MacKenzie v. Cunningham

Filing 50

MEMORANDUM DECISION & ORDER for 39 Report and Recommendation. For the reasons stated above, the Court adopts the Report and Recommendation in its entirety. The petition for a writ of habeas corpus is, therefore, DENIED. The Clerk of Court is dir ected to enter judgment accordingly and close this case. As Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c)(2); Love v. McCray, 413 F.3 d 192, 195 (2d Cir. 2005); Lozada v. United States, 107 F.3d 1011, 1017 (2d Cir. 1997), abrogated on other grounds by United States v. Perez, 129 F.3d 225, 259-60 (2d Cir. 1997). The Court certifies pursuant to 18 U.S.C. § 1915(a)(3) that any ap peal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purposes of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). SO ORDERED. (Signed by Judge Nelson Stephen Roman on 9/23/2014) (mml)

Court of the United States.” 28 U.S.C. § 2254(d)(1); Cousin v. Bennett, 511 F.3d 334, 337 (2d
Cir. 2008). Any state court findings of fact are presumed correct unless the petitioner rebuts the
presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
B. Magistrate Judge’s Report and Recommendation
A magistrate judge may “hear a pretrial matter [that is] dispositive of a claim or defense”
if so designated by a district court. FED. R. CIV. P. 72(b)(1); accord 28 U.S.C. § 636(b)(1)(B).
In such a case, the magistrate judge “must enter a recommended disposition, including, if
appropriate, proposed findings of fact.” FED. R. CIV. P. 72(b)(1); accord 28 U.S.C. § 636(b)(1).
Where a magistrate judge issues a report and recommendation,
[w]ithin fourteen days after being served with a copy, any party may serve and
file written objections to such proposed findings or recommendations as provided
by rules of court. A judge of the court shall make a de novo determination of
those portions of the report or specified proposed findings or recommendations to
which objection is made. A judge of the court may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate judge.
28 U.S.C. § 636(b); accord FED. R. CIV. P. 72(b)(2), (3). However, a district court “may adopt
those portions of the Report to which no objections have been made and which are not facially
erroneous.” Wilds v. United Parcel Serv., Inc., 262 F. Supp. 2d 163, 170 (S.D.N.Y. 2003)
(quoting La Torres v. Walker, 216 F. Supp. 2d 157, 159 (S.D.N.Y. 2000)). The clearly erroneous
standard also applies when a party makes only conclusory or general objections, or simply
reiterates his original arguments. See Ortiz v. Barkley, 558 F. Supp. 2d 444, 451 (S.D.N.Y.
2008).
Courts “generally accord[] leniency” to objections of pro se litigants and construe them
“to raise the strongest arguments that they suggest.” Milano v. Astrue, No. 05 Civ. 6527 (KMW)
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(DCF), 2008 WL 4410131, at *2 (S.D.N.Y. Sept. 26, 2008) (internal quotations and citations
omitted). However, the pro se party’s objections “must be specific and clearly aimed at
particular findings in the magistrate’s proposal, such that no party be allowed a ‘second bite at
the apple’ by simply relitigating a prior argument.” Pinkney v. Progressive Home Health Servs.,
No. 06 Civ. 5023 (LTS) (JCF), 2008 WL 2811816, at *1 (S.D.N.Y. July 21, 2008) (quoting
Camardo v. Gen. Motors Hourly-Rate Employees Pension Plan, 806 F. Supp. 380, 381–82
(W.D.N.Y. 1992)).
II. HABEAS PETITION AND MAGISTRATE’S FINDINGS
Petitioner’s habeas petition challenges the New York State Division of Parole, Parole
Board’s prior denials of Petitioner’s parole, by asserting four claims: (1) New York’s parole
statute (Executive Law § 259-i) is unconstitutionally vague; (2) the Parole Board repeatedly
denied Petitioner his due process rights by denying him parole based upon that unconstitutionally
vague statute; (3) the Parole Board decisions were predetermined and unconstitutionally
influenced by a biased deputy commissioner; and (4) the Parole Board decisions constituted a
“continuous deliberate denial of due process” because they lacked any rational basis and, thus,
were arbitrary and capricious. See Habeas Petition (“Pet.”) at 4 (dkt. no. 1). 1
With respect to Petitioner’s first and second claims, the “void-for-vagueness” challenges,
Judge Davison found that Petitioner fully exhausted the claims for purposes of habeas review.

