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March 24, 2003


The opinion of the court was delivered by: Robert W. Sweet, United States District Judge


Respondents Gail Thomas, Acting Superintendent of the Mid-Orange Correctional Facility and Brion D. Travis, Chairman of the New York Division of Parole (the "State") have moved in opposition to the petition of pro se petitioner Joseph Defino ("Defino") for habeas corpus. In addition, Defino has moved for reconsideration of an earlier decision by this Court denying him discovery. For the following reasons, Defino's motion for reconsideration is denied, and his petition for habeas corpus is dismissed.


On September 13, 1992, Defino was arrested and charged with second-degree murder. On February 4, 1994, Defino pled guilty to manslaughter in the first degree and was sentenced to seven to twenty-one years as a first-time offender. His term of incarceration began on February 24, 1994.

Defino appeared before the Parole Board (the "Board") for the first time in July 1999. The Board denied parole, and Defino was held for another 24 months. The instant habeas petition relates to his second appearance before the Board, on July 25, 2001. The Board again denied parole "due to the extreme violence [Defino] exhibited in the instant offense, manslaughter in the first degree, wherein you shot a man multiple times causing his death." Parole Board Hearing Tr. at 9 (July 25, 2001). It noted that Defino had remained crime free for approximately 16 years before the instant offense, but had returned at that time to drug use and had possession of an illegal weapon. Id. The Board further concluded that in spite of Defino's "positive programming and community support," it found "more compelling your total disregard for the life of another." Id. Defino will be considered for parole again in July 2003.

On November 19, 2001, Defino appealed this decision to the Appeals Unit of the Division of Parole. The decision was affirmed on May 10, 2002.

On May 25, 2002, Defino filed a petition in the Supreme Court of the State of New York, Albany County, pursuant to N.Y. C.P.L.R. § 7803 ("Article 78") for judicial review of the parole denial. He argued "that the determination was arbitrary and capricious in that the Parole Board failed to properly consider the statutory factors and relied too heavily on the instant offense." In the matter of Defino v. Travis, No. 4525-02, slip op. at 1 (Nov. 11, 2002). It was held that the Board's finding "was amply supported" and that it "considered all of the statutory factors, including prisoner's prison disciplinary record, his institutional programming, his plans for release and his explanation of the circumstances surrounding his crime and his explained mitigating factors." Id. at 2. Therefore, the petition was dismissed.

Defino filed his habeas petition and a motion for bail and discovery on August 26, 2002. The habeas petition, brought under 28 U.S.C. § 2254, alleges violations of his equal protection and due process rights in the execution of his sentence, i.e., the denial of his parole on July 25, 2001.

The State responded to the motion for bail and discovery on December 16, 2002, and the motion was considered fully submitted at that time. It was denied in an opinion dated January 2, 2003. Defino v. Thomas, 2003 WL 40502 (Jan. 2, 2003). In the opinion, Defino was denied bail because it was found that he did not demonstrate that he was likely to prevail on his claims as his claims regarding failure to exhaust his state court remedies were not yet ripe and because he was unlikely to succeed on the merits. Id. at *3-*4. Further, his motion for discovery was denied because Defino made only generalized statements regarding the potential usefulness of discovery. Id. at *4.

By letter dated January 13, 2003, Defino moved for reconsideration of that portion of the Court's January 2, 2003 opinion denying Defino discovery. The State responded on February 10, 2003, and the motion was considered fully submitted on February 4 12, 2003. Because the motion is denied, it will be addressed at the same time as Defino's habeas petition is discussed.

On January 16, 2003, the State moved in opposition to Defino's habeas petitions. Defino replied on February 5, 2003 and by letters dated February 20, 2003 and March 3, 2003. The State responded to these additional arguments by letter dated March 10, 2003. The motion was considered fully submitted at that time.

Discussion I. Standard of Review

In addressing the present motion, the Court is mindful that the petitioner is proceeding pro se and that his submissions should be held "`to less stringent standards than formal pleadings drafted by lawyers. . . .'" Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 176 (1980) (per curiam) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595 (1972)); see also Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir. 1993). Indeed, district courts should "read the pleadings of a pro se [petitioner] liberally and interpret them to raise the strongest arguments they suggest.'" McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Nevertheless, the Court is also aware ...

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