Florida Decisions Without Published Opinions Rev.vol.dism.
cases where courts
have found a protected liberty interest in parole, such as
Greenholtz, all that is required by the Federal Constitution are certain procedures; the Constitution does
not require a particular outcome as a result of the process.
Accord,
e.g.,
Tatta v. Miller, 2005 WL 2806236, at *3 (E.D.N.Y. Oct. 27, 2005) ("Moreover, regardless of whether New York's parole scheme gives rise to a legitimate expectation of release, the denial of Tatta's application for parole comported with procedural due process, which, in this context, requires only that the inmate be given an opportunity to be heard and informed of the reasons for the denial of parole.
See Greenholtz, 442 U.S. at 16. Tatta received both a hearing and the reasons for the denial of parole.") (internal
parenthetical omitted);
Morel v. Thomas, No. 02 CV 9622 (HB),
2003 WL 21488017, at *4 (S.D.N.Y. June 26, 2003) ("However, even if Morel is
correct that the New York parole scheme, like the Nebraska statute, creates a liberty interest, he overlooks the fact that New York's scheme contains procedures similar to Nebraska's to minimize the risk of erroneous decisions, which the [Supreme] Court found met due process requirements.") (citing Greenholtz, 442 U.S. at 16) (parenthetical omitted)).
Scott's quarrel is with the New York State courts' application of New York State law concerning the point at which judicial intervention in the workings of the Parole Board is warranted. See Gittens v. Thomas, No. 02 Civ. 9435 (JSM), 2003 WL 21277151, *2 (S.D.N.Y. May 20, 2003) ("Petitioner's claims that the [Parole] Board did not properly apply state law does not present a federal question. `[I]t is not the province of a federal habeas court to reexamine . . . determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.' Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991)."). In this Court's opinion, Scott does have a colorable claim under New York State law, although even State authorities are in conflict on the issue as to whether the New York's statutory scheme precludes the Parole Board from relying exclusively on the nature of the inmate's crime to deny parole. Compare Thurman v. Hodges, 292 A.D.2d 872, 739 N.Y.S.2d 324 (App. Div. 4th Dept. 2002) (consideration of the serious and violent nature of petitioner's crimes comports with New York statutory parole scheme); Charlemagne v. New York Div. of Parole, 281 A.D.2d 669, 670, 722 N.Y.S.2d 74, 75 (App. Div. 3d Dept. 2001) (Parole Board not required to give equal weight to each factor in parole decision); Garcia v. New York State Div. of Parole, 239 A.D.2d 235, 239, 657 N.Y.S.2d 415, 418 (App. Div. 1st Dept. 1997) ("However, while the relevant statutory factors must be considered, it is well settled that the weight to be accorded to each of the factors lies solely within the discretion of the Parole Board ( see, Klein v. New York State Division of Parole, 202 A.D.2d 319, 320, 609 N.Y.S.2d 208; Matter of McKee v. New York State Board of Parole, 157 A.D.2d 944, 945, 550 N.Y.S.2d 204; People ex rel. Herbert v. New York State Board of Parole, 97 A.D.2d 128, 133, 468 N.Y.S.2d 881). Moreover, the Board is not required to expressly discuss each of the guidelines in its determination ( Matter of King, . . ., 83 N.Y.2d at 791, 610 N.Y.S.2d 954, 632 N.E.2d 1277)."); Farid v. Travis, 239 A.D.2d 629, 629, 657 N.Y.S.2d 221, 221-22 (App. Div. 3d Dept. 1997); King v. New York State Div. of Parole, 598 N.Y.S.2d 245, 251 (App. Div. 1st Dept. 1993); with Weinstein v. Dennison, ("Nor was it appropriate for the Board to focus solely on the 14 year old crime. Petitioner was properly sentenced by a court, upon the recommendation of the district attorney and in keeping with the sentencing parameters set forth by the legislature. The sentencing court decided an indeterminate term of imprisonment of 7 to 21 years was appropriate, and