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Judge Casey http://nycourts.law.com/CourtDocumentViewer.asp?view=Document&docID=46198 PETITIONER BROUGHT a petition for habeas corpus, challenging the New York State Board of Parole’s denial of his parole application. Petitioner argued that the board, an executive agency, unconstitutionally performed exclusively judicial functions when it considered the severity of his crime and his past criminal history in its decision not to grant him parole. A magistrate judge had recommended that the claims should be procedurally barred. The instant court adopted the recommendation, ruling that petitioner is precluded from arguing that a possible delay in the Appellate Division should excuse his failure to exhaust because he did not file a notice of appeal. The court also found that petitioner’s claim that the board violated the doctrine of separation of powers in considering the severity of his crime and his past criminal history in making a parole determination is without merit, adding that petitioner’s claim is not based on the deprivation of a federal constitutional or statutory right.

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