Diaz v. Norton

• Decision Date: 19 March 1974
• Docket Number: Civ. No. B-74-87.
• Citation: 376 F. Supp. 112
• Court: U.S. District Court — District of Connecticut
• Parties: Marcelo DIAZ v. John J. NORTON, Warden, Federal Correctional Institution, Danbury, Connecticut, et al.

376 F. Supp. 112

Marcelo DIAZ v. John J. NORTON, Warden, Federal Correctional Institution, Danbury, Connecticut, et al.

Civ. No. B-74-87.

United States District Court, D. Connecticut.

March 19, 1974.

Dennis E. Curtis, New Haven, Conn., for petitioner.

Barry J. Cutler, Asst. U. S. Atty., New Haven, Conn., for respondents.

MEMORANDUM OF DECISION

NEWMAN, District Judge.

Petitioner, an inmate at the Federal Correctional Institution at Danbury, seeks a writ of habeas corpus to challenge a decision of the United States Board of Parole denying him parole. Since he has exhausted available administrative remedies, it is appropriate to exercise habeas corpus jurisdiction pursuant to 28 U.S.C. § 2241 and to consider the merits of the petition. Battle v. Norton, 365 F.Supp. 925 (D.Conn.1973).

On January 26, 1973, petitioner was sentenced to five years' imprisonment in the Eastern District of New York for failure to appear in violation of 18 U.S. C. § 3150. Sentence was imposed pursuant to 18 U.S.C. § 4208(a)(2), which makes a prisoner eligible for parole "at such time as the board of parole may determine," rather than after serving one-third of the sentence, as required by 18 U.S.C. § 4202. On March 3, 1973, petitioner was committed to F.C.I. at Danbury after he had accumulated 164 days' jail time credit. He received his initial parole hearing in May, 1973, approximately two months after his incarceration at Danbury. Petitioner was considered for parole pursuant to the Experimental Parole Board Regionalization Project (hereafter "pilot project") adopted by the Board on October 19, 1972. Bureau of Prisons Operations Memorandum (B.P.O.M.) 40100.14. He was denied parole and continued with an institutional review hearing in May, 1975. Under the caption "reasons," he was informed:

1. Your release at this time would depreciate the seriousness of the offense committed and it is thus incompatible with the welfare of society.

2. There does not appear to be reasonable probability at this time that you would live and remain at liberty without violating the law because of your criminal pattern and use of drugs in the community.

Although petitioner has not challenged the timetable adopted by the Board for giving him subsequent parole consideration, his pro se complaint does state facts which entitle him to relief. Petitioner was given a setoff that would postpone the Board's next consideration of his case to a point approximately thirteen months beyond the expiration of one-third of his sentence.¹ This Court has ruled that a prisoner sentenced under § 4208(a)(2) and denied parole after a brief period of incarceration cannot be continued for subsequent review beyond one-third of his sentence. Grasso v. Norton, 371 F.Supp. 171 (D. Conn.1974). Since Diaz had been incarcerated at Danbury for only two months prior to his initial hearing, he obviously did not have an opportunity before that hearing to establish a pattern of "exceptionally good institutional program achievement," 28 C.F.R. § 2.52(c), which might have justified his release on parole. Furthermore, since there is a substantial interval of thirteen months between petitioner's initial hearing and the expiration of one-third of his sentence, his opportunity to make such a showing will be significantly better at the one-third point, which is when non(a)(2) prisoners are considered for parole. In accordance with the Grasso decision, he is entitled to parole consideration at the one-third point of his sentence, which will be reached next month, i. e., April, 1974.

Turning to the issues raised by the petition, petitioner challenges the decision to deny him parole because the Board: (a) refused to disclose the substance of the hearing examiner's report and recommendations; (b) did not afford him the opportunity to reply to the adverse information in his file and in the hearing examiner's reports; and (c) based its decision on "facts which are contrary to the circumstances and plea in his case" and failed either to discuss such facts at his hearing or to accompany its denial of parole with a reason that would have apprised him of their consideration and alerted him to the necessity of refuting them on appeal.

Godwin v. Norton, Civil No. B-910 (D.Conn. Nov. 1, 1973), held that an inmate has no constitutional right to disclosure of a hearing examiner's recommendations, so long as this Circuit leaves parole hearings virtually unprotected by the Due Process Clause, Menechino v. Oswald, 430 F.2d 403, 408-409 (2d Cir. 1970), cert. denied, 400 U.S. 1023, 91 S.Ct. 588, 27 L.Ed.2d 635 (1971). In Godwin this Court also rejected the claim that an inmate is denied due process of law because the pilot project procedures do not give him access to derogatory information in his file and therefore do not afford him the opportunity to rebut such information when he presents his case for parole to the Board.

In his remaining claim for relief, petitioner challenges the reasons accompanying the Board's decision because they failed to indicate that the decision was actually based upon his alleged offense —involvement in a conspiracy to smuggle cocaine, the offense for which petitioner had been indicted when he committed his convicted offense of failing to appear in court.² In Battle v. Norton, supra, 365 F.Supp. at 930 (D.Conn. 1973), failure to appear was characterized as a "moderate severity" offense on the Board's initial guideline table for decision-making. Petitioner alleges his salient factor score is 10, which would place him in the "very good" category of offender characteristics. Thus, he calculates that his appropriate guideline period is 12 to 16 months. The Board's decision to deny petitioner parole and to continue him with an institutional review hearing in May, 1975, approximately 33 months after his incarceration in August, 1972, indicates that the Board decided to confine him beyond the applicable guideline period determined by the severity of his convicted offense and his salient factor score of 10.

This decision to confine petitioner beyond the guideline period might have been reached by the Board solely because of the second stated reason concerning his crime pattern and drug use in the community. However, by resting decision in part on the "depreciating the seriousness of the offense" reason, without further elaboration, the Board appears to have inadequately followed its own regulation requiring reasons, 28 C. F.R. § 2.15 (revised), as interpreted in Battle v. Norton, supra; Grasso v. Norton, supra, and Lupo v. Norton, 371 F. Supp. 156 (D.Conn.1974). As stated in Battle, the Board can use this reason only when it denies parole and continues confinement to a point within or prior to the prisoner's appropriate guideline period. But Grasso and Lupo indicated that...