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Lugo v. Unger

September 28, 2009

ALFREDO LUGO, PETITIONER,
v.
DAVID M. UNGER, SUPERINTENDENT, WYOMING CORRECTIONAL FACILITY, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge

DECISION AND ORDER

I. Introduction

Pro se Petitioner Alfredo Lugo ("Petitioner") has filed a timely petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the constitutionality of his custody. Petitioner challenges the denial of discretionary release by the Parole Board of the New York State Division of Parole ("Division of Parole"), on March 12, 2008, after his seventh appearance interview.

Petitioner is in state custody as a result of a judgment of conviction entered January 6, 1982, in New York State Supreme Court, New York County. By that judgment, Petitioner was convicted, after a jury trial, of Murder in the Second Degree (New York Penal Law ("Penal Law") § 125.25), and was sentenced to an indeterminate term of imprisonment of fifteen years to life.

For the reasons stated below, habeas relief is denied and the petition is dismissed.

II. Factual Background and Procedural History

A. Statement of the Case Challenging the Conviction

On the night of May 25, 1981, near the corner of 104th Street and Park Avenue in New York County, Petitioner approached a sixty-year old man, brandished a pistol and demanded money. Petitioner then shot the man in the right cheek and fled the scene without taking any money. The victim died of the gunshot wound. Petitioner voluntarily surrendered on June 1, 1981 and was placed under arrest.

By New York County Indictment No. 2963/81, Petitioner was charged with second-degree murder. See Inmate Status Report for Parole and Board Appearance, 2 (Resp't Ex. A); Sentencing Mins. [S.M.] 7-8 (Resp't Ex. B). Petitioner proceeded to trial before Judge Stanley L. Sklar, and was found guilty as charged. On January 6, 1982, Petitioner was sentenced to an indeterminate term of fifteen years to life imprisonment. See S.M. 7-8 (Resp't Ex. B). He did not appeal his conviction in the Appellate Division.

B. Petitioner's Parole Board Proceedings

On March 12, 2008, Petitioner made his seventh appearance before the Parole Board of the Division of Parole. See Parole Board Tr. of 03/12/08 (Resp't Ex. C). The Parole Board reviewed Petitioner's crime, stating that it was "not clear" whether Petitioner fired the gun intentionally or accidentally, resulting in the victim's death. Id. at 2-3. Petitioner claimed that he never pointed the weapon at the victim, and that he fired the gun accidentally as the result of a "sudden movement." Id. at 3. Petitioner further claimed that the victim was known to be involved in organized crime as a numbers runner, and therefore was the source of "easy money." Id. at 4. When the Parole Board asked Petitioner how he felt about his crime, Petitioner stated that it was a "terrible, stupid" act, "something I have to live with the rest of my life," and which he thinks about often. Id. at 8-9.

The Parole Board reviewed Petitioner's prior crimes, which consisted mainly of trespasses and petit larcenies, and characterized Petitioner as a "petty thief" before he committed the underlying crime. Id. at 3. The Parole Board also reviewed Petitioner's prison record and noted that he had been a disciplinary problem and prone to violence until 1999, which the Parole Board attributed to his drug problem. Id. at 6. Since 1999, however, Petitioner had participated in a number of educational and vocational programs, worked in the law library, and had not refused to participate in any prison program during the previous two years. Id. at 4. Petitioner's main behavioral infraction since 1999 involved an incident wherein he grabbed something out of the hands of a corrections officer and then walked away from an assigned area, without permission. Id. at 4-5. The Parole Board further noted that the forty-seven year old Petitioner planned to live with his mother in New York County and to work from home from his brother's Georgia-based company. Id. at 6-7.

The Parole Board denied parole, finding that Petitioner's release would be "incompatible with the welfare and safety of the community." Id. at 11. The Parole Board's "paramount concern" in denying parole was "the extreme violence associated with this terrible crime." Id. Although the panel indicated that it had considered Petitioner's record of program completion and "any satisfactory behavior," these considerations were secondary. Id.

C. Administrative Appeal of the Denial of Parole

On March 28, 2008, Petitioner timely filed a pro se administrative appeal of the Parole Board's decision with the Appeals Unit of the Division of Parole. See Pet'r Administrative Appeal (Resp't Ex. D). Petitioner's administrative appeal asserted two claims. First, the Parole Board acted in an arbitrary and capricious manner when it denied parole because Petitioner met the statutory requirements for release (set forth in 9 N.Y.C.R.R. § 8002.3(b)(1)-(3)*fn1 ) in connection with his institutional record, the absence of evidence that the shooting was intentional, his release plan, and the fact that he had no prior felony convictions. Id. at 7-8, 10. Second, the Parole Board violated his right to equal protection when it denied his ...


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