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finding that "the purported policy would not by itself reflect an arbitrary or capricious failure to consider statutory factors"
Summary of this case from Mathie v. DennisonOpinion
06 Civ. 2047 (LTS) (GWG).
September 14, 2006
REPORT AND RECOMMENDATION
Alfredo Cartagena, proceeding pro se, brings this petition for a writ of habeas corpus challenging the denial in 2003 of his request for parole. Cartagena is currently incarcerated at Fishkill Correctional Facility pursuant to two judgments of conviction entered in 1984. For the reasons stated below, the petition should be denied.
I. BACKGROUND
A. Facts and Procedural History of Crimes of Conviction
In April 1984, Cartagena was convicted after a jury trial for his role in the robbery and murder of Antonio Gracia on June 17, 1982. See Inmate Status Report for Parole Board Appearance, dated Aug. 22, 2003 (reproduced as Ex. C to Declaration in Opposition to Petition for a Writ of Habeas Corpus, dated June 6, 2006 (Docket #6) ("Opp. Decl.")) ("Parole Report"), at 2. Cartagena and several other men had previously robbed Gracia of money, jewelry, and other items at Gracia's Manhattan restaurant in May 1982. See id. On June 17, 1982, Cartagena and the other men followed Gracia to his home in Port Washington, New York, at 4 a.m., and again demanded money from him. See id. After taking $600 and a watch, the perpetrators fled and Gracia pursued them. Andres Rivera, one of the perpetrators, turned around and fired one shot at Gracia, which ricocheted off a tree and struck his heart, killing him. See id.
Following his conviction by a jury on the second-degree murder and first — and second-degree robbery counts, Cartagena was sentenced to concurrent, indeterminate terms of imprisonment of 15 years to life, 8-1/3 to 25 years, and 5 to 15 years, respectively. See id. at 3. In October 1984, he pleaded guilty to the robbery charges stemming from the May 1982 incident, and was sentenced to 6 to 18 years on the first-degree counts and 4 to 12 years on the second-degree count, to run consecutively with the previous sentences. See id. Both sets of convictions were affirmed on appeal, and the Court of Appeals denied leave to appeal. Cartagena's petition for a writ of habeas corpus, filed in 1992, was dismissed for failure to exhaust state court remedies. See Cartagena v. Mitchell, 1992 WL 142053 (S.D.N.Y. June 5, 1992).
B. 2003 Parole Hearing
The parole hearing at issue in this petition was held on September 24, 2003. See Transcript of Proceedings, dated Sept. 24, 2003 (reproduced as Ex. D to Opp. Decl.) ("Parole Transcript"). Through an interpreter, Cartagena admitted that he and other men had robbed Gracia at his restaurant, though he stated that "[m]y partner was the one that took the watch," and that he participated in the robbery because of "[b]ad influences that I had, I had just come into the country." See Parole Transcript at 3-4. He also admitted to participating in the robbery and murder of Gracia the following month, although he stated, "I was in the car, I never came out. . . . The intent was not to kill him. It was — the intent was to scare him. But, he started coming towards us, and the fellow did not follow orders and shot." See id. at 4-5. He stated that he and the others had gone to Long Island because "the leader of this group told us that this guy had money at home." See id. at 5. Of his decision to "take up with bad people," Cartagena said, "I feel guilty I am to blame," see id. at 6, and added, "I have looked at myself in the mirror and I take full responsibility for what I have done, because I did something really wicked," see id. at 7.
With regard to his time in prison, Cartagena stated that he had been involved in "floor covering and carpentry and electricity" programs, and that he had obtained his G.E.D. See id. at 7-8. He acknowledged that his disciplinary history reflected one "Tier III" offense and three "Tier II" offenses, and that he had been ordered deported by the Immigration and Naturalization Service.See id. at 8. He stated that he has a wife living in this country. See id. Finally, Cartagena stated, "I feel very remorseful, to the victim's family, because we committed something that is unforgivable and I just feel remorseful, because of the harm that I have caused the [Gracia] family. This is a pain that will never leave me and I feel it every single day of my life." See id. at 9.
The Parole Board noted that it would consider the "many letters of support" in Cartagena's file. See id. at 10.
