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United States District Court, Southern District of New York

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 that pro se status "`does not exempt a party from compliance with relevant rules of procedural and substantive law." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (quotations omitted).

II. Defino's Motion for Reconsideration Is Denied

"To succeed on a motion for reargument, the moving party must demonstrate that the court overlooked the controlling decisions or factual matters that were placed before the court in the underlying motion." Lopez v. Comm'r of Soc. Sec., 2002 U.S. Dist. LEXIS 5091, *1-*2 (S.D.N.Y. March 27, 2002) (quotations and citations omitted); see also Shrader v. CSX Transp., 70 F.3d 255, 257 (2d Cir. 1995) (motion for reargument "will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked — matters, in other words, that might reasonably be expected to alter the conclusion reached by the court").

Rule 6.3 is intended to "ensure the finality of decisions and to prevent the practice of a losing party examining a decision and then plugging the gaps of a lost motion with additional matters." Carolco Pictures, Inc. v. Sirota, 700 F. Supp. 169, 170 (S.D.N.Y. 1988) (citation omitted). The parties may not present new facts or theories at this stage. Ralph Oldsmobile Inc. v. General Motors Corp., 2001 WL 55729, at *2 (S.D.N.Y. Jan. 23, 2001) (striking affidavit that was filed in support of motion to reconsider without court's permission); Primavera Familienstifung v. Askin, 137 F. Supp.2d 438, 442 (S.D.N.Y. 2001) (party may not "advance new facts, issues or arguments not previously presented to the Court") (quoting Morse/Diesel Inc. v. Fidelity & Deposit Co. of Md., 768 F. Supp. 115, 116 (S.D.N.Y. 1991)).

Rule 6.3 must be narrowly construed and strictly applied so as to avoid duplicative rulings on previously considered issues, and may not be employed as a substitute for appealing a final judgment. Lopez, 2002 U.S. Dist. LEXIS 5091, at *3; Shamis v. Ambassador Factors, 187 F.R.D. 148, 151 (S.D.N.Y. 1999). The decision to grant or deny the motion rests in the discretion of the district court. AT&T Corp. v. Community Network Servs. Inc., 2000 WL 1174992, at *1 (S.D.N.Y. Aug. 18, 2000).

Defino does not contest that any controlling legal authority was overlooked. The opinion noted:

Habeas petitioners, however, are not usually entitled to discovery. Gonzalez v. Bennett, 2001 U.S. Dist. LEXIS 19798, at *11 (S.D.N.Y. Nov. 30, 2001). Pursuant to Rule 6 of the Rules Governing 28 U.S.C. § 2254 cases, a federal judge may permit discovery only for "good cause shown." A determination of good cause turns on whether the petition has "set forth specific allegations that provide `reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief[].'" Gonzalez, 2001 U.S. Dist. LEXIS at *11 (internal citations omitted). Generalized statements regarding the potential existence of discovery are insufficient. Id.
Defino, 2003 WL 40502, at *4.

In support of his motion, Defino appears to suggest that the Court failed to consider evidence that had been put before it, in that he argues that his allegations in support of his request for discovery were more than "generalized statements." He asserts that he had provided the names of three persons who were similarly situated to him but who were given different treatment, and that the Court should have at the very least granted document discovery regarding those three persons.

Defino's argument is unavailing. As noted by the State, publicly available information reveals that the three persons cited by Defino are not similarly situated to him: they were all convicted of Murder in the Second Degree and were not paroled until after they had served more than the minimum sentence; Defino was convicted of Manslaughter in the First Degree, and complained that parole was denied after only his first two appearances. Moreover, it was determined that Defino had failed to demonstrate a likelihood of success on the equal protection claim for which he seeks the above discovery. Defino, 2003 WL 40502, at *4 (finding that Defino had failed to establish a likelihood of success on his "class of one" theory of equal protection).

Defino has failed to demonstrate that the court overlooked the controlling decisions or factual matters that were placed before the court in the underlying motion and therefore his motion must be denied.

III. Petition for Habeas Corpus

The State has moved in opposition to Defino's petition for habeas corpus, arguing that the claims are procedurally barred and without merit.

In response to the first point, as noted earlier, Defino makes a "potentially powerful" argument, Defino, 2003 WL 40502, at *3, but this Court will follow the sage words of another court in this district that dealt with a similar argument regarding failure to exhaust from an inmate also incarcerated at the Mid-Orange Correctional Facility:

As so often in habeas corpus cases, potentially complex and difficult issues about the various obstacles to reaching the merits should not be allowed to obscure the fact that the underlying claims are totally without merit. Since [the] petition can easily be rejected on the merits, requiring submission of that petition to the state courts, with the likelihood that the same arguments will be presented here in any event, would be a waste of the resources of both the state and federal courts.
Brown v. Thomas, No. 02 Civ. 9257, 2003 WL 941940, at *1 (S.D.N.Y. March 10, 2003).