the district attorney made clear at the plea proceedings that its office believed the 7 year minimum sufficient in petitioner's case. The seriousness of the crime, of course, may be considered by the Board, but the `conviction per se should not preclude parole, there must be a showing of some aggravating circumstances beyond the inherent seriousness of the crime itself.'") (quoting King, supra at 433, 598 N.Y.S.2d 245 and citing Phillips v. Travis, 6 Misc.3d 1041(A), 800 N.Y.S.2d 354 (Table), 2005 WL 701116 (N.Y. Sup. Ct. Mar. 8, 2005) (granting Article 78 petitioner's application to annul respondent's determination denying petitioner parole, and remanding the matter for a re-hearing before a Parole Board comprised of different commissioners), rev'd, 21 A.D.3d 335, 800 N.Y.S.2d 397, 398 (App. Div. 3d Dept. 2005) ("Contrary to the finding of the motion court, respondent complied with the statutory mandate to consider certain guidelines in determining whether to
release an inmate on parole. The Parole Board is not required to delineate in its decision each of the guidelines considered. The record reflects that petitioner was afforded a proper hearing in which only the relevant guidelines were considered. Where, as here, the sentencing court, and not the Board of Parole, has set the minimum sentence of imprisonment, those guidelines include the seriousness of the offense and the inmate's prior criminal record. Given the heinousness of petitioner's crime, the Board's denial of parole was neither arbitrary nor capricious.") (internal citations omitted); Cappiello v. New York State Bd. of Parole, 800 N.Y.S.2d 343 (Table), 2004 WL 3112629, at *7 (N.Y. Sup. Ct. Nov. 30, 2004) (granting inmate's Article 78 petition for reconsideration of parole denial on basis that the Board failed to take into account factors other than petitioner's "threat to public safety")); Wallman v. Travis, 794 N.Y.S.2d 381, 388 (App. Div. 1st Dept. 2005) ("[A]s the sole . . . basis for the [Parole] Board's denial was the seriousness of the offense, [the parole denial] was irrational bordering on impropriety.").
The district courts in this Circuit to have considered the issue have found that since New York's parole statute does not specify how much weight to be accorded to each factor, the "law does not forbid the Board from deciding that the seriousness of an offense and a prisoner's institutional record outweigh [other criteria]." Salahuddin v. Unger, No. 04 CV 2180 (JG), 2005 WL 2122594, at *6 (E.D.N.Y. Sept. 2, 2005); see also Anthony v. New York State Div. of Parole, No. 06 Civ. 180, 2006 WL 3859215, at * (S.D.N.Y. Jan. 4, 2006) (finding that New York law "allows the denial of parole based solely on the severity of the offense so long as there is `a showing of some aggravating circumstances beyond the inherent seriousness of the crime itself'"), Davis v. Thomas, 256 F. Supp.2d 190, 192 (S.D.N.Y. 2003); Manley v. Thomas, 255 F. Supp.2d 263, 266-67 (S.D.N.Y. 2003); Brown v. Thomas, No. 02 Civ. 9257 (GEL), 2003 WL 941940, at *2 (S.D.N.Y. Mar. 10, 2003) (stating that "the [Parole] Board was fully entitled to determine that the nature of the crime outweighed the positive aspects of [petitioner's] record"); Defino v. Thomas, No. 02 Civ. 7413 (RWS), 2003 WL 40502, at *4 (S.D.N.Y. Jan. 2, 2003) (finding petitioner's due process claim unlikely to succeed when the Parole Board looked to "the severity of [Petitioner's] offense" and petitioner's "`positive programming and community support'" and found that "the former outweighed the latter"); Walters v. Ross, No. CV-92-2290, 1992 WL 398307 at *3-4 (E.D.N.Y. Dec. 21, 1992) (denial of parole based on the severity of the prisoner's crime and his refusal to accept responsibility did not violate due process). At the end of the day, however, this Court's disagreement with a State court on a matter of State law is not a sufficient basis upon which to grant habeas relief.
