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United States District Court, Southern District of New York

January 13, 2003


The opinion of the court was delivered by: John G. Koeltl, United States District Judge.


This is a petition for habeas corpus pursuant to 28 U.S.C. § 2241 brought by New York State prisoner Damian Rossney, who is currently incarcerated at the Woodburne Correctional Facility. The petitioner is serving a sentence of eight and one-third to twenty-five years for Conspiracy in the Second Degree, concurrently with a sentence of five to fifteen years for Criminal Facilitation in the Second Degree. The petitioner now challenges the 1997 decision by the New York State Board of Parole ("Parole Board") denying him parole release. He bases this claim on two contentions. First, the petitioner alleges that questions by the Parole Board about his failure to volunteer information to the police and to testify against his co-conspirator violated his Fifth Amendment right against compulsory self-incrimination. Second, the petitioner alleges that the Parole Board's reliance on mistaken and erroneous facts was arbitrary and capricious, and an abuse of discretion in violation of his substantive due process rights under the Fourteenth Amendment.


The petitioner's conviction arose out of the murder of Robert Gates, Sr. and three other members of the Gates household on December 13, 1986. (Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2241 ("Pet.") ¶ 9.) At the time of the murders, the petitioner was sixteen years old and a school friend of Wyley Gates ("Gates"), Robert Gates' son. (Transcript of Parole Hearing dated Jan. 8, 1997 ("Hearing Tr.") at 5 attached as Ex. J to Affidavit in Opposition of Maria Filipakis ("Filipakis Aff. Opp.") dated Jan. 10, 2002.) Shortly before the murders, the petitioner, Wyley Gates, and another school friend, Miles McDonald ("McDonald"), broke into the Gates' home and stole various items, including Robert Gates' gun collection. (Hearing Tr. at 9-12) Shortly thereafter, Gates retrieved a pistol from the petitioner's possession that had been taken during the robbery. (Pet. ¶ 16; Hearing Tr. at 12-13.) Approximately one week later, on December 13, 1986, Gates used the weapon to shoot and kill the four victims. (Pet. ¶ 17.) That same night, Gates returned the stolen pistol to the petitioner before driving the two of them to the movies. (Pet. ¶¶ 17-18; Hearing Tr. at 16.) At that time, the petitioner was allegedly unaware that Gates had used the gun to commit murder, although the two had previously discussed Gates' desire to kill his father. (Pet. ¶¶ 17-18.) The petitioner described the prior conversations with Wyley Gates as follows in the report that was given to the Parole Board: "Mr. Rossney indicates that Wiley [sic] Gates hated his father and fantasized about killing his father and burning his father's house. He never spoke of killing [h]is father himself, but rather, spoke of having Damian Rossney and Miles McDonald kill the father at the latter's place of business by shooting him with a rifle." (Inmate Status Report For Parole Board Appearance attached as Ex. H to Filipakis Aff. Opp. ("Inmate Status Report") at 5.)

On the way to the theater, Gates told the petitioner about the murders but the petitioner allegedly did not believe him because of his "normal, placid demeanor," (Pet. ¶ 19; Hearing Tr. at 16-17.). However, when the petitioner saw Miles McDonald on line at the theater he told him about Gates' confession, which was "detailed enough that it frightened me." (Hearing Tr. at 17.) At the Parole Board hearing, the petitioner described his feelings after Gates' confession as follows: "When I'm sitting there watching him, and this is somebody that I know, for him to tell me, somebody that I know like that, that he had killed four people, to me, that was shocking. So I'm watching him, and I'm saying, "This is not the way that somebody that killed four people should act.'" (Hearing Tr. at 19.) Gates and the petitioner then watched the movie. (Hearing Tr. at 18.)

Despite the petitioner's reservations about Gates' confession, when the police came to his home later that night he answered their questions without volunteering the fact of Gates confession or his own possession of the murder weapon. (Pet. ¶¶ 23-25.) The following day, after retaining counsel, the petitioner turned over the pistol to the authorities. (Pet. ¶ 28.

In October 1987, a jury convicted Wyley Gates of conspiring to kill his father, but acquitted him on all murder charges. (Pet. ¶¶ 11, 38, 41.) Wyley Gates was sentenced to eight and one-third to twenty-five years imprisonment. (Pet. ¶ 11.) The petition alleges that, on advice of counsel, the petitioner declined to make any statement to prosecutors prior to testifying in his defense at his own trial a year later. (Pet. ¶ 40.) However, Rossney told the Parole Board that the prosecutors were not interested in his testimony in view of the forensic evidence they had gathered and the testimony of Miles McDonald, who had received immunity and testified. (Hearing Tr. at 37-38.) Rossney alleged that the prosecutors were especially disinterested in his testimony if he was unwilling to conform his version of the events to that offered by McDonald. (Hearing Tr. at 38.) The petitioner also testified before the Parole Board that the prosecutors were aware of the incriminating statements that Wyley Gates had made to him. (Hearing Tr. at 37.)

