 2d 431, 440

(S.D.N.Y. 2003); Manley v. Thomas, 255 F. Supp. 2d

263, 266 (S.D.N.Y. 2003); Morel v. Thomas, No. 02

Civ. 9622 (HB), 2003 WL 21488017, at *3 (S.D.N_LY.

June 26, 2003). Thus, insofar as federal habeas

courts review New York state parole determinations

to consider whether they were irrational, arbitrary,

or capricious, the court. finds that the standard is

applicable only to the extent that petitioner has no

liberty interest in the parole benefit. Significantly,

courts considering this analysis have consistently

held that the Parole Board is entitled to determine

that the nature of the crime outweighs any positive

aspects of a petitioner's record and to deny the

benefit on that basis. Brown, 2003 WL 941940, at

*2- Morel, 2003 WL 21488017, at *4-5.

In the instant case, petitioner apparently

argues that the Board's June 7, 2001 decision to

deny him a discharge from parole on the basis that

27a

he was a violent offender and that release from

Supervision would “depreciate the seriousness of his

criminal act” was irrational, arbitrary, and

capricious in light of the fact that it had previously

discharged him ffrom_ parole, presumably

determining that such discharge was “in the best

interest of the community” as required by New York

regulations before a parolee may be discharged. N.Y.

Exec. I. § 259-j. Petitioner argues, in particular, that

the Board's decision was arbitrary and capricious in

that it was driven by political considerations and

pressure from the governor that violent offenders not

be discharged from parole. Even if the court were to

find that petitioner presented this claim as a federal

constitutional claim to the state courts, which he has

not, or that he has presented such a claim in his

petition, which is less than abundantly clear, the

court is not inclined to find that the Board's decision

was irrational, arbitrary, or capricious. Even if the

court found sympathetic. petitioner's claim that the

Board's stated reasons for the rescission were

pretextual, the court could not conclude that the

Board's subsequent June 7, 2001 decision to deny a

violent offender a discharge from parole was

irrational, arbitrary, or capricious. In any event,

given that the Appellate Division — explicitly

dismissed the claim on the merits; 306 A.D.2d 482,

the court has no basis on which it may find that the

state court's decision was contrary to or involved an

unreasonable application of clearly established

federal law. Petitioner has failed to identify any

Supreme Court precedent that would compel such a

finding. Petitioner has invoked Morrissey v. Brewer,

408 U.S. 471 (1972), in which the Supreme Court

28a

held that parolees have a due process interest before

having their. parole revoked, and Greenholtz v.

Nebraska Penal and Correctional Complex, 442 U.S.

1 (1979), in which the Court determined that

prisoners seeking parole have a liberty interest only

where the state parole statute has specific standards

giving rise to a legitimate expectation of release. For

the reasons stated in detail below, the court cannot

find, on federal habeas review, that the Appellate

Division's decision confirming the Parole Board's

June 7, 2001 £determination involved an

unreasonable application of these precedents, even

if, on direct review, the court would be inclined to

reach a different conclusion. Petitioner seeks to

interpret those cases at a high level of generality to

establish due process standards required in cases

involving meaningful changes in parole status.

Petitioner has failed to establish, however, in what

way the Appellate Division's decision in his Article

78 appeal is contrary to or an_ unreasonable

application of the rules established in either case.

As for petitioner's claim that the Board's

rescission of his discharge from parole was without

evidentiary basis, the court is again hard-pressed to

find that petitioner raised this claim before the state

court in federal constitutional terms. In_ his

Appellate Division brief, petitioner relied on two

New-York state cases to support his argument that

the Board had. rescinded his discharge without

“substantial evidence.” Petitioner's Appellate

Division Brief at 24-25. While both cases arguably

employ federal constitutional analysis, neither do so

in like fact situations. Both cases address the

29a

procedures required for prisoners whose grant of

parole was rescinded, invoking constitutional

decisions of the Second Circuit. Even assuming that

petitioner did present a federal constitutional claim

to the state court, properly exhausting the claim for

purposes of federal habeas review, the court notes

again that the Appellate Division, in confirming the

Parole Board's determination; dismissed the

proceeding on the merits. Petitioner has not

established that the state court's ruling involved an

unreasonable application of clearly established

Supreme Court precedent. Petitioner has not, and

cannot, identify any Supreme Court precedent

requiring respondent to present a_ particular

quantum of evidence before a parole-related benefit

may be rescinded. Because the Appellate Division

decided petitioner's claim on the merits, and because

petitioner cannot persuasively argue that the

decision was contrary to or involved an unreasonable

interpretation of Supreme Court precedent, the court

may not grant habeas relief on this claim.