On September 29, 2003, the Parole Board issued its decision denying Cartagena's request for release and imposed a 24-month hold on his next application. See Parole Board Release Decision Notice, dated Sept. 29, 2003 (reproduced as Ex. E to Opp. Decl.) ("2003 Parole Decision"), at 2. The Parole Board's decision read in full:
Parole is denied. In concert with others you robbed a restaurant at gunpoint. Several weeks later you and others followed the victim to his residence and shot and killed him. The deceased is the same person whose watch was stolen in the initial robbery. Your actions represent your capacity for extremely violent and out of control behavior which places the public at great risk. Discretionary release is inappropriate as it would deprecate the seriousness of the offenses and serve to undermine respect for the law.See id. The Board also stated that "following deliberation, this decision is based on review of the case record as well as the interview with parole board members." See id.
C. Appeal of Parole Denial
Cartagena, through counsel, filed an appeal of the Parole Board's decision. See Parole Appeal, dated Feb. 27, 2004 (reproduced as Ex. F to Opp. Decl.) ("Admin. Appeal"). He argued that the Board's decision was arbitrary and capricious because the Board acted as a "sentencing judge" in holding him for another 24 months, failed to properly consider that a deportation order had been issued, and failed to "legitimately" consider all the statutory factors of a parole decision, such as Cartagena's institutional record, his lack of a prior criminal record, and "his ability to maintain himself as arrest-free." See Admin. Appeal at 2-10. He also argued that the 24-month hold was "excessive," see id. at 10-15; that the Board's decision was arbitrary and capricious because it had "simply allowed the political agenda [namely, Governor Pataki's "policy of no early release for certain classes of Petitioners"] to be substituted for their statutory authority to exercise discretion," see id. at 15-19; and that the Board failed to abide by the sentencing court's "recommendation" that he serve less time than Rivera, the shooter, who had been sentenced to 25 years to life. See id. at 19-21. Finally, he argued that the Board's decision was conclusory and did not contain an adequate basis. See id. at 21-26. Cartagena also submitted a pro se supplemental brief reiterating several of the points contained in his attorney's brief. See Supplemental Appeal Brief, dated Jan. 12, 2004 (reproduced as Ex. G to Opp. Decl.).
The Appeals Unit denied Cartagena's appeal, finding that he had waived his claim regarding the Board's failure to consider any sentencing recommendation by failing to provide his sentencing minutes to the Board, and that his claim regarding political pressure on the Board to deny release to violent felons was "pure speculation." See Administrative Appeal Decision Notice, dated July 8, 2004 (reproduced as Ex. H to Opp. Decl.) ("Admin. Appeal Decision"), at 3-4.
Cartagena then filed an Article 78 petition in the Supreme Court of New York, Albany County, challenging the Appeals Unit's denial. See Verified Petition, dated July 21, 2004 (reproduced in Ex. I to Opp. Decl.) ("Art. 78 Petition"). Cartagena again argued that the Board's decision was arbitrary and capricious because it was based on a policy of denying parole release to violent offenders. See Art. 78 Petition at 7-11. He also argued again that the decision had failed to consider (1) the "recommendation" of the sentencing court, which had imposed the minimum sentence on him after noting that it had sentenced Rivera, the shooter, to the maximum prison term, and (2) his attorney's request that he receive the minimum term because he was not the shooter. See id. at 11-15. The New York State Board of Parole replied that it requests recommendations from the sentencing court prior to considering a parole request, and that if no recommendation is made, the Board is not prohibited from determining whether to grant parole without consulting sentencing minutes. See Affirmation, dated Oct. 21, 2004 (reproduced in Ex. J to Opp. Decl.) ("Nepveu Aff."), ¶¶ 29-36. The Board of Parole argued that in Cartagena's case, the judge did not make a formal recommendation, see Parole Report at 1 ("Official Statements"), and that, in any event, the sentencing minutes did not reflect any recommendation by the court. See Nepveu Aff. ¶ 40.
The New York Supreme Court denied Cartagena's petition on December 30, 2004, holding that "[t]he minutes of the proceeding do not indicate that the court made any particular recommendation beyond the sentence it imposed. Therefore, there was no need for the Board to review the sentencing minutes even assuming that they had been brought to the attention of the Board." See Judgment, dated Dec. 30, 2004 (reproduced as Ex. L to Opp. Decl.) ("Art. 78 Decision"), at 3. The Supreme Court also rejected Cartagena's claim that gubernatorial policy had dictated the Board's denial of his parole request, finding that "it is conclusory for petitioner to simply maintain that because the Governor is opposed to early release for violent felony offenders and because he is a violent felony offender denied parole, that the Board has relinquished its function in favor of the Executive policy." See id. at 4.
