United States District Court, N.D. New York
RANDY RODRIGUEZ, Pro se Clinton Correctional Facility Dannemora, NY, for Petitioner.
PRISCILLA I. STEWARD, ESQ., Assistant Attorney General, HON. ERIC T. SCHNEIDERMAN, New York State Attorney General, The Capitol, Albany, NY, for Respondent.
REPORT AND RECOMMENDATION
DAVID E. PEEBLES, Magistrate Judge.
Pro se petitioner Randy Rodriguez, a New York State prison inmate, has commenced this proceeding pursuant to 28 U.S.C. § 2254, claiming that he is being held in state custody in violation of his federal constitutional rights. In his petition Rodriguez, who is the subject of a final deportation order, complains that he has not been scheduled for a parole hearing to consider whether he should be granted early conditional parole for deportation only ("ECPDO").
Since this proceeding was commenced, petitioner was in fact granted a parole hearing for the purpose of evaluating his request for ECPDO. In light of this development, and because plaintiff's petition fails to set forth a cognizable claim for habeas relief in any event, I recommend that the petition be denied.
Based on his guilty plea, petitioner was convicted in New York State Supreme Court, New York County, on October 10, 2003, of sixteen counts of criminal sale of a controlled substance, one count of conspiracy in the second degree, and two counts of fourth-degree conspiracy in violation of New York Penal Law §§ 220.43(1), 105.15, and 105.10(2), respectively. Dkt. No. 1 at 1; Dkt. No. 10-2 at 2. As a result of that conviction, Rodriguez was sentenced as a second felony offender to an aggregate term of imprisonment of twenty-years to life. Id. Petitioner's conviction was affirmed by the New York State Supreme Court Appellate Division, First Department, on September 16, 2008. People v. Rodriguez, 54 A.D.3d 600 (1st Dep't 2008). Rodriguez did not seek leave to appeal his conviction to the New York Court of Appeals.
On April 16, 2009, a United States immigration judge ordered that Rodriguez be removed from the United States and returned to the Dominican Republic. Dkt. No. 10-3 at 2. Based upon that final deportation order, which petitioner did not challenge, and after completing the statutorily mandated minimum portion of his sentence to qualify for ECPDO, petitioner submitted an application for that relief on February 7, 2011. Dkt. No. 10-8 at 27. Following receipt of that application, the Division of Parole sent two letters, dated February 23, 2011 and July 20, 2011, to Supreme Court Justice Charles Soloman, who sentenced Rodriguez, requesting a statement and/or recommendation concerning petitioner's request for ECPDO. Dkt. No. 10-5 at 2; Dkt. No. 10-6 at 2; Dkt. No. 10-8 at 28, 33. The Division of Parole did not receive a response from the sentencing judge to those communications. Dkt. No. 10-8 at 31-32; Dkt. No. 10-14 at 2.
On December 20, 2011, Rodriguez petitioned the First Department Appellate Division for a writ of mandamus seeking to compel the sentencing judge to respond to his request for ECPDO. Dkt. No. 10-8 at 6-10. The petition was unanimously denied and dismissed on June 21, 2012, by a five-member panel of the Appellate Division without comment. Rodriguez v. Solomon, 946 N.Y.S.2d 862 (1st Dep't 2012). Petitioner was subsequently denied leave to appeal to the Court of Appeals on November 27, 2012. Rodriguez v. Solomon, 980 N.E.2d 535 (2012).
On March 19, 2013, Terrence Tracy, Esq., Counsel to the Board of Parole, forwarded a memorandum to Dan Amend, whose position is listed as "Supervising ORC, " opining that petitioner had satisfied all of the required statutory criteria to qualify for an ECPDO and requesting that he be calendared for the next available Parole Board session for consideration of his application. Dkt. No. 10-14 at 2.
As of July 16, 2013, when the respondent's papers in opposition to Rodriquez's petition were filed, petitioner was scheduled to appear in July -, "or earlier, " for a parole hearing. Dkt. No. 10-15 at 2. The court has been advised that, since then, a parole hearing was conducted on July 16, 2013, at which time petitioner's request for ECPDO was denied. Dkt. No. 13.
Federal habeas corpus relief is available to a state prisoner who is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254. In his petition, Rodriguez asserts a due process violation under the Fourteenth Amendment to the United States Constitution. Dkt. No. 1 at 4. As a threshold matter, a party asserting such a due process claim must establish a potential deprivation of life, liberty, or property. Wilkinson v. Austin, 545 U.S. 209, 221 (2005); Perry v. McDonald, 280 F.3d 159, 173 (2d Cir. 2001). In this instance, petitioner invokes his right to liberty. With limited exception, however, that right is not implicated by parole decisions. See, e.g., Barna v. Travis, 239 F.3d 169, 171 (2d Cir. 2001).
As the Second Circuit has noted, "[i]n order for a state prisoner to have an interest in parole that is protected by the Due Process Clause, he must have a legitimate expectancy of release that is grounded in the state's statutory scheme." Barna, 239 F.3d at 170. It is well-established that New York's statutory parole scheme does not create a legitimate expectation of early release. Graziano v. Pataki, 689 F.3d 110, 114-15 (2d Cir. 2012); Barna, 239 F.3d at 171. Under New York Law, the Parole Board retains the authority and discretion to determine questions of parole and may establish its own guidelines for making parole decisions. Barna, 239 F.3d at 171 (citing N.Y. Exec. L. § 259-i(2)(c)(A)). The same holds true with regard to decisions to grant ECPDO. See Samuel v. Alexander, 69 A.D.3d 861, 862 (2d Dep't 2010) ("There is no requirement that the Parole Board grant an individual conditional parole for deportation only merely because he has completed his minimum term and is subject to a final order of deportation." (citation omitted)). Based upon petitioner's inability to establish the existence of an interest protected under the Fourteenth Amendment, his petition fails to state a cognizable claim for habeas relief. See Guerro v. Senkowski, No. 01-CV-1918, 2003 WL 1623670, at *2 (N.D.N.Y. Mar. 28, 2003) (Sharpe, M.J.) ("[A]lthough New York law provides that inmates who have not been convicted of violent felonies may be eligible for early release for deportation only, there is no constitutional right to parole under either New York or federal law." (citing cases) (emphasis omitted)); Hickerson v. Willingham, ...