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Borrell v. Superintendent of Wende Correctional Facility

United States District Court, Second Circuit

January 27, 2014

JULIO C. BORRELL, Petitioner,
v.
SUPERINTENDENT OF WENDE CORRECTIONAL FACILITY, Respondent.

DECISION AND ORDER

CHARLES J. SIRAGUSA, District Judge.

INTRODUCTION

Julio C. Borrell ("Borrell" or "Petitioner") is a citizen of the Dominican Republic who is currently serving a prison sentence in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS").[1] Now before the Court is Borrell's petition for habeas corpus, pursuant to 28 U.S.C. § 2254, which alleges that the State of New York improperly denied him a form of parole known as "conditional parole for deportation only" ("CPDO"). The application is denied.

BACKGROUND

New York Executive Law § 259-i pertains to parole for state prison inmates. Subsections 2(a), (b) and (c) deal with certain procedures for determining whether to grant parole. For example, § 259-i(2)(c) requires the Parole Board to consider whether, if an inmate is released early, he will refrain from committing further crimes, whether his early release would be compatible with the welfare of society and whether early release would deprecate the seriousness of his crimes. That portion of the statute also directs the Parole Board to consider matters such as the inmate's institutional record.

The instant application arises under another subsection, Executive Law § 259-i(2)(d)(i), which states:

Notwithstanding the provisions of paragraphs (a), (b) and (c) of this subdivision, after the inmate has served his minimum period of imprisonment imposed by the court, or at any time after the inmate's period of imprisonment has commenced for an inmate serving a determinate or indeterminate term of imprisonment, provided that the inmate has had a final order of deportation issued against him and provided further that the inmate is not convicted of either an A-I felony offense other than an A-I felony offense as defined in article two hundred tw enty of the penal law or a violent felony offense as defined in section 70.02 of the penal law, if the inmate is subject to deportation by the United States Bureau of Immigration and Customs Enforcement, in addition to the criteria set forth in paragraph (c) of this subdivision, the board may consider, as a factor warranting earlier release, the fact that such inmate will be deported, and may grant parole from an indeterminate sentence or release for deportation from a determinate sentence to such inmate conditioned specifically on his prompt deportation. The board may make such conditional grant of early parole from an indeterminate sentence or release for deportation from a determinate sentence only where it has received from the United States Bureau of Immigration and Customs Enforcement assurance (A) that an order of deportation will be executed or that proceedings will promptly be commenced for the purpose of deportation upon release of the inmate from the custody of the department of correctional services, and (B) that the inmate, if granted parole or release for deportation pursuant to this paragraph, will not be released from the custody of the United States Bureau of Immigration and Customs Enforcement, unless such release be as a result of deportation without providing the board a reasonable opportunity to arrange for execution of its warrant for the retaking of such person.

(emphasis added).[2]

The facts underlying the instant petition are set forth in Respondent's Memorandum of Law [#8], in pertinent part, as follow s:

Petitioner was convicted in Queens County Supreme Court under two separate indictment numbers on June 11, 1998 and December 10, 1998, and he is serving an aggregate prison term of from 12 ½ to 25 years.[3]
On December 15, 2009, petitioner appeared before a panel of the Division of Parole ("Parole Board" or "Board") for a hearing on petitioner's parole application. In an interview during the hearing, petitioner discussed with the Board his current crimes, lengthy criminal history, [4] program participation, and disciplinary record. The Board also discussed with petitioner the fact that he had a final deportation order for the Dominican Republic and asked him about the circumstances awaiting him there.[5]
On December 16, 2009, the Parole Board issued a decision denying parole and ordering a 24-month hold. The Board concluded that if petitioner were released, there was a "reasonable probability that [he] would not live at liberty without violating the law, " and that his release would "so deprecate the seriousness of this crime as to undermine respect for the law." The Board determined that petitioner's participation in prison programs and vocational achievements was outweighed by his criminal behavior and his poor record of adjustment in prison, including multiple Tier II and Tier III infractions.[6]
* * *
On May 17, 2010, petitioner filed an administrative appeal with the Division of Parole Appeals Unit, which affirmed the decision of the Parole Board and notified petitioner of that decision on October 29, 2010.[7]
While petitioner's administrative appeal was still pending, he filed a pro se state petition for a writ of habeas corpus, pursuant to Article 70 of the New York Civil Practice Law and Rules, dated June 24, 2010, in the Chemung County Supreme Court, seeking immediate release from incarceration so that he could be deported. Petitioner argued that, in light of the final order of deportation issued against [him], the Parole Board violated [his] Due Process and Equal Protection rights by denying his request to be given Conditional Parole for Deportation Only ("CPDO").[8] Respondent filed an affirmation opposing petitioner's claims.
In an Order dated September 28, 2010, the Chemung County Supreme Court denied the petition. The court recognized that "[t]here is no requirement that the Board release petitioner to parole supervision or grant him CPDO merely because he has a deportation order; rather, the Board is only obligated to consider the deportation order in addition to other statutory factors when determining the appropriateness of an inmate's parole release."
The court also noted that "petitioner made it clear that he did not challenge the parole denial, and claimed that he was not required to exhaust his administrative remedy in this case." Petitioner also did not seek a new parole hearing, but only his immediate release for deportation. The court determined that, since the appeal of petitioner's Parole Board determination had not yet been decided, "this is also a case of failure to exhaust ...

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