Cartagena appealed the Supreme Court's denial of his Article 78 petition to the Appellate Division, arguing that the Board had failed to consider the sentencing court's "recommendation" and that the Board's decision was guided by Governor Pataki's parole policies. See Appeal Brief for Appellant, dated Apr. 4, 2005 (reproduced as Ex. M to Opp. Decl.), at 5, 7-10. On July 14, 2005, the Appellate Division affirmed the Supreme Court's ruling, holding as follows:
Based upon our review of the record, we do not find that respondent's denial of parole release evinces "'irrationality bordering on impropriety'" (Matter of Silmon v. Travis, 95 N.Y.2d 470, 476 [2000], quoting Matter of Russo v. New York State Bd. of Parole, 50 N.Y.2d 69, 77 [1980]), such as to warrant annulment of its discretionary determination. Respondent was not required to give equal weight to the statutory factors enumerated in Executive Law § 259-i or to specifically articulate each factor considered in its determination (see Matter of Wan Zhang v. Travis, 10 A.D.3d 828, 829 [2004]; Matter of De La Cruz v. Travis, 10 A.D.3d 789, 790 [2004]). The record reveals that, in making its determination, respondent took into account petitioner's positive program accomplishments, disciplinary record, potential deportation and postrelease plans, in addition to the seriousness of his crimes, thus complying with the statutory requirements (see Executive Law § 259-i[1][a]; [2][c][A]). There is no merit to petitioner's claim that the denial was premised on an executive policy to deny parole to all violent felons (see Matter of Davis v. New York State Bd. of Parole, 17 A.D.3d 970, 970 [2005]; Matter of Lue-Shing v. Pataki, 301 A.D.2d 827, 828 [2003], lv. denied 99 N.Y.2d 511 [2003]) or to his other contentions.See Cartagena v. New York State Board of Parole, 20 A.D.3d 751, 752 (3d Dep't 2005).
D. 2005 Parole Denial
On September 13, 2005, Cartagena appeared again before the Parole Board. The Board again denied him parole, stating that:
Upon a review of the record, personal interview, and due deliberation, it is the determination of the panel that parole is denied. You are presently incarcerated upon your conviction of robbery in the first degree (two counts), and robbery in the second degree, all by plea, wherein you committed an in concert, gunpoint hold-up at a Manhattan restaurant; and murder in the second degree, robbery in the first degree, and robbery in the second degree, by verdict, wherein you and accomplices followed your victim from the initial robbery to his home to commit another robbery, during the course of which the victim was shot and killed. The panel notes your immigration status, your lack of a prior criminal record, and your continuing satisfactory institutional performance since your last board appearance. Discretionary release must again be denied. You participated in serious and violent crimes resulting in the tragic and senseless loss of a human life. You and your cohorts invaded the sanctity of your victim's home where his life was taken in the presence of his wife and son and release at this time would deprecate the severity of your conduct, undermine respect for the law and tend to trivialize the loss of life which you caused.See Parole Board Release Decision Notice, dated Sept. 18, 2005 (reproduced as Ex. S to Opp. Decl.) ("2005 Parole Decision"), at 2-3. The Board again added, "[f]ollowing deliberation, this decision is based on review of the case record as well as the interview with parole board members." See id. at 3.
E. Application for Leave to Appeal the 2003 Parole Board Determination
At some point between July 14, 2005, and September 29, 2005, Cartagena sought leave to appeal the Appellate Division's ruling on his appeal of his 2003 parole denial to the Court of Appeals. On September 29, 2005, the State wrote to the Court of Appeals, arguing that because Cartagena's second parole hearing, held on September 13, 2005, had also resulted in a denial of parole, his appeal of the 2003 denial was rendered moot. See Letter from Denise A. Hartman to Stuart M. Cohen, dated Sept. 29, 2005 (reproduced as Ex. 2 to Petitioner's Affidavit in Support of Habeas Corpus Petition, filed July 13, 2006 (Docket #10)) ("Pet. Aff."). Cartagena replied in a letter, dated October 5, 2005, that his original appeal was not moot because "the issue is likely to reoccur again when appellant reappears before the Board of Parole in September 2007." See Letter from Alfredo Cartagena, dated Oct. 5, 2005 (reproduced as Ex. 3 to Pet. Aff.), at 2.