On December 7, 1988 a separate jury in the County Court, Columbia County found the petitioner guilty of Conspiracy in the Second Degree and Criminal Facilitation in the Second Degree as a result of his involvement in the events surrounding the death of Robert Gates, Sr. (Pet. ¶ 4.) The petitioner's judgment of conviction was affirmed on appeal. People v. Rossney, 577 N.Y.S.2d 683 (App. Div. 1991); lv. denied, 594 N.E.2d 955 (N.Y. 1992). Post-conviction relief was similarly denied by the state courts. People v. Rossney, 589 N.Y.S.2d 381 (App. Div. 1992); lv. denied, 610 N.E.2d 413 (N.Y. 1993)

On January 8, 1997, the petitioner made his first appearance before the Parole Board. (Pet. ¶ 88.) The Board denied his application for parole for twenty-four months on the grounds that the seriousness of the offense militated against discretionary release, and because the petitioner had not demonstrated adequate insight into the reasons underlying his criminal behavior. (Parole Board Release Decision dated Jan. 8, 1997 attached as Ex. J to Filipakis Aff. Opp.) The Appeals Unit affirmed the Parole Board's decision. (Statement of Appeals Unit Findings dated Nov. 18, 1997 (for mailing) attached as Ex. I to Filipakis Aff. Opp.)

The petitioner instituted an Article 78 proceeding in the New York State Supreme Court, Albany County. The petitioner alleged that the Board's decision violated the petitioner's rights under the Fifth Amendment by punishing him for his refusal to volunteer incriminating information to the police and failing to testify against Wyley Gates. He also claimed that the Parole Board's determination relied on mistaken and erroneous facts in violation his Fourteenth Amendment substantive due process rights. Upon review, the Supreme Court dismissed the petition. (Decision and Judgment dated Feb. 15, 1999 attached as Ex. F/SubEx. H to Filipakis Aff. Opp.) Although the court found that the panel's questions revealed errors in their perception of the petitioner's crime and incarceration, the court concluded that the petitioner adequately and voluntarily corrected these errors during his hearing. Furthermore, the court held that the Parole Board's determination was supported by the record in accordance with the law, and that the petitioner had not shown irrationality bordering on impropriety as needed to prevail.

The petitioner appealed the dismissal to the Supreme Court of the State of New York Appellate Division, Third Department, maintaining the same two pertinent claims. The court affirmed the Supreme Court's decision. Rossney v. New York State Bd. of Parole, 699 N.Y.S.2d 319 (App. Div. 1999). The Appellate Division concluded:

A review of the record reveals that respondent explored and considered the relevant statutory factors, placing emphasis on petitioner's lack of insight into the reasons underlying his behavior in this serious matter. Given this and the fact that petitioner failed to demonstrate that the determination was affected by irrationality bordering on impropriety, we find no reason to disturb respondent's discretionary decision. We wholly reject petitioner's assertion that he was improperly asked questions concerning what transpired prior to his arrest. Furthermore, with respect to petitioner's claim that certain misstatements of fact were included in respondent's determination, we note that even if we agreed with petitioner's interpretation of the wording, we do not agree that the alleged inaccuracies resulted in a violation of petitioner's constitutional rights or involved matters that would have affected respondent's decision to deny parole.
Id. (citations omitted). Leave to appeal to the New York Court of Appeals was denied. Rossney v. New York State Bd. of Parole, 26 N.E.2d 483 (N.Y. 2000). The petitioner then filed this petition for a writ of habeas corpus on June 12, 2000.*fn1


The parties dispute whether this petition was properly brought under 28 U.S.C. § 2241, as the petitioner contends, or should be construed as a petition under 28 U.S.C. § 2254, as the respondents urge. Section 2254 governs a petition filed on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254 (a). The statute is commonly, but not exclusively, used to challenge the actual conviction subjecting the petitioner to confinement. By its terms, § 2254 is not limited to challenges to an underlying conviction or sentence but can be used by any state prisoner who is in custody pursuant to a state court judgment and who challenges that custody on constitutional grounds.