B. Ground Two: The Parole Board violated petitioner's due process rights by relying on allegedly erroneous information.
Scott asserts that the Parole Board relied upon erroneous information in his institutional records. For instance, with regard to the 2001 parole denial, Scott states that on March 8, 2001, he received a "`Parole Summary Memorandum . . . which contained official representations that Petitioner was convicted . . . of two counts of felony-murder and four counts of robbery first degree as a violent felony offender. . . ." Application for Issuance of Habeas Corpus, p. 5, ¶ 12 (Docket No. 1) (emphasis in original). Petitioner asserts that his attempts to have the alleged mischaracterizations and erroneous factual statements corrected were ignored, and the uncorrected Parole Summary Memorandum was submitted, along with his objections, to the 2001 Parole Board. See id. Additionally, Scott complains, the record erroneously lists four first-degree robbery convictions rather than three first-degree robbery and one attempted
first-degree robbery convictions; there was no female victim robbed during the Amsterdam Theater incident; and the Parole Board erroneously characterized petitioner's crimes as "in-concert"; and the record incorrectly describes petitioner's weapons-possession and escape offenses as "instant" rather than completed. See Respondent's Exhibit S, ¶¶ 83-86. Respondent argues that the alleged errors "either amount to hair-splitting or are insignificant." Resp't Mem. at 19.
Notwithstanding its decision in Barna v. Travis, the Second Circuit has held that an inmate denied parole, who alleged that the Parole Board improperly failed to consider sixteen years of missing prison records and a presentence investigations report, in contravention of N.Y. Exec. Law § 259-i and 9 N.Y. Comp. Reg. R., tit. 9, § 8001.3(a), might be able to state a due process claim for purposes of maintaining a civil rights suit under 42 U.S.C. § 1983. Rodriguez v. Greenfield, No. 99-0058, 7 Fed. Appx 42, *45, 2001 WL 290503, at **3 (2d Cir. Mar. 23, 2001). The Second Circuit in Rodriguez cited favorably to Monroe v. Thigpen, 932 F.2d 1437 (11th Cir. 1991), in which an Alabama inmate alleged that parole board improperly relied upon materially false information in his file. The Second Circuit found it significant that a New York State Supreme Court had invalidated one of Rodriguez's parole denials after finding that the Parole Board had engaged in "unauthorized activities by making parole determinations absent a complete record[.]" Rodriguez, 7 Fed.Appx. at *45, 2001 WL 290503, at **2.
In Monroe, the issue was that the Alabama state parole board knowingly relied upon materially false information in the prisoner's file in making its parole decision. 932 F.2d at 1442. The Eleventh Circuit, which had previously disclaimed a due process liberty interest in parole under Alabama law because the relevant Alabama parole statute was framed in discretionary terms, nevertheless found that the parole board's discretion was not unlimited. In particular, the Eleventh Circuit stated, the parole board was not allowed to engage in "flagrant or unauthorized action" or administer the parole system "maliciously or in bad faith," thereby causing the parole system to "become [] constitutionally offensive. . . ." Monroe, 932 F.2d at 1441-42. It bears noting that the Eleventh Circuit, before it examined the substance of the parole board's decision in Monroe v. Thigpen, first found that the prisoner had at least a limited liberty interest. In other words, although it found that the Alabama parole statute did not create a general liberty interest in the possibility of release to parole, it did "create [] an expectancy of a parole determination without reliance on false information." Gordon, 592 F. Supp.2d at 653 n. 56 (citing Monroe, 932 F.2d at 1442 (citing Thomas v. Sellers, 691 F.2d 487, 489 (11th Cir. 1982)). In light of this limited interest, the Eleventh Circuit held that the parole board had acted "arbitrarily and capriciously in violation of due process" by relying upon demonstrably false information in prisoner Monroe's file in making its determination to deny parole. Id. at 1442.