On December 20, 2005, the Court of Appeals denied Cartagena leave to appeal the Appellate Division's ruling on the 2003 parole denial "upon the ground that the issues presented have become moot." See Cartagena v. New York State Board of Parole, 6 N.Y.3d 741 (2005).
F. The Instant Petition
Cartagena timely submitted the instant petition seeking a writ of habeas corpus on February 22, 2006. See Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, filed Mar. 16, 2006 (Docket #2) ("Petition"). In it, he seeks relief on two grounds: (1) that the Board's 2003 decision denying him parole was arbitrary and capricious because the Board failed to consider the "recommendation" of the sentencing court; and (2) that the Board's 2003 decision was "unlawful, arbitrary and capricious" because it abdicated its discretion by following a gubernatorial policy of denying parole to violent offenders.See Petition ¶ 12.
Respondent filed opposition papers. See Opp. Decl.; Respondent's Memorandum of Law in Opposition to Petition for a Writ of Habeas Corpus, filed June 6, 2006 (Docket #5) ("Resp. Mem."). Cartagena subsequently filed a brief and affidavit in support of his petition. See Petitioner's Memorandum of Law in Support of Habeas Corpus Petition, filed July 13, 2006 (Docket #9) ("Pet. Mem."); Pet. Aff.
II. APPLICABLE LAW
A. Law Governing Petitions for Habeas Corpus
A state prisoner challenging a Parole Board's denial of his request for parole must bring that challenge under 28 U.S.C. § 2254. See Cook v. New York State Div. of Parole, 321 F.3d 274, 278 (2d Cir. 2003) (citing James v. Walsh, 308 F.3d 162, 167 (2d Cir. 2002)). Under section 2254, a petition for a writ of habeas corpus may not be granted with respect to any claim that has been "adjudicated on the merits" in the state courts unless the state court's adjudication: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
For a claim to be adjudicated "on the merits" within the meaning of 28 U.S.C. § 2254(d), it must "finally resolv[e] the parties' claims, with res judicata effect," and it must be "based on the substance of the claim advanced, rather than on a procedural, or other, ground." Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001) (internal quotation marks and citations omitted). As long as "there is nothing in its decision to indicate that the claims were decided on anything but substantive grounds," a state court decision will be considered to be "adjudicated on the merits" even if it fails to mention the federal claim and no relevant federal case law is cited. See Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001); accord Rosa v. McCray, 396 F.3d 210, 220 (2d Cir. 2005) ("This standard of review applies whenever the state court has adjudicated the federal claim on the merits, regardless of whether the court has alluded to federal law in its decision.").
In Williams v. Taylor, the Supreme Court held that a state court decision is "contrary to" clearly established federal law only "if the state court applies a rule that contradicts the governing law set forth" in Supreme Court precedent or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives" at a different result. 529 U.S. 362, 405-06 (2000). Williams also held that habeas relief is available under the "unreasonable application" clause only "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. A federal court may not grant relief "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. Rather, the state court's application must have been "objectively unreasonable."Id. at 409.
In addition, under 28 U.S.C. § 2254(a), federal habeas review is available for a state prisoner "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." Errors of state law are not subject to federal habeas review. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). To be entitled to habeas relief a petitioner must demonstrate that the conviction resulted from a state court decision that violated federal law. See, e.g., id. at 68.
III. DISCUSSION
A. Mootness
The respondent argues that this case is moot in light of the fact that petitioner received a Parole Board hearing in 2005. Resp. Mem. at 12-13. A case becomes moot "when it is impossible for the court to grant any effectual relief whatever to a prevailing party." In re Kurtzman, 194 F.3d 54, 58 (2d Cir. 1999) (internal citations, emphasis, and quotation marks omitted). Here, the respondent makes no reasoned argument as to why, if the Parole Board engaged in an action in 2003 violative of the federal constitution, this Court would be unable to afford Cartagena relief. Read most broadly, respondent may be suggesting that if the procedures Cartagena complained of with respect to the 2003 hearing were corrected in 2005, then Cartagena received the very hearing that he is seeking by means of this petition. But the respondent has placed nothing in the record regarding the procedures used in the 2005 hearing and thus there is no reason to conclude that petitioner has been afforded the relief he seeks here.
