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SALAHUDDIN v. UNGER

September 2, 2005.

ABDULLAH Y. SALAHUDDIN, Petitioner,
v.
DAVID UNGER, Superintendent, Orleans Correctional Facility, Respondent.



The opinion of the court was delivered by: JOHN GLEESON, District Judge

MEMORANDUM AND ORDER

Abdullah Y. Salahuddin petitions for a writ of habeas corpus, challenging a decision of the New York State Division of Parole ("Parole Board") on July 17, 2001 denying his release to parole supervision. I heard oral argument on November 12, 2004. For the reasons set forth below, the petition is denied. BACKGROUND

  On July 4, 1976, at approximately 9:30 p.m., Victoria Sostre and Celiano Perez were working at a grocery store owned by Rudolfo Montoya in Brooklyn when Salahuddin and a male companion entered the store. Salahuddin placed a gun to the back of Perez's head and announced a hold-up. When Rudolfo Montoya, the owner of the store, entered the store from a back room, Salahuddin pointed the gun at him. At that point Perez attempted to seize the gun from Salahuddin. A struggle ensued, which moved out into the street. When Montoya came out of the store, Salahuddin shot him in the head and killed him.

  On January 26, 1978, a jury found Salahuddin guilty of second degree murder (felony murder) and second degree manslaughter. He was sentenced to concurrent terms of imprisonment of twenty-five years to life and seven and one-half to fifteen years for the two counts, respectively. His conviction was affirmed by the Appellate Division, Second Department. See People v. Murph,*fn1 454 N.Y.S. 2d 567 (2d Dep't 1982). The New York Court of Appeals denied leave to appeal the following year. See People v. Murph, 59 N.Y.2d 678 (1983). A collateral attack of the conviction in state court was unsuccessful, and Salahuddin's federal habeas corpus challenge to the conviction was rejected by me in Salahuddin v. Strack, 97 Civ. 5789, 1998 WL 812648 (E.D.N.Y. August 12, 1998).*fn2 On July 17, 2001, Salahuddin appeared before the Parole Board for the first time and was examined by Commissioner Doyle. (Pet'n, Ex. 7 ("Hr'g Tr."), at 2.) He was denied parole and ordered held another 24 months. The decision, in its entirety, was as follows:
After careful consideration of your entire file and your interview, parole is denied based upon the severity of your instant offenses, your history of substance abuse and your unacceptable institutional behavior. Your instant offenses are murder second and manslaughter second. While participating in an armed robbery of a grocery store, you shot and killed one of the employees. The Panel notes that you have a history of substance abuse that led you to commit criminal behavior. While incarcerated, your institutional behavior has been unacceptable. Of particular concern to this Panel is your tier three infraction committed less than one year ago relating to violent conduct. Discretionary release is inappropriate at this time.
Guidelines are unspecified. He is ineligible for a certificate of relief.
(Hr'g Tr. at 14.) Salahuddin was set to reappear before the Board in July of 2003. (Id.)

  The "Tier 3" infraction alluded to by the Parole Board was discussed at Salahuddin's parole hearing. In December of 2000, Salahuddin was found guilty of conspiring to assault another inmate in a power struggle within the Muslim community in the prison. (Hr'g Tr. at 7.) At the hearing before the Parole Board, Salahuddin stated, "I didn't actually assault any individual but when you are charged with a conspiracy to assault a person, I was informed that if you are found guilty, you are found guilty as though you actually assaulted the person. So I was found guilty of a violent conduct." (Id. at 7-8.)

  Assisted by counsel, Salahuddin filed an administrative appeal of the Board's decision, arguing that the decision was arbitrary, capricious, and in violation of applicable law. (King Decl., Ex. D.) The Parole Board's decision was affirmed by the Appeals Unit on May 9, 2002. (Id., Ex. E.) On June 18, 2002, Salahuddin filed an Article 78 motion in state court, which was dismissed in a decision dated September 20, 2002. (Id., Ex. I.) The state court held that the Board stated sufficient grounds for denying parole when it cited the violent conduct underlying Salahuddin's convictions, his history of substance abuse, and his disciplinary record. It held that "[t]he commissioners also had discretion to place greater weight on these cited factors than they placed on his performance in institutional programs, proposed release plans, and the references from people who supported his application for release." (Id. at 2.) Accordingly, it found that fair consideration was given by the Board to the factors listed in New York Executive Law § 259-i(2)(c), the statutory provision governing parole. (Id.)

