The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
Pursuant to 28 U.S.C. § 636(c), the parties have consented to have the undersigned conduct any and all further proceedings in this case, including entry of final judgment. Dkt. #16.
Petitioner Lawrence G. Spaight commenced this action on or about February 23, 2006, pursuant to Title 28, United States Code, Section 2254, challenging a 2003 denial of parole by the New York State Division of Parole ("Parole Board"). Dkt. #1. The Court subsequently granted petitioner's motion to amend the petition to dismiss unexhausted claims without prejudice. Dkt. #29, p.4. As a result, the only issue pending is whether the Parole Board improperly relied solely on the severity of petitioner's crime in denying petitioner parole.
Petitioner was convicted following a jury trial of second degree murder and criminal possession of a weapon, second degree and sentenced to a principal indeterminate prison term of 15 years to life. Dkt. #7-2, p.7. At his parole hearing on February 11, 2003, petitioner continued to deny that he shot his wife, claiming instead that she shot herself. Dkt. #7-2, pp. 20-22. The parole board noted petitioner's clean disciplinary record since his last appearance and successful programming, including a degree from a consortium college program and a certificate in masonry. Dkt. #7-2, pp.24-25. The parole board also noted that petitioner had a job waiting for him with a contracting company, a fiancee with whom he could reside and community support from her church. Dkt. #7-2, pp.25-27.
The Parole Board denied parole and placed petitioner on a 24-month hold, explaining:
Parole is again denied due to the serious nature of the instant offense, murder second and criminal possession of a weapon second, wherein you shot your wife with a .22 caliber revolver, thereby causing her death. We note your positive programming and disciplinary record in the past two years, but find more compelling your total disregard for a life of another. All factors considered, parole cannot be granted.
Dkt. #7-2, p.29. On administrative appeal, petitioner argued that the Parole Board's decision was arbitrary, capricious, irrational and violated the mandates imposed by the legislature. Dkt. #7-2, p.37. The administrative appeal was denied. Dkt. #7-2, p.54.
Petitioner commenced an article 78 proceeding in the New York State Supreme Court, Wyoming County, arguing that the Parole Board's decision was arbitrary, capricious, irrational and violated the mandates imposed by the legislature. Dkt. #7-2, p.68. By Memorandum and Judgment entered March 12, 2004, the Hon. Mark H. Dadd, Acting Supreme Court Justice, determined that
The petition is without merit. The Board of Parole could cite the serious and violent conduct underlying the petitioner's conviction for Murder in the Second Degree as sufficient grounds for denying release. The commissioners also had discretion to place greater weight on this criminal conduct than they placed on the favorable institutional adjustment noted in their decision and the petitioner's proposed release plans. Furthermore, their decision did not have to specifically mention every factor weighed in reaching a determination. Petitioner has not demonstrated that the commissioners failed to give fair consideration to all the relevant statutory factors pursuant to Executive Law § 259-i(2)(c). Thus, judicial intervention is precluded in this matter because the petitioner has failed to establish that the respondent's decision was made in violation of the law or not supported by the record and tainted by "irrationality bordering on impropriety."
Dkt. #7-2, pp.131-32 (internal citations omitted).
On appeal to the New York State Supreme Court, Appellate Division, Fourth Department ("Appelalte Division"), petitioner argued that the court should revisit the propriety of repeated parole release denials based exclusively upon the nature of the underlying offense and that the appeal should not be considered moot if petitioner's next appearance preceded the Appellate Division's consideration of petitioner's appeal. Dkt. #7-2, pp.146 & 152.
Petitioner appeared before the Parole Board on February 8, 2005 and was denied parole in accordance with the following determination:
Your instant offenses of murder 2nd and CPW 2nd involve you shooting to death your wife with a .22 caliber 9 shot revolver which you possessed illegally and brought into your home. . . . you have told two different stories about your wife's death, claiming at the PSI interview that she shot herself. You have failed to assume responsibility for the death which you caused. We note your programming and your clean disciplinary record since your last Board. However, to grant you discretionary release at this time would so deprecate the nature of your crime as to undermine respect ...