The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
I. Factual Background and Procedural History
Ralph Scott ("Scott" or "petitioner") has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that he is being held in state custody in violation of his federal constitutional rights. The parties have consented to disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1).
Scott's detention in state custody arises from judgments of conviction entered on July 25, 1977, in New York County Supreme Court, convicting him of two counts of Murder in the Second Degree (New York Penal Law ("Penal Law") § 125.25(3)), and four counts of Robbery in the First Degree (Penal Law § 160.15); on May 12, 1978, in Bronx County Supreme Court, convicting him of Attempted Criminal Possession of a Weapon in the Third Degree (Penal Law §§ 110.00/265.02); and on October 18, 1978, in Westchester Supreme Court, convicting him of Attempted Escape in the First Degree (Penal Law §§ 110.00/205.15).
On April 12, 1976, petitioner and three cohorts, all armed, entered the New Amsterdam Theater at 214 West 42nd Street in New York City, to execute a pre-arranged plan to rob the theater employees and the payroll. Petitioner was familiar with the theater because, prior to that date, he had worked at the theater as a "Security Officer - Sergeant." See Respondent's Exhibit T, Petitioner's Resume, p. 3.
Petitioner and his cohorts first seized one of the security guards, bound him, and put him in the ladies' lounge. See Respondent's Exhibit D, p. 2. As employees began to arrive at the theater, they were directed into the lounge by petitioner and his accomplices. Id. When the manager arrived, petitioner and his co-perpetrators stole the manager's revolver. In addition, they stole a security guard's handgun and a watch from an employee. Id.
An armored payroll car arrived eventually arrived, with two security guards in attendance. By that point, about twenty theater patrons were being imprisoned in the ladies' lounge. When Scott aimed his sawed-off shotgun at one armored car guard, the other guard turned and ran out of the theater. As the second guard fled, Scott fatally shot him in the back. Id. Scott and one of his cohorts then disarmed the other guard and pushed him to the floor, and petitioner fatally shot him. Id.
Two of the perpetrators surrendered to the police. Scott, however, remained at large. About a month later, on May 11, 1976, at about 11:00 a.m., Bronx County police officers conducting were on a rooftop conducting surveillance when they spotted petitioner on an adjacent rooftop. Id., p. 2. The officers, believing that petitioner resembled an individual who had robbed a milk truck ten minutes earlier, entered petitioner's rooftop and ordered him to stop. Id. When Scott turned to face the police officers, his jacket blew open, revealing a gun in a shoulder holster. Id. The officers placed Scott under arrest.
After Scott was arrested, the milk truck driver stated that Scott was not the individual who had robbed him. Id. Scott remained in custody on criminal possession of a weapon charges and also was charged with the murders and robberies that he had committed a month earlier at the New Amsterdam theater.
A New York County Grand Jury returned an indictment charging petitioner with two counts of second-degree murder, three counts of first-degree robbery, and one count of attempted first-degree robbery in connection with the theater crimes. Following a jury trial, Scott was convicted as charged on July 25, 1977. In addition, a Bronx County Grand Jury charged Scott with attempted third-degree weapon possession for the rooftop incident. On May 12, 1978, Scott pleaded guilty to this crime, in exchange for an indeterminate term of imprisonment of from 11/2 to 3 years.
Prior to that guilty plea on the weapons possession charge, while Scott was incarcerated at Sing Sing Correctional Facility, he made an attempted escape: Corrections officers observed him filing through a window bar in a room located in the Administration Building on March 29, 1978. Examination revealed that the window bar was severed half-way. Id. Petitioner was charged with and, on October 18, 1978, pleaded guilty to, attempted first degree escape in Westchester County Supreme Court.
With respect to the murder and robbery convictions, Scott was sentenced to indeterminate prison terms of from 25 years to life on each murder count and from 5 to 15 years on each robbery count, to be served concurrently with each other but consecutively to parole time owed by petitioner. Scott was sentenced, as a second felony offender, see Penal Law § 70.06, to a indeterminate term of from 11/2 to 3 years for the attempted third-degree weapon possession charge. He was sentenced to an indeterminate term of from 11/2 to 3 years imprisonment for the attempted first-degree escape conviction, to run concurrently "with any undischarged term [petitioner] is now serving." Although Scott's New York and Bronx County convictions were affirmed by the Appellate Division, First Department, that court modified one of the first-degree robbery counts by reducing it to attempted first-degree robbery. People v. Scott, 93 A.D.2d 754, 462 N.Y.S.2d 309 (App. Div. 1st Dept. 1983). Leave to appeal to the New York State Court of Appeals was denied. People v. Scott, 61 N.Y.2d 678 (N.Y. 1983). Scott is currently incarcerated at Attica State Correctional Facility pursuant to these judgments of conviction.
On each occasion that Scott has appeared before the New York State Division of Parole ("the Parole Board"), he has been denied conditional release. The Parole Board's denials from 2001, 2003, and 2005 form the gravamen of Scott's habeas claims, as detailed further in the following paragraphs.
During his March 13, 2001, parole hearing, Scott was asked why he killed the two men during the theater incident. Scott replied "[t]hat was an accident, but it doesn't make any difference." The parole commissioner pressed Scott about how the shootings happened:
Q: What happened that led to that, though?
A: The guy grabbed it and it went off.
Q: Grabbed what, you had a shotgun?
Respondent's Exhibit E, p. 4.