The Rodriguez panel acknowledged the Circuit's earlier holding in Barna v. Travis, that no liberty interest exists in New York State's parole scheme because the statute is purely discretionary and does not create a legitimate expectancy of release. 7 Fed.Appx. at *44, 2001 WL 290503, at **2. The Second Circuit distinguished Barna and found that it did not answer the question before it in Rodriguez, namely, whether a New York state prisoner has a liberty or property interest in having the Parole Board comply with its own statutory and regulatory guidelines in determining whether to grant or deny parole. In Rodriguez's particular case, the issue was whether Rodriguez had a due process right to have the Parole Board make its parole decisions after reviewing the missing prison records and presentence investigation report in conformance with the procedures explicitly dictated by state statute in N.Y. EXEC. LAW § 259-i and N.Y. COMP. REG. R., tit. 9, § 8001.3(a). The discretionary nature of New York's parole statute did not foreclose Rodriguez from stating a cause of action because, the Second Circuit reasoned, the Parole Board could not possibly have exercised its discretion to consider the relevant parole-suitability factors in Exec. Law § 259-i where it did not have information concerning those factors for at least sixteen of the thirty years in which plaintiff had been incarcerated. Rodriguez, 7 Fed.Appx. 42, at *44-45, 2001 WL 290503, at **2. Noting that the particular due process issue raised by Rodriguez with respect to parole decisions based upon missing records was an unsettled question, the Second Circuit therefore vacated the dismissal of plaintiff's § 1983 claim concerning the parole denial and remanded it to the district court for
further briefing. Id. There are no further reported or unreported decisions in this matter-either by the district court or the Second Circuit.
The Court reads Rodriguez as providing support for the proposition that even in the absence of a general liberty interest in parole-release, "flagrant or unauthorized action," Monroe, 932 F.2d at 1441 (quotation omitted), by a Parole Board can "become [] constitutionally offensive[,]" id. (cited with approval in Rodriguez, 7 Fed.Appx. at *45, 2001 WL 290503, at **2. However, even assuming that such a limited liberty interest exists, the Court cannot grant habeas relief here. As an initial matter, the Court has found no clearly established Supreme Court precedent standing for the limited liberty interest described in the Eleventh Circuit's decision in Monroe, a pre-AEDPA habeas case, and the Second Circuit's unpublished disposition in Rodriguez. Under AEDPA, this Court only can grant relief where the state court's resolution of the merits of a petitioner's claim is contrary to, or an unreasonable application of, clearly established precedent of the Supreme Court, not circuit court precedent. Furthermore, the Parole Boards who considered Scott's case did not engage in the kind of "flagrant or unauthorized action" described in Monroe v. Thigpen. To the contrary, the Court agrees with respondent that to the extent there were errors in Scott's records, they were inconsequential and had no effect on the Parole Board's ultimate decisions to deny parole.
First, the Court addresses Scott's argument regarding the designation of his convictions as "violent felony offenses." Respondent explains that at the time Scott was convicted, the robberies and weapon-possession charges were not designated as "violent felony offenses." However, in 1980, the New York Legislature amended the Penal Law to describe the attempted third degree criminal possession of a weapon charge and attempted first degree robbery charge of which Scott was convicted as "violent felony offenses." See People v. Morse, 62 N.Y.2d 205, 215 (N.Y. 1984) ("Attempted criminal possession of a weapon in the third degree was classified as a violent felony by 1980 amendment to section 70.02 of the Penal Law (L. 1980, ch. 233, § 2, eff. Aug. 12, 1980)."); People v. Aiello, 93 A.D.2d 864, 864, 461 N.Y.S.2d 370, 371 (App. Div. 1st Dept. 1983) (" New York's violent felony laws, which became effective as of September 1, 1978 (L. 1978, ch. 481, § 67), reclassified certain existing offenses as `violent felonies' and enhanced the penalties upon conviction of those offenses. The crime of attempted robbery in the first degree is now classified as a violent felony offense (Penal Law, § 70.02, subd. 1, par. (b)) although at the time of defendant's prior conviction it was classified only as a felony."); see also People v. Baker, 112 Misc.2d 496, 498, 447 N.Y.S.2d 223, 225 (N.Y. Sup. Ct. 1982).
