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BODDIE v. NEW YORK STATE DIVISION OF PAROLE

August 21, 2003

TERENCE BODDIE, PETITIONER, AGAINST, NEW YORK STATE DIVISION OF PAROLE, ET AL., RESPONDENTS


The opinion of the court was delivered by: Robert Sweet, Senior District Judge [ Page 2]

OPINION

Terence Boddie, who is currently incarcerated at the Arthur-Kill Correctional Facility, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that his parole denial on November 17, 1998 violated his rights under New York State law and the U.S. Constitution. For the reasons set forth below, the petition is denied.

Prior Proceedings

Boddie's conviction arose out of the sexual assault of a twenty-seven year-old woman in Manhattan on April 20, 1991. Boddie and his two co-defendants, Matthew Randall and Ronald Austin, detained the victim in a locked bedroom while Randall pointed a shotgun at her and ordered her to undress. Randall, Boddie, and Austin each forced the victim to perform oral sex. Boddie's co-defendants also raped and sodomized the victim while Boddie was present. After the victim was released, she went directly to the police. The victim identified all three men (a fourth man present in the bedroom was never apprehended) and they were placed under arrest.

Boddie was tried in New York County Supreme Court before a jury and was convicted of four counts of Rape in the First Degree, five counts of Sodomy in the First Degree and two counts of [ Page 3]

Sexual Abuse in the First Degree. Boddie was sentenced to a total indeterminate period of six to eighteen years incarceration. The Appellate Division affirmed the convictions and sentences on April 2, 1996, see People v. Boddie, 226 A.D.2d 120, 640 N.Y.S.2d 47 (1st Dep't 1996), and the New York Court of Appeals denied leave to appeal on August 13, 1996. See People v. Boddie, 88 N.Y.2d 980, 672 N.E.2d 613, 649 N.Y.S.2d 387 (N.Y. 1996).

On November 17, 1998, Boddie appeared before the New York Stare Parole Board for his initial parole hearing. The Parole Board denied parole, finding as follows:

Parole is denied for the following reasons: The instant offenses — Rape 1st, Sodomy 1st, Sexual Abuse 1st. Your criminal record includes a 1986 youthful adjudication. The instant offenses are an escalation of your criminal conduct. While incarcerated you've been denied an earned eligibility certificate. All factors militate against discretionary release by the parole panel.
While represented by counsel, Boddie instituted an administrative appeal, raising the following claims:
(1) The determination by the commissioners to deny Boddie release was arbitrary and capricious, pursuant to 9 N.Y.C.R.R. § 8006.3(a)(1);
(2) Boddie had no meaningful forum to bring his record before the Board, nor did the Board consider recidivist risk;

(3) The determination by Parole Board Commissioners Jones and Gailor to deny Boddie release was based on erroneous information pursuant to that term's meaning in 9 N.Y.C.R.R. § 8006.3(a)(2); [ Page 4]

(4) The determination by Commissioners Jones and Gailor to deny Boddie's release for twenty-four months was excessive, pursuant to 9 N.Y.C.R.R. § 8006.3(a)(3).

Boddie supplemented this appeal with a pro se brief, raising the following claims:

(1) The Commissioners violated Boddie's rights when they penalized Boddie for exercising his Fifth Amendment privilege against self-incrimination;
(2) Section 8350.00 of the parole policy was violated when there were unauthorized persons at the parole hearing;
(3) The use of the nature of Boddie' crimes as the apparently primary reason, if not the sole reason for denying Boddie's parole was arbitrary, capricious and unlawful;
(4) The Parole Board was affected by errors of law in that it violated the prohibition against double jeopardy and the doctrine of collateral estoppel;
(5) Boddie's due process rights were violated when the Parole Board relied upon false and inaccurate information in the pre-sentence report, parole file and institutional file to deny Boddie parole release.
The Parole Board denied Boddie's administrative appeal by a decision dated August 6, 1999.

Boddie then filed a motion pursuant to New York C.P.L.R. § 78 with the New York Supreme Court, New York County, seeking review of the Parole Board's denial. The petition alleged the following violations: [ Page 5]

(1) Boddie's statutory rights under Executive Law § 259-1(2)(a), and his constitutional rights under the Due Process Clause and Equal Protection Clauses were violated when Boddie appeared before the Parole Board via electronic teleconferencing;
(2) Boddie's constitutional rights under the Due Process Clause were violated when the Division of Parole followed the broad unwritten edict of Governor Pataki that all violent felony offenders should be held to their Conditional Release dates;
(3) Boddie's constitutional rights were violated by Parole Commissioners when Boddie was penalized for exercising his Fifth Amendment privilege against self-incrimination;
(4) The Parole Board violated § 8350.00 of the parole policy and procedure manual and Boddie's due process rights when unauthorized persons, namely the two technicians operating the teleconferencing equipment, were present at Boddie's parole board hearing;
(5) Boddie's due process rights were violated when the Parole Board relied on the nature of Boddie's crimes as the sole reason for denying Boddie parole release;
(6) The Parole Board violated the prohibition against double jeopardy and the doctrine of collateral estoppel by relying on the same criteria used by the sentencing court when it imposed Boddie's sentences;
(7) The determinations by Parole Commissioners Jones and Gailor to deny Boddie release for 24 months was excessive and serves as extra punishment.
Boddie also moved to have his Pre-Sentencing Report and Inmate Status Report reviewed and expunged of factually inaccurate material. Justice Barbara Krapnick, on a default judgment, ordered the Parole Board to review their files and determine whether Boddie's Pre-Sentencing Report required modification, in light of Boddie's allegation that it contained inaccurate information. In the Matter of Boddie v. Dodds, Index No. 404153/99 (Sup.Ct., N.Y. [ Page 6]

County, December 15, 1999). In response, the phrase "admitted guilt in the instant offense" was removed from the Pre-Sentencing Report. Boddie's Inmate Status Report was also modified to redact that portion which indicated that Boddie had smoked cocaine and wielded a shotgun.

On May 1, 2000, New York Supreme Court Justice Bruce Allen dismissed Boddie's Article 78 petition on the merits, rejecting all of Boddie's claims. In the Matter of Boddie v. N.Y.S. Div. of Parole, Index No. 404883/99, (Sup.Ct., N.Y. County, May 1, 2000). Justice Allen found that Boddie had never objected to the electronic format of his parole hearing at the time of the hearing, nor had he been prejudiced by the procedure. Boddie had also failed to cite to any material omissions in the recorded transcript, and had not demonstrated that the Parole Board had relied on any inappropriate materials when rendering its decision, even in view of Justice Krapnick's previous order that the Board review and remove any inappropriate material from Boddie's files. Rather, the transcript of the parole hearing revealed that Boddie had not offered to clarify the events of the crime and was reluctant to discuss his case at all. As such, Boddie could not "turn around and complain that the commissioners got the facts wrong." Id. The court found that "all [relevant statutory] factors were addressed at the hearing. That the Division [of Parole] has in recent years may have decided that the greatest weight is to be given to the nature of the crime for which the [ Page 7]

applicant was convicted, making it difficult for one who has been convicted of the violent sex crimes petitioner committed to win early release, does not constitute an abuse of discretion." id.

Boddie subsequently appealed that decision to the Appellate Division, Third Department. While that appeal was pending, Boddie appeared before the Parole Board on November 8, 2000 for his second hearing. The Board again denied parole, finding based on a review of Boddie's entire record that "if released at this time there is a reasonable probability that you would not live and remain at liberty without ...


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