Robles v. Dennison (745 F. Supp. 2d 244, 2010)

United States District Court for the Western District of New York 2010-10-13

Crimes and Criminal Procedure

Citations

Full opinion text

DECISION AND ORDER

VICTOR E. BIANCHINI, United States Magistrate Judge.

I. Introduction

Pro se petitioner Richard Robles (“Robles”), by this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenges the constitutionality of decisions of the New York State Division of Parole (“the Parole Board”) repeatedly denying him parole. (Docket No. 1). The parties have consented to disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1).

Robles was first committed to the New York State Department of Corrections on January 12, 1966, following a jury trial in New York County Supreme Court for two counts of first degree murder. Robles initially was sentenced to a term of natural life in prison. However, in the 1970s, the New York State Legislature amended the law to make prisoners such as Robles eligible for parole after serving a minimum of twenty (20) years of his sentence.

According the papers submitted to this Court, Robles had his first parole hearing in November 1984. Since that time, Robles has appeared before the Parole Board every two years and, on each of these twelve (12) occasions, the Board has denied parole and ordered Robles held for another twenty-four months, the maximum time statutorily permitted between parole hearings.

Robles challenges a number of the Parole Board’s decisions denying parole. Respondent has asserted the defense of non-exhaustion with regard to all of the denials except the 2002 denial, as to which respondent concedes that Robles has exhausted his administrative and state-court remedies. Thus, the key parole denial before the Court in the instant habeas petition is that rendered on May 7, 2002. The Parole Board denied release in a perfunctory decision with language remarkably similar to all of its previous denials, and ordered that Robles be held for another 24 months (the maximum hold time possible) before he would again be eligible for another parole hearing. Represented by counsel, Robles pursued an unsuccessful administrative appeal of the 2002 parole denial was unsuccessful. Robles’ attorney then sought judicial review pursuant to Article 78 of the New York Civil Practice Law and Rules (“C.P.L.R.”) New York State Supreme Court, Wyoming County. The county court judge denied the petition in a written decision and order. The Appellate Division, Fourth Department, of New York State Supreme Court, unanimously affirmed the decision on appeal. Robles v. Travis, 9 A.D.3d 919, 779 N.Y.S.2d 377 (4th Dept.2004). The New York Court of Appeals denied leave to appeal on October 21, 2004. Robles v. Travis, 3 N.Y.3d 610, 786 N.Y.S.2d 813, 820 N.E.2d 292 (N.Y. 2004).

On May 4, 2004, and again May 9, 2006, the Parole Division again denied Robles parole release. This Court recently has received correspondence from Robles indicating that his most recent parole hearing, held on May 8, 2008, resulted in, unsurprisingly, another denial of release.

Robles commenced this habeas proceeding on April 5, 2005, pursuant to 28 U.S.C. § 2254, alleging that the Parole Division’s decisions denying him parole violated the Ex Post Facto Clause, Due Process Clause, and Equal Protection Clause of the United States Constitution.

The Court dismissed respondent’s preanswer motion to dismiss, and ordered respondent to answer the petition. After receiving respondent’s answer and memorandum of law, and Robles’ reply brief, the Court requested additional information from the parties concerning, e.g., the specifics of the parole denials.

For the reasons that follow, the request for a writ of habeas corpus is denied and the petition is dismissed.

II. Factual Background and Procedural History

A. The Underlying Conviction and Post-Conviction Proceedings

In the late morning of August of 1963, while under parole supervision for a second-degree assault conviction, Robles entered an apartment in Manhattan through a window with the intent of burglarizing it. Once inside the apartment, which he thought was unoccupied, he encountered a young woman, who was in bed, sleeping. Robles forced the woman to perform oral sex on him; he then attempted to have anal intercourse with her but she asked him to stop. At about that time, one of the woman’s roommates entered the apartment. Robles bound them both and tied them up together. The second woman told Robles that she would remember his face and would make sure that the police caught him. At that point, Robles would later explain, he “snapped” and began striking the women with soda bottles, rendering them unconscious. He then stabbed them repeatedly with kitchen knives, killing them both. See Respondent’s Exhibit (“Resp’t Ex.”) CC at 2-7. The women’s bodies were later discovered by the third roommate and the father of one of the victims.

Following a jury trial, Robles was convicted of two counts of first degree murder. He was sentenced in 1966 to term of life in prison. See Resp’t Ex. B. Following a change in New York’s penal law, Robles was re-sentenced in the 1970s to an indeterminate term of imprisonment of twenty (20) years to life. See Resp’t Ex. C at p. 2.

On May 8, 1969, the Appellate Division, First Department, of New York State Supreme Court unanimously affirmed Robles’ conviction but did not issue any opinion in connection therewith. People v. Robles, 32 A.D.2d 741, 300 N.Y.S.2d 510 (N.YApp. Div.1969). The New York Court of Appeals granted leave to appeal. The conviction was affirmed by a five-to-two divided panel on September 24, 1970. People v. Robles, 27 N.Y.2d 155, 314 N.Y.S.2d 793, 263 N.E.2d 304 (N.Y.1970). The Supreme Court denied certiorari. Robles v. People, 401 U.S. 945, 91 S.Ct. 959, 28 L.Ed.2d 227 (1971). The New York Court of Appeals subsequently denied Robles’ motion for reargument.

B. Proceedings before the Parole Board

Beginning on November 5, 1984, the Parole Division periodically interviewed Robles pursuant to New York Executive Law (“Executive Law”) § 259-i to determine his suitability for parole release. As detailed more fully below, parole was denied in each instance.

1. The 1984 Parole Denial

Prior to Robles’ first parole hearing, Dr. Mayeed Rahman, a psychiatrist at Auburn Correctional Facility, examined Robles. Dr. Rahman issued a report containing the following conclusion:

On the basis of the interview and perusal of his records, the inmate does not appear to be mentally ill or dangerous at the present time. He has realistic plans for the future. I do not see any psychiatric contraindication to his release in the society at this time. However, he should continue to participate in some counselling [sic] in order to maintain the progress he has made during the period of his incarceration.

Petitioner’s Exhibit (“Pet’r Ex.”) 1-1.

Following a hearing, the Parole Board denied parole in the following decision:

Parole denied. Hold 24 months with a psych, [sic] (11/86 Bd.)