The Respondent explains during the computerization of New York State Department of Correctional Services' ("NYSDOCS") record-keeping system in the 1980s, the convictions in question were automatically, but erroneously, labeled "violent felony offenses", presumably as a result of the recent amendments to the Penal Law. However, this error was corrected in October 2003. Respondent's Exhibit S, ¶¶ 41-42. The 2001 and 2003 Parole Boards thus did view an uncorrected record, but the 2005 Parole Board reviewed accurate records. Scott concedes that the errors were corrected in his Application for a Writ of Habeas Corpus, ¶¶ 41-43, pp. 13-14 (Docket No. 1). Although Scott is correct regarding the erroneous designations, the Court agrees with respondent that his complaint elevates form over substance: The conduct underlying the robberies committed by Scott was no less violent simply because they were committed before the New York Legislature amended the Penal Law to characterize the offenses as "violent." A review of the Parole Board's decision certainly reflects that it considered the nature of the conduct exhibited by petitioner during the robberies and attempted robbery, which included two fatal shootings; it is not reasonable to suppose that the Parole Board's decision in 2001 or 2003 would have been different "but for" the label affixed to the offenses. Neither the Parole Board's interview with petitioner or its decision focused on the fact that the prisoner database reflected, in 2001 and 2003, petitioner's crimes were "violent felony offenses" as that term is used in the Penal Law for purposes of qualifying a defendant as a recidivist felony offender.
Scott's second allegation concerning errors in his institutional record concerns the 2001 Parole Board's reference to his having committed "four counts of robbery first degree as a violent felony offender." Although Scott was originally indicted and convicted of four counts of robbery, and on appeal, the Appellate Division reduced one robbery conviction to attempted robbery. The modification of this one conviction apparently has led to the confusion. In any event, this argument, too, elevates form over substance given the seriousness of the conduct underlying the entire criminal incident in which Scott was involved. There is no indication that the Parole Board's decision depended on whether Scott committed three "completed" robberies and one "attempted" robbery versus four "completed" robberies. The fact that Scott fatally shot two individuals during the robberies and attempted robbery overshadows that distinction.
Scott's third claim of error is that his record contains a notation that a "female" was when, in fact, there were no female robbery victim during the theater incident. Assuming there was such an error, it likely stems from the fact that one victim's name was Virginio Moreira, and someone misread it as Virginia. See Exhibit T, Petitioner's Memorandum dated March 8, 2001. As respondent points out, this does not change the fact that petitioner forcibly stole this individual's watch. This alleged error cannot reasonably have influenced the Parole Board's
decision.
Fourth, petitioner contends that Parole Board's erroneously characterized his crimes as "in-concert". This, however, is legally baseless. Given the underlying facts as described above, Scott and his cohorts clearly were acting "in concert" when they formed and executed the plan to rob the theater of its payroll, during which they held the employees hostage.
Fifth, and last, petitioner points to an alleged mischaracterization regarding the length of his sentences for the escape and weapons-possession convictions. Although Scott's sentences for these convictions were only 1½ to 3 years each, because he also was concurrently sentenced to longer terms of incarceration, his lesser sentences will not be deemed satisfied until he serves his controlling sentence-which is an indeterminate term of 25 years to life. This is apparently an administrative aspect of sentence calculation for all inmates, and cannot be said to have affected the Parole Board's evaluation of Scott's case.
