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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 ...

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