Scott told the Board that he had graduated from college, worked in the law library and volunteered for programs, and Commissioner Smith noted petitioner's favorable disciplinary record. Id., p. 7. Petitioner was informed that the Board would consider not only petitioner's crimes, but his involvement in prison activities, his certificates and his evaluations. Id., p. 6. Commissioner Smith inquired into petitioner's employment prospects upon release and asked petitioner's views on trends within the prison community. Id., pp. 7-9. Commissioner Smith noted the severity of petitioner's crimes and the fact that they had been committed while he was on parole. (Petitioner had been adjudicated a youthful offender in 1961, convicted of misdemeanors, received a probation sentence, and was sentenced in 1967 to 71/2 to 15 years imprisonment for second-degree robbery. Id., p. 9.) Scott acknowledged his criminal record; when asked why he continued to commit crime after serving time on the second-degree robbery conviction, he responded, "I don't know, I just went off the deep end." Id., pp. 9-10.
In a decision dated March 19, 2001, the Parole Board denied release to parole supervision:
Parole denied. After a personal interview, record review, and deliberation, this panel finds your release is incompatible with the public safety and welfare. Your instant offenses of murder 2nd, robbery 1st and attempted CPW 3rd involved an in-concert, armed robbery where two security guards were shot and killed. A separate arrest led to the weapon charge above. At the time of these crimes, you were on parole. Once sentenced, you attempted to escape from Sing Sing prison. Consideration has been given to your program completion. However, due to your poor record on community supervision, and the violence you exhibited during the instant offenses, your release at this time is denied. There is a reasonable probability you would not live and remain at liberty without violating the law. See Respondent's Exhibit F.
The Wyoming County-Attica Legal Aid Bureau filed an administrative appeal from the denial of parole on Scott's behalf. See Respondent's Exhibit T. On appeal, Scott argued that the Parole Board failed to weigh all of the factors set forth of New York Executive Law § 259-i(5), and that its reliance on the seriousness of petitioner's convictions, rather than petitioner's institutional achievements, led to an arbitrary and capricious determination. Respondent's Exhibit T, pp. 6-9. Petitioner also contended that the Parole Board failed to consider alleged inaccuracies in his record.
Petitioner sought further review of denial of parole via an Article 78 petition to the Supreme Court, Wyoming County, which was denied on May 8, 2002. The court found that in denying parole, the Parole Board had properly relied on the "serious and violent" conduct underlying petitioner's convictions, which had been committed while petitioner was on release to parole supervision, as well as his subsequent attempted escape from prison. Respondent's Exhibit G, pp. 1-2. The court further found that Parole Board acted within its discretion in assigning greater weight to these factors than to petitioner's positive programming and institutional record. Id., p. 2. The court held that because petitioner failed to show that the Parole Board did not consider all of the relevant factors of New York Executive Law § 259-i(2)©, petitioner failed to show that the Parole Board's decision violated the law, was not supported by the record, and was tainted by "irrationality bordering on impropriety." Id., p. 2. Also rejected was petitioner's claim that the Parole Board improperly relied on his arrest history, rather than his conviction history. The court explained that petitioner's objections to the content of the pre-sentence report should have been resolved in the sentencing court, and petitioner's only recourse was to bring the alleged errors in his commitment papers to the sentencing court's attention in a motion to vacate. Id., pp. 2-3.
Petitioner indicates that he filed a Notice of Appeal with regard to the Wyoming Supreme Court's decision, but that his appeal to the Fourth Department was dismissed as moot in view of petitioner's reappearance before the Parole Board in 2003. Respondent's Exhibit S, ¶ 17.
On March 11, 2003, petitioner again appeared before the Parole Board for a hearing on his request to be released to parole. Respondent's Exhibit I. Petitioner informed the Board that he had made employment contacts and graduated from Skidmore College. Id., pp. 2-4. However, he was unable to answer the commissioners' questions regarding why he had committed his crime. When asked if he had anything to say with regard to the murders/robberies conviction, petitioner stated, "I wish it had never happened." Id., p. 4. Commissioner Smith noted that petitioner had been placed on probation and afforded youthful offender status in 1961, but violated the terms of that probation sentence. Petitioner was unable to recall why he was arrested in 1961 and thought that his first conviction that resulted in state time involved an automobile. Id., pp. 5-6. As to why petitioner committed the instant offenses while on parole from a lengthy sentence, petitioner stated that he was "really influenced and trying to be a tough guy and all that kind of stuff," and he contended that his return to New York City had been the cause of his problems. Id., p. 6.
On March 17, 2003, the Parole Board denied petitioner's request for release to parole, finding as follows:
This panel has concluded that your release to supervision at this time is not compatible with the community safety and welfare and, therefore, parole is denied. This finding is made following a personal interview, record review and deliberation. Of significant concern is your lengthy history of crime that dates from a 1961 youthful offender adjudication and probation. The instant offenses of murder 2nd (two counts), robbery 1st (4 counts), attempted CPW 3rd and attempted escape 1st occurred while you were on parole and led to your third New York State prison term. Consideration has been given to your satisfactory behavior and programming. However, the probability you will live and remain at liberty without violating the law is not found to be reasonable given the factors noted above.
With the assistance of counsel, petitioner appealed the Parole Board's denial of his request for release to parole supervision. In his brief, petitioner contended that the Board's action was arbitrary and capricious and a manifestation of an illegal policy, in that since 1995, Governor Pataki implemented a policy to grant parole less often to violent felons. Respondent's Exhibit K, pp. 3-4. Relatedly, in a letter dated October 1, 2003, the Executive Director of the Wyoming County-Attica Legal Aid Bureau, Inc., informed the Appeals Unit of the Parole Board that the Department of Correctional Services had corrected petitioner's database entry to reflect that his 1978 weapons ...