The parallel writ of habeas corpus for federal prisoners is somewhat narrower and focuses not on the continuing custody of the prisoner but on the initial imposition of the sentence. Section 2255 of Title 28 provides:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
Section 2241 includes writs on behalf of prisoners "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241 (c)(3). Section 2241 has been used to challenge the execution of a federal sentence when the underlying conviction is not at issue. See, e.g., Carmona v. United States Bureau of Prisons, 243 F.3d 629, 632 (2d Cir. 2001) ("[A]ppellant's petition to expunge the Bureau [of Prison's] disciplinary sanctions from his record, including the loss of good time credits, as a challenge to the execution of his sentence rather than the underlying conviction, is properly brought via an application for a writ under § 2241.") (collecting cases); Chambers v. United States, 106 F.3d 472, 474-75 (2d Cir. 1997) (challenge to Bureau of Prisons execution of petitioner's sentence should be brought under § 2241)

This petition clearly contests an aspect of the execution of the petitioner's sentence or his continuing custody rather than his underlying conviction or the initial imposition of the sentence. The Court of Appeals for the Second Circuit has recently held that such a challenge by a state prisoner to the execution of a state sentence should be construed under § 2254 rather than § 2241. See James v. Walsh, 308 F.3d 162 (2d Cir. 2002). In James, the petitioner challenged the New York Department of Corrections calculation and application of his sentence, specifically alleging that his conditional release date had been calculated to include an extra year of incarceration. Id. at 165. The Court of Appeals faced the question of whether the petitioner's "claim that [the Department of Corrections] incorrectly credited his time served was properly brought under Section 2254, and, therefore, is subject to the gatekeeping requirements of [the Antiterrorism and Effective Death Penalty Act ("AEDPA")], or whether it was functionally a Section 2241 petition, which would not trigger AEDPA." Id. at 166. The Court of Appeals concluded that the petition was properly brought under § 2254. The Court of Appeals found, "The plain language of the pertinent statutes indicates, therefore, that a federal prisoner may challenge the imposition, but not the execution, of a sentence under Section 2255, while a state prisoner may challenge either the imposition or the execution of a sentence under Section 2254." Id. at 167. The Court of Appeals went on to find that the gatekeeping functions of AEDPA against "second or successive" petitions were not triggered under the facts of that case. Id. at 167-68. See McGinniss v. United States ex rel. Pollack, 452 F.2d 833 (2d Cir. 1971) (affirming a grant of Section 2254 relief to a state prisoner seeking a recomputation of his latest release date)

Other Courts of Appeals have similarly found that challenges by state prisoners to the execution of their sentence, including challenges to parole decisions, must be brought under § 2254 rather than § 2241. The Court of Appeals for the Seventh Circuit concluded that "as a practical matter the requirements of § 2254 must be met by all state prisoners filing petitions for writs of habeas corpus after conviction." Walker v. J.T. O'Brien, 216 F.3d 626, 633 (7th Cir. 2000). The Seventh Circuit Court of Appeals thus ruled that, unlike a federal prisoner, a state prisoner challenging the loss of good time credits at a prison disciplinary proceeding could only do so pursuant to § 2254 and not § 2241. Id. at 632-33. The Court of Appeals for the Eighth Circuit followed Walker in concluding that a state prisoner was subject to the requirements of § 2254 when filing a petition challenging the state's refusal to grant him parole. Crouch v. Norris, 251 F.3d 720, 722-23 (8th Cir. 2001) ("[A] person in custody pursuant to the judgment of a State court . . . can only obtain habeas relief through § 2254, no matter how his pleadings are styled.") (internal citations omitted); see also Coady v. Vaughn, 251 F.3d 480, 484-85 (3d Cir. 2001) (state prisoner challenging denial of parole must proceed under § 2254 rather than § 2241). But see Henderson v. Scott, 260 F.3d 1213, 1214 (10th Cir. 2001) (finding that although the state prisoner challenged the Oklahoma Pardon and Parole Board's decreased frequency of his parole reconsideration under § 2254, the petition should be construed pursuant to § 2241).*fn2

In this case, therefore, because the petitioner is in custody pursuant to the judgment of a state court and challenges an aspect of the execution of his sentence, the petition is properly construed under § 2254 rather than § 2241.

