Furnari v. U.S. Parole Com'R

• Citation: 531 F.3d 241
• Decision Date: 09 July 2008
• Docket Number: No. 07-2853.,07-2853.
• Parties: Christopher FURNARI, Appellant v. UNITED STATES PAROLE COMMISSION; Warden FCI Allenwood.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

531 F.3d 241

Christopher FURNARI, Appellant v. UNITED STATES PAROLE COMMISSION; Warden FCI Allenwood.

No. 07-2853.

United States Court of Appeals, Third Circuit.

Submitted under Third Circuit LAR 34.1(a) June 10, 2008.

Filed: July 9, 2008.

Flora Edwards, New York, NY, Attorney for Appellants.

Martin C. Carlson, Acting United States Attorney, Kate L. Mershimer, Assistant United States Attorney, Harrisburg, PA, Attorneys for Appellee.

Before: AMBRO, CHAGARES, and GREENBERG, Circuit Judges.

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

On February 15, 2006, appellant Christopher Furnari filed a habeas corpus petition pursuant to 28 U.S.C. § 2241 in the District Court claiming that the United States Parole Commission ("Parole Commission") improperly had denied him parole. Furnari is serving a pre-Sentencing Guidelines 100-year sentence (five consecutive 20-year sentences) for RICO and Hobbs Act convictions related to extortion and racketeering. Since the start of his incarceration the Parole Commission has granted Furnari five parole hearings but has not ordered him paroled either at the time of its decision or on some future date. Furnari claims that the Parole Commission has based its denial of parole on an improper calculation of his offense severity rating and has failed to consider mitigating factors in his favor. On June 20, 2007, the District Court denied Furnari's petition and, on the next day, Furnari filed a timely notice of appeal to this Court.

II. FACTS AND PROCEDURAL HISTORY

Obviously this case has a long history but we only need recount that history from 1986, when a jury convicted Furnari of racketeering, extortion, and racketeering conspiracy under RICO and the Hobbs Act in the United States District Court for the Southern District of New York. Furnari was consigliere, a high ranking position, of the Lucchese¹ crime family. Furthermore, the Government suspected that he was a member of "the commission," the national ruling body of the mafia, also known as La Cosa Nostra, of which the Lucchese crime family was a part. See United States v. Salerno, 868 F.2d 524, 543 (2d Cir.1989). Furnari's conviction stemmed from an extortion and labor bribery operation that the commission, which controlled large concrete construction contracts in New York City, ran as one of its nefarious activities. In the concrete scheme the commission demanded and received 2% of the price of concrete contracts worth more than two million dollars and, in exchange, ensured "labor peace." The commission forced the concrete companies to make payments or risk retaliation by labor unrest or physical harm. Id. at 529.

Furnari currently is serving his 100-year sentence at the Federal Correctional Institution in Allenwood in the Middle District of Pennsylvania. On direct appeal from his convictions and sentences Furnari argued that his 100-year sentence was disproportionate to the gravity of his crimes because he was not a mafia boss or underboss. The United States Court of Appeals for the Second Circuit upheld the sentence because Furnari's role as consigliere made him the equivalent of an underboss and Furnari's sentence was consistent with the sentences of six of his seven co-defendants and thus was consistent with sentences imposed on similarly situated prisoners. Id. at 543. Since his conviction Furnari has filed four petitions for habeas corpus, the denial of the fourth of which he challenges on this appeal. Furnari's current status is that the Parole Commission has denied him parole pending a 2011 rehearing.

(a) 1996-2000: The First Parole Hearing, the First Habeas Corpus Petition and First Interim Parole Hearing

Furnari's first parole hearing was in December 1996. At the hearing the Government produced evidence of Furnari's involvement in a number of murders and other violent acts. The Parole Commission assigned Furnari an offense severity rating of Category Eight, the most severe rating. See 28 C.F.R. § 2.20. Category Eight offenders are not granted parole in the absence of compelling mitigating circumstances.

