Alessi v. Quinlan, 81 Civ. 4844 (RWS).

• Decision Date: 22 October 1982
• Docket Number: No. 81 Civ. 4844 (RWS).,81 Civ. 4844 (RWS).
• Parties: Virgil ALESSI, Petitioner, v. J. Michael QUINLAN, Warden, Federal Correctional Institution, Otisville, New York, United States Parole Commission, and William French Smith, Attorney General of the United States, Respondents.
• Court: U.S. District Court — Southern District of New York

563 F. Supp. 911

Virgil ALESSI, Petitioner, v. J. Michael QUINLAN, Warden, Federal Correctional Institution, Otisville, New York, United States Parole Commission, and William French Smith, Attorney General of the United States, Respondents.

No. 81 Civ. 4844 (RWS).

United States District Court, S.D. New York.

October 22, 1982.

John L. Pottenger, Jr., New Haven, Conn., for petitioner.

John S. Martin, Jr., U.S. Atty., S.D.N.Y., New York City, for respondents; Stephen Dvorkin, Asst. U.S. Atty., New York City, of counsel.

OPINION

SWEET, District Judge.

Petitioner Virgil Alessi ("Alessi") has made a motion for an order "releasing him on parole forthwith" pursuant to his petition for a writ of habeas corpus because the Government has allegedly failed to comply with this court's opinion dated July 9, 1982, which found that the United States Parole Commission ("Commission") had violated Alessi's right to due process. For the reasons stated below, the motion will be granted.

Background

The history of Alessi's conviction and incarceration are set out in this court's July 9, 1982 opinion. Alessi filed this petition on August 5, 1981. The Government moved to dismiss the petition in January, 1982. This court denied the motion in the July opinion, finding that the Commission's decision to extend Alessi's incarceration beyond the Parole Guidelines was a violation of his right to due process. Specifically, the Commission engaged in impermissible double counting when, "having classified Alessi's 1976 conviction as Greatest I, because of a managerial interest and a very large scale offense, the Commission used the same rationale to justify an extended period of incarceration beyond the Guidelines." Alessi v. Quinlan, No. 81 Civ. 4884, slip op. at 8 (S.D.N.Y. July 9, 1982).

The guidelines mandate a "Greatest I" rating for opiate offenses involving "Possession with intent to distribute/sale managerial or proprietary interest and a very large scale (e.g. offense involving more than 50 grams of 100% pure heroin or equivalent amount)." 28 C.F.R. § 2.20. Combining Alessi's offense characteristics (Greatest I) with his offender characteristics (salient factor score of 9), the guidelines provide for a term of imprisonment of 40-52 months. Alessi has been incarcerated since January 1977; he is currently above the guidelines period.

The Commission's Notice of Action dated March 24, 1980 informed Alessi that "a decision above the guidelines appears warranted because your offense behavior involved the following aggravating factors: The conspiracy involved more than twelve codefendants and existed from January 1968 to 1972." This court held, following Lupo v. Norton, 371 F.Supp. 156 (D.Conn.1974), that it is "simply irrational for seriousness of the offense to be used first to determine the appropriate guideline period and then to be used again as the stated reason for confining a prisoner beyond the guideline." Slip op. at 8. The Commission was directed to take corrective action on Alessi's parole determination within twenty-one days.

The Commission issued a new Notice of Action on July 27, 1982. The Notice advanced Alessi's presumptive parole date to December 3, 1982 and informed him that his offense had again been rated as Greatest I "because it involved possession with intent to distribute more than fifty grams of 100% pure heroin and he had a managerial role in this distribution." The Notice then went on to explain why Alessi's presumptive parole date was again extended beyond the guideline period:

After review of all relevant factors and information presented, a decision above the guidelines appears warranted because your offense involved the following aggravating factors, over and above those facts supporting the Greatest I classification: You had a major role in an ongoing heroin distribution ring which was responsible for selling kilograms of heroin on a regular basis. This drug distribution ring utilized more than twelve co-conspirators and existed for a considerable length of time (January, 1968 to 1972). (emphasis supplied).

With the exception of the underscored language, this rationale is substantially identical to that contained in the March 1980 Notice of Action. The addition of the underscored language does not, however, remedy the constitutional defects in the Commission's parole determination.

Discussion

The Commission engages in impermissible double counting when it uses the same criteria to determine both the guideline period and whether to extend a prisoner's parole date beyond the guideline period. Hearn v. Nelson, 496 F.Supp. 1111, 1115 (D.Conn.1980); Brach v. Nelson, 472 F.Supp. 569 (D.Conn.1979); Lupo v. Norton, supra. Stated differently, "to justify a decision outside the guidelines, the reasons given in the notice of action must stand apart from the factors already considered in determining the offense severity rating." Baker v. McCall, 543 F.Supp. 498, 500 (S.D. N.Y.1981), aff'd mem., 697 F.2d 287 (2d Cir.1982). To make this determination, a court must interpret...