Unlike § 2254, the language of § 2241 does not require exhaustion of state court remedies prior to petitioning a federal court for a writ of habeas corpus. However, the Second Circuit Court of Appeals has read an exhaustion requirement into § 2241 to accommodate principles of federalism. United States ex rel. Scranton v. State of New York, 532 F.2d 292, 294 (2d Cir. 1976).*fn3 The petitioner satisfied the exhaustion requirement by presenting his claims in the Article 78 proceeding, the dismissal of which was affirmed, Rossney, 699 N.Y.S.2d at 319, and leave to appeal to the Court of Appeals of New York was denied, Rossney, 26 N.E.2d at 483; see also O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (exhaustion requires presenting claims for discretionary review when that review is part of the established appellate review procedure of the state). Having pursued Article 78 relief as far as possible within the New York State court system, the petitioner has satisfied his exhaustion obligation.*fn4

Federal habeas corpus review under § 2254 is governed by 28 U.S.C. § 2254 (d)(1), whereby a petitioner's application challenging a legal conclusion of a state court may only be granted if the adjudication of the claim "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 . . ." 28 U.S.C. § 2254 (d)(1); see also Williams v. Taylor, 529 U.S. 362, 402-03 (2001) (O'Connor, J. writing for the Court in part II of her opinion); Penry v. Johnson, 532 U.S. 782, 785 (2001); Loliscio v. Goord, 263 F.3d 178, 184 (2d Cir. 2001)

A state court decision is "contrary to" clearly established law within the meaning of § 2254(d)(1) if: (1) "the state court applies a rule that contradicts the governing law set forth" in the relevant Supreme Court precedents, or (2) "the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [the Supreme Court] precedent." Williams, 529 U.S. at 405-06. A state court decision involves an unreasonable application of" clearly established federal law if the state court's application of Supreme Court precedent to the facts of the case is "objectively unreasonable." Id. at 409. "[A]n unreasonable application of federal law is different from an incorrect application of federal law." Id. at 410 (emphasis in original). Thus, "a federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. Some increment of incorrectness beyond error is required, but "the increment need not be great . . ." Francis v. Stone, 221 F.3d 100, 111 (2d Cir. 2000). The increment need not be so great as to limit habeas relief to those state court decisions "so far off the mark as to suggest judicial incompetence." Id. (citation omitted); see Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000); Cotto v. Lord, 99 Civ. 4874, 2001 WL 21246, at *8 (S.D.N.Y. Jan. 9, 2001), aff'd No. 01-2056, 2001 WL 1412350 (2d Cir. Nov. 8, 2001)

Under § 2254, this Court could not grant relief unless the decision in the state court proceedings was erroneous under the standards set forth in § 2254(d). However, even if the Court applied a de novo standard of review, the petition in this case should be denied because the petitioner has failed to establish a basis for relief.*fn5


The petitioner alleges two bases for a writ of habeas corpus. First, the petitioner contends that the Parole Board's consideration of his refusal to volunteer incriminating information to the police, and his later failure to testify against his co-defendant, Wyley Gates, violated his constitutional right against compelled self-incrimination in a criminal proceeding. Second, the petitioner asserts that the Parole Board's reliance on mistaken and erroneous facts was arbitrary and capricious, an abuse of discretion, and a violation of the petitioner's substantive due process rights under the Fourteenth Amendment.


The petitioner contends that two lines of questioning by the Parole Board evidence the fact that the Parole Board denied him parole in violation of his Fifth Amendment rights. First, the petitioner claims that the Parole Board's questions about his decision not to inform the police immediately that Gates had confessed to the killings and given him the murder weapon reveals that the Parole Board denied parole to penalize him for exercising his Fifth Amendment rights on the night of the murders. Second, the petitioner claims that questioning about his failure to testify at Gates' trial also proves that the Parole Board held his silence against him in further violation of his constitutional rights.

The Fifth Amendment protects against compelled self-incrimination in a criminal prosecution. See Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 286 (1998); Baxter v. Palmigiano, 425 U.S. 308, 316-18 (1976). The privilege extends to being compelled to provide information that can be used in future criminal proceedings and no adverse inference can be drawn in a criminal proceeding from a failure to testify. Baxter, 425 U.S. at 317; Griffin v. California, 380 U.S. 609 (1965)

In this case, the petitioner's Fifth Amendment claim fails on several levels. First, there is no evidence that the state ever attempted to compel the petitioner to provide information about the murder or that he ever exercised his Fifth Amendment rights. Indeed, the transcript of the Parole Board Hearing reflects the petitioner's testimony that he in fact spoke to the police at his home on the night of the murders but gave an incomplete account of the events. (Hearing Tr. at 19-20.) One of the overt acts in furtherance of the conspiracy for which the petitioner was convicted, as described in the Inmate Status Report for the Parole Board was: "That on or about December 14, 1986, at about 12:30 a.m., the defendant, Damian Rossney,. did suppress and conceal the aforementioned pistol from the Colombia [sic] County Sheriff's Department and denied any knowledge or information concerning said homicide." (Inmate Status Report at 2.)