B. Liberty Interest

The thrust of petitioner's due process claim,

and of his entire petition, is that once the Parole

Board granted him a discharge from parole, he

developed a liberty interest in that discharge

entitling him to due process before it. could be

rescinded. Petitioner must emphasize that the

discharge itself created such an interest because it is

well-established that the New York statutes and

regulations grant broad discretion to the Parole

Board concerning discharges, giving parolees no

30a

liberty interest in a discharge that has yet to be

granted. See Carmona v. Ward, 439 U.S. 1091, 1098

(1979). There is no question that petitioner

presented this claim in federal constitutional terms

to the state court, and respondent concedes that the

claim is properly exhausted. Petitioner's claim raises

two intertwined issues, however, that lead the court

to find that the claim is not appropriately presented

in the habeas context.' The first issue is whether, in

fact, petitioner had a liberty interest in the

discharge, and second, if so, what remedy would be

appropriate.

As noted, New York law does not create in any

prisoner a legitimate expectancy of release on parole

and thus confers no liberty interest on parole

applicants. Barna v. Travis, 239 F.3d 169, 171 (2d

Cir. 2001). Similarly, New York law does not create

in any parolee a legitimate expectancy of discharge

from parole and thus confers no liberty interest in

early discharge. Smiley v. Westby, No. 87 Civ. 6047

(LAP), 1994 WL 519973, at *5-6 (S.D.N.Y. Sept. 22,

1994). These cases interpreted the Supreme Court's

decision in Greenholtz and determined that the New

' The court notes that, in his petition, petitioner stated

that he was seeking habeas relief or, in the alternative,

“relief under 42 U.S.C. § 1983.” Petitioner's brief “n

support of his petition, which was submitted by counscl,

does not invoke section 1983. Thus, the court does not

treat his filings in this case to present a claim under

section 1983. Petitioner is represented by counsel, and he

is free to commence an action under section 1983 if he so

desires.

3la

York parole scheme, unlike the Nebraska scheme

analyzed by the Court in that case, created no

legitrmate expectation of a _ parole _ benefit.

Notwithstanding the fact that the New York parole

scheme does not entitle applicants for parole-benefits

to any Greenholtz process, petitioner relics on

Greenholtz to argue that he was deprived of a liberty

interest. Petitioner also invokes in support of his

claim the Supreme Court's decision in Morrissey, in

which the Court found that parolees are entitled to

certain process before having their parole revoked

for violation of the conditions of their release.

Petitioner claims that these cases constitute clearly

established federal law making clear that a

petitioner in his position, whose discharge from

parole was rescinded on the basis of a mistake 1n the

original determination, has been deprived of a

liberty interest. The court does not agree. While the

Supreme Court may issue such a ruling in the

future, it has not yet done so. The court cannot find

that the Appellate Division's ruling involved an

unreasonable application of either Greenholtz or

Morrissey. Morrissey arguably involves a much more

significant deprivation of liberty than presented in

this case, and, as noted, Greenholtz arguably has

little, if any, relevance to petitioner's claim both

because the New York statute does not fall within its

ambit and because Greenholtz explicitly covers only

the due process rights of parole applicants.

It is not clear what remedy would be

appropriate were petitioner determined to have a

liberty interest in the discharge. Neither petitioner

nor respondent sheds any light on this issue. In light

32a

of the fact that petitioner pursued his case via an

Article 78 proceeding and has received subsequent

determinations from the Parole Board regarding his

request for absolute discharge, the court conceives

that the only possible remedy on habeas review

would be to order a new hearing by the Parole

Board. The Appellate Division denied petitioner

that relief, however, on the merits. Because

petitioner has not shown that the state court's

decision was contrary to or involved an unreasonable

application of Supreme Court .precedent, habeas

relief is not warranted on this claim.