Based on the nature and circumstances of the current offenses, two counts of murder in the first degree, wherein two young women were stabbed to death— one sexually abused, and her naked body tied to the clothed body of the other victim. You were convicted by jury trial and although you deny the allegations, your appeals have been denied.

Note is made of your reduction of natural life sentence through Chapters 343 and 344, to twenty years to life. Your institutional record is extremely satisfactory as to program participation. However, the gravity of the instant offense prechides release consideration.

Continue in constructive institutional programming. Statutory limitations preclude a longer hold. Guidelines are unspecified.

See Resp’t Ex. E (emphasis supplied). The Parole Board did not make any mention of Dr. Rahman’s positive mental health evaluation of Robles, and his favorable opinion that Robles did not pose a future threat of dangerousness. Rather, the Parole Board relied solely on the nature of Robles’ crime to justify their decision to deny release.

2. The 1986 Parole Denial

Two years later, Robles had his second parole hearing. At the beginning of this hearing, Commissioner Mulhulland, one of the board members noted that Robles now had accepted responsibility for the offense, and complimented him:

In the institution I guess we couldn’t have a much better inmate. You have been with us for 22 years. Haven’t had a ticket in the last 10 years.... You appear to be well liked by the inmates .... I have not found anything negative about you in here....

See Transcript of 1986 Parole Hearing, Resp’t Ex. F. Robles then was asked to talk about the crime. He related his actions on the morning of the burglary in a vivid narrative without any prompting. Robles talked about how when he first came to prison, telling the Parole Board that he was “a drug addict” filled with “[s]elf-loathing”, “destroying his own life and other lives.” He said that he “hated [him]self” at the time and explained the emotional difficulties he experienced growing up in an alcoholic family. Robles talked about how he “turned [his] feeling about [him]self around” as he “saw [him]self helping people” through his involvement in, for example, the inmate’s Liaison Committee and working with David Rothenburg of the Fortune Society. See id. Robles explained that he had gotten an education, and wished to pursue teaching art (he had taught both art and photography while in prison). He believed that he was a different person than he was 22 years ago, and the change was the result of helping himself by helping others. See id. The Parole Board’s only question of Robles was a hypothetical: “what would be the sanctions be for ... taking two other lives[?]” Robles answered that “[u]ntil this man is safe to release I would have to keep him locked up.” There were no further questions from the Parole Board.

Parole Board Chairman Rodriguez commented, “You have acquitted yourself well. You have been your own best advocate. This case is going to be a tough one to decide.” Id. Robles acknowledged that. The chairman continued,

It’s a rough one. We have to play with it and talk about it____It’s a real rough one. We could hold you for two years easily. We could look at you and make a decision [redacted] and let the next Board look at you under our rules. We can do a [sic] myriad of other things. But you are clearly someone who has advanced considerably in the years you have been in jail. You have helped yourself and helped other people. Ken Jackson and Dave Rothenburg have helped a lot of other people also ... I know them. They are good people. I am sure they helped you a lot. You help them. We have a person who did something terrible 22 years ago that was horrible. We have to work on what we think is the right thing to do. You want to leave us with a final comment?

Id. To this question, Robles replied, “I am sure killing is terrible. What I did no doubt about it. I have lived with it a long time. It hurts. In my heart I know I did not maliciously kill. Not insanity, but close to it; that it wasn’t malicious.” Id.

The parole commissioners denied parole in a summary decision, without giving any basis for their ruling; they merely ordered Robles held for “two months or earlier for a special psychiatric procedure.” See 1986 Parole Denial, Resp’t Ex. G.

3. The 1987 Parole Denial

Robles underwent the required psychiatric evaluation, and his reappearance before the Parole Board occurred on January 16, 1987. The parole commissioners focused on Robles’ previous criminal history which they described as “extremely disturbing,” as well as the gruesome details of the crime for which he presently was incarcerated. See Transcript of 1987 Parole Hearing, Resp’t Ex. H.

The Parole Board focused on his criminal history prior to the double murder, commenting that the time of his arrest he “admitted to about 89 or 100 other burglaries and/or robberies of occupied apartments during the period of July 1959 through January of 1960. During one of these burglaries a woman, who was in the apartment, was apparently shot. Wounded. There was a person whom you must have been involved with that received stolen property from you who was also shot and wounded because that person threatened to turn you into the police.. So, I mean, you have already established a pattern of this type of behavior.... [Y]ou were paroled June the 3rd of 1963 and on August the 28th of 1963 you committed this crime. Following the exact same pattern you had followed in the past....” Resp’t Ex. H.

Robles attempted to explain why he did not admit to the stabbings earlier, stating that in 1984, when he first came up for parole, there were several prisoners at Auburn killed. Robles said he was being threatened by other inmates at the time. When he explained the situation to his attorney, he was told that he could maintain his innocence, “on advice of counsel”. Robles said that he “jumped on” that advice because he “felt threatened” by the situation at the prison, and admitted that it “was callousness” on his part to maintain his innocence.

Commissioner Buchanan criticized Robles for maintaining his innocence up until recently, and commented that the “tremendous amount of therapy” in which he had been involved was “totally valueless. As long as you were denying the crime, the therapy could not in anyway [sic] relate to the crime” Resp’t Ex. H at 11. Robles conceded the point, a factor which the Parole Appeals Unit focused on when upholding the denial of parole. Id. Robles explained that in 1984, he was still mentally “sick,” suffering the after-effects of watching his alcoholic father beat his mother when he was a child. Robles told the parole commissioners that the therapy essentially did not “click” until he got help in addressing the after-effects of growing up in that environment, which caused him to be overly sensitive to criticism, and to “do crazy things which is what this burglary and what [his] drug uses [sic] was about.” Id. at 12-14.

On his own initiative, Robles then discussed the underlying facts of the murders.

The day before this crime occurred my daughter was on the toilet bowl that was broken. I just moved my woman, my daughter into an apartment trying to be a macho man and all this image. She was on the toilet seat that was broken and it slipped and she hurt herself and I felt about this big. Very, very small. That was the catalyst that started me thinking about burglary. I had stayed away from drugs. I drank. I substituted.