The petitioner then turned the murder weapon over to the police the next day after talking with an attorney. (Hearing Tr. at 40.) The Inmate Status Report of the Parole Board contains a summary of the petitioner's statement about that event. The petitioner described his conduct in turning over the gun as follows: "After talking with his uncle, Mr. Rossney made a statement to the police, and voluntarily retrieved the items from the school, the burglary at the Gates residence, and the gun that Wiley [sic] had returned to him which turned out to be the murder weapon." (Inmate Status Report at 6.)

Further, there was no evidence that the prosecutors attempted to compel the petitioner to testify at the trial of Wyley Gates or that he asserted any Fifth Amendment right to refuse to testify at that trial. The plain import of the petitioner's testimony to the Parole Board was that the petitioner had provided information to the prosecutors (such as the statement by Wyley Gates) but that the prosecutors were disinterested in the petitioner's testimony because they had other evidence including the immunized testimony of Miles McDonald and because the petitioner's proposed testimony was not in conformity with McDonald's testimony. The petitioner explained this to the Parole Board. (Hearing Tr. at 37-38.)

The Parole Board hearing transcript is wholly devoid of any evidence that the authorities sought to compel the petitioner to testify or that he asserted a Fifth Amendment privilege. Rather, the transcript reflects that the petitioner provided information to the police, and testified at his own trial, plainly not invoking any Fifth Amendment privilege. (Hearing Tr. at 34.)

Moreover, the record does not support the claim that the Parole Board penalized the petitioner for any alleged exercise of his rights under the Fifth Amendment.*fn6 The Parole Board was clearly aware of the petitioner's constitutional rights, including his privilege against compelled self-incrimination. In fact, Commissioner Raffali brought the privilege to the petitioner's attention at the outset of the hearing when clarifying that the petitioner had no outstanding appeals. The Commissioner made certain that the petitioner understood that anything he said at the Hearing could be used against him before an appellate court. (Hearing Tr. at 2-3.) And later in the hearing, Commissioner McSherry sought to clarify any misunderstanding regarding the petitioner's right to go to trial and stated, "Don't get me wrong. You have a right to go to trial. I'm not saying that a person does not have a right to exercise his or her constitutional right, to exercise his right to go to trial." (Hearing Tr. at 36-37).*fn7

The fact that the Board spent a substantial portion of the interview exploring whether the petitioner appreciated the seriousness of his offense at the time of the offense as well as at the hearing demonstrates only that the Board took a careful look at the petitioner's qualifications for parole. Under New York law:

[d]iscretionary release on parole shall not be granted merely as a reward for good conduct or efficient performance of duties while confined but after considering if there is a reasonable probability that, if such inmate is released, he will live and remain at liberty without violating the law, and that his release is not incompatible with the welfare of society and will not so deprecate the seriousness of his crime as to undermine respect for the law.
N.Y. Exec. Law § 259-i (c)(A). Therefore, the Board's questions, used to evaluate whether the petitioner comprehended the gravity of his offense, were reasonable. There is no evidence that the Board pursued such questioning for any improper purpose. The hearing transcript reflects that the Board was troubled by many of the petitioner's statements about why he hid information from the police and there are inconsistencies in his testimony about his own reaction to Gates' confession. (See, e.g., Hearing Tr. at 16-17, 19) (expressing casual disbelief and later anxiety)). The Board attempted to ensure that the petitioner had used his time in prison to, in part, come to understand the seriousness of the petitioner's own involvement in the crimes for which he was convicted. The Parole Board expressed this concern to the petitioner when, for example, after posing questions about his lack of forthrightness, Commissioner Platt explained, "[W]e're having some difficulty understanding your, well, credibility as to your role, because you're saying some things that just don't add up as far as what you understood . . . your place was in this whole picture." (Hearing Tr. at 24-25.)