B. Merits of Cartagena's Petition
1. Federal Constitutional Principles Governing Consideration on Habeas Review of Denials of Parole
"There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence." Greenholtz v. Inmates of the Neb. Penal Corr. Complex, 442 U.S. 1, 7 (1979). "In 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 v. Travis, 239 F.3d 169, 170 (2d Cir. 2001). The New York State parole scheme, however "is not one that creates in any prisoner a legitimate expectancy of release." Barna, 239 F.3d at 171. Because a prisoner has "no liberty interest in parole, . . . the protections of the Due Process Clause are inapplicable." Id.
Nonetheless, a number of courts have held that there may be a violation of the Due Process Clause — sometimes but not always identified as "substantive due process" — if the Parole Board has denied release "arbitrarily or capriciously." See, e.g.,Siao-Pao v. Mazzuca, 2006 WL 2192840, at *5 (S.D.N.Y. Aug. 2, 2006); Salahuddin v. Unger, 2005 WL 2122594, at *4 (E.D.N.Y. Sept. 2, 2005); Boddie v. New York State Div. of Parole, 288 F. Supp. 2d 431, 440 (S.D.N.Y. 2003); Romer v. Travis, 2003 WL 21744079, at *6 (S.D.N.Y. July 29, 2003); Morel v. Thomas, 2003 WL 21488017, at *4 (S.D.N.Y. June 26, 2003);accord Burkett v. Love, 89 F.3d 135, 140 (3d Cir. 1996). One court has stated the test more narrowly, however, holding that "all that the Board must do is (a) afford the inmate an opportunity to be heard and (b) if parole is denied, advise him [or her] of the reasons for its decision." Blackett v. Thomas, 293 F. Supp. 2d 317, 319 (S.D.N.Y. 2003). While it has been questioned whether any challenge on due process grounds may be made to a parole decision, see Tatta v. Miller, 2005 WL 2806236, at *3 n. 2 (E.D.N.Y. Oct. 27, 2005) (citing cases), it is not necessary to reach this issue since Cartagena's petition fails even according him the benefit of "arbitrary and capricious" review.
2. New York State Statutes on Parole
Parole Board procedures are governed by New York Executive Law § 259-i, which states that where a court has fixed a minimum term of imprisonment, the Board shall consider:
(i) the institutional record including program goals and accomplishments, academic achievements, vocational education, training or work assignments, therapy and interpersonal relationships with staff and inmates; (ii) performance, if any, as a participant in a temporary release program; (iii) release plans including community resources, employment, education and training and support services available to the inmate; (iv) any deportation order issued by the federal government against the inmate while in the custody of the department of correctional services and any recommendation regarding deportation made by the commissioner of the department of correctional services pursuant to section one hundred forty-seven of the correction law; and (v) any statement made to the board by the crime victim or the victim's representative, where the crime victim is deceased or is mentally or physically incapacitated.See Exec. Law § 259-i(2)(c)(A) (2006). The law also states that parole shall only be granted "if there is a reasonable probability that, if such inmate is released, he will live and remain at liberty without violating the law, and that his release is not incompatible with the welfare of society and will not so deprecate the seriousness of his crime as to undermine respect for law." See id. In addition, where an inmate's minimum sentence is imposed by the court, the Parole Board must also consider:
the seriousness of the offense with due consideration to the type of sentence, length of sentence and recommendations of the sentencing court . . . [and the inmate's] prior criminal record, including the nature and pattern of offenses, adjustment to any previous probation or parole supervision and institutional confinement.See Exec. Law § 259-i(1)(a) (incorporated by subsection (2)(c)(A)). "The Parole Board has discretion to accord these considerations whatever weight it deems appropriate, and need not expressly discuss each of the reasons in its determination."Davis v. Thomas, 256 F. Supp. 2d 190, 192 (S.D.N.Y. 2003) (citingGarcia v. N.Y. State Div. of Parole, 657 N.Y.S.2d 415, 418 (1st Dep't 1997)); accord Boddie, 288 F. Supp. 2d at 440 ("every [statutory] factor need not be discussed or listed in the decision") (citing People ex rel. Haderxhanji by Sandler v. N.Y.S. Board of Parole, 97 A.D.2d 368 (1st Dep't 1983)) (internal quotation marks omitted) (alteration in original).