V. Lack of Authority to Rescind the Discharge

In his petition, petitioner claims that the

Parole Board lacked authority to rescind his

discharge. Petitioner did not pursue this claim in

his brief, and, as a result, the court need not belabor

the issue. Petitioner argued to the Appellate

Division that “[tlhe grounds upon which Petitioner's

discharge was rescinded and later denied are outside

the scope” of the governing state regulations.

Petitioners' Appellate Division Brief at 20. This

claim was presented to the state court as a claim

grounded in state law, and, to the extent petitioner

has presented the claim for federal habeas review,

he only reiterates the state law claim. Thus,

petitioner's claim is not cognizable on federal habeas

review.

33a

CONCLUSION

For the foregoing reasons, the court denies the

instant petition for a writ of habeas corpus. No

certificate of appealability is granted with respect to

any of the petitioner's claims, since the petitioner

failed to make a substantial showing of any denial of

his constitutional rights. The petitioner has a right

to scek a certificate of appealability from the United

States Court of Appeals for the Second Circuit. 28

U.S.C. § 2253

The Clerk of the Court is directed to enter judgment

accordingly

SO ORDERED.

Allyne R. Robs —

United States District Judge.

Dated: March 21. 2005

Brooklyn, New York

SERVICE LIST

Attorneys for Petitioner

Myron Beldock

Beldock Levine & Hoffman LLP

99 Park Avenue

New York, NY 1LOO16

Vera M. Scanlon

Beldock Levine & Hoffman LLI

99 Park Avenue

Suite 1600

New York, NY LOOL

Attorne, for Re pt ; di

Kimberly Terika Morgan

State of New York

Office of the Attorney Gener

120 Broadway

New York, NY 10271

King v. New York State Div. of Parole

N.Y. 2003

(The Decision of the Court of Appeals of New York is

referenced in the North Eastern Reporter and New

York Supplement in a table entitled “Motions for

Leave to Appeal Granted or Denied.” )

Court of Appeals of New York

In Matter of Darry! King

New York State Division of Parol«

NOS. 2-13, 892

November 25, 2003

2d Dept.: 306 A.D.2d 482, 761 N.Y.S.2d 515

Denied

NY. 2003

King v. New York State Div. of Paroie

1 N.Y.38d 502, 807 N.E.2d 289, 775 N.Y.S.2d 239

Table)

36a

King v. New York State Div. of Parole

N.Y.A.D. 2 Dept. 2003.

Supreme Court, Appellate Division,

Second Department, New York.

In the Matter of Darryl KING,

Respondent,

Vv,

NEW YORK STATE DIVISION OF PAROLE, et al.,

Appellants.

June 23, 2003.

Eliot Spitzer, Attorney-General, New York, N.Y.

(Michael S. Belohlavek and David Axinn of counsel),

for appellants.

Beldock Levine & Hoffman, LLP, New York, N.Y.

(Myron Beldock and Vera M. Scanlon of counsel), for

respondent.

In a proceeding pursuant to CPLR article 78 to

review a determination of the New York State Board

of Parole dated June 7, 2001, denying the petitioner

a discharge from parole, the New York State

Division of Parole and Brion D. Travis appeal from

an order of the Supreme Court, Kings County

(Knipel, J.), dated May 24, 2002, which vacated the

determination and directed the New York State

Division of Parole to reconsider an application for

discharge within 30 days.

37a

ORDERED that on the court's own motion, the

appellants’ notice of appeal is treated as an

application for leave to appeal, and leave to appeal is

granted (see CPLR 5701{c]); and it is further,

ORDERED that the order is reversed, on the law,

without costs or disbursements, the petition is

denied, the determination is confirmed, and the

proceeding is dismissed on the merits.

The discretionary determination of the New York

State Division of Parole to deny the petitioner a

discharge from-parole was made in accordance. with

the law and, therefore, is not subject to judicial

review (see Matter of Gallo v. Travis, 245 A.D.2d 448,

666 N.Y.S.2d 478; see also People ex rel. Lord

Organic Allah v. New York State Bd. of Parole, 158

A.D.2d 328, 329, 551 N.Y.S.2d 16; cf. Matter of

Flomer vu. Travis, 229 A.D.2d 553, 750 N.Y.S.2d 519,

lv. denied 99 N.Y.2d 508, 757 N.Y.S.2d 818, 787

N.E.2d 1164; Matter of Almeyda v. New York State

Div. of Parole, 290 A.D.2d 505, 736 N.Y.S.2d 275;

Matter of Thomas v. New York State Div. of Parole,

286 A.D.2d 393, 394, 729 N.Y.S.2d 160; Matter of

Silmon v. Travis, 266 A.D.2d 296, 698 N.Y.S.2d 685).