I got in there [and] Janice Wylie [was a] ... total surprise. I didn’t expect anybody. I knocked on the door. I looked under the door. I rang the bell. I had no idea anybody was in there. When I got in there she was in there and ... thoughts hurt. They hurt. I’m really ashamed of this

I’ve been working on this 2 months. I don’t want to desensitize myself to this because I want to remember this is a terrible crime. I want to feel pain. I don’t know if it makes any sense to you, but I want to feel pain. Some things I want to feel pain about and some things I do. This shows how sick I was also. How really messed up to me to tell me how messed up I was. I looked at this woman and I started thinking don’t I wish I had a woman like this and the world could just be lovey dovey. I attempted to have sexual intercourse with her. She asked me not to and I did, in fact, stop. I tied her up and as I was leaving — ” Resp’t Ex. H at 18-19.

At that point, the Parole Board questioned Robles about whether he felt a feeling of “strength and power that this woman would become scared because of [him] now that [he] had this power?” Id. Robles admitted that this could have been the case, but stated that he was “not conscious of it” at the time. Id. at 19.

Robles continued his explanation: Wylie’s roommate came in, and he tied her up too so neither woman would call the police. Robles said that he was “just about going out the door and [the second woman] said, I’m going to remember your fact [sic]. I’m going to tell the police on you.” Id. at 21. Robles told the Parole Board, “I was anxious before that, but at that point, I more or less, snapped.” Id.; see also id. at 21-28. Robles said, “[w]hat happened to me in that apartment ... maybe it’s not enough for a court of law because it’s a criminal felony act. Not enough for a court of law, but it was clinical insanity that occurred that day to me. In my heart I know this.” Id. at 25.

Robles indicated that in the years that he had been in prison, he had initiated a Narcotics Anonymous group, and “Various TA [transactional analysis therapy] groups,” as well as a computer club. Id. He also had 57 credits towards an associate’s degree, and had pursued courses in welding, electronics, and was, as the parole commissioner noted, “a very skilled artist.” Id. at 26. Robles explained that it had been his “plan to help when I get out, to help others.” He had been offered a job at the Fortune Society two years ago, but had been unable to accept because he was denied parole. Id. Robles explained that he “wanted to become familiar with various trades ... so I could help advise youths.... ” He discussed his conversion from Roman Catholicism to the Quaker religion. Id. at 26-27. He also talked about his fiancée of ten years, who was a foster parent, and he was aware that he would not be able to live with her if she elected to continue to be care for foster children. Id. at 28-29 Robles also discussed his only daughter, who was twenty-seven years-old in 1987; he said that he had been writing to her since he became incarcerated, and recently they had started talking on the phone; he also talked to his son-in-law, but had not met his grandchildren. Robles noted that it was “a shaky relationship” but he “want[ed] to develop it.” Id.

When asked if he had anything further he wanted to discuss, Robles said “[r]emorse.” Id. at 30. He talked about the horror and disgust with himself he felt after the stabbings, and said he “started hating [himjself from that moment.” Robles explained that he painted as a way to deal with the feelings and nightmares he has had. Id. at 31. The Parole Board asked why, if he felt that way, did he not turn himself in to the police immediately after the incident, and then questioned Robles about the fact that he was not arrested until an informant, who was supplying him with drugs, tape-recorded a conversation in which Robles incriminated himself. Id. at 31-35. Robles acknowledged those things, and explained that he was essentially imprisoned in his drug addiction to heroin. Id. at 36-37.

Based on the Parole Board’s questions and comments during the hearing, it became clear that they viewed everything Robles said with skepticism. They also apparently did not believe he had sufficiently internalized responsibility for his crime, which admittedly was heinous, since he did not start discussing the crime in therapy until several years beforehand. Thus, their terse denial was not a surprise:

Parole denied. Hold 24 months, 11/88 Board. With mental health status report. Reasons for denial: Denial is based on the nature and circumstances of the current offenses, 2 counts of Murder 1°, wherein 2 young women were brutally stabbed to death, one sexually abused and her naked body tied to the clothed body of the other victim.

Denial of this crime has been consistent through 1984 and according to you on your attorney’s advise. Recently, you have begun to admit the crime. Throughout this period of incarceration you have been exposed to periods of extensive therapy related to your personal needs, however, not dealing with your criminal acts. Note is made of your institutional efforts and achievements. Given the nature of the crime and the prior criminal history discretionary release cannot be considered. Statutory limitations preclude a longer hold.

See Resp’t Ex. H at 38 (emphases supplied). Again, the Parole Board’s denial rested principally on the severity of the crime.

4. The 1988 Parole Denial

The transcript of the 1988 hearing has not been provided as part of the state court records in this case. The decision issued reads as follows:

Parole is again denied by this panel of the Board of Parole after careful review of your records and an interview. Your offense involves the brutal murder of two women in their home in the course of a burglary in which you were interrupted. You tied the unclothed body of one of the victims to the clothed body of the other after having sexually abused her. You were on parole supervision ivhen this crime occurred. While the progress and accomplishments you have achieved while incarcerated, particularly in the last several years, are noted, it is the judgment of this panel that parole should be denied at this time.

See 1988 Parole Denial Resp’t Ex. K (emphasis supplied). The Parole Board’s decision thus was based solely on the nature of Robles’ offense. Robles was ordered held for another 24 months. See id.

5. The 1990 Parole Denial

The transcript of his hearing is not available for review. The decision denying parole states in full as follows:

Again, this panel believes there is a possibility of reversion to crime if released. So violent was your murder of two women during the commission of a burglary tvhile on parole for three months, that it does not offset the exceptional contributions you have made during these 26 years of imprisonment. You cite in your presentation the fear of ever putting yourself in an unpredictable situation and, as those life situations are a reality, we believe your community release is not in the best interests of society.

See 1990 Parole Denial, Resp’t Ex. L (emphasis supplied). Once again, the Parole Board’s denial reflected its finding that the gravity of Robles’ crime to trump all other positive factors. Robles was given the maximum hold time and the next hearing date was set for November 1992. See id. His administrative appeal was unsuccessful. See Resp’t Ex. M.

6. The 1992 Parole Denial

This transcript also is not available for review. The decision denying parole issued by this panel was quite cursory:

The extreme gravity of the instant offense, the wanton murder of two young women during the course of a burglary, precludes early release. The inmate was on parole at the time of the commission of this crime. The inmate has an outstanding institutional adjustment and we have attempted to consider that fact in our recommendation.