In making its ultimate decision to deny the petitioner parole, the Board considered the seriousness of the underlying offenses, the fact that the petitioner failed to address adequately the reasons for his actions for which he was incarcerated, and the fact that the petitioner's "responses at this hearing demonstrate [his] lack of insight." (Hearing Tr. at 44.) It is true that the Commissioners asked the petitioner pointed questions about why he indicated to the police that he did not know anything about the crimes and thereby "frustrated their investigation." (Hearing Tr. at 3.) But the state court correctly held that there was no error in the Parole Board's questioning. Indeed, while a person can choose to exercise a Fifth Amendment right against compulsory self-incrimination, if a person speaks, the person's false exculpatory statements can be used against that person. See, e.g., Arizona v. Mauro, 481 U.S. 520, 529 (1987) ("Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. . . . Volunteered statements of any kind are not barred [from admission at trial] by the Fifth Amendment. . . . (quoting Miranda v. Arizona, 384 U.S. 436, 478 (1966)); United States v. DiStefano, 555 F.2d 1094, 1104 (2d Cir. 1977) (false exculpatory statements admissible as evidence of consciousness of guilt). There is no basis to conclude that the Parole Board penalized the petitioner for any exercise of a Fifth Amendment right, or that the petitioner exercised this right at all. A de novo review of the Parole Board's questioning leads to the same conclusion that no violation of the petitioner's Fifth Amendment rights occurred.


The petitioner's second claim is that the Parole Board violated his substantive due process rights under the Fourteenth Amendment by relying on erroneous facts in deciding to deny him parole. The petitioner concedes that he has no procedural due process rights at stake because the New York parole scheme creates no liberty interest in parole. See Barna v. Travis, 239 F.3d 169, 170-71 (2nd Cir. 2001) (per curiam).

The petitioner alleges, however, that he suffered a violation of his right to substantive due process because the Parole Board's behavior "shocks the conscience." (Pet.'s Mem. Resp. at 22 (quoting United States v. Salerno, 481 U.S. 739, 766 (1987)).) However, he has not pointed to any behavior by the Parole Board that rises to such a level. The petitioner places great weight on the Parole Board's mistaken belief that he had engaged in only eighteen hours of a Life Without Violence class to address the reasons for his illegal behavior. At the Hearing, however, the petitioner clarified that he had, in fact, became an instructor in the course. (Hearing Tr. at 29.) The petitioner is correct that the Parole Board realleged that he had taken only eighteen hours of the class in its written decision denying him parole. But this statement was merely an example given as part of the Board's conclusion that the petitioner had failed to address adequately the behavior leading to his incarceration. In view of the Parole Board's task of evaluating the petitioner's overall achievements in confronting his own actions, the statement does not rise to the level of a substantive due process violation. See Coady, 251 F.3d at 487 ("[F]ederal courts are not authorized by the due process clause to second-guess parole boards and the requirements of substantive due process are met if there is some basis for the challenged decision.")

The petitioner also alleges that the Parole Board mischaracterized his offense as "a conspiracy and a criminal facilitation, as the result of which four people were killed." (Hearing Tr. at 44.) The petitioner points out that he was, in fact, convicted of conspiracy and facilitation solely with regard to one victim, Robert Gates, Sr. However, the Board's characterization does not rise to the level of a constitutional violation. While the petitioner was only convicted of conspiracy and facilitation in connection with the murder of Robert Gates, Sr., the underlying conduct included giving a gun to Wyley Gates which was used in the murder of four persons. As the Appellate Division concluded, even if the petitioner were correct in his interpretation of the wording of the Parole Board decision, there is no basis to conclude that the difference in wording would have affected the decision to deny parole. Rossney, 699 N.Y.S.2d at 319. There is ample basis in the record to support the Board's decision and the Appellate Decision's refusal to overturn it.

This is a very different case from Paz v. Warden, Fed. Corr. Inst., Englewood, CO, 787 F.2d 469 (10th Cir. 1986), on which the petitioner relies. In Paz, the Court of Appeals affirmed a district court determination that a decision of the United States Parole Commission was arbitrary and capricious because it was based on an effort to require the petitioner to confess to a crime of rape that he was never charged with, much less convicted of. There is no similar conduct by the Parole Board in this case. Moreover, the issue in Paz was whether the federal Parole Commission had acted arbitrarily and capriciously, not whether there had been a violation of substantive due process. The decision by the Parole Board in this case finds support in the record and does not shock the conscience.


There has been an ongoing dispute in this case as to whether the petitioner has the right to view his entire institutional file. The petitioner alleges that the Parole Board relied on the file in its entirety in deciding to deny him parole. On November 17, 2000 counsel for the petitioner was granted access to the file at the Woodbourne Correctional Facility. (Affidavit of Rafael Juarbe sworn June 2001 ("Juarbe Aff.") ¶ 2 attached as Ex. B to Filipakis Aff. Opp.) Before handing over the file, however, certain documents were removed in counsel's presence. (Juarbe Aff. ¶ 3.) These items included the New York State Division of Parole's Confidential Folder, Parts II and III of the petitioner's Inmate Status Report, Columbia County Presentence Investigation, the petitioner's "rap sheet," and documents generated by the New York State Department of Corrections, including the Program and Security Assessment Summary, the "blotter," mental status reports of the Department of Mental Health, the Personal Characteristics and Security Information, the Classification Sheet, and the Initial Security Classification Guidelines, all of which were allegedly exempt from disclosure. (Juarbe Aff. ¶ 3.)

