Hunterson v. Disabato
| Decision Date | 16 March 2001 |
| Docket Number | No. CIV.A. 98-482.,CIV.A. 98-482. |
| Citation | 140 F.Supp.2d 353 |
| Parties | Neil HUNTERSON, Petitioner, v. Mary Keating DiSABATO, Chairperson, New Jersey State Parole Board, et al., Respondents. |
| Court | New Jersey Supreme Court |
John S. Furlong, Furlong & Krasny, West Trenton, NJ, for Petitioner.
John J. Farmer, Jr., Attorney General of New Jersey by Daniel F. Dryzga, Jr., and James D. Harris, Deputy Attorneys General, Trenton, NJ, for Respondents.
Two and one-half years ago, this Court ordered petitioner's immediate release from prison upon finding that the New Jersey State Parole Board violated petitioner's substantive due process rights by imposing a future eligibility term far in excess of the norm imposed for petitioner's actual parole violation, and that the Board's action was arbitrary, capricious, and an abuse of discretion, and, in addition, that the New Jersey Superior Court, Appellate Division's affirmance of the Board's decision was unreasonable.
Rather than comply with this Court's Order, however, respondents waited four days and then filed a motion for a stay of the Order granting habeas corpus relief along with a motion for reconsideration accompanied by a confidential psychological evaluation. The Court granted in part respondents' motion for reconsideration in light of the Third Circuit's holding in Gambino v. Morris, 134 F.3d 156 (3d Cir. 1998), which instructs that absent unusual circumstances, a remand to the Parole Board, or something other than immediate parole release, is the appropriate remedy to be afforded a petitioner who succeeds in obtaining a writ of habeas corpus. Since that time, this Court has noted repeatedly that its reconsideration of the earlier Order would be limited to determining only the appropriate remedy to be applied in this case, and that it would not revisit its grant of habeas corpus relief. This matter is now before the Court as a result of simultaneous briefing by the parties on the limited issue of the appropriate remedy to be afforded petitioner.
On September 10, 1998, this Court granted petitioner Neil Hunterson's petition for a writ of habeas corpus filed on February 6, 1998 pursuant to 28 U.S.C. § 2254, and ordered his immediate release. The September 10, 1998 Order painstakingly laid out the procedural history of petitioner's parole revocation which led to his filing the instant petition, including:
• petitioner's September 29, 1994 arrest for possession and possession with intent to distribute 50 grams of marijuana, for which he was released on his own recognizance;
• his immediate subsequent (October 3, 1994) arrest on a parole violator warrant based on allegedly positive drug tests, which warrant on its own was found to be without probable cause by the New Jersey Superior Court, Appellate Division on November 2, 19941 due to chain of custody problems (although the New Jersey Parole Board had found that probable cause for the warrant existed at a October 21, 1994 hearing);
• a supplemental notice of probable cause hearing, issued October 27, 1994, based on both the marijuana arrest and the drug tests;
• a third notice of probable cause hearing issued on November 4, 1994, again referencing the marijuana charge;
• the Appellate Division's decision of December 22, 1994 to vacate summarily the second parole violator warrant;
• the Appellate Division's June 20, 1995 decision to vacate the third warrant for lack of probable cause, although the Parole Board had found probable cause at a June 15, 1995 probable cause hearing;
• the New Jersey Supreme Court's grant of a stay of the June 20, 1995 order releasing petitioner and allowing the Chief of the Bureau of Parole to apply to the Parole Board for accelerated parole revocation proceedings;
• a July 6, 1995 probable cause hearing which culminated in a July 10, 1995 decision by the hearing officer that, although probable cause existed to believe petitioner violated his parole, his parole should be continued pending final determination by the paroling authority, and the Parole Board's decision to overrule this determination of the hearing officer and keep petitioner incarcerated pending the Board's review of the case;
• the Appellate Division's July 24, 1995 decision that petitioner was to be released because, as he had yet not been convicted of the marijuana charge, (1) the offense with which he was charged was not serious and (2) the record did not support that he was a danger to the public safety;
• the New Jersey Supreme Court's unexplained July 25, 1995 reversal of the Appellate Division's decision;
• several pages of summaries of the testimony offered at the September 29, 1995 final parole revocation hearing, at which petitioner was represented by privately retained counsel and the Bureau of Parole was represented by Mario Paparozzi, Esq.;
• the October 30, 1995 hearing summary submitted to the Adult Panel of the Parole Board which resulted in a two-member board revoking petitioner's parole on November 1, 1995 and referring his case to a three-member panel to impose a future eligibility term outside the guidelines;
• the imposition of a five-year FET by a three-member panel on January 24, 1996;
• the April 3, 1996 denial by the Parole Board of petitioner's administrative appeal;
• the Appellate Division's remand for the Board to reconsider the denial in light of the fact that the Board was not aware that the March 3, 1996 guilty plea to possession of marijuana was downgraded from a fourth degree offense to a disorderly persons offense;
• the April 10, 1996 decision by a three-member panel of the Board to sustain the FET, the August 5, 1996 final administrative decision of the full Board to deny all relief, the September 5, 1997 decision of the Appellate Division to deny petitioner's appeal of the final administrative decision, and the January 15, 1998 denial of certification by the New Jersey Supreme Court.