  The court also held that Salahuddin's claim under the Ex Post Facto Clause had no merit, citing Matter of Rentz v. Herbert, 615 N.Y.S.2d 178 (4th Dep't 1994). In Matter of Rentz, the 4th Department held that the application of Executive Law § 259-i to a prisoner who had committed his crime before the amendment to the statute did not violate the Ex Post Facto Clause.

 
The added statutory language requiring the Board to find that the release of an applicant "will not so deprecate the seriousness of his crime as to undermine respect for law" did not impose a new or additional obstacle to the granting of parole, but merely codified existing case law.
Id. (citations omitted). Finally, the Court held that the Board's review and reliance on Salahuddin's criminal history was proper under the law. It also noted that the Board was notified of the fact that one of Salahuddin's prison disciplinary infractions had been expunged. The court concluded that Salahuddin failed to show that the Board's decision was made "in violation of the law or not supported by the record and tainted by irrationality bordering on impropriety." (King Decl., Ex. I at 3.) In a brief dated November 30, 2002, Salahuddin appealed the denial of his motion. While the appeal was pending, he appeared before the Parole Board again on July 16, 2003. The Appellate Division for the Fourth Department unanimously dismissed the appeal of the decision as moot. (King Decl., Ex. O.) Salahuddin's application for leave to appeal to the New York Court of Appeals was denied. (King Decl., Ex. R.)

  In the instant petition, Salahuddin raises the same claims he raised in his Article 78 motion. Specifically, he asserts that: (1) the denial of parole was arbitrary and capricious because the Parole Board relied solely on the serious nature of his offense; (2) the Parole Board failed to provide an adequate explanation for its decision; (3) he was denied equal protection under the law; (4) the Parole Board relied on incomplete, inaccurate, false and erroneous information; (5) the Parole Board followed an executive and unwritten policy influenced by political pressure to deny parole to violent offenders; (6) the Parole Board used a double standard in denying him parole; (7) the parole denial violated the Ex Poste Facto Clause of the United States Constitution; (8) the Parole Board improperly re-sentenced Salahuddin by denying him parole; and (9) he was denied the effective assistance of counsel in connection with his Article 78 proceeding.

  DISCUSSION

  A. The Standard of Review

  The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") has narrowed the scope of federal habeas review of state convictions where the state court has adjudicated a petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). Under the AEDPA standard, which applies to habeas petitions filed after AEDPA's enactment in 1996, the reviewing court may grant habeas relief only if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States."*fn3 28 U.S.C. § 2254(d)(1). The Supreme Court has interpreted the phrase "clearly established Federal law" to mean "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000); see also Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001).

  A decision is "contrary to" clearly established federal law, as determined by the Supreme Court, if "the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413. A decision is an "unreasonable application" of clearly established Supreme Court law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. "In other words, a federal court may grant relief when a state court has misapplied a `governing legal principle' to `a set of facts different from those of the case in which the principle was announced.'" Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 76 (2003)).

  There is "force" to the argument "that if a habeas court must extend a rationale before it can apply to the facts at hand then the rationale cannot be clearly established at the time of the state-court decision"; "[§] 2254(d)(1) would be undermined if habeas courts introduced rules not clearly established under the guise of extensions to existing law." Yarborough v. Alvarado, 541 U.S. 652, 666 (2004). The Supreme Court has concluded, however, that while "the difference between applying a rule and extending it is not always clear," "[c]ertain principles are fundamental enough that when new factual permutations arise, the necessity to apply the earlier rule will be beyond doubt." Id.

  Under the "unreasonable application" standard set forth in Williams, "a federal habeas court may not issue the writ simply because that 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." Gilchrist, 260 F.3d at 93 (citing Williams, 529 U.S. at 411); see also Yarborough v. Gentry, 540 U.S. 1, 4 (2003) (per curiam) ("Where . . . the state court's application of governing federal law is challenged, it must be shown to be not only erroneous, but objectively unreasonable."); Wiggins, 539 U.S. at 520-21 (same). Interpreting Williams, the Second Circuit has added that although "[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Gilchrist, 260 F.3d at 93 (citing Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)). The Supreme Court recently explained that the specificity with which the rule of law at issue is defined may affect whether the state court's determination was "unreasonable":
[T]he range of reasonable judgment can depend in part on the nature of the relevant rule. If a legal rule is specific, the range may be narrow. Applications of the rule may be plainly correct or incorrect. Other rules are more general, and their meaning must emerge in ...

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