Chester Flanders (“Petitioner”) brings this petition for habeas corpus pursuant to 28 U.S.C. §2254. Petitioner challenges the New York State Board of Parole’s (“Board”) denial of his parole application. He argues 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. This matter was referred to Magistrate Judge James C. Francis for a Report and Recommendation. In a Report and Recommendation (“Report”) dated January 9, 2003, Judge Francis recommended that the petition be denied because Petitioner’s claims are procedurally barred. Petitioner filed a timely objection to the Report pursuant to Federal Rule of Civil Procedure 72.A court may adopt those portions of a Report and Recommendation to which the parties do not object and with which the court finds no clear error. See Pizzaro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991). Conversely, the district court applies a de novo standard of review to those parts of the Report to which any party objects. See Fed. R. P. 72(b). For the reasons set forth below, the Court adopts the Report and denies Mr. Flanders’s petition for habeas corpus.I. BackgroundIn 1976, Petitioner was convicted of attempted murder in the first degree, attempted robbery in the first degree, criminal possession of a weapon in the second degree, assault in the second degree, and unlawful impersonation. He was sentenced to an aggregate term of twenty-five years to life imprisonment. On May 10, 2000, the Board denied petitioner’s request for parole. In making its decision, the Board considered the nature of Petitioner’s offense and concluded that his release would be “incompatible with the welfare and safety of the community.” (2000, Parole Tr. at 14)On May 29, 2000, Petitioner sought review from the Board’s Appeal Unit. On April 27, 2001, the Appeals Unit affirmed the Board’s decision not to grant Petitioner parole, noting that the Board is permitted to consider the nature of a petitioner’s crime in making its decision. Petitioner then petitioned the New York State Supreme Court for an Order to Show Cause pursuant to New York Civil Practice Law and Rules Article 78, arguing that the Board violated his federal and state rights to due process and equal protection. His petition was denied on January 31, 2002; Petitioner did not appeal this decision to the Appellate Division. On May 15, 2002, Petitioner again appeared before the Board, which denied his request for parole a second time.On May 22, 2002, Petitioner filed a petition for habeas corpus in this Court. He argues that the Board, an executive agency, unconstitutionally acted in a judicial capacity when it considered the severity of his crime and his criminal history in deciding whether or not he should be granted parole. He further argues that the parole proceedings violated the separation of powers doctrine because they allow an executive agency to hand out punishment, a function that is reserved exclusively for the judicial branch.II. DiscussionA. Failure to Exhaust The exhaustion doctrine requires that before a petitioner in a habeas corpus proceeding seeks federal review, he must exhaust all available state remedies for each claim. 28 U.S.C. §2254(b)-(c). To exhaust a denial of parole in the state of New York, an inmate must first appeal the parole board’s decision to the Appeals Unit. See 9 N.Y.C.R.R. §8006.1. If the Appeals Unit decides to either deny review or affirms the board’s decision, the inmate must petition the State Supreme Court for relief. If the State Supreme Court either denies review or affirms the Appeals Unit’s decision, the inmate must appeal this decision to the Appellate Division. If the Appellate Division either denies review or affirms the decision of the Supreme Court, the inmate must seek leave to appeal to the New York Court of Appeals. Only then will his claims be fully exhausted.There are instances when a court may excuse a petitioner’s failure to exhaust. A court may excuse a petitioner’s requirement of exhaustion under two circumstances: (1) when “there is an absence of state corrective process;” or (2) when “circumstances exist that render such process ineffective to protect the right of the applicant.” 28 U.S.C. §2254(b)(1)(B)(i)-(ii).Petitioner has made two arguments as to why his failure to exhaust should be excused. First, he argues that his appearance before the Board on May 15, 2002 would have rendered his appeal to the Appellate Division moot. Petitioner’s contention is incorrect. If a petitioner’s claim challenges the Board’s decision on its merits, his subsequent reappearances before the board renders his appeal to the Appellate Division moot because a new hearing would presumably address the problems that occurred in the petitioner’s prior hearing before the Board. See Boddie v. New York State Division of Parole, 290 A.D. 2d 327, 327 (2002); Feneque v. New York State Division of Parole, 252 A.D. 2d 469, 470 (1998). In this case, however, Petitioner challenges the constitutionality of the parole decision-making procedures. Therefore, a subsequent hearing would not have rendered his claim moot because the hearing would have been conducted pursuant to the same procedure that Petitioner challenges. Therefore, Petitioner’s argument that his failure to exhaust should be excused for this reason is unavailing.Petitioner’s second argument contends that his failure to exhaust should be excused because it is the “fault of the State Court system itself,” which is a “procedural morass’ offering no hope of relief.” (Petition for Writ of Habeas Corpus at 4) (quoting Hankins v. Fulcomer, 941 F. 2d 246, 249-50 (3d Cir. 1991)). Whether this statement is true or not is irrelevant where the petitioner has not filed a notice of appeal. In order to argue that a possible delay of the appellate court should excuse his obligation to exhaust, Petitioner must have first filed a notice of appeal to the Appellate Division. See Ocasio v. New York State Division of Parole, 1993 WL 512920, at 1 (S.D.N.Y. 1993). Because he did not file a notice of appeal, Petitioner is precluded from arguing that a possible delay in the Appellate Division should excuse his failure to exhaust. Therefore, Petitioner’s failure to exhaust is not excused on this basis.B. Merits Even assuming, arguendo, that Petitioner met the exhaustion requirement, his petition nonetheless fails on the merits. The writ of habeas corpus is only available to a prisoner who is being held in violation of a federal constitutional or statutory right. See Smith v. Phillips, 455 U.S. 209, 221 (1982). 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. The separation of powers doctrine is embodied in the federal Constitution and is not binding on a state. See Whalen v. United States, 445 U.S. 684, 689 n. 4 (1980). Petitioner’s claim involves the interaction of the branches of state government, a claim that rarely serves as a proper basis for granting a writ of habeas corpus because “state separation of powers issues do not generally raise constitutional questions.” United States v. Newton, 181 F. Supp. 2d 157, 165 (E.D.N.Y. 2000). Because Petitioner’s claim is not based upon the deprivation of a federal constitutional or statutory right, his petition must be denied on the merits.III. ConclusionThe reasons explained above the Court adopts Judge Francis’s Report and Recommendation in its entirety. Accordingly, Mr. Flanders’s petition for habeas corpus is denied.So Ordered. n