See Resp’t Ex. N (emphases supplied). Again, the Parole Board denied release based entirely on the severity of the crime. Robles was ordered held for 18 months. See id. It appears that Robles requested a postponement of three months because there were legal matters that he wanted to resolve before reappearing before the Parole Division. See Resp’t Ex. O.

7. The 1994 Parole Denial

The next full parole hearing was held on July 12, 1994, at which point Robles had been incarcerated for 29% years. He was 51 years-old at the time of the interview. When asked if he was “hostile about what the system” had done to him, “or where society ha[d] determined [he] belong[ed]” Robles responded, “I was dangerous, I was a time bomb, a ticking time bomb,” and “what has happened to me ... society has to put people away that are dangerous, it is as simple as that.” Resp’t Ex. P at 7-8. Robles explained that “[a]nything that occurred was threatening to [him], anything negative that occurred was threatening,” and he expressed those feelings “[w]ith drugs.” Id. at 8. The Parole Board noted that he had “had extensive substance abuse counseling” since his incarceration. Id.

The Parole Board asked when he was able to internalize his guilt, i.e., accept responsibility. Robles explained when and how he was able to acknowledge responsibility for the crimes, in 1985 or 1986, during his participation in transactional analysis therapy. The Parole Board appeared view Robles’ crimes as primarily sexual in nature; they asked if there was “[a]ny particular reason” why the two victims were women. Id. at 9. Robles responded, “They were — I was in the wrong place at the wrong time, you know.” Id. When pressed on what this meant, Robles said, “I didn’t pick women, okay. They were just there. It was a burglary.” Resp’t Ex. P at 10. The Parole Board questioned Robles intensely on what he meant by being in the wrong place at the wrong time, noting, “It suggests to us, perhaps, that even though you have acknowledged responsibility, you might still be struggling with your internalization of guilt. Does it occur that way to you.” Id. at 10. Robles replied, “No, it hadn’t occurred that way to me. Perhaps I picked the wrong term, the terminology. It is just a phrase.” Id.

The topic of the hearing turned to the programs Robles had been in to help him “gain insight into the extreme violence that was displayed in [his] crime.” Id. at 11. Robles explained that he had participated in the Alternatives to Violence Program, Aggression Replacement Therapy, and also had been seeing a psychologist, who was then deceased. Id.

Robles had been married for three years to a woman in Saugerties, New York, who was a foster parent to five children. Robles explained that he had been accepted into the Cephas Program in Rochester, New York, a “structured release program” that had “everything.” Id. at 12.

Robles then asked permission to read a prepared statement. Robles stated that he had “a tremendous amount of empathy for them as a result of the fact that I, myself, have been a victim of numerous criminal acts and, thereby, likewise, suffered the torment of a crime victim. Those crimes include the death of my brother in a criminally-negligent tragedy.” Resp’t Ex. P at 14. After Robles finished his statement, which also touched on the challenges he had faced while in the prison system, and his letters of commendation, Commissioner Platt noted,

The record says that you have made an excellent adjustment. You have done extremely well as an inmate. You have participated in academic and vocational and therapeutic programs. You seem to have a viable release plan, you have done well. There is something that you said earlier, though, that concerns me, that is, you see yourself as a crime victim.

Resp’t Ex. P at 17. Robles explained, as he had in prior parole hearings, that when he was he was 11 or 12 years-old, he lived in an Irish-German neighborhood, and would get “jumped” by other students at his school who called him a “spic bastard” and cut with a knife in his neck and arm, and threatened to kill him. Id. at 17-18. Robles felt, as a result of his therapy, there was a strong relationship between what happened to him and his criminal acts. Id. Robles also saw himself as a relative of a crime victim, because he felt that his brother, who died in a parachuting accident while serving in the armed forces, had been the victim of criminally negligent homicide. Id. at 18-19.

When asked what kind of thoughts came to mind when he contemplated his two victims, Robles replied, “It never had to happen.” Id. at 20. Apparently, dissatisfied with this response (“That’s the only thought that comes to mind?”), the panel asked if he had thought about the fact that he had deprived them of life and the pursuit of their goals; Robles responded affirmatively. Id. Robles tried to explain that what he meant by “it never had to happen” was that the incident had started as a burglary and had escalated. Robles’ response was cut short by one of the commissioners, who noted that Robles had “done well” and “present[s][him]self well.... ” Id. at 21. The commissioner noted that because of the nature of the crime, the Board was required to “invoke the special psychiatric panel procedures.” The commissioner further stated after reviewing the mental status reports prepared on Robles, the Parole Board had found that they did “not provide any contraindication to [his] release.” Id. at 21.

Despite all of these favorable factors, this panel also denied parole and ordered Robles held for another 24 months in the following decision:

Following a thorough review of your record, a personal interview and deliberations by this Panel, we render the following decision: Parole is denied. At the interview, it was apparent that despite your participating in counseling and therapeutic programs, you have failed to fully internalize culpability for your criminal behavior. Though you verbalize remorse, you continue to struggle with acceptance of responsibility for your conduct. You presented various rationalizations for your behavior, and continue to self-identify as a crime victim. You are comfortable with shifting the genesis of your criminal behavior to causative factors and entities external to yourself. No genuine remorse or compassion or compassion [sic] for the victims was ascertainable.

You denied culpability for many years, and it appears that your superficial acceptance of responsibility in later years was intended more to impress this Board than as a true expression of your rehabilitative progress.

Your crime was truly heinous, representing a gross decompensation of human values. Extensive rehabilitative and incarcerative measures are appropriate. Your exceptional custodial adjustment and pragmatic [sic] achievements are noted.

Guidelines are unspecified.

(All Commissioners present concur.)

Resp’t Ex. Q at 23-24; see also Resp’t Ex. R.

The Appeals Unit upheld the parole denial in the following decision:

There is no entitlement to release, and release may only be granted where the Board has no reason to believe that the inmate could remain in the community without violating the law. The record of this proceeding clearly indicates that the panel discussed and considered the factors pertinent to the issues of release, including his criminality, institutional adjustment and release plans, as well as his attitude and statements as expressed during the interview. Therefore, the panel, having considered the statutorily appropriate factors, could rationally predict, for the reasons it stated in its decision, that release would be incompatible with the welfare of society.

