10-4480-pr
Robles v. Dennison

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.


        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 23rd day of November, two thousand eleven.

Present:    ROSEMARY S. POOLER,
            BARRINGTON D. PARKER,
            RAYMOND J. LOHIER, JR.,
                        Circuit Judges.
_____________________________________________________

RICHARD ROBLES,

                                     Petitioner-Appellant,

                              -v.-                                  10-4480-pr

RICHARD DENNISON, CHAIRMAN, NEW YORK STATE
DIVISION OF PAROLE,

                                     Respondent-Appellee.


Appearing for Appellant:      Robert J. Boyle, New York, N.Y.

Appearing for Appellee:       Jodi A. Danzig, Assistant Attorney General; Barbara D.
                              Underwood, Solicitor General; Roseann B. MacKechnie, Deputy
                              Solicitor General (of counsel) for Eric T. Schneiderman, Attorney
                              General of the State of New York, New York, N.Y.

       Appeal from the United States District Court for the Western District of New York
(Bianchini, M.J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
        Robles appeals from the judgment of the district court denying habeas relief under 28
U.S.C. § 2254 and granting a certificate of appealability (“COA”) on five issues relating to
Robles’s claims that his denials of parole in 2002, 2004, and 2006 violated his rights to
procedural and substantive due process. We assume the parties’ familiarity with the underlying
facts, procedural history, and specification of issues for review.

        We review a district court’s denial of a petition for a writ of habeas corpus de novo, Bell
v. Miller, 500 F.3d 149, 154 (2d Cir. 2007), but review its determination of facts for clear error,
Thibodeau v. Portuondo, 486 F.3d 61, 64 (2d Cir. 2007). Under the Antiterrorism and Effective
Death Penalty Act (“AEDPA”), we may grant habeas relief with respect to a claim that was
adjudicated on the merits in state court only if the state court’s judgment “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,” 28 U.S.C. § 2254(d)(1), or “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.” Id. § 2254(d)(2). Under this standard, “[a]
state court’s determination that a claim lacks merit precludes federal habeas relief so long as
‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Harrington
v. Richter, 131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664
(2004)).

        We affirm the judgment of the district court because the decision of the state court was
neither contrary to nor an unreasonable application of clearly established Supreme Court law.

        There is no constitutional right to parole, but a state may create a protected liberty
interest in parole through its statutes and regulations. Greenholtz v. Inmates of the Neb. Penal &
Corr. Complex, 442 U.S. 1, 7 (1979). Where such an interest exists under state law, and parole
is denied, a prisoner is entitled to an opportunity to be heard and a statement of the reasons why
parole was denied. Id. at 16. Robles received at least this much process for each of his parole
denials. In each of the relevant proceedings, he was given a chance to be heard and provided
with an explanation as to why parole was denied. For this reason, even if we assume, without
deciding, that New York’s parole system in 1963 created a liberty interest, Robles received all
the process to which he was entitled.

        As to Robles’s substantive due process claim, even assuming that (1) there is a clearly
established right against a parole denial for arbitrary or impermissible reasons, and (2) that
Robles was denied parole based solely on the seriousness of his crimes, the parole denials in
Robles’s case were authorized under New York Executive Law § 259-i(2)(c)(A). They were not
so clearly arbitrary or impermissible that the decision of the state court can be said to be an
unreasonable application of “Federal law, as determined by the Supreme Court.” 28 U.S.C. §
2254(d)(2).

        New York Executive Law Section 259-i, which governed Robles’s parole determination,
explicitly requires Parole Boards to consider the seriousness of the inmate’s crime:

       Discretionary release on parole shall not be granted merely as a reward for good conduct
       or efficient performance of duties while confined but after considering if there is a

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       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.

N.Y. Exec. Law § 259-i(2)(c)(A) (emphasis added). As the district court observed, “the Parole
Board is permitted to ask itself whether the inmate has been incarcerated for a long enough
period of time to punish him and vindicate the victims. . . . Thus, the Parole Board is . . .
authorized to take a punitive or retributive factor into consideration, by asking whether the
nature of the prisoner’s crime ever makes release from incarceration to parole appropriate.”