FEUERSTEIN, J.P., SCHMIDT, MASTRO and

RIVERA, JJ., concur. N.Y.A.D. 2 Dept. 2003.

King v. New York State Div of Parole

306 A.D.2d 482, 761 N.Y.S.2d 515, 2003 N.Y. Slip

On. 15550

38a

SUPREME COURT OF THE STATE OF NEW

YORK, COUNTY OF KINGS

In the Matter of the Application of

Darryl! King,

Petitioner,

-against-

New York State Division of Parole, and Brion D.

Travis, Chair

Respondents.

* DECISION

By Lawrence Knipel, J.S.C.

Dated: May 24, 2002

Index No.: 46218/01

This is a proceeding, inter alia, pursuant to

CPLR article 78 to review a determination of the

respondent New York State Division of Parole dated

June 13, 2001, of which the petitioner was informed

by letter dated July 26, 2001, denying the

reapplication submitted by the local office of the

Division of Parole to discharge the petitioner from

parole.

In 1971, the petitioner was convicted, after a

jury trial, of felony murder, manslaughter in the

second degree, attempted robbery in the first degree,

39a

assault in the first degree, and possession of a

dangerous weapon, after an aborted holdup of a fast

-food restaurant in Brooklyn in which an off-duty

police officer was killed. In 1987, after the United

States Court of Appeals for the Second Circuit found

the petitioner’s sentence to be invalid, the petitioner

was resentenced to 20-years to life, thus becoming

eligible for parole release on May 28, 1990. The

denial of the petitioner's initial request for parole

was vacated since a member of the panel served on

the original and the appeals panel. Additional

hearings were held in October 1991 and on February

14, 1992, resulting in denials.

The petitioner challenged the latter denial in

a proceeding pursuant to CPLR article 78, which

was granted by the Supreme Court, New York

County (Wright, J.), in January’ 1993. The court

noted that despite the petitioners “excellent

reputation and accomplishments” parole release was

denied due to the serious nature of the offenses “in

which a young off-duty policeman was shot and

killed during a_ restaurant robbery” and

discretionary release would “deprecate the severity

of this brutal crime.” The court stated that without

diminishing the irreparable circumstances of a loss

of life, here “severity” appears to rest upon the

conclusion that a 23 year old off duty probationary

policeman was killed. The parole board was, in

effect, stating that because a police officer was killed,

parole would never be granted notwithstanding the

applicant's remarkable accomplishments. Making

the petitioner re-apply after 24 months would be

meaningless since no consideration was given to his

40a

rehabilitation and the severity of the crime would be

unaltered. The court concluded that “It is difficult to

imagine a case that cries out for parole louder than

this one” and directed the parole board to grant

parole.

The Appellate Division, First Department,

modified (Matter of King v. New York State Division

of Parole, 190 AD2d 423). The Appellate Division

noted that at resentencing, defense counsel claimed

ballistics evidence demonstrated that the petitioner

could not have been the shooter and pointed out that

the District Attorney’s brief to the Second Circuit

conceded that the petitioner had not fired the shot

(190 AD2d at 125). The court concluded that the

determination to deny petitioner’s application for

parole release must be set aside because “the

decision of the Board was fatally tainted by its

abdication of its responsibility to fairly consider all

relevant factors.” While the Appellate Division found

“it difficult to believe that petitioner would be denied

parole after a hearing at which the statutory factors

are fairly and properly applied, the Parole Board

should have the opportunity to make _ the

determination using the appropriate standard,” and

remitted the matter to the Board to hold a de novo

hearing before a “‘fferent panel. The Appellate

Division noted that the petitioner's submissions

before the Board “establish that petitioner's record

while in prison has been exemplary,” that it was the

Board’s duty “to give fair consideration to each of the

applicable statutory factors as to every person who

comes before it, and that. “there is strong indication

4la

that the denial of the petitioner's application was a

foregone conclusion.”