The Court noted that the respondents originally submitted a two and one-half page Answer to the petition on March 4, 1998, contending that the petition should be dismissed for petitioner's failure to exhaust his administrative remedies. After petitioner filed a traverse refuting their argument, on March 28, 1998, respondents sent a two-page letter reasserting their exhaustion argument and stating that petitioner was scheduled to be given a parole release hearing in May of 1998 and that it was respondents' belief, in any event, that petitioner failed to present "true federal claims."
On April 29, 1998, petitioner filed a motion to compel discovery which included a request for production of documents he alleged were necessary to fully develop the facts of his claim. The respondents did not respond.
On July 6, 1998, this Court issued an Order which found that the exhaustion argument was moot, and directed respondents to file an Answer to the Petition in conformance with the habeas corpus rules, because they had never addressed the merits of petitioner's claims. On July 14, 1998, the Court received an Answer that stated that the Appellate Division found petitioner's claims to be without merit on September 5, 1997, and that under the strict standard of review, that determination did not rise to the level of unreasonableness and, therefore, could not support the granting of a writ of habeas corpus.
On May 21, 1998, approximately three and one-half months after the petition was filed, petitioner received a hearing before a panel of the Board and was denied parole. A thirty-six month FET was imposed. The following day, however, that decision was vacated and petitioner received another hearing before a different panel of the Board on May 27, 1998. This panel also denied parole but did not impose an FET at that time. On August 24, 1998, Douglass Chiesa, the Deputy Executive Director of the New Jersey Bureau of Parole, confirmed with chambers that no further action had been taken. This was noted on pages 19-20 of the September 10, 1998 Order.
On September 10, 1998, this Court determined that the Parole Board, in revoking petitioner's parole and imposing a future eligibility term outside the guidelines,2 acted impermissibly and in violation of petitioner's substantive due process rights. The Court found that although the Appellate Division's affirmance of the Board's initial decision on November 1, 1995 to revoke petitioner's parole was satisfactorily supported by the record and therefore not inappropriate, the affirmance of the Board's March 13, 1996 imposition of a longer FET than normally required by statute was unreasonable under the circumstances.
On September 15, 1998, after considering the September 14, 1998 submissions of the respondents which included documents submitted for in camera review, the Court stayed the execution of the September 10, 1998 Order. Respondents' submission included a Notice of Decision suspiciously dated September 9, 1998 which was supposed to have been based on the May 27, 1998 hearing. The Notice of Decision relied on a March 11, 1998 confidential psychological evaluation3 to deny parole and refer petitioner's case to a three-member panel for establishment of an FET.4
On June 10, 1999, this Court granted respondents' motion for reconsideration of the September 10, 1998 Order in light of Third Circuit authority which indicates that the proper remedy in a case such as this one ordinarily would be something other than petitioner's release. Specifically, the Order reads, "the Court will grant the Motion for Reconsideration, and will reconsider its decision in order to formulate a proper remedy to afford petitioner habeas relief." (June 10, 1999 Order, p. 1.)
The Court stated that it would not consider the psychological report submitted under seal (or an...
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Hunterson v. Disabato
...F.Supp.2d 529 (1998) (Hunterson I). The Court thereafter issued a second opinion focusing only on the remedy. Hunterson v. DiSabato, 140 F.Supp.2d 353 (D.N.J.2001) (Hunterson II). In this later opinion, the Court addressed the alleged conspiracy against Hunterson, concluding that the circum......