Taken singly or together, these alleged errors did not influence the Parole Board's decision; in other words, the Court cannot discern in the record evidence that the Parole Board denied parole on the basis that Scott's convictions were erroneously designated as "violent felony offenses" or because petitioner's fourth robbery was not "completed" or out of concern that one of the victim's was a woman or that his 1½ to 3 year prison sentences were considered to be outstanding while he was still serving his controlling sentence. See Boddie, 285 F. Supp. 2d at 428-29 ("Boddie was not denied parole for arbitrary or impermissible reasons when the Parole Board rendered its decision without having received a corrected Pre-Sentence Report or Inmate Status Report"; the state court properly found that "[t]he minor change made in petitioner's pre-sentence report [was] not a basis for overturning the denial of parole" and "[t]he fact that the Board's decision incorrectly state[d] that `[Boddie] and [his] co-defendant pointed a shotgun at the victim,' [was] also insufficient to reverse the Board's decision" because "New York law holds that parole decisions that accord with applicable statutory requirements will not be overturned judicially absent a showing that the parole denial exhibits "irrationality bordering on impropriety") (quotations omitted). Instead, the Parole Board's questioning and decisions reflect a concern that Scott had not fully internalized culpability for the two murders he committed, given that he characterized them as "accidents" and apparently has not displayed what the Parole Board considers to be genuine remorse. Also, the Parole Board focused on Scott's lengthy criminal history and his return, while on parole supervision previously, to engaging in criminal activity. The Court appreciates Scott's concern that the Parole Board improperly weighted these static factors-i.e, the nature of the crime, and his criminal history-in denying parole. However, as discussed above, that contention is not within the purview of a Federal district court sitting in habeas.
In sum, the Court agrees with respondent that the record does not support Scott's claim that the Parole Board denied his requests for release to parole supervision on the basis of the foregoing alleged errors. The contentions advanced by Scott in this regard do not state a due process violation.
C. Ground Three: Petitioner's rights under the Equal Protection Clause were violated by Parole Board.
Scott contends that the Parole Board's denials of parole violated his rights under the Equal Protection Clause because (1) his crime was improperly characterized as a violent felony offense; (2) then-Governor Pataki's administration promulgated a blanket policy of denying parole to all violent felons; and (3) the Parole Board considered petitioner's criminal and social
history and the severity of his crimes.
The Equal Protection Clause of the Fourteenth Amendment requires that all persons similarly situated should be treated alike. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985). "Unless a classification trammels fundamental personal rights or is drawn upon inherent suspect distinctions such as race, religion, or alienage," the courts must presume that the distinctions made are constitutional as long as they are "rationally related to a legitimate state interest." City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976). "Although the prototypical equal protection claim involves discrimination against people based on their membership in a vulnerable class, we have long recognized that the equal protection guarantee also extends to individuals who allege no specific class membership but are nonetheless subjected to invidious discrimination at the hands of government officials." Harlen Assoc. v. Incorporated Village of Mineola, 273 F.3d 494, 499 (2d Cir. 2000) (citing LeClair v. Saunders, 627 F.2d 606, 608-10 (2d Cir. 1980)). In Village of Willowbrook v. Olech, 528 U.S. 562 (2000) ( per curiam), the Supreme Court affirmed the validity of such "class of one" claims "where the plaintiff alleges that he has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." 528 U.S. at 564. To prevail on a "class of one" equal-protection claim, plaintiff must "show, not only `irrational and wholly arbitrary' acts, but also intentional disparate treatment." Giordano v. City of New York, 274 F.3d 740, 751 (2d Cir. 2001) (quoting Olech, 528 U.S. at 564).
Scott appears to contend that his equal protection rights derive from membership in a suspect class, i.e., violent felony offenders. Courts in this Circuit have held that "merely being a prisoner is insufficient to place [one] in a suspect class." Defino, 2003 WL 40502, at *4 n. 4 (citing Hampton v. Hobbs, 106 F.3d 1281, 1286 (6th Cir. 1997) (stating that "neither prisoners nor indigents are a suspect class"); Carbonell v. Acrish, 154 F. Supp.2d 552, 561 (S.D.N.Y. 2001) ("The parties agree, and the Court holds, that because prisoners are not a suspect class and the PLRA's attorneys' fee restrictions do not violate any fundamental right, the PLRA fee cap provisions are judged under the rational basis review standard.")). To succeed on an equal-protection claim, petitioner must first show that "violent felony offenders are similarly situated to non-violent felony offenders, a proposition which . . . has been soundly rejected by the courts." Farid v. Bouey, 554 F. Supp.2d 301, 322 (N.D.N.Y. 2008) (citing Standley v. Dennison, No. 9:05-CV-1033 (GLS/GHL), 2007 WL 2406909, at *13 (N.D.N.Y. Aug. 21, 2007) ("[S]everal courts have specifically held that, for purposes of an equal protection analysis, (1) violent felony offenders are not actually "similarly situated" to non-violent offenders, and (2) in any event, discrimination against violent felony offenders in terms of parole release is `entirely appropriate.'") (quoting Bottom v. Pataki, No. 03-CV-0835, 2006 WL 2265408, at *6-7 n. 5 (N.D.N.Y. Aug. 7, 2006) and citing Larocco v. N.Y.S. Div. of Parole, No. 05-CV-1602, 2006 WL 1313341, at *3 (N.D.N.Y. May 12, 2006); Borcsok v. Pataki, No. 05-CV-1542, 2006 WL 839545, at *2, n. 2 (N.D.N.Y. Mar. 29, 2006); Parks v. Edwards, No. 03-CV-5588, 2004 WL 377658, *4 (E.D.N.Y. Mar.1, 2004)).