As discussed in greater detail in the earlier opinion, Defino argues that the denial of his parole violated his rights to due process and equal protection. In the earlier opinion, it was held that Defino had failed to establish a likelihood of success on the merits on either claim. Id. at *3-4. This prediction of lack of likelihood of success holds true.

A. Due Process

Defino's due process claim is that the Parole Board's determination that he should remain in confinement is not supported by the evidence. "It is well-established that the New York parole system does not `create [] in any prisoner a legitimate expectancy of release.'" Brown, 2003 WL 941940, at *1 (quoting Barna v. Travis, 239 F.3d 169, 171 (2d Cir. 2001)). Instead, a prisoner's federally-protected liberty interest is limited to not being denied parole for arbitrary or impermissible reasons. Id. (citing Meachum v. Fano, 427 U.S. 215, 226 (1976)).

According to the New York parole statute:

Discretionary 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. L. § 259-i(2)(c)(A). Thus, the Parole Board may consider the "seriousness of [the inmate's] crime," N.Y. Exec. L. § 259-i(2)(c)(A), as well as the inmate's institutional record and release plans, N.Y. Exec. L. § 259-i(2)(c)(A)(i) and (iii), in determining "the likelihood that the inmate will not be a danger to the community and to the independent requirement that early release not `deprecate the seriousness of his crime so as to undermine respect for law.'" Brown, 2003 WL 941940, at *2. "[W]here the record `demonstrates that the Parole Board considered the relevant statutory factors, including petitioner's record in prison and post-release plans, before concluding in its discretion that, due to the serious and violent nature of the crime and petitioner's other violent conduct, petitioner is not an acceptable candidate for release on parole,' reliance on the nature of the inmate's crime to deny parole is entirely consistent with the criteria laid down by the legislature." Id. (quoting Thurman v. Hodges, 739 N.Y.S.2d 324, 324 (4th Dep't 2002)).

Here, the record demonstrates that the Parole Board denied Defino parole "due to the extreme violence [he] exhibited in the instant offense, manslaughter in the first degree, wherein [he] shot a man multiple times causing his death." The Board further noted that despite the fact that Defino had remained "crime free for about 16 years, [he] returned to drug use and possessed an illegal weapon, which [he] used in [his] dispute and in ultimately killing the victim." The Board concluded by expressly acknowledging that it had considered Defino's "positive programming and community support," but found that these factors were not as "compelling" as Defino's "total disregard for the life of another."

When the New York Supreme Court Justice E. Michael Kavanagh reviewed this finding on Defino's Article 78 motion, he found from the record that "it [was] clear that the [Parole Board] considered all of the statutory factors . . . [and] [t]he fact that the Board concluded that release was not appropriate d[id] not require a finding that it ignored the relevant factors." Moreover, Justice Kavanagh found the Board's conclusion to be "amply supported" by the record.

In a letter dated March 3, 2003, Defino brought to the Court's attention a recent case decided in New York Supreme Court, Chan v. Travis, Index #3045-01 (Albany Sup. Ct. Feb. 7, 2003), which the State has represented is currently being appealed to the Appellate Division, Third Department. In Chan, New York Supreme Court Justice Edward Sheridan granted an Article 78 petition challenging Chan's parole denial on the grounds that the Parole Board's decision failed to contain a statement evidencing a rational basis for denying parole. Chan, slip op. at 12 ("[T]he Board erroneously determined that the nature of the petitioner's crime precluded parole release, the written reasons for denial of parole are insufficient, the determination was not reached in accordance with law, and the decision is so irrational as to border on impropriety."). Of particular import to the court was the Parole Board's determination that the "serious nature of the instant offense precludes early release." Id. at 8 (quoting Parole Board determination). The court noted that the Parole Board may deny parole based exclusively on the seriousness of crimes committed only when there are aggravating or egregious circumstances, of which there was no evidence before Chan's Parole Board. Id. The court also took issue with the fact that the Parole Board merely "`note[d]' [Chan's] `positive adjustment to incarceration,'" without any evidence that the Parole Board had "consider[ed] them in the fair, reasoned or individualized manner." Id. at 9.