The Parole Commission recommended that Furnari continue to serve his sentence until a 15-year reconsideration hearing in December 2011. In its Notice of Action the Parole Commission specified that Furnari's involvement in the Lucchese crime family and his participation in murders and violence were the pertinent factors warranting consideration for release after more than 148 months served. See 28 C.F.R. § 2.20 ("For decisions exceeding the lower limit of the applicable guideline category by more than 48 months, the [Parole] Commission will specify the pertinent case factors upon which it relied in reaching its decision."). Furnari's applicable parole guideline category as set forth in 28 C.F.R. § 2.20 was 100+ months predicated on his offender characteristics. Of course, service of 148 months imprisonment merely made Furnari eligible for parole rather than ensuring that he would be paroled. On August 19, 1997, the National Appeals Board ("Board"), the administrative appeals authority in the parole system, affirmed the decision of the Parole Commission. In reaching its result the Board relied in part on information that Anthony Casso, a violent mafia member, had supplied. In justifying this reliance the Board pointed out that there was corroboration for some of Casso's information.

In February 1998 Furnari petitioned for a writ of habeas corpus in the District Court contending that his Category Eight rating was erroneous. The court denied Furnari's petition on April 12, 1999, finding that there was a rational basis for the Parole Commission's decision assigning him that category. Furnari then appealed to this Court.

While that appeal was pending, the Parole Commission granted Furnari a statutory Interim Parole Hearing in December 1998 pursuant to 18 U.S.C. § 4208(h) and 28 C.F.R. § 2.14. During the hearing Furnari argued that Casso's information was unreliable and he presented an affidavit from an assistant United States attorney supporting his contention. Nevertheless the Parole Commission did not change the prior order requiring Furnari to serve his sentence until a 15-year reconsideration hearing in December 2011. The Board affirmed the order of the Parole Commission on April 2, 1999, and issued a Notice of Action on Appeal.

In our disposition of Furnari's appeal from the denial of his first habeas corpus petition we took judicial notice of Furnari's December 1998 interim hearing and the April 2, 1999 Notice of Action on Appeal. Furnari v. Warden, Allenwood F.C.I., 218 F.3d 250, 255-56 (3d Cir.2000). We found that the Parole Commission and the Board erred because they did not explain whether they had continued to deny Furnari parole based on Casso's information and, if so, why they did so. Id. at 257. Consequently, we vacated the District Court's order denying the habeas corpus petition and remanded the case with the direction that the District Court enter a conditional order granting the petition and directing the Parole Commission to provide a new statement of reasons for its decision or conduct a de novo hearing on Furnari's parole application. Id. at 258.

In response to the District Court's order implementing our mandate, the Parole Commission conducted a de novo hearing in December 2000 and upheld Furnari's Category Eight rating as well as its decision to postpone a rehearing for more than 148 months. Furnari appealed to the Board which on April 24, 2001, affirmed the order of the Parole Commission, stating that the Parole Commission had chosen to rely on Casso's information in part because information from other witnesses corroborated it.

(b) 2002: The Second Habeas Corpus Petition

In April 2002, Furnari filed a second habeas corpus petition in the District Court advancing four points: (1) the Parole Commission following the December 2000 hearing failed to provide adequate reasons for crediting Casso's information; (2) the Parole Commission violated the Ex Post Facto Clause of the Constitution by applying an inapplicable version of the Guidelines for Decisionmaking, 28 C.F.R. § 2.20, adopted after he committed his offenses; (3) the evidence did not support the Parole Commission's decision; and (4) the Parole Commission's reliance on conduct other than that of the offenses of the conviction violated its own rules as well as due process of law.

On July 18, 2002, the District Court granted the petition on the ex post facto contention and ordered the Parole Commission to reevaluate Furnari's appeal in accordance with the version of 28 C.F.R. § 2.20 in effect at the time that Furnari committed the offenses for which he had been convicted. But the court denied Furnari's petition in all other respects, finding that the Parole Commission had a rational basis to support its conclusions and properly had considered Furnari's conduct outside of the scope of his conviction in deciding his offense severity rating. Furnari did not appeal to this Court from that decision.

In response to the District Court's July 18, 2002 order, the Parole Commission issued a Notice of Action on August 13, 2002, stating that it had reevaluated Furnari's case considering the correct version of 28 C.F.R. § 2.20 but had decided not to change its prior decision. The Board affirmed the Parole Commission's order on November 14, 2002.

(c) 2003-2004: The Third Habeas Petition

On November 13, 2003, Furnari filed a third petition for habeas corpus in the District Court claiming that the Parole Commission's August 13, 2002 decision violated due process of law inasmuch as the Parole Commission in making its decision relied on conduct not related to his offenses and the decision lacked a rational basis because the Parole Commission in reaching its result relied on Casso's information. In March 2004 the District Court denied the petition, noting that it had addressed and rejected the same arguments in its order of ...