Hearn v. Nelson
| Decision Date | 15 September 1980 |
| Docket Number | Civ. No. B-80-294. |
| Citation | 496 F. Supp. 1111 |
| Parties | Eugene HEARN, Petitioner, v. W. Raymond NELSON, Warden, F.C.I. Danbury, Connecticut, and the United States Parole Commission, Respondents. |
| Court | U.S. District Court — District of Connecticut |
Pursuant to 28 U.S.C. §§ 2241, 1331 and 1361, petitioner Eugene Hearn seeks a writ of habeas corpus directing his immediate release from confinement on the ground that the Parole Commission has denied him his constitutional rights to due process of law by violating 18 U.S.C. §§ 4206 and 4207 in making and reporting its decisions regarding his parole status.
On February 1, 1975, in the United States District Court for the Eastern District of Pennsylvania (Crim.No. 74-0523), petitioner was found guilty of conspiracy to distribute narcotics in violation of 21 U.S.C. §§ 846 and 843(b). On March 25, 1975, United States District Judge John B. Hannum sentenced petitioner to consecutive three and twelve year terms, with a three year term of special parole1 and a $25,000 committed fine.2 Petitioner effectively began serving his sentence on February 1, 1975. He has a prior criminal record, but no prior commitments.
The Parole Commission has given petitioner a salient factor score of 9 ("very good") and has rated his offense severity "high." The Parole Guidelines for an inmate with a salient factor score of 9 and a "high" offense severity rating indicate a term of incarceration of 14-20 months. For an inmate with a salient factor score of 9 and a "Greatest I" severity rating (the worst possible rating for a drug-related offense), the Guidelines indicate a term of 40-52 months. 28 C.F.R. § 2.20 (1979). Petitioner has now been incarcerated for 66 months.
Petitioner has appeared before panels of Parole Commission hearing examiners on four occasions. After his first appearance, petitioner received a Notice of Action dated June 13, 1975, stating: "After careful consideration of all relevant factors and information presented, it is found that a decision outside the guidelines at this consideration does not appear warranted." In October, 1977, at petitioner's second appearance before a panel of examiners, the examiners told petitioner that they would recommend that he be paroled in December, 1977. However, the Regional Commissioners designated petitioner's case one of "original jurisdiction," 28 C.F.R. § 2.17 (1979), and referred it to the National Commissioners for decision.3 In a Notice of Action dated December 9, 1977, the National Commissioners continued petitioner for a four-year reconsideration hearing in October, 1981. The Notice stated:
After a review of all relevant factors and information presented, a decision above the guidelines at this consideration appears warranted because your offense was part of a large-scale sophisticated heroin distribution ring as evidenced by the number of co-conspirators involved (at least 7), the hierarchy established in the organization and the magnitude of the narcotics operation.
Petitioner appealed; and the National Commissioners, in a Notice of Action dated April 19, 1978, granted him a rehearing. At the rehearing in June, 1978, the hearing examiners again told petitioner that they would recommend parole, this time in July, 1978. The National Commissioners again denied parole in a Notice of Action on Appeal dated August 10, 1978, which stated:
Petitioner somehow subsequently obtained a copy of a document signed by the prosecutor of his case, entitled "Form 792 Report on Convicted Prisoner by United States Attorney" and dated April 2, 1975. This form contained various accusations and allegations concerning petitioner which he claims are false.4 He enlisted the aid of Yale Legal Services Organization, his counsel in the instant case, to prepare for his December 19, 1979, hearing before a panel of examiners. The examiners there for the first time showed petitioner a copy of the Form 792 Report and questioned him concerning the allegations it contained. Petitioner admitted that he had been involved in buying and selling heroin, but denied the remaining allegations of the report. The examiners, apparently more impressed with petitioner's record of institutional adjustment and accomplishment5 than with the unsubstantiated and contested allegations of the prosecutor's report, recommended that he be paroled on April 18, 1980. The Regional Commissioners again designated petitioner's case one of original jurisdiction and referred it to the National Commission. In a Notice of Action dated January 31, 1980, the National Commissioners continued petitioner to a presumptive parole date of February 1, 1983, stating:
After review of all relevant factors and information presented, a decision above the guidelines appears warranted because your offense behavior involved the following aggravating factors: your offense was part of a large-scale sophisticated heroin distribution ring as evidenced by the number of co-conspirators involved (at least seven), the hierarchy established in the organization, and the magnitude of the narcotics operation.
Petitioner again appealed, and also filed a petition for writ of habeas corpus, which this Court denied without prejudice pending the result of his appeal to the National Commission.
