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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2008

## Text

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

—>><-—_—
- 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?

il

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.

Ul

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

iV

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

vl

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

1X
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

3

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

4

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

5

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

6

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.

7

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

10

“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

1]

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

12

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

13

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.

14

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:

15

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

16

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.

é

17

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

18

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.

19

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,

20

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.

2]

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

22

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

23

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).

24

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

25

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

26

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.

27

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.

28

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

29

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

30

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

31

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

32

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.).

33

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

34

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

35

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

36

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.

ww
~~

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,

GY
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

2a

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.

Ga

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

Oa

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

Sa

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

9a

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.

ns

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 20

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1191%3A1. Public record. Not legal advice.