Chan is not controlling state law and, in any case, is distinguishable. Here, the Parole Board did not rely exclusively on the violent nature of the offense. In addition, in Chan, it was not clear that Chan had even participated in the violent crimes for which he was convicted at age seventeen a result of his membership in a Chinese gang, id. at 9, whereas here the Parole Board specifically acknowledged that Defino had been responsible for the violent act for which he was convicted. In addition, the Parole Board did more than merely "note" Defino's achievements; it discussed them at some length:

[W]e have reviewed the rather significant packet that you submitted as well as we should say the many letters of support written on your behalf from community members, probation supervisors, priests, chaplains. You have clearly done a great deal of good work, Mr. Defino, in this facility and others. You have in the last two years maintained a clean disciplinary record, no tickets. You didn't have much before then. And you've continued to work in the law and grounds for a period of seven months. Then you were a general clerk in maintenance. . . .
Parole Board Hearing, at 7. As a result, this Court maintains that Defino has failed to establish that the Parole Board acted arbitrarily and, in so doing, violated Defino's due process rights. Defino's petition is denied on the basis of his due process claim.

B. Equal Protection

Defino next argues that the Parole Board has in fact granted parole to offenders convicted of other, similar crimes of violence, but arbitrarily refused to grant him parole. This "class of one" claim requires that a party show that he was similarly situated to others and received different treatment from them, and was subjected to "irrational and wholly arbitrary acts" and "intentional disparate treatment." Giordano v. City of New York, 274 F.3d 740, 751 (2d Cir. 2001).

In his original petition, Defino pointed to three violent offenders who he claims were similarly situated. By letter dated January 13, 2003, he alleged that a fourth inmate, Presley, who was released on parole, met the criteria laid out in the earlier opinion in this case, in that he was involved in a violent homicide, engaged in illegal drug use and had possession of illegal weapons. Even if Presley's case shares some of the similarities with Defino's situation, that does not necessarily create an equal protection violation. As the Brown court pointed out:

"[Petitioner] is not the only first-degree manslaughter offender to be denied parole. . . ." Brown, 2003 WL 941940, at *2. Indeed, the State has presented a list of five recent cases alone in which inmates convicted of Manslaughter in the First Degree were denied parole. E.g., Silmon v. Travis, 95 N.Y.2d 470, 477-78, 718 N.Y.S.2d 704 (2000) (Parole Board properly denied parole to petitioner, who was convicted of Manslaughter in the First Degree for bludgeoning wife to death with barbell, based on finding that petitioner had not shown remorse and insight into offense, thus indicating that petitioner's release was not compatible with welfare of society); Perez v. N.Y.S. Div. of Parole, 294 A.D.2d 726, 726, 741 N.Y.S. 753 (3d Dep't 2002) (Parole Board did not act arbitrarily when it denied parole to petitioner who was serving seven to twenty-one years on his Manslaughter in the First Degree conviction; nor did record support petitioner's claim that Board's determination was not an exercise in discretion but rather was predetermined to satisfy an informal policy against releasing violent felons on parole); Collado v. N.Y.S. Div. of Parole, 287 A.D.2d 921, 921, 731 N.Y.S.2d 680 (3d Dep't 2001) (Parole Board did not abuse its discretion in denying parole to petitioner, who was serving five to fifteen years for his conviction of Manslaughter in the First Degree, because he would be unlikely to "live and remain at liberty without violating the law," thereby posing a threat to the community); Johnson v. Travis, 284 A.D.2d 686, 687, 726 N.Y.S.2d 300 (3d Dep't 2001) (Parole Board did not arbitrarily deny parole to petitioner who was serving seven to twenty-one years for Manslaughter in the First Degree when the Board "considered relevant factors"); In re Larrier v. N.Y.S. Board of Parole Appeals Unit, 283 A.D.2d 700, 700, 723 N.Y.S.2d 902 (3d Dep't 2001) (Parole Board properly considered all relevant statutory factors in denying request for parole; petitioner was convicted of Manslaughter in the First Degree and was sentenced to term of from eight and one-third to twenty-five years for placing her newborn son in a plastic bag and dropping him down a garbage chute).
Given the degree of discretion accorded to the Parole Board and the wealth of factors that its members may take into account, Defino's argument is difficult if not impossible to sustain. Brown, 2003 WL 941940, at *3 ("[T]he number and variety of factors bearing on the seriousness of the underlying offense and the likelihood that an offender will be a danger to the community make it impossible to conclude, on the basis of the sketchy data presented, that petitioner has been singled out from among all homicide offenders for disparate treatment."). In light of the foregoing, Defino's petition must be denied.


For the foregoing reasons, Defino's petition for habeas relief is dismissed. Defino has shown no violation of constitutional rights in the Parole Board's decision to deny him parole. Accordingly, the petition must be denied. As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c)(2); Lucidore v. New York State Div. of Parole, 209 F.3d 107, 111-13 (2d Cir. 2000).

It is so ordered.


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