     14-3442-pr
     Bottom v. Pataki


                               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
     FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
     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.

 1         At a stated term of the United States Court of Appeals for the Second Circuit, held at
 2   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
 3   York, on the 12th day of May, two thousand fifteen.
 4
 5   PRESENT: RALPH K. WINTER,
 6                    JOHN M. WALKER, JR.,
 7                    CHRISTOPHER F. DRONEY,
 8                                    Circuit Judges.
 9   ----------------------------------------------------------------------
10   ANTHONY BOTTOM,
11                                    Plaintiff-Appellant,
12
13                           v.                                                  No. 14-3442-pr
14
15   GEORGE E. PATAKI, Individually and in his official
16   capacity as Governor of New York State, BRION D.
17   TRAVIS, Individually and in his official capacity as the
18   Chairman of New York State Division of Parole, GLENN S.
19   GOORD, Individually and in his official capacity as the
20   Commissioner of New York State Department of
21   Correctional Services,
22                                    Defendants-Appellees.
23   ----------------------------------------------------------------------
24
      FOR PLAINTIFF-APPELLANT:                                 MALIK HAVALIC (Hagit Elul, on the
                                                               brief), Hughes Hubbard & Reed LLP,
                                                               New York, NY.

      FOR DEFENDANTS-APPELLEES:                                MARTIN A. HOTVET, Assistant Solicitor
                                                               General (Barbara D. Underwood,

                                                          1
                                                               Solicitor General, Andrew B. Ayers,
                                                               Assistant Solicitor General, on the brief),
                                                               for Eric. T. Schneiderman, Attorney
                                                               General of the State of New York, New
                                                               York, NY.

 1           Appeal from an August 7, 2006 judgment of the United States District Court for the

 2   Northern District of New York (Scullin, J.).

 3           UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

 4   AND DECREED that the judgment of the district court is AFFIRMED.

 5           Plaintiff-Appellant Anthony Bottom appeals from a judgment of the district court

 6   granting Defendants-Appellees’ motion to dismiss Bottom’s 42 U.S.C. § 1983 claims.

 7   Bottom alleged that Defendants George E. Pataki, Brion D. Travis, and Glenn S. Goord

 8   violated the Due Process and Ex Post Facto Clauses of the United States Constitution as a

 9   result of the New York State Board of Parole’s (“the Board”) decision to deny Bottom

10   parole.1 We assume the parties’ familiarity with the underlying facts, the procedural

11   history of the case, and the issues on appeal.

12           “We review de novo a district court’s dismissal of a complaint pursuant to Rule

13   12(b)(6), construing the complaint liberally, accepting all factual allegations in the

14   complaint as true, and drawing all reasonable inferences in the plaintiff’s favor.”

15   Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). Pro se complaints,

16   such as the complaint filed by Bottom, “must be construed liberally and interpreted to raise

     1
      Bottom’s complaint alleged other constitutional violations that were also dismissed by the district court,
     which are not at issue on appeal.


                                                         2
 1   the strongest arguments that they suggest.” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d

 2   Cir. 2013) (per curiam) (internal quotation marks omitted).

 3                1. Due Process Claim

 4         Bottom’s complaint, construed and interpreted liberally, alleged that his due process

 5   rights were violated when the Board denied him parole for two reasons: (1) the Board had

 6   predetermined his parole outcome through its policy of denying parole to violent felons,

 7   and therefore had failed to consider the statutory factors enumerated in New York’s parole

 8   statute, Executive Law § 259-i; and (2) the Board’s decision to deny Bottom parole was

 9   motivated by factors outside of those enumerated in § 259-i, in particular by a pecuniary

10   interest in receiving federal funding through truth-in-sentencing incentive grants under 42

11   U.S.C. § 13704.

12         As an initial matter, “[t]he New York parole scheme is not one that creates in any

13   prisoner a legitimate expectancy of release,” and prisoners in New York “have no liberty

14   interest” in receiving parole. Barna v. Travis, 239 F.3d 169, 171 (2d Cir. 2001) (per

15   curiam). We have identified some “minimal due process rights” in parole proceedings,

16   but those minimal rights are “limited to not being denied parole for [constitutionally]

17   arbitrary or impermissible reasons,” which requires a showing of “egregious official

18   conduct.” Graziano v. Pataki, 689 F.3d 110, 115, 116 (2d Cir. 2012) (internal quotation

19   marks omitted).