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As noted in the R&R, Respondent has construed any as-applied challenges to be a challenge to the Parole Board’s
2006 and 2009 decisions only. Petitioner has replied, however, that his second claim encompasses five previous
Parole Board decisions, whereas he concedes that his third and fourth claims encompass only the 2006 and 2009
decisions. The R&R and this decision address Petitioner’s claims in a manner consistent with his position that his
second claim encompasses five Parole Board decisions, rendered: October 27, 2000; April 29, 2003; June 7, 2005;
August 15, 2006; and March 10, 2009.

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Judge Davison therefore reviewed the merits de novo and found that the first claim, a facial
challenge to the statute, fails because: (a) Petitioner did not demonstrate the absence of any
circumstances under which the statute could be valid; and (b) New York’s parole scheme does
not confer a liberty interest in parole, such that Petitioner did not demonstrate infringement upon
a fundamental right.
Judge Davison likewise found that Petitioner’s second claim, the as-applied challenge to
certain Parole Board decisions, fails because: (a) the Parole Board concededly balanced
applicable statutory criteria and gave each criterion what weight the Board saw fit; and (b) the
absence of a liberty interest in a parolee’s release undercuts a Due Process argument.
Last, Judge Davison concluded that Petitioner’s second and third claims (which argue, in
sum, that the 2006 and 2009 Parole Board decisions were predetermined, biased, and arbitrary
and capricious), are “unexhausted.” 2 Judge Davison further concluded that the third and fourth
claims are “deemed exhausted,” given the absence of any available state court remedies, but
ultimately found that procedural defaults in state court bar re-litigation of the claims in federal
habeas proceedings.
III. DISCUSSION OF OBJECTIONS
Petitioner objects to the R&R, at least insofar as Judge Davison recommended rejection
of the facial and as-applied void-for-vagueness challenges. See Petitioner’s Objections (“Pet.
Obj.”) (dkt. no. 46) at 5, 9. In so objecting, Petitioner adds detail to prior arguments made. See,

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Petitioner did not seek leave to appeal to the New York Court of Appeals the New York Appellate Division’s
adverse ruling affirming the denial of an Article 78 petition on the grounds raised in his second and third claims.
See Baldwin v. Reese, 541 U.S. 27, 29 (2004) (to exhaust a federal constitutional claim, a petitioner must have
presented it in each appropriate state court, including a state supreme court with discretionary powers of review).