On November 20, 2001 this Court ordered the respondent to produce the entire record of the Article 78 proceeding along with a detailed affidavit identifying the documents in the state produce the entire record of the Article 78 proceeding along with a detailed affidavit identifying the documents in the state parole board record for which the respondents claim a privilege, as well as a basis for the claimed privileges. Order dated Nov. 30, 2001. In response, the respondents submitted what they allege to be the entire record of the Article 78 proceeding, only two documents of which have been submitted to the Court solely for in camera review. (See Filipakis Aff. Opp. Ex. F.) The confidential documents are the Presentence Investigation Report, which includes a Victim Impact Statement, and the confidential portion of the Inmate Status Report (Parts II and III). (See Filipaks Aff. Opp. Ex. F/SubExs. B & D.) In addition, the respondents submitted an affirmation by Terrence X. Tracy, Counsel to the New York State Division of Parole, explaining why these documents were withheld. (Affirmation of Terrence X. Tracy dated Jan 4. 2002 ("Tracy Aff.") attached as Ex. L to Filipakis Aff. Opp.)

The documents that have been withheld from the plaintiff and provided to the Court for in camera review, and which were part of the Article 78 Record, are subject to privileges under state law. Under N.Y. Comp. Codes R. & Regs. 9, § 8000.5, the New York State Division of Parole is authorized to disclose certain information to an inmate prior to a scheduled appearance before the Parole Board, but certain information is specifically his institutional program or supervision; materials which would reveal sources of information obtained upon a promise of confidentiality; any information which if disclosed might result in harm, physical or otherwise, to any person; and documents and materials of other agencies, including but not limited to probation reports, drug abuse and alcoholism rehabilitation records, and the Division of Criminal Justice Services report. Hence, the Probation Report, Exhibit B to the Article 78 Record, is specifically exempted from disclosure. Moreover, under the Criminal Procedure Law, while the defendant was given the opportunity to review and copy the pre-sentence report prior to his sentencing, subject to any explicit redactions authorized and explained by the sentencing court, when the pre-sentence report is transmitted to another state agency, such as the Division of Parole, that report is to be held under the same conditions of confidentiality that would have applied to the Probation Department. See N.Y. Crim. Proc. L. § 390.50(1)-(3). New York State courts have in fact denied access to pre-sentence reports to prisoners who have not shown sufficient reason to obtain such reports. See, e.g., Kilgore v. People, 710 N.Y.S.2d 690 (App. Div. 2000); Allen v. People, 663 N.Y.S.2d 455 (App. Div. 1997).*fn8 In addition, the Victim Impact Statement is specifically exempt from disclosure by the Division of Parole unless disclosure is expressly authorized by the victim or by court order. N.Y. Comp. Codes R. & Regs. 9, 80002.4(e)

Parts II and III of the Inmate Status Report, Exhibit D to the Article 78 Record, contain psychological information and evaluations of the petitioner by parole officers, together with a service plan follow-up for field staff personnel relating to the petitioner. This material falls within the categories of information exempted from disclosure by the Division of Parole. See N.Y. Comp. Codes R. & Regs. 9, § 8000.5(c)(2)(i)(a). New York courts have declined to provide access to these confidential portions of Parole Division Inmate Status Reports. See, e.g., Belcher v. Travis, No. 98-0592 (Sup.Ct., Saratoga Co. 1998); Faison v. Travis, No. 98-051-008 (Sup.Ct., Clinton Co. 1998).

A petitioner in a habeas corpus proceeding generally does not have a right to discovery unless the petitioner can show good cause. See Bracy v. Gramley, 520 U.S. 899, 904 (1997); Rule 6(a) of the Rules Governing Section 2254 Cases. If the petitioner were able to show good cause, then even state privileges would yield if they were "outweighed by a federal interest in presenting relevant evidence to a trier of fact." Daniels v. City of New York, 99 Civ. 1695, 2001 WL 228091, at *1 (S.D.N.Y. Mar. 8, 2001) (quoting United States v. One Parcel of Property at 31-33 York St., 930 F.2d 139, 141 (2d Cir. 1991)). However, as a matter of comity, federal courts must balance the deference to be accorded state-created privileges with the need for the information sought to be protected by the privilege. Id. In this case, with respect to the materials submitted in camera to this Court, the petitioner has failed to show good cause for access to that material and has failed to overcome the state statutory privileges. The Court has already concluded that the petitioner has failed to show that either his Fifth Amendment rights or his Fourteenth Amendment due process rights were violated in the course of the Parole Board hearing and decision. The petitioner has failed to proffer any bases for believing that the material contained in the in camera submissions would support either argument or other basis for vacating the Parole Board decision. The Court has independently reviewed the in camera submissions and concluded that they would not support a decision from this Court vacating the Parole Board decision.

