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Rhames v. Superintendent

United States District Court, N.D. New York

April 11, 2018

KEITH RHAMES, Petitioner,
v.
SUPERINTENDENT, Respondent.

          FOR PETITIONER: KEITH RHAMES, Pro Se.

          FOR RESPONDENT: HON. ERIC T. SCHNEIDERMAN.

          MATTHEW B. KELLER, ESQ. Assistant Attorney General

          REPORT AND RECOMMENDATION

          David E. Peebles U.S. Magistrate Judge.

         This is a proceeding commenced by pro se petitioner Keith Rhames, a New York State prison inmate as a result of a 1990 conviction for murder and weapon possession, seeking habeas relief pursuant to 28 U.S.C. § 2254. In his petition, Rhames challenges a decision issued by the New York State Parole Board denying him parole. For the reasons set forth below, I recommend that the petition be denied and dismissed in all respects.

         I. BACKGROUND

         Following a jury trial conducted in 1990 in New York State Supreme Court, Kings County, petitioner was found guilty of second-degree murder and criminal possession of a weapon in the second- and third-degrees under New York State law. Dkt. No. 15-1 at 83. As was described in a report generated by the New York State Parole Board ("Parole Board"), the underlying facts of petitioner's crimes are as follows:

On 3/12/89, at approximately 9:45 pm, the Subject and two unapprehended others, followed the victim into 162 Troy Ave. Bklyn, NY, and then proceeded to discharge two rounds into the victim's abdomen. One eyewitness observed the Subject follow the deceased into the building, heard two shots and then saw the Subject fleeeing [sic] the building. The second witness observed the Subject shooting his victim. Both witnesses identified the Subject in lineup.

Id. As a result of his conviction, petitioner was sentenced on October 17, 1990, to an aggregate prison term of twenty-five years to life. Id. at 52, 75.

         On December 1, 2015, petitioner appeared before the Parole Board for a second time.[1] Dkt. No. 15-1 at 109-20. Although during that parole hearing petitioner admitted his guilt to the crimes of conviction, he disputed one of the Parole Board Commissioner's summary of the underlying facts. Id. at 111. That disagreement is reflected in the following colloquy between Commissioner J. Smith and petitioner at the parole hearing:

Q. The instant offense dates back to March of 1989. You and two others followed the victim into a residence or an apartment in Brooklyn and discharged two rounds into his abdomen.
A. No, that's not what happened.
Q. What happened? Give me your version.
A. We didn't follow him. We went in the building. I never got to - we went to the elevator and as we got - as I got on the elevator, the deceased person pulled out a gun and so I reacted once I seen it and I shot him because I felt, you know, my life was, you know, in jeopardy. It was a housing project, a pretty rough housing project in Brooklyn, the Albany Houses. And after that, we ran away after the incident.

Id. at 111-12.

         During the parole hearing, petitioner also acknowledged his two prior felony convictions, and that he previously had his probation revoked. Dkt. No. 15-1 at 113. The Parole Board discussed with petitioner his two prison disciplinary violations since his last parole hearing, and petitioner was provided an opportunity to explain the circumstances of those violations and, more generally, why he believed he should be released from prison. Id. at 114-15, 118-19. The Parole Board also acknowledged during the hearing that (1) petitioner's Correctional Offender Management Profiling for Alternative Sanctions ("COMPAS") Risk Assessment showed that petitioner had a low risk of violence, arrest, and absconding;[2] (2) petitioner had secured housing for his potential release; and (3) petitioner had developed leads for securing employment following release. Id. at 113, 115-16.

         Following the hearing, the Parole Board issued a decision denying petitioner parole. Dkt. No. 15-1 at 120. Because petitioner challenges the basis upon which the Parole Board rendered that decision, the entire decision is recited below:

         DECISION

Denied 24 months. Next appearance, 12/17.
Parole is denied. After a review of the record and interview, the panel has determined that if released at this time there is a reasonable probability that you would not live at liberty without again violating the law.
This decision is based on the following factors:
The instant offense of Murder 2nd, Criminal Possession of a Weapon 2nd, and Criminal Possession of a Weapon 3rd, wherein you did cause the ...

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