The Court of Appeals affirmed (83 NY2d 788),

stating that the Board must “consider certain

guidelines, including the inmate’s institutional

record, participation in a_ temporary release

program, and release plans” and that while it need

not expressly discuss each guideline, “it must

provide the inmate with a proper hearing in which

only the relevant guidelines are considered.” The

petitioner was placed on work release in 1993 and

was granted parole on July 6, 1995. The petitioner

now seeks an absolute discharge from parole.

According to Execute Law § 259-j, “if the board of

parole is satisfied that an. absolute discharge from

parole or from conditional release is in the best -

interests of society, the board may grant such a

discharge prior to the expiration of the full term or

maximum term to any person who has been on

unrevoked parole or conditional release for at least

three consecutive years.” By Memorandum dated

August 25, 2000, the Parole Board yranted an

absolute discharge to the petitioner.

By letter dated September 18, 2000, a senior

parole officer informed the petitioner “it has been

necessary for the Board of Parole to withdraw it’s

[sic] authorization for your early discharge” based on

“the Board’s finding errors and omissions in the

discharge summary.’ The letter stated that a current

mental status report has to be submitted to the

Board, and that once such a report was completed,

the matter would be resubmitted for consideration.

42a

In a memorandum dated January 2, 2001 to

the Parole Board, the “errors” were described .as

follows: (1) The discharge summary credited the

petitioner with 84 months of parole supervision,

mistakenly including 24 months of work release

which should not have been included as parole time.

The corrected report indicated 66 months of parole

supervision measured form the parole release date of

July 6, 1995; and (2) A mental health evaluation was

required (the petitioner states he was told by his

parole officer that a new mental health report was

not necessary since the one obtained when he was

found eligible for parole release was thorough and

positive).

The petitioner was evaluated by a psychiatrist

on November 20, 2000. The psychiatrist wrote that

the petitioner “demonstrated no _ psychiatric

symptoms. There are no psychiatric diagnoses. He is

not in need of psychiatric therapy.” The evaluator

saw “no reason why, from a psychiatric perspective

his parole should not be terminated. In short, I

recommend termination of parole.”

According to the petition, the Brooklyn

Division of Parole resubmitted a request for absolute

discharge from parole. By letter dated July 26, 2001,

the Executive Director of the Division of Parole

informed the petitioner that his request was

deferred and may be resubmitted January 2, 2003.

Accompanying that letter was a memorandum of the

Division of Parole stating that “Subject’s discharge is

denied due to the extremely violent nature of the

43a

instant offense, during the course of which a human

life was taken (off duty NYC police officer). To

release the subject from supervision at this juncture

would depreciate [sic] the seriousness of his-criminal

act. His positive adjustment is noted however a

longer period of supervision is necessary.”

The petitioner argues that the denial of his

request for discharge was unlawful, arbitrary and

capricious, inter alia, in that he was denied a

hearing and because the reasons given by the Parole

Board for denying the discharge were beyond the

scope of Executive Law § 259-j, bore no relationship

to the reasons given in the September 18, 2000 letter

rescinding the August 25, 2000 order of discharge,

and were in violation of its own regulations.

In their answer, the respondents contend that

to the extent petitioner is challenging the September

15, 2000 rescission of the final discharge from parole,

he is time-barred since this proceeding is commenced

more than four months after that determination. As

for the revocation of his discharge from parole, the

respondents contend that the petitioner has no right

to a discharge and the discretion of the Division of

Parole is not subject to judicial review. According to

the respondents, the fact that the discharge

summary was corrected to show 66 instead of 84

months “is sufficient to support the Commissioner's

determination that a discharge at this time is not

warranted time (sic) and that a longer period of

supervision is necessary.

44a

The petitioner, in reply, argues that the

September 2000 revocation of the absolute discharge

is not being challenged as an isolated event but as

part of the timely petition challenging the denial of

the local parole board’s reapplication for the

petitioner’s discharge. Further, the petitioner and

counsel were led to believe that absolute discharge

was, being withdrawn only due to miscalculations in

the discharge summary and for a mental status

evaluation, that .the matter was. subject to

continuing consideration, and that therefore was no

final determination. In any event, the petitioner

contends, once he was granted absolute discharge in

August 2000, he had a liberty interest which could

not be rescinded without due process protections.