Resp’t Ex. S.

8. The 1996 Parole Denial

Robles’ next parole hearing was conducted on May 1, 1996. See Resp’t Ex. T. The panel orally rendered their decision denying parole at the close of the hearing, after Robles had been excused:

[Parole is] Denied. [Hold for] 24 months. [Reappearance in] May '98. Originally sentenced to term of life imprisonment (which did[,] under the law at that time[,] provide for the possibility of parole consideration) as the result of your conviction by verdict for the stabbing deaths during August 1963 of two women in their New York City apartment, your sentences subsequently were modified by legislative changes to 20 years to life, making you originally eligible for parole during January 1985. Several Parole Board appearances are noted since the end of 1984. On parole at the time of the August 1963 homicides for about three months, you were not arrested until January 1965. In between, you had been returned to prison for parole violation and then reparoled. Your prior DOCS term as a Y.O. was imposed in 1960 and was related to similar behavior that led to your current incarceration for homicide in that the earlier criminal behavior involved residential burglaries that at times included accosting and threatening victims in their homes.

In the August 1963 crime, you encountered two young women in their apartment, bound them to each other and viciously stabbed your immobilized victims. Previously you had forced sexual contact upon one of the victims. Your multiple stabbing of both victims while they were bound suggests a rage and uncontrolled anger that, along with your previously-established pattern of willingness to risk confronting victims in their homes is of great concern to us. We note your extremely positive adjustment as an inmate in terms of behavior and program efforts, and we note your

plans for release and the availability of support in the community. We also note your age and the length of your confinement. Still, given the other factors cited above, we are concerned that return to the community entails too great a risk of return to the negative behavior that led to the 1963 brutalization and deaths of two young women. Guidelines are unspecified in this case.

See Resp’t Ex. T at 26-27 (emphases supplied); see also Resp’t Ex. U.

9. The 1998 Parole Denial

Robles next parole hearing was held on April 29, 1998. See Resp’t Ex. Y. At the beginning of the hearing, Commissioner Graber astutely commented, “33 years is a long time to be in jail.” Resp’t Ex. W at 7. The commissioners spent much of the hearing focused the details of the crime, questioning Robles at length about the nature of the sexual contact between him and the first victim. The commissioners described the offense as an “awful brutal crime, two women tied together, helpless,” and asked him why he had done that.

The panel issued a decision on the record after Robles left the hearing:

[Hold for] 24 months. [Re-hearing in] 5/2000. Instant convictions for murder first are very serious. Two young women were brutally stabbed to death. One was sexually abused and her naked body ■ tied to the clothed victim. Both women were bound by the feet and wrists. While they were tied they were stabbed to death. Instant conviction is heinous and represents a depraved indifference towards human life. Two women were tied up, rendered helpless, then they were brutally killed.

Discretionary release in light of the aforementioned factors, has been determined to be incompatible with the public welfare. Further, discretionary release would deprecate the gravity and seriousness of the crime. This determination has been made after a review of your entire case file and in consideration of today’s interview.

Finally, it is noted that you were under parole supervision when instantly [sic] involved. We note your accomplishments while incarcerated, and they have been considered when arriving at today’s decision.

See Resp’t Ex. W at 25; see also Resp’t Ex. X; Pet’r Ex. 6-8.

Robles appealed this adverse determination to the prison appeals unit on the bases that his due process rights were violated, that the application of Executive Law § 259 — i was a violation of the ex post facto clause, and that the Parole Board was improperly influenced by public pressure opposing his release.

10. The 2000 Parole Denial

Robles appeared before the Parole Board again on April 26, 2000. The decision denying release read as follows:

Parole Decision: Denied — Hold for 24 months, next appearance date: 05/2000. Conditions of Release/Reasons for Denial: Parole is again denied due to the violent and heinous nature of the I.O. [instant offense], murder 1st (2 counts), wherein you raped and sodomized one victim and stabbed to death two defenseless women.

We note all your positive programming throughout the years and community support but find more compelling, your total disregard for the life of others. Comments: Following deliberation, this decision is based on review of the case record as well as the interview with parole board members.

Pet’r Ex. S-9. Again, the Parole Board based its denial on the nature of Robles’ crimes.

11. The 2002 Parole Denial

Robles’ next appearance was on May 7, 2002. The decision denying parole read as follows:

Parole Decision: Denied — Hold for 24 months, next appearance date: 05/2004 Conditions of Release/Staff Instructions/Reasons for Denial: After a careful review, parole is again denied. Your conduct in committing this vicious crime of murder (2 counts): 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. Your were on parole supervision at the time you committed the instant offense. Comments: Following deliberation, this decision is based on review of the case record as well as the interview with parole board members.

Pet’r Ex. S-10. The Parole Board once more based its denial on the nature of Robles’ crimes, and did not even mention any positive factors, such as his rehabilitation efforts, in its decision.

12. The 2004 Parole Denial

The decision denying parole after the May 2004 hearing read as follows:

Parole Decision: Denied — Hold for 24 months, next appearance date: 05/2006 Conditions of Release/Staff Instructions/Reasons for Denial: Parole is denied. You continue to serve 20 years to life for two counts of murder. This involved you causing the death of two female victims who were brutally and repeatedly stabbed inside them apartment. While the panel notes your positive program adjustment, due to the extremely serious and violent nature of these crimes, the panel concludes that your release would not be appropriate at this time.

Comments: Following deliberation, this decision is based on review of the case record as well as the interview with parole board members.

Pet’r Ex. S — 11. Again, the Parole Board based its denial on the nature of Robles’ crimes.