Furthermore, Scott's equal protection claim does not warrant a heightened level of scrutiny because neither violent felons nor non-violent felons are a "suspect class" under the United States Constitution. E.g., Mathie v. Dennison, No. 06 Civ. 3184 (GEL), 2007 WL 2351072, at *8 (S.D.N.Y. Aug. 16, 2007) ("Prisoners are not a suspect class, Lee v. Governor of State of N.Y., 87 F.3d 55, 60 (2d Cir. 1996), and plaintiff does not claim that a fundamental personal right is implicated in the denial of parole."); Standley, 2007 WL 2406909, at *13. As the district court in Mathie explained, "[a] history of violent crime is the very opposite of a morally irrelevant, immutable trait: it reflects a voluntary choice by the offender to commit a dangerous and harmful criminal act when he could have complied with the law. Thus, disparate treatment by the state in granting parole to violent and nonviolent prisoners is presumed constitutional and need only be rationally related to a legitimate state interest." Mathie, 2007 WL 2351072, at *8; see also Farid, 554 F. Supp.2d at 322 (" More significantly, as many courts have recognized, distinguishing between these two groups [i.e., violent and non-violent felons], for purposes of parole determinations, is `entirely appropriate and not at all invidious.'") (quoting Parks v. Edwards, No. 03-CV-5588, 2004 WL 377658, at *4 (E.D.N.Y. Mar. 1, 2004); and citing Standley, 2007 WL 2406909, at *13). In Salahuddin, at *20-21, the habeas court rejected the petitioner's claim that the state's disparate treatment of violent and nonviolent offenders violated his right to Equal Protection under the Fourteenth Amendment. Salahuddin explained that prisoners are not a suspect class, and the petitioner did not claim that a fundamental right was implicated in the denial of parole. Thus, disparate treatment is presumed constitutional and need only have a rational basis; here, the prevention of early release of potentially violent inmates. Id., at *21 (citations omitted).
To the extent that Scott's equal protection claim can be interpreted as being based on his comprising a "class of one," Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000), it is "in tension" with Scott's claim regarding the alleged policy to deny parole to those convicted of violent felony offenses. See Mathie v. Dennison, 2007 WL 2351072, at *9. Regardless, it cannot provide a basis for habeas relief. "To state a valid equal protection `class of one' claim, a plaintiff must allege (1) that he has been intentionally treated differently from others similarly situated, and (2) that there is no rational basis for the difference in treatment." Mathie, 2007 WL 2351072, at *9 (citing DeMuria v. Hawkes, 328 F.3d 704, 706 (2d Cir. 2003)). Scott's "class of one" claim fails because he has not carried his burden of demonstrating that he has been intentionally singled out for different treatment as compared to other, similarly situated, New York inmates seeking parole.