Sometime in the Spring of this year, petitioner obtained a copy of a letter from the Philadelphia Strike Force with attached materials that stated they were prepared by the Drug Enforcement Agency (DEA) from DEA files. The materials contained a description of petitioner's trial and allegations concerning the roles of petitioner and his co-defendants in the conspiracy for which they were convicted and in other alleged criminal activities. Yale Legal Services represented petitioner at the May 6, 1980, hearing before the National Commission on petitioner's national appeal.6 The Commissioners questioned petitioner's representative only about the allegations contained in the DEA materials, and not about petitioner's pre-sentence report or any other information or recommendations supplied by petitioner's family or prospective employer, the staff at F.C.I. Danbury or the panel of hearing examiners. In a Notice of Action dated May 14, 1980, the National Commission affirmed the decision of January 14, 1980. The new Notice was identical to the Notice of August, 1978. It contained no new information.
Petitioner filed the instant petition on June 11, 1980. The Parole Commission has since reopened his case pursuant to 28 C.F.R. § 2.28(a) (1979), ostensibly to afford him an opportunity to "review and respond to the Strike Force information." The government argues that the Commission's failure to make any earlier disclosure of these materials is purely a procedural defect, which will be cured by the new hearing, and that the Court therefore should reserve decision on the petition "until the Commission has evaluated Hearn's response to the Strike Force information." This argument is without merit, since petitioner already has responded to the allegations contained in the Strike Force materials.
The Court's authority to review the Parole Commission's decisions is limited, however.
Congress has given the Parole Commission the sole power to grant or deny parole in the exercise of its discretion. Billiteri v. Board of Parole, 541 F.2d 938, 944 (2d Cir. 1976). As applied to an adult offender, the Commission's guidelines merely clarify the exercise of this administrative discretion. Shepard v. Taylor, 556 F.2d 648, 654 (2d Cir. 1977). The Commission is not bound to adhere inexorably to the guidelines, Ruip v. United States, 555 F.2d 1331, 1335 (6th Cir. 1977), and its decisions may be either above or below them. Grasso v. Norton, 520 F.2d 27, 34 (2d Cir. 1975).
Dioguardi v. United States, 587 F.2d 572, 575 (2d Cir. 1978). Nevertheless, the Parole Commission's discretion is limited by the constitutional concept of due process, United States ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161, 1163 (2d Cir. 1970); and to enforce this limitation, the Court "has authority to review a decision by the Commission . . . which shows an abuse of discretion . . .." Billiteri v. United States Bd. of Parole, 541 F.2d 938, 944 (2d Cir. 1976).
The Parole Commission must consider relevant favorable as well as unfavorable information in making its decisions. 18 U.S.C. §§ 4206, 4207; 28 C.F.R. §§ 2.18, 2.19.7 It must also provide a prisoner with an adequate statement of the reasons for its decision, including reference to the evidence and sources relied upon, if it denies parole. 18 U.S.C. § 4206; 28 C.F.R. § 2.13.8 And if the Commission wishes to continue an inmate's incarceration beyond the guidelines established for him, it must have and state specific reasons beyond those which brought the prisoner within the guidelines to begin with. Brach v. Nelson, 472 F.Supp. 569 (D.Conn.1979); United States ex rel. Jacoby v. Arnold, 442 F.Supp. 144 (M.D.Pa.1977); Randaccio v. Wilkinson, 415 F.Supp. 612 (D.Conn.1976); Lupo v. Norton, 371 F.Supp. 156, 163 (D.Conn.1974).
In this case petitioner claims that the Commission has failed to consider the favorable information available to it in reaching its decision to continue him 76 months beyond his guidelines. The Commission's position apparently is that it has considered such information: its notices of action all have stated that it considered "all relevant factors and information presented." It is not this Court's place to reweigh the evidence the Commission considered, Richards v. Crawford, 437 F.Supp. 453, 455 (D.Conn.1977), or to substitute the Court's judgment for that of the Commission, Billiteri, supra. But the abundance of information favorable to petitioner and the magnitude of the...
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Iuteri v. Nardoza
...specific reasons different from those already relied on in determining the prisoner's offense severity rating. Hearn v. Nelson, 496 F.Supp. 1111, 1115 (D.Conn. 1980). The Commission has wide latitude in considering information relevant to its inquiry. See 28 C.F.R. § Judgment on credibility......
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...commission, Dye, supra, at 1378, and cannot reweigh the evidence or substitute its judgment for that of the commission, Hearn v. Nelson, 496 F.Supp. 1111 (D.Conn.1980). Like the sentencing judge, the parole commission is entitled to consider the contents of the presentence report as a basis......
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Myrick v. Gunnell
...specific reasons different from those already relied on in determining the prisoner's offense severity rating. See Hearn v. Nelson, 496 F.Supp. 1111, 1115 (D.Conn.1980). The Commission has wide latitude in considering information relevant to its inquiry, see 28 C.F.R. § 2.19(a) and (b),6 an......
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Campbell v. U.S. Parole Com'n
...as an aggravating factor rather than in determining the offense severity did not inure to his prejudice. Compare Hearn v. Nelson, 496 F.Supp. 1111, 1115-16 (D.Conn.1980) (Commission cannot increase prisoner's incarceration time by using factor as aggravating rather than using it to score of......