13. The 2006 Parole Denial

Robles’ next appearance was in May of 2006. The decision denying parole read as follows:

Parole Decision: Denied — Hold for 24 months, next appearance date: 05/2008 Conditions of Release/Staff Instructions/Reasons for Denial: After a review of the record and interview, the Panel has determined that if released at this time, there is a reasonable probability that you would not live and remain at liberty without again violating the law. Your release at this time would be incompatible with the welfare of society and would so deprecate the serious nature of the crime as to undermine respect for the law. This decision is based on the following factors. Your instant offense is murder (2 counts) in which you, while committing one of your many burglaries, sexually assaulted one victim at knifepoint and then a second victim entered the apartment, you tied up both victims and after one victim stated she would remember you and have you arrested you mercilessly beat and repeatedly stabbed your two helpless, unarmed, tied up victims in such an excessively brutal and viscious [sic] manner you broke several knives killing them, while on numerous occasions denied your guilt and allowed an innocent man to take the blame for your evil crime. The incredibly heinous and brutal nature of your offenses, and your past criminal behavior clearly indicate you are a poor candidate for release. Note is made of your programming and clean disciplinary record. Parole is denied.

Pet’r Ex. S-12. The Parole Board, once again, based its denial on the nature of Robles’ crimes.

C. The Exhaustion of State Court Remedies and Petitioner’s Administrative and Judicial Appeals at the State Level

A prisoner challenging his custody pursuant to a conviction in state court must first exhaust all state-court remedies “unless state corrective process is unavailable or the process that is available would be ineffective.” Scales v. New York State Division of Parole, 396 F.Supp.2d 423, 428 (S.D.N.Y.2005) (citing 28 U.S.C. § 2254(b)(1)). Nevertheless, a federal court may entertain a petition for a writ of habeas corpus if “it appears that (i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B). Pursuant to the 1996 amendments to the habeas statute, “[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) (emphasis supplied).

■ In order to exhaust claims stemming from a denial of parole under New York law, a habeas petitioner must first file an administrative appeal with the Division of Parole’s Appeals Unit. Morel v. Thomas, No. 02 CV 9622(HB), 2003 WL 21488017, at *2 n. 3 (S.D.N.Y. June 26, 2003) (citing N.Y. Comp. Codes. R. & Regs. tit. 9, § 8006.1). If that appeal is denied, he must seek relief in New York State Supreme Court pursuant to Article 78 of New York’s Civil Practice Law and Rules (“C.P.L.R.”). Id. (citing Desire v. New York Division of Parole, 2001 U.S. Dist. LEXIS 13784, at *6 (S.D.N.Y. Aug. 22, 2001)); see also Scales, 396 F.Supp.2d at 428 (describing steps habeas petitioner must take in order to exhaust claim of erroneous parole revocation). Assuming his Article 78 petition is denied by a justice of the Supreme Court, the inmate must then appeal the denial to New York’s intermediate appellate court, the Appellate Division. See Morel, 2003 WL 21488017, at *2 n. 3 (“Morel did appeal his denial to the Appeals Unit, and he also filed an appeal in New York Supreme Court pursuant to Article 78. Yet, he did not appeal the denial rendered by Justice Cobb to the Appeals Division of the state court. Thus, he failed to fully exhaust the state remedies available to him; Morel concedes this fact.”) (citation to record omitted).

Respondent argues that the 2002 parole denial is the only Parole Board decision as to which Robles has exhausted his state court remedies by completing one full found of New York’s established review procedures. The Court agrees that Robles has fully exhausted his state court remedies with regard to the 2002 parole denial.

With regard to the other parole decisions, the exhaustion issue is more complicated. Robles contends that the process for appealing a parole denial is ineffective because he will be eligible for a new hearing before he has exhausted his appeal, and thus his appeal will be moot. See, e.g., Morel v. Thomas, 2003 WL 21488017, at *2 (inmate denied parole made these arguments in response to respondent’s assertion of non-exhaustion of claims) (citing Brown v. Thomas, No. 02 Civ. 9257, 2003 WL 941940, at *1 (S.D.N.Y. Mar. 10, 2003); Defino v. Thomas, No. 02 Civ. 7413, 2003 WL 40502, at *3 (S.D.N.Y. Jan. 2, 2003); Hairston v. Thomas, 2003 WL 1744728, 2003 U.S. Dist. LEXIS 5020 (S.D.N.Y. Mar. 31, 2003); Manley v. Thomas, 255 F.Supp.2d 263 (S.D.N.Y.2003)). Robles also contends that the state remedy is ineffective because the only remedy available to him is a de novo hearing before the Parole Board.

I note that a number of other New York state prisoners have raised essentially the same argument in their § 2254 habeas petitions challenging decisions by the New York Division of Parole-namely, that the futility of the state court procedures for obtaining meaningful review of the Parole Board’s actions constitutes circumstances “that render such process ineffective to protect the rights of the applicant,” 28 U.S.C. § 2254(b)(1)(B)(ii). See Brown v. Thomas, No. 02 Civ. 9257, 2003 WL 941940, at *1 (S.D.N.Y. Mar. 10, 2003); (Washington v. Thomas, No. 03 Civ. 363, 2003 WL 21262089, S.D.N.Y. May 29, 2003); Defino v. Thomas, No. 02 Civ. 7413, 2003 WL 40502, at *3 (S.D.N.Y. Jan. 2, 2003) (“Finally, Defino challenges the efficacy of the state court proceeding because the only remedy available is a “so called de novo hearing” before the Parole Board. Further, he argues that if the petitioner is denied parole again at that de novo hearing, ‘the absurd procedural merry-go-round of sham hearings and meaningless state court review is given another spin.’ ”) (quotation to record omitted) (cited in Bod-die, 285 F.Supp.2d at 427). The district court in Defino characterized such an argument as “potentially powerful.” Defino, 2003 WL 40502, at *3 (quoted in Brown, 2003 WL 941940, at *1). In Boddie, the district court held that this “thorny issue” did not need to be addressed because petitioner’s substantive claims clearly were without merit, and it was more efficient to dispose of the petition in that way. Boddie, 285 F.Supp.2d at 428 (citing Brown, 2003 WL 941940, at *1 (“[I]n habeas corpus cases, potentially complex and difficult issues about the various obstacles to reaching the merits should not be allowed to obscure the fact that the underlying claims are totally without merit.”). In all of these cases, the district court dismissed the due-process and equal-protection claims on substantive grounds and declined to rule on the procedural question of exhaustion. Morel v. Thomas, 2003 WL 21488017, at *2-3 (“[T]his Court declines to rule on Morel’s exhaustion argument because the petition can be dismissed on the merits of both the due-process and equal-protection claims.”) (citations omitted).

