         10-1304-pr
         McAllister v. New York State Division of Parole


                                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 TO 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
 2       at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
 3       New York, on the 26th day of September, two thousand eleven.
 4
 5       PRESENT:
 6                   DENNIS JACOBS,
 7                         Chief Judge,
 8                   PETER W. HALL,
 9                   GERARD E. LYNCH,
10                         Circuit Judges.
11       _____________________________________
12
13       Charles McAllister,
14
15                                  Plaintiff-Appellant,
16
17                         v.                                                   10-1304-pr
18
19       New York State Division of Parole, George
20       Alexandra, Chairman, William Smith, Jr.,
21       Commissioner, Carolyn Buckner, Secretary,
22
23                                  Defendants-Appellees.
24
25       _____________________________________
26
27
28       FOR PLAINTIFF-APPELLANT:                          Charles McAllister, pro se, Cape Vincent, NY.
29
30       FOR DEFENDANTS-APPELLEES:                         No Appearance. See Fed. R. App. P. 31(c).
1           Appeal from a judgment of the United States District Court for the Northern District of

 2   New York (Suddaby, J.).

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

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

 5          Charles McAllister, pro se, appeals the dismissal without prejudice of his amended

 6   complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). We assume the parties’ familiarity with the

 7   underlying facts, the procedural history, and the issues on appeal.

 8          A district court’s § 1915(e)(2) dismissal of a complaint is reviewed de novo. See Giano

 9   v. Goord, 250 F.3d 146, 149-50 (2d Cir. 2001). The complaint must plead “enough facts to state

10   a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

11   (2007). Although all allegations contained in the complaint are assumed to be true, this tenet is

12   “inapplicable to legal conclusions.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). A claim

13   will have “facial plausibility when the plaintiff pleads factual content that allows the court to

14   draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

15          An independent review of the record and the relevant precedents confirm that the district

16   court properly dismissed McAllister’s amended complaint for failure to state a claim. See

17   ACEquip Ltd. v. Am. Eng’g Corp., 315 F.3d 151, 155 (2d Cir. 2003) (“Our court may . . . affirm

18   the district court’s judgment on any ground appearing in the record, even if the ground is

19   different from the one relied on by the district court.”). McAllister argues that the Due Process

20   Clause was violated because he was “denied parole pursuant to an ‘unofficial policy’ to deny

21   parole to violent felony offenders solely on the basis of the violent nature of their convictions.”

22   However, “[i]n order for a state prisoner to have an interest in parole that is protected by the Due


                                                       2
 1   Process Clause, he must have a legitimate expectancy of release that is grounded in the state’s

 2   statutory scheme.” Barna v. Travis, 239 F.3d 169, 170 (2d Cir. 2001). The “New York parole

 3   scheme is not one that creates in any prisoner a legitimate expectancy of release.” Id. at 171.

 4   Since (as the record shows) the Parole Board denied parole to McAllister after considering the

 5   factors listed under New York Executive Law § 259-i(2)(c)(A), and there is no indication in the

 6   record that McAllister had a “legitimate expectancy of release . . . grounded in the state’s

 7   statutory scheme,” McAllister’s due process claim was properly rejected.

 8           McAllister claims that the Ex Post Facto Clause was violated by a purported “unofficial

 9   policy” to deny parole to violent felons. However, the Ex Post Facto Clause “applies only to

10   legislative action” and “does not apply to guidelines that do not create mandatory rules for

11   release but are promulgated simply to guide the parole board in the exercise of its discretion.”

12   Barna, 239 F.3d at 171 (citation omitted). Since McAllister cites no legislative act that effected

13   the Parole Board’s denial of parole--and this Court has found that New York’s parole scheme

14   provides guidelines--McAllister’s Ex Post Facto claim was also properly dismissed by the

15   district court. See id.

16           Finally, McAllister claims that his right to equal protection was violated by the

17   application of the “unofficial policy” to deny violent felons parole. However, “incarcerated

18   felons are not a suspect classification,” Zipkin v. Heckler, 790 F.2d 16, 18 (2d Cir. 1986), and the

19   Supreme Court has found that there is “no constitutional or inherent right of a convicted person

20   to be conditionally released before the expiration of a valid sentence,” Greenholtz v. Inamets of

21   Nebraska Penal and Correctional Complex, 442 U.S. 1, 7 (1979). Moreover, New York’s parole

22   scheme is rationally related to its goals of ensuring that those who are granted parole “will live


                                                      3
1    and remain at liberty without violating the law” and that “release is not incompatible with the

2    welfare of society.” See N.Y. Exec. Law § 259-i(2)(c)(A). As a result, it cannot be said that

3    McAllister has alleged a denial of equal protection.

 4          Accordingly, we AFFIRM the judgment of the district court.
 5
 6                                                FOR THE COURT:
 7                                                Catherine O’Hagan Wolfe, Clerk
 8
 9
10




                                                     4