It would be particularly inappropriate for this Court to order disclosure of the in camera materials as to which the petitioner seeks disclosure. In deciding to overcome state privileges, federal courts still give serious consideration to policies underlying the state privileges. In this case, there are careful regulations and procedures governing access to presentence reports and to materials used by the Division of Parole. The petitioner could have and should have used those procedures when proceeding through the Parole Board process and exhausting his state court remedies. This Court would then have had the considered decision of the state courts on these issues of disclosure. That would be particularly useful in a case where this Court's review of the state court proceeding is limited by the deferential standard of review provided by 28 U.S.C. § 2254 (d). In any event, however, the petitioner has failed to show good cause for overcoming the state privileges and obtaining access to the in camera documents.

The petitioner also contends that the documents submitted by the respondents do not constitute the entire record before the Parole Board. (Affirmation of Nicholas L. Tishler dated Feb. 19, 2002 ("Tishler Affirm.") ¶¶ 8-9.) Moreover, the petitioner alleges that his entire institutional file has never been produced to this Court or to any other court. (Id. at ¶ 9.) The petitioner seeks access to his entire institutional file, although he admits to not knowing what that file contains. (Id. at ¶¶ 17-18.)

These assertions, however, provide no good cause for any further discovery in this case. The Filipakis Affidavit attests that the Court has been provided with the entire Article 78 proceeding record which contained the record before the Parole Board. (See Filipakis Aff. Opp. at 2, description of Ex. F.) The petitioner's assertion that there may have been other materials reviewed by the Parole Board is complete speculation and does not establish good cause for discovery. Moreover, for the reasons explained above, if the petitioner had any objections to the record before the state courts he could have and should have attempted to supplement that record. There is no showing that any further discovery would produce any basis to vacate the Parole Board decision.


A certificate of appealability may issue in a case only if the applicant has made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253 (c)(2); Hooper v. United States, 112 F.3d 83, 88 (2d Cir. 1997). "The certificate of appealability . . . shall indicate which specific issue or issues satisfy the showing required by [§ 2253(c)(2)]." 28 U.S.C. § 2253 (c)(3). The Court of Appeals for the Second Circuit has held that the standard for granting a certificate of appealability is the same as the prior standard for granting a certificate of probable cause. See Nelson v. Walker, 121 F.3d 828, 832 n. 3 (2d Cir. 1997). In order to receive a certificate of appealability, "[t]he petitioner need not show that [the petitioner] should prevail on the merits." United States v. Rosario, 96 Civ. 2733, 1997 WL 639039, at *1 (S.D.N.Y. Oct. 15, 1997); see also Lucidore v. New York State Division of Parole, 209 F.3d 107, 112 (2d Cir.), cert. denied, 121 S.Ct. 175 (2000). Instead, the petitioner need only demonstrate: (1) that the issues are debatable among jurists of reason; (2) that a court could resolve the issues in a different manner; or (3) that the questions are adequate to deserve encouragement to proceed further. Lucidore, 209 F.3d at 112 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)).*fn9

For the reasons explained above the Court is convinced that the petitioner is not entitled to federal habeas corpus relief. However, the issue of whether the plaintiff's Fifth Amendment rights were violated is one that is adequate to receive further review. Thus, the Court will certify that issue for a certificate of appealability. The Court will not certify that the petitioner has made a substantial showing of the denial of his rights under the Fourteenth Amendment. Allowing the petitioner to appeal to the Court of Appeals for the Second Circuit will also provide an opportunity for the Court of Appeals to clarify whether state prisoners challenging parole determinations must do so pursuant to § 2254 in this Circuit.

The Court has considered all of the arguments raised by the parties and, to the extent not explicitly discussed, they are either moot or without merit.


The petition for habeas corpus is dismissed. The Court declines to grant further discovery to the petitioner. The Clerk is directed to enter judgment dismissing the petition and closing the case. The Court issues a certificate of appealability as explained above.


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