As detailed throughout this opinion, it does not appear that any of the subsequent parole hearings cured the constitutional infirmities that Robles alleges occurred at the during the previous hearings. Given that I do not believe Robles’ due process claim is clearly without merit, I am persuaded by Robles’ argument concerning the futility of exhaustion under the circumstances present here. Cf. Rosenkrantz v. Marshall, 444 F.Supp.2d 1063, 1087 (C.D.Cal.2006) (granting habeas relief and ordering that “[b]eeause petitioner’s parole date has been twice determined under California law, and because both of those dates ... have long since passed, respondent should be directed to release petitioner on parole within thirty (30) days of the date of entry of judgment[,]” rather than remanding for a new parole hearing) (citing McQuillion v. Duncan, 342 F.3d 1012, 1015-1016 (9th Cir.2003) (affirming grant of relief on appeal after remand, and explaining that proper relief is immediate release rather than remand for further parole proceedings where no evidence in the record supported the [Board of Prison Terms]’s determination that the petitioner was not suitable for parole)).

III. General Legal Principles

A. Standard of Review

“While one might second-guess the Parole Board’s decision, and state court’s approval of it,” and I certainly do, in this case, I recognize that “it is not the role of the federal courts to do so.” Hunterson v. DiSabato, 308 F.3d 236, 244 (3d Cir.2002). On federal habeas, this Court’s review “is quite distinct from that of the state appellate courts.” Id. at 244-45. The Supreme Court has explained that because habeas review is collateral, and not supervisory, “not every trial error or infirmity which might call for application of supervisory powers correspondingly constitutes a ‘failure to observe that fundamental fairness essential to the very concept of justice.’ ” Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974) (citation omitted) (quoted in Hunterson, 308 F.3d at 244). This Court’s review is further curtailed by AEDPA, as Robles filed his petition after its enactment. AEDPA provides that “(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the elaim(1) 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; or (2) 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.” 28 U.S.C. § 2254(d)(1), (2).

B. Procedural Due Process in the Parole Context

“The Fourteenth Amendment’s Due Process Clause protects persons against deprivations of life, liberty, or property; and those who seek to invoke its procedural protection must establish that one of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005). The Constitution itself may give rise to a liberty interest “by reason of guarantees implicit in the word ‘liberty.’ ” Id. (citing Vitek v. Jones, 445 U.S. 480, 493-494, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) (finding that there is a liberty interest in avoiding involuntary psychiatric treatment and transfer to mental institution)). A liberty interest also “may arise from an expectation or interest created by state laws or policies.” Wilkinson, 545 U.S. at 221, 125 S.Ct. 2384 (citing Wolff v. McDonnell, 418 U.S. 539, 556-558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)) (finding that a state inmate possessed a liberty interest in avoiding withdrawal of state-created system of good-time credits).

In the parole context, the Supreme Court has held that “[t]here is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.” Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). Although there is no constitutional right to parole, a state may create a liberty interest in parole by means of its statutes and regulations governing the parole decision-making process. See id. at 12, 99 S.Ct. 2100; accord Board of Pardons v. Allen, 482 U.S. 369, 371, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987) (“Allen ”) (“In Greenholtz the Court held that, despite the necessarily subjective and predictive nature of the parole-release decision, ..., state statutes may create liberty interests in parole release that are entitled to protection under the Due Process Clause.”). The Supreme Court determined in Greenholtz that a state creates an expectation of release to parole supervision, rising to the level of a liberty interest within the meaning of the Due Process Clause, if its parole system mandates release whenever a parole board or similar authority determines that the necessary statutory prerequisites exist. Board of Pardons v. Allen, 482 U.S. at 376, 107 S.Ct. 2415 (citing Greenholtz, 442 U.S. at 12, 99 S.Ct. 2100).

In Greenholtz, the Supreme Court agreed with Nebraska inmates who argued that the state’s parole statute, which mandated parole if certain requirements were met, created a liberty interest in parole release. The petitioners relied upon the following section of the Nebraska statute to argue that the statutory language itself creates a an expectation of parole release:

Whenever the Board of Parole considers the release of a committed offender who is eligible for release on parole, it shall order his release unless it is of the opinion that his release should be deferred because:

(a) There is a substantial risk that he will not conform to the conditions of parole

(b) His release would depreciate the seriousness of his crime or promote disrespect for law;

(c) His release would have a substantially adverse effect on institutional discipline; or

(d) His continued correctional treatment, medical care, or vocational or other training in the facility will substantially enhance his capacity to lead a law-abiding life when released at a later date.

Greenholtz, 442 U.S. at 7, 99 S.Ct. 2100 (quoting Neb.Rev.Stat. § 83-1,114(1) (1976) (emphasis supplied; quotation marks omitted)). The Greenholtz court “accepted] [the inmates’] view that the expectancy of release provided in this statute is entitled to some measure of constitutional protection.” Id.

Later, in Allen, the Supreme Court affirmed the Greenholtz methodology of analyzing the statutory scheme to determine if it created a constitutionally protected liberty interest. Of significance was the “mandatory language — the use of the word ‘shall’ — and the presumption created — that parole release must be granted unless one of four designated justifications for deferral is found.” Allen, 482 U.S. at 374, 107 S.Ct. 2415 (citing Greenholtz, 442 U.S. at 11-12, 99 S.Ct. 2100); see also id. at 374 n. 4, 107 S.Ct. 2415 (citing Hewitt v. Helms, 459 U.S. 460, 471-72, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983) (relying upon “the State’s use of ‘language of an unmistakably mandatory character’ and its specification of ‘substantive predicates’ to confinement — ‘the need for control,’ or ‘the threat of a serious disturbance’ ” — to find that “Pennsylvania’s administrative segregation statutes and regulations created a protected liberty interest in remaining in the general prison population”)).