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e.g., Pet. Obj. at 5 (discussing statute’s “reasonable probability” language). Petitioner likewise
propounds some additional authority. See, e.g., Petitioner’s Supplemental Letter Briefing (dkt.
no. 47) (citing Ramirez v. Evans, 118 A.D.3d 707 (2d Dep’t 2014)). But, fundamentally,
Petitioner’s objections re-argue and attempt to re-litigate issues fully briefed before Judge
Davison. While according Petitioner’s submissions leniency because advanced pro se,
objections not “specific and clearly aimed at particular findings,” and that simply reiterate
arguments already made, do not necessitate de novo review. Pinkney, 2008 WL 2811816, at *1.
Rather, this Court will review the R&R for clear error only. Ortiz, 558 F. Supp. 2d at 451.
A. Vagueness Claims
1. Facial Challenge
Petitioner’s habeas application first challenges the New York Executive Law § 259-i
facially on grounds of vagueness. As the R&R notes, such a challenge may be maintained only
when “no set of circumstances exists under which the law would be valid” or “in the presence of
a constitutionally-protected right.” Dickerson v. Napolitano, 604 F.3d 732, 743-45 (2d Cir.
2010) (citing, inter alia, City of Chicago v. Morales, 527 U.S. 41, 53 (1999); United States v.
Salerno, 481 U.S. 739, 745 (1987)) (internal quotations omitted). Here, Petitioner’s assertions
regarding the vagueness of statutory language such as “reasonable probability” fall short for two
reasons. First, Judge Davison did not clearly err in finding that such arguments, conclusory as
they are, fail to demonstrate the absence of a set of circumstances under which New York’s
parole statute could be valid. Second, as Judge Davison correctly noted, it is settled that New
York’s parole scheme does not give rise to a liberty interest in parole, which forecloses the
possible ulterior basis for a facial challenge. Graziano v. Pataki, 689 F.3d 110, 114 (2d Cir.
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2012) (“We have squarely held that because the New York parole scheme is not one that creates
a legitimate expectancy of release, ‘[prisoners] have no liberty interest in parole, and the
protections of the Due Process Clause are inapplicable.’”) (quoting Barna v. Travis, 239 F.3d
169, 171 (2d Cir. 2001)).
2. As-Applied Challenge
Petitioner’s application next challenges the statute as-applied through five prior denials of
parole. As amplified and clarified by his objections, Petitioner’s as-applied challenge “does not
claim that the parole board’s denials were based on considerations outside the statutory factors . .
. rather, petitioner argues that the statutory scheme itself violates his due process right to
decisions that are not arbitrary and capricious.” Pet. Obj. at 10. There is, therefore, hardly a
meaningful difference between the facial and as-applied challenges in this case. See Dickerson,
604 F.3d at 743-44 (“any law that is unconstitutional in every set of circumstances is also
necessarily unconstitutional when applied to any plaintiff”).
Ultimately, this Court finds that Judge Davison did not clearly err in rejecting the asapplied challenge in view of the fact that Petitioner has no liberty interest in release. Graziano,
689 F.3d at 114. Nor does this Court find any error in Judge Davison’s rejection of the argument
that the statutory scheme allows the Parole Board to give more weight to the severity of the
crime at the expense of other statutory factors. It is settled that “[a] policy of according
substantial weight to the severity of the crime is neither arbitrary nor capricious,” and that the
Parole Board may give “whatever weight it deems appropriate to each of [the] statutory factors.”
Id. at 115. Moreover, because there is no constitutional right to post-conviction release in the
first place, “[t]he Due Process Clause is not violated by the Board’s balancing of the statutory
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criteria, which is the Board’s primary responsibility and is not properly second-guessed by this
Court.” Mathie v. Dennison, No. 06-CV-3184, 2007 WL 2351072, at *6 (S.D.N.Y. Aug. 16,
2007).
B. Other Claims
Last, in his third and fourth claims, Petitioner contends that the Parole Board’s 2006 and
2009 denials of parole were arbitrary and capricious on account of the predetermined result, bias,
and the absence of a rational basis for the result. This Court again agrees with Judge Davison
and finds no clear error in the magistrate finding. Although deemed exhausted, forfeiture of
these claims in state court—through failure to prosecute the claims beyond the Appellate
Division—bars litigation of the merits here, absent: (a) cause for the procedural default and
prejudice resulting therefrom, Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991); or (b) a
fundamental miscarriage of justice because “a constitutional violation has probably resulted in
the conviction of one who is actually innocent,” Murray v. Carrier, 477 U.S. 478, 496 (1986).
Petitioner has not proffered any cause for the procedural default or prejudice resulting therefrom,
and the record is devoid of evidence supporting innocence.
CONCLUSION
For the reasons stated above, the Court adopts the Report and Recommendation in its
entirety. The petition for a writ of habeas corpus is, therefore, DENIED. The Clerk of Court is
directed to enter judgment accordingly and close this case.
As Petitioner has not made a substantial showing of the denial of a constitutional right, a
certificate of appealability will not issue. See 28 U.S.C. § 2253(c)(2); Love v. McCray, 413 F.3d
192, 195 (2d Cir. 2005); Lozada v. United States, 107 F.3d 1011, 1017 (2d Cir. 1997), abrogated
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