3. Failure to Consider Sentencing Minutes
Cartagena contends that because Section 259-i "uses mandatory language requiring the Board to consider the sentencing court's recommendation, . . . the Board is mandated under the constitution to consider the sentencing minutes," see Pet. Mem. at 4, and that the Board in this case failed to consult the sentencing minutes or consider the sentencing court's "recommendation."
This claim must be rejected because the statute does not require examination of the sentencing minutes. It requires, at most, that consideration be given to any "recommendations of the sentencing court." Exec. Law § 259-i(1)(a). Here, the Supreme Court in the Article 78 proceeding found that there were no such recommendations. See Art. 78 Decision at 3. This finding was supported by the minutes themselves, which reflect merely that the trial judge compared Cartagena's conduct with that of the shooter. See Minutes of Sentencing, dated Apr. 25, 1984 (attached to Admin. Appeal) ("Sentencing Minutes"), at 9-10. Because the factual predicate underlying Cartagena's claim is belied by the record, it cannot support habeas relief.
Although Cartagena does not raise it in his petition, he alleges in his accompanying brief that the Parole Board relied on factual inaccuracies in denying his request. See Pet. Mem. at 4-5. Specifically, he contends, the Board "alleged that petitioner caused the death of the deceased," even though the sentencing court had stated that Cartagena was not the shooter.See id. at 5. In fact, the Parole Board stated that that Cartegana "and others followed the victim to his residence and shot and killed him." See 2003 Parole Decision at 2 (emphasis added).
4. Abdication of Discretion
Cartagena claims that the Parole Board's denial of his request was arbitrary and capricious because it abdicated its discretion by following a purported gubernatorial policy "seeking to extend the amount of time a person convicted of an A-1 felony offense must serve before being released on parole." See Petition ¶ 12. Nothing in the record points to the existence of such a policy, however, either as applied to parole determinations generally or to Cartagena's case.
The Appellate Division found "no merit to petitioner's claim that the denial was premised on an executive policy to deny parole to all violent felons." See Cartagena, 20 A.D.3d at 752. Previously, the Supreme Court had rejected this claim in Cartagena's Article 78 petition as "conclusory," and noted:
Courts have consistently rejected unsupported allegations that the Board merely effectuates an unwritten politically motivated policy when it denies parole to violent felony offenders (Matter of Jones v. Travis, 293 A.D.2d 800 [3d Dep't 2002]). In every case, the question is the same: did the Board consider all of the relevant factors in making its decision? If so, its determination is not subject to further judicial review (Executive Law § 259-i(5); In re Phillips, 262 A.D.2d 889 [3d Dep't 1999]). While there may be factors which favor release the record does not support a conclusion that such factors were ignored.See Art. 78 Decision at 4.
Here, there is no evidence in the record supporting Cartagena's contention that his parole was denied on any impermissible basis. Even if petitioner had shown the existence of a policy to deny parole to serious offenders, it is well established that as long as the Parole Board considers the statutory factors, it "has discretion to accord these considerations whatever weight it deems appropriate, and need not expressly discuss each of the reasons in its determination." See Davis, 256 F. Supp. 2d at 192. Thus, one court has noted that "the Board's decision to get tough on violent offenders because of public and political pressure . . . seems entirely permissible, as it closely relates to the statutory factor of whether 'release is not incompatible with the welfare of society and will not so deprecate the seriousness of his crime as to undermine respect for the law.'"See Morel, 2003 WL 21488017, at *5. Other courts have rejected similar claims. See, e.g., Mitchell v. Conway, 2006 WL 508086, at *5 (E.D.N.Y. Mar. 1, 2006); Salahuddin, 2005 WL 2122594, at *7;Seltzer v. Thomas, 2003 WL 21744084, at *4 (S.D.N.Y. July 29, 2003); Ward v. N.Y. State Div. of Parole, 809 N.Y.S.2d 671, 672 (3d Dep't 2006). Because the purported policy would not by itself reflect an arbitrary or capricious failure to consider statutory factors, it could not support a claim for habeas relief.
Conclusion
For the foregoing reasons, Cartagena's petition should be denied.