That the Nebraska statute, like most parole statutes, “vest[ed] very broad discretion in the Board,” Greenholtz, 442 U.S. at 13, 99 S.Ct. 2100, did not foreclose a finding of a due process right. The Greenholtz court explicitly rejected the parole board’s argument “that a presumption [of release] would be created only if the statutory conditions for deferral were essentially factual, ... rather than predictive.” Id. at 12, 99 S.Ct. 2100; accord Allen, 482 U.S. at 375, 107 S.Ct. 2415. As explained by Justice Brennan, Greenholtz held that “the presence of general or broad release criteria — delegating significant discretion to the decisionmaker — did not deprive the prisoner of the liberty interest in parole release created by the Nebraska statute.” Allen, 482 U.S. at 375, 107 S.Ct. 2415. Greenholtz essentially “made a distinction between two entirely distinct uses of the term discretion.” Id. As this Court believes that Justice Brennan’s point is a critical one to bear in mind, it is repeated in full here:

In one sense of the word, an official has discretion when he or she “is simply not bound by standards set by the authority in question.” R. Dworkin, Taking Rights Seriously 32 (1977). In this sense, officials who have been told to parole whomever they wish have discretion. In Greenholtz, the Court determined that a scheme awarding officials this type of discretion does not create a liberty interest in parole release. But the term discretion may instead signify that “an official must use judgment in applying the standards set him [or her] by authority”; in other words, an official has discretion when the standards set by a statutory or regulatory scheme “cannot be applied mechanically.” Dworkin, supra, at 31, 32; see also id., at 69 (“[W]e say that a man has discretion if his duty is defined by standards that reasonable [people] can interpret in different ways”).

Allen, 482 U.S. at 375-76, 107 S.Ct. 2415. Greenholtz thus held “that the presence of official discretion in this sense is not incompatible with the existence of a liberty interest in parole release when release is required after the Board determines (in its broad discretion) that the necessary prerequisites exist.” Id. at 376, 107 S.Ct. 2415.

Following Greenholtz, the Supreme Court in Allen went on to determine that the Montana parole statute, like the Nebraska statute, created a liberty interest in parole release. Montana’s law provided in pertinent part as follows:

“Prisoners eligible for parole. (1) Subject to the following restrictions, the board shall release on parole ... any person confined in the Montana state prison or the women’s correction center ... when in its opinion there is reasonable probability that the prisoner can be released without detriment to the prisoner or to the community])]”

“(2) A parole shall be ordered only for the best interests of society and not as an award of clemency or a reduction of sentence or pardon. A prisoner shall be placed on parole only when the board believes that he is able and willing to fulfill the obligations of a law-abiding citizen.”

Allen, 482 U.S. at 377, 107 S.Ct. 2415 (quoting Mont.Code Ann. § 46-23-201 (1985) (emphasis in original)). The Supreme Court explained that “[sjignificantly, the Montana statute, like the Nebraska statute, uses mandatory language (“shall”) to ‘creat[e] a presumption that parole release will be granted’ when the designated findings are made.” 482 U.S. at 378, 107 S.Ct. 2415 (quoting Greenholtz, 442 U.S. at 12, 99 S.Ct. 2100). Thus, the Supreme Court found in the Montana statute, as in the Nebraska statute, a liberty interest protected by the Due Process Clause. Id. at 381, 107 S.Ct. 2415.

In sum, Greenholtz and Allen stand for the proposition that

while there is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence, a state’s statutory scheme, if it uses mandatory language, creates a presumption that parole release will be granted when or unless certain designated findings are made, and thereby gives rise to a constitutional liberty interest.

McQuillion v. Duncan, 306 F.3d 895, 901 (9th Cir.2002) (internal quotation marks and citations omitted) (quoted in Biggs v. Terhune, 334 F.3d 910, 914 (9th Cir.2003)), overruled on other grounds by Hayward v. Marshall, 603 F.3d 546, 555 (9th Cir.2010). See also Skowronek v. Brennan, 896 F.2d 264, 268 n. 7 (7th Cir.1990) (“In general, parole statutes may create an expectation of parole. This expectation stems from mandatory language authorizing parole when certain findings regarding the inmate have been made.”); Huggins v. Isenbarger, 798 F.2d 203, 205 (7th Cir.1986) (per curiam).

IV. Analysis of Petitioner’s Claims

A. Denial of Procedural Due Process (Claim One of the Petition)

Robles argues that the version of New York’s Parole Statute (former Correction Law § 213) (“Corr. Law § 213”), which was in effect at the time he was convicted and sentenced created a protected liberty interest in the same fashion as did the Nebraska and Montana statutes discussed in Greenholtz and Allen, respectively. Respondent argues that Corr. Law § 213 did not create such an interest warranting procedural due process protection.

1. Did New York’s Parole statute in effect at the time petitioner was convicted, sentenced, and incarcerated (Former Correction Law § 213) create a protected liberty interest?

Parole in New York is, and always has been, “entirely a creature of statute.” Graziano v. Pataki, No. 06-CV-0840, 2006 WL 2023082, at *4 (S.D.N.Y. July 17, 2006) (citing N.Y. Exec. Law § 259(1) (“There shall be in the executive department of state government a state division of parole. The chairman of the state board of parole shall be the chief executive officer of the division.”)). Up until December 31, 1977, Corr. Law § 213 codified the standard to be used by the New York State Board of Parole in making decisions regarding a prisoner’s release on parole. Corr. Law § 213 provided in relevant part as follows:

Discretionary release on parole shall not be granted merely as a reward for good conduct or efficient performance of duties assigned in prison, but only if the board of parole is of the opinion that there is a reasonable probability that, if such prisoner 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. If the board of parole shall so determine, such prisoner shall be allowed to go upon parole outside of prison walls and inclosure upon such terms and conditions as the board shall prescribe, but to remain while thus on parole in the legal custody of the warden of the prison from which he is paroled, until the expiration of the maximum term specified in his sentence.

N.Y. Corr. Law § 213 (McKinney 1968) (Repealed L. 1977, c. 904, § 2, eff. Jan. 1, 1978) (quoted in Respondent’s Memorandum of Law (“Resp’t Mem.”) at 17-18) (emphases supplied) (Docket No. 20); see also Petitioner’s Memorandum of Law (“Pet’r Mem.”).

There is no question that the wording of former N.Y. Corr. Law § 213-in particular the language that this Court has set out in italics' — closely parallels the language in the Nebraska and Montana parole statutes, which were addressed in Greenholtz and Allen, respectively. Compare Former N.Y. Corr. Law § 213 with Neb.Rev.Stat. §§ 83-1,114(1) (1976) (whenever a prisoner is considered for parole the Board “shall order his release unless it is of the opinion that his release should be deferred ... ”) (emphasis added); Mont.Code Ann. § 46-23-201 (1985