        New York’s courts have interpreted Section 259-i(2)(c)(A) to allow the denial of parole
based solely on the severity of the offense of conviction, so long as there is “a showing of some
aggravating circumstances beyond the inherent seriousness of the crime itself.” King v. New
York, 598 N.Y.S.2d 245, 251 (N.Y. App. Div. 1993). The district court appears to have
understood the phrase “additional aggravating factor” to require an aggravating factor unrelated
to the offense of conviction. Yet the Appellate Division, affirmed by the New York Court of
Appeals, has explicitly stated that a serious offense may be the exclusive basis for denying
parole if there were “significantly aggravating or egregious circumstances surrounding the
commission of the particular crime.” Id. (emphasis added) (citing People ex rel. Thomas v.
Superintendent of Arthur Kill Corr. Facility, 508 N.Y.S.2d 564, 565 (N.Y. App. Div. 1986)
(parole properly denied due to “extraordinarily serious and bizarre nature of the present
offenses”)), aff’d, 83 N.Y.2d 788 (N.Y. 1994).

        Applying the standard in King, it is reasonable to conclude that the circumstances
surrounding Robles’s crimes would qualify as “significantly aggravating or egregious.”
Petitioner concedes that “‘[s]eriousness of the offense’ is a factor that the Parole Board must
consider,” but asserts that the Parole Board did not identify aggravating circumstances. This
contention is not supported by the record. The 2002 parole denial, for example, recites the
details of Robles’s “vicious crime” in support of its decision:

       After a careful review, parole is again denied. . . . You illegally entered the female
       victim’s apartment where you forced her to commit an act of oral sodomy on yourself.
       Subsequently, another female arrived. Both were tied with bed sheets and you stabbed
       and killed them. Your record reflects other criminal conduct on your part with a parole
       failure. Your overall conduct leads the panel to conclude your release would make a
       mockery of the criminal justice system, therefore, you are not an acceptable candidate for
       discretionary release. You[] were on parole supervision at the time you committed the
       instant offense.

The Board thus discussed and took into account the aggravating circumstances surrounding the
murders in reaching its decision.

       That it is unclear whether the 2002 Parole Board complied fully with the requirement to
consider “the prisoner’s educational and other achievements,” King, 598 N.Y.S.2d at 251, does
not render the parole denial arbitrary and capricious. Because the Parole Board lawfully could
have determined that the seriousness of the offense outweighed the positive factors and was not

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required to expressly discuss each factor in its determination, see Garcia v. N.Y. State Div. of
Parole, 657 N.Y.S.2d 415, 418-19 (N.Y. App. Div. 1997), the denial of parole was not so clearly
arbitrary and capricious that the state court can be said to have unreasonably applied Supreme
Court law in affirming the decision of the Parole Board.

       Petitioner also argues, under County of Sacramento v. Lewis, 523 U.S. 833 (1998), that
an individual’s substantive due process rights may be violated even in the absence of an
underlying right to life, liberty, or property, where executive action shocks the conscience. We
need not decide whether this claim is properly before us because the decisions of the Parole
Board clearly did not “shock the conscience” under the applicable Supreme Court precedent.
Supreme Court cases “dealing with abusive executive action have repeatedly emphasized that
only the most egregious official conduct can be said to be ‘arbitrary in the constitutional sense.’”
County of Sacramento, 523 U.S. at 846 (quoting Collins v. Harker Heights, 503 U.S. 115, 129
(1990)). To “shock the conscience,” official conduct must be so “brutal and offensive that it
[does] not comport with traditional ideas of fair play and decency.” Id. at 847 (quoting
Breithaupt v. Abram, 352 U.S. 432, 435 (1957)). Here, the Parole Board made decisions it was
permitted to make under New York law, and the state court did not unreasonably apply the
Supreme Court’s “shock the conscience” standard in affirming the parole denial.

        The final issue certified for our review relates to the government’s nonexhaustion defense
to Robles’s challenges to his denials of parole in 2004 and 2006. Regardless of whether
Robles’s failure to exhaust his remedies was excusable, he would lose on the merits for the
reasons described above. We therefore need not reach this question because “[a]n application for
a writ of habeas corpus may be denied on the merits[] notwithstanding the failure of the
applicant to exhaust the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(2).

         We have reviewed the remainder of petitioner’s arguments and found them to be without
merit.

         Accordingly, the judgment of the district court hereby is AFFIRMED.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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