20         Regarding Bottom’s claim that the Board had a policy of denying parole to violent

21   felons, we recently held in Graziano that “even if New York State implemented an official

                                                 3
 1   policy denying parole to all violent offenders, such a policy would not violate the Due

 2   Process Clause even if the policy were adopted or implemented in violation of state law”

 3   because “[a] blanket policy denying parole to violent felony offenders simply does not

 4   constitute egregious official conduct.” Id. at 116. Bottom argues that Graziano is

 5   distinguishable because he alleged the Board failed to consider the § 259-i factors other

 6   than seriousness of the offense in his parole hearing, but this allegation was similarly made

 7   by the plaintiffs in Graziano. See id. at 118 (Underhill, J., dissenting) (“[P]laintiffs claim

 8   that the Parole Board based release decisions ‘solely on the basis of the violent nature of

 9   such offenses and thus without proper consideration to any other relevant or statutorily

10   mandated factor.’ First Amended Compl. at ¶ 31.”). Consequently, although Bottom

11   characterizes his parole decision as predetermined, the Board’s alleged policy of denying

12   parole to violent felons—even if such a policy might constitute a violation of New York

13   state law—is, for purposes of federal constitutional law, a permissible exercise of the

14   Board’s discretion that “does not constitute egregious official conduct” and “does not, on

15   its own, constitute a constitutional violation.” Id. at 116.

16          Finally,   New     York’s    receipt   of   federal     funding   for   implementing

17   truth-in-sentencing laws, which require that violent felons serve eighty-five percent of their

18   imposed sentences, see 42 U.S.C. § 13704(a)(1)(A), is not enough to transform the Board’s

19   otherwise permissible policy of denying parole to violent felons into a constitutionally

20   impermissible policy.     Bottom did not allege that the Board’s members personally

21   benefitted in any way from the funds, and Bottom does not argue that the Board’s alleged

                                                   4
 1   policy of considering only the severity of the crime was implemented differently in his

 2   parole hearings than was the policy we found to be permissible in Graziano. Any

 3   incentive of a Board official to deny parole that might result from New York’s receipt of

 4   federal funding is “too remote and attenuated,” Allen v. Cuomo, 100 F.3d 253, 259 (2d Cir.

 5   1996), to constitute “egregious official conduct” given Bottom’s minimal due process

 6   rights in parole proceedings.2 See Graziano, 689 F.3d at 116.

 7           Accordingly, the district court properly dismissed Bottom’s due process claim.

 8                   2. Ex Post Facto Claim

 9           Bottom’s complaint alleged that the Board’s policy of denying parole to violent

10   felons effectively converted his life sentence with the possibility of parole into a life

11   sentence without the possibility of parole in violation of the Ex Post Facto Clause.

12   However, the Ex Post Facto Clause “applies only to legislative action that retroactively

13   punishes as a crime an act previously committed, which was innocent when done, makes

14   more burdensome the punishment for a crime, after its commission, or deprives one

15   charged with crime of any defense available according to law at the time when the act was

16   committed.” Barna, 239 F.3d at 171 (internal quotation marks omitted); see Graziano,

17   689 F.3d at 117. It does not apply to laws, like those in New York’s statutory provisions

18   concerning parole, that are “merely procedural and do[] not increase a prisoner’s

19   punishment.” Barna, 239 F.3d at 171.
     2
       Bottom’s position also leads to the untenable conclusion that a violent felon categorically has a plausible
     constitutional claim each time he is denied parole based on parole boards’ alleged interest in federal
     funding. Such a result would considerably expand the limited nature of the due process right at issue here.


                                                          5
 1          Bottom’s sole argument is that Barna and Graziano have been superseded by the

 2   Supreme Court’s decision in Peugh v. United States, 133 S. Ct. 2072 (2013). We

 3   disagree. Peugh held that there “is an ex post facto violation when a defendant is

 4   sentenced under [U.S. Sentencing] Guidelines promulgated after he committed his

 5   criminal acts and the new version provides a higher applicable Guidelines sentencing range

 6   than the version in place at the time of the offense.” Id. at 2078. Peugh recognized that

 7   procedural hurdles in a sentencing regime, which “in practice[] make the imposition” of a

 8   more lenient sentence less likely, can constitute an ex post facto violation. Id. at 2083-84.

 9   But this recognition is consistent with our holding in Barna that “[a] law that is merely

10   procedural and does not increase a prisoner’s punishment cannot violate the Ex Post Facto

11   Clause.” Barna, 239 F.3d at 171 (emphasis added). Here, none of the Board’s alleged

12   policy changes with respect to parole “increase [Bottom’s] punishment” because “[t]he

13   New York parole scheme is not one that creates in any prisoner a legitimate expectancy of

14   release” in the first place. Id. Although “the Ex Post Facto Clause does not merely

15   protect reliance interests[,] [i]t also reflects principles of fundamental justice,” the

16   “principle of unfairness . . . is not a doctrine unto itself” that can “invalidat[e] laws under

17   the Ex Post Facto Clause by its own force.” Peugh, 133 S. Ct. at 2085 & n.6 (internal

18   quotation marks omitted). Bottom’s ex post facto claim was thus properly dismissed.

19

20




                                                   6
1         We have considered Bottom’s remaining arguments and find them to be without

2   merit. Accordingly, we AFFIRM the judgment of the district court.

3                                   FOR THE COURT:
4                                   Catherine O’Hagan Wolfe, Clerk of Court




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