The Court turns next to Scott's claim that the Parole Board impermissibly applied an across-the-board policy of denying parole to inmates based on their offense of conviction. In Harris v. Travis, No. 98-2344, 175 F.3d 1007, 1999 WL 96125, at *1 (2d Cir. Feb. 18, 1999) (unpublished disposition), the Second Circuit affirmed the district court's rejection of an equal protection claim brought by a New York inmate denied parole. As Scott does here, plaintiff Harris had argued that, "as a group, violent felons have been subjected to selective treatment by the Parole Board" and that the Parole Board had decided not to release entire classes of offenders such as sex offenders or inmates with other serious violent felony offenses; Harris alleged a pattern of the Parole Board excluding otherwise eligible inmates from parole. Harris v. Travis, No. 97-CV-3275 (JG), 1998 WL 812617, at *3 (E.D.N.Y. Mar. 24, 1998), aff'd No. 98-2344, 175 F.3d 1007, 1999 WL 96125, at *1 (2d Cir. Feb. 18, 1999) (unpublished disposition). The district court in Harris dismissed plaintiff's equal protection claim, finding that "[v]iolent felons being considered for parole release are not similarly situated with nonviolent felons being considered for parole release" because "the Executive Law allows the Parole Board to consider the seriousness of an inmate's offense and an inmate's prior criminal record in cases, such as this one, where the board has not previously fixed a minimum period of imprisonment." Id. Noting
that the provision question might operate to deny parole to violent felony offenders more often than non-violent felony offenders, the district court concluded that was "in accordance with the discretionary power of the Parole Board and does not constitute a basis for an equal protection claim." Id. (citation omitted). On appeal, the Second Circuit affirmed the dismissal of plaintiff's equal protection claim "because there [was] no allegation that [Harris] was denied parole based on a suspect classification, and because there [was] a rational basis, i.e., safety of the community, for permitting the parole board to consider the nature of the underlying offense when making parole eligibility determinations." Harris, 1999 WL 96125, at *1 (citing Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) ("If a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.") (citing Heller v. Doe, 509 U.S. 312, 319-320, 113 S.Ct. 2637, 2642, 125 L.Ed.2d 257 (1993)).
First, as in Harris, petitioner Scott is not a member of a suspect class; stated another way, violent felons are not considered a "suspect class." Second, the overwhelming weight of authority in this Circuit is that any alleged disparate treatment of violent felons by the Parole Board has a rational basis, that is, the prevention of the release of potentially violent felons into the community. E.g., Harris, 175 F.3d 1007; Howithi v. Travis, No. 06 Civ. 3162 (BSJ) (MHD), 2008 WL 7728648, *13 (S.D.N.Y. Sept. 16, 2008) ("[D]iscrimination against violent felony offenders in terms of parole release is `entirely appropriate and not at all invidious' and thus is rationally related to a legitimate government interest."), report and recommendation adopted, No. 06 CIV. 3162 (BSJ) (MHD), 2010 WL 1685412 (S.D.N.Y. Apr. 23, 2010) (quoting Standley, 2007 WL 2406909, at *13; and citing McLaurin v. Paterson, No. 07 Civ 3482 (PAC) (FM), 2008 WL 3402304, at *15 (S.D.N.Y. Aug. 11, 2008) ("The state clearly has a rational basis for drawing a distinction in parole determinations between persistent offenders and non-persistent offenders, which is to prevent the early release of potentially violent inmates or those who are more likely to recidivate.") (quoting Salahuddin v. Unger, 2005 WL 2122594, at *7); Seltzer v. Thomas, No. 03 Civ. 00931 LTS FM, 2003 WL 21744084, at *4 (S.D.N.Y. July 29, 2003)). I see no distinction between Scott's case and those cited above. Accordingly, I conclude that Scott cannot state a denial of equal protection by the Parole Board, and this claim must be dismissed. E.g., Mathie, 2007 WL 2351072, at *8; Salahuddin, 2005 WL 2122594, at *7.
IV. Conclusion
For the reasons set forth above, the petition for a writ of habeas corpus filed by petitioner Ralph Scott is denied. Furthermore, the Court finds that petitioner has not made a "substantial showing of the denial of a constitutional right" pursuant to 28 U.S.C. § 2253(c)(2) ("A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right."); see also Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000). Therefore, no certificate of appealability shall issue with respect to any of petitioner's claims.
IT IS SO ORDERED.
Dated: September 23, 2010.
Buffalo, New York.