Further, the petitioner argued, in light of the fact

the he served 22 years in prison and spent seven

years of unrevoked and unblemished Leek release

and parole supervision time, during which he

achieved recognition for his service to the .

community, the refusal of the Parole Board to

discharge him-—for reasons having nothing to do with

those stated in its revocation—arbitrary and

capricious.

As noted above, Executive Law § 259-)

provides that “if the board of parole is satisfied that

an absolute discharge from parole * * * is in the best

interests of society, the board may grant such a

discharge prior to the expiration of the full term or

maximum term to any person who has been on

unrevoked parole or conditional release for at least

three consecutive years.” Plainly, the determination

whether or not to grant an absolute discharge from

45a

parole is discretionary. It is plain as well that, at

least in the context of deter: 1ining whether to grant

parole release, that if the determination is made in

accordance with statutory factors, the Parole Board’s

determination will be upheld absent a showing of

irrationality (see; e.g., Matter of Martinez v. Travis,

734 NYS2d 507; Matter of Thomas v. New York State

Division of Parole, 286 AD2d 393). In the unique

circumstances presented here, including the failure —

of the Board to apply the proper statutory guidelines

in reaching its determination, and the past history of

this case, it is apparent that the respondents acted

irrationally and their determination cannot be

upheld.

In August 2000, the Parole Board granted the

petitioner an absolute discharge from parole. The

statutory standard for determining whether to grant

a discharge from parole is whether the Parole Board

is satisfied that an absolute discharge is in the best

interests of society. In September 2000, according to

the January 2, 2001 memorandum, “that action had

to be withdrawn due to errors on the initial

submission,” namely, the failure to include a mental

status evaluation and a miscalculation of the months

or parole supervision. The deficiency of the mental

status evaluation was rectified in November 2000,

when the petitioner was evaluated by a psychiatrist

who saw “no reason why, from a_ psychiatric

perspective his parole should not be determined” and

recommended that his parole be terminated.

One wonders how the other reason, the

mistaken inclusion of 24 months of work release into

46a

the reported 84 months of parole supervision, is

rationally related to the best interests of society. The

statute calls for a 36 month minimum period before

a parolee is eligible and the petitioner had over 60

months of unrevoked parole release. After 22 years

in prison, 24 months of work release, over 60 months

of unrevoked parole release, having contributed to

the community, one wonders how it is any less in the

best interests of society to release the petitioner than

if he had 71 months (as he had when the Parole

Board denied the reapplication for discharge in June

2001), or the more than 89 months the petitioner

will have in January 2003 when the application may

again be resubmitted. Whatever the answer to this

question may be, it is apparent that the respondents’

June 2001 determination denying the reapplication

of the local parole board to discharge the petitioner

from parole has no connection to the two reasons

advanced in January 2001. Instead of indicating

whether is was “satisfied that an absolute discharge

from parole * * * is in the best interests of society,”

the Parole Board reiterated the same reasons it used

to deny the petitioner parole release on multiple

oceasions-—the “extremely violent nature of the

instant offense during the course of which a human

life was taken (off duty police officer),” and a

pronouncement that the petitioner’s release “would

depreciate the seriousness of his criminal act.” None

of this was unknown in August 2000 when he was

‘granted an absolute release, and none of this will

change in January 2003 or whatever other date to

which the Parole Board will defer the next

reapplication. Since the Parole Board failed to apply

the proper statutory standard, and denied discharge

47a

for reasons having nothing to do with the reasons

advanced why the August 2000 discharge was

“withdrawn,” the Parole Board’s determination is

irrational, arbitrary and capricious and must be

vacated. The arbitrary and capricious nature of the

Board’s determination is reinforced by the extensive

history of these proceedings.

Accordingly, the petition is granted to the

extent that the determination denying the absolute

discharge of petitioner from parole is vacated. The

Parole Board will reconsider the reapplication within

30 days of the date of this decision and judgment,

using the proper standard, and will inform the

petitioner, his attorney, and the court of the result.

The foregoing constitutes the decision and

judgment of this court.

ENT

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.