Hunterson v. Disabato

• Citation: 308 F.3d 236
• Decision Date: 10 October 2002
• Docket Number: No. 01-1805.,01-1805.
• Parties: Neil HUNTERSON v. Mary Keating DISABATO, Chairman, N.J. State Parole Bd.; Michael R. McKeen, Administrator, S.S.C.F.; the Attorney General of the State of New Jersey, Peter Verniero, Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

308 F.3d 236

Neil HUNTERSON v. Mary Keating DISABATO, Chairman, N.J. State Parole Bd.; Michael R. McKeen, Administrator, S.S.C.F.; the Attorney General of the State of New Jersey, Peter Verniero, Appellants.

No. 01-1805.

United States Court of Appeals, Third Circuit.

October 10, 2002.

COPYRIGHT MATERIAL OMITTED

James D. Harris, [ARGUED], Office of Attorney General of New Jersey, Division of Law, Trenton, for Appellants.

John S. Furlong, [ARGUED], Furlong & Krasny, West Trenton, for Appellee.

Before MANSMANN,^* RENDELL and FUENTES, Circuit Judges.

Before RENDELL, FUENTES and COWEN, Circuit Judges.

OPINION OF THE COURT

RENDELL, Circuit Judge.

Neil Hunterson was convicted of first degree murder and kidnaping in 1972. He was sentenced to two life terms of imprisonment. In July 1992, he was paroled. His parole was revoked on November 1, 1995,¹ and a five-year future eligibility term ("FET") was imposed. Hunterson has been challenging the revocation of his parole and the imposition of the five-year FET ever since, claiming that it was not based on any "danger to society" he posed, but instead was a result of the New Jersey Parole Board's animus toward him.

After exhausting his appeals in the New Jersey court system, Hunterson filed a petition for a writ of habeas corpus in the United States District Court for the District of New Jersey. In his petition, Hunterson alleged a wide-range of constitutional violations, and a conspiracy to violate his rights, by a variety of state actors, including various individuals, the Parole Board, and the New Jersey Supreme Court.

The District Court granted the petition, concluding that Hunterson's substantive due process rights were violated. Hunterson v. DiSabato, 137 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 circumstances of the case were so unusual that release was the only appropriate remedy. Id. at 380, 382. The District Court accordingly ordered his release on March 16, 2001.

The government respondents, Mary Keating DiSabato, Chairperson, New Jersey State Parole Board ("Board" or "Parole Board"), and Michael R. McKeen, Administrator, Southern State Correctional Facility, now appeal. As we conclude that the District Court did not conduct its review of the Parole Board's decision and the state appellate court's affirmance of it in accordance with the constraints of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), we will reverse and remand to the District Court to consider the remaining claims presented in Hunterson's habeas petition.²

I. FACTS

This case comes to us with a complex procedural history presenting the matter in an unusual posture. Not only were there numerous appeals within the state system, and subsequent affirmances and reversals, but there were also two separate opinions issued by the District Court — first granting the writ and thereafter ordering Hunterson's release. In its two published opinions the District Court set forth the underlying proceedings in great detail and we will not restate them here. Instead, we will set forth only those facts necessary to our analysis.

In 1972, Hunterson, then president of the Henchmen motorcycle gang, was convicted of the kidnaping and first-degree murder of a rival motorcycle gang member. He was sentenced to two life terms. After serving approximately twenty years of his sentence, he was paroled on July 29, 1992. The current controversy involving the revocation of his parole had its origins on September 29, 1994, when Hunterson was arrested and charged with possession of marijuana and possession with intent to distribute approximately 50 grams of marijuana. The distribution charge was subsequently dropped, and Hunterson pled guilty to a disorderly persons offense for possession of less than fifty grams of marijuana.

Four additional facts are especially important since they were repeatedly relied upon in the course of the revocation proceedings, and have been consistently challenged by Hunterson as insignificant or improperly considered. On July 9, 1992, while still incarcerated and in New Jersey for a parole hearing, Hunterson allegedly threatened Ralph DeFabio, another former biker gang member, over the telephone. On August 5, 1992, less than a week after his release on parole, he again called DeFabio and made arguably threatening comments. This conversation was recorded by DeFabio.³ On April 21, 1995, Hunterson attended a fundraiser for a member of a motorcycle gang known as "the Egyptian." Finally, Hunterson admitted to his parole officer that he had been using marijuana.⁴

Central to Hunterson's claims is his view that his romantic relationship with Deborah Hansen caused the Parole Board to be biased against him in the state revocation proceedings. When Hunterson and Hansen began dating, she was the Deputy Director of Interstate Parole Services for New Jersey. Hunterson claims that his relationship with Hansen, who during this time became his fiancee, was the real motivation for the Parole Board's actions. During their relationship, and around the time of Hunterson's marijuana arrest, Ms. Hansen was a vocal critic of the Department of Corrections. Specifically, Ms. Hansen publicly criticized the department's mishandling of interstate parole, illustrated by the murder committed by one interstate parolee, Robert "Mudman" Simon. After William Fauver, the Corrections Commissioner at the time, testified before a state senate subcommittee, Hunterson and Hansen held an impromptu news conference attacking the accuracy of his testimony.

As a result of Hunterson's marijuana arrest and urine tests showing signs of drug use (which were eventually deemed inadmissible because of problems with the chain of custody), parole revocation proceedings were undertaken. New Jersey law provides that "[a]ny parolee who has seriously or persistently violated the conditions of his parole, may have his parole revoked and may be returned to custody...." N.J.S.A. 30:4-123.60. According to the New Jersey Supreme Court, the proper consideration in parole proceedings is whether the individual is likely to engage in further criminal activity. Trantino v. New Jersey State Parole Bd., 154 N.J. 19, 711 A.2d 260, 270 (1998) [Trantino VI]. The New Jersey Administrative Code sets forth the factors to be considered at parole hearings. N.J.A.C. 10A:71-3.11. First, it explains that "[p]arole decisions shall be based on the aggregate of all pertinent factors." N.J.A.C. 10A:71-3.11(a). It provides a list of twenty-three factors that should be considered, including, the nature and pattern of previous convictions, adjustment to parole, facts and circumstances of the offense, aggravating and mitigating factors surrounding the offense, parole plans and the investigation thereof, and status of family or marital relationship. N.J.A.C. 10A:71-3.11(b). It also provides that the Board "may consider any other factors deemed relevant." N.J.A.C. 10A:71-3.11(b).

After a series of hearings and apparent procedural errors by the Board (reversed by the New Jersey appellate courts), a two-member panel of the Board revoked Hunterson's parole in November 1995, stating:

His behavior in [respect to his marijuana possession] projects a troubling immaturity of judgment, as well as an inability to abide by limitations imposed by administrative and statutory authority. When coupled with the threats to DeFabio, the admitted marijuana use and his presence at the April 1995 Pagan benefit, there begins to emerge the profile of an individual constitutionally incapable of adopting a manner of living which requires strict adherence to the rules of society.

The panel then had the duty of setting a FET, providing the next date when he would be eligible for parole.

Under New Jersey law, the presumptive future eligibility term for Hunterson's parole was twelve months, subject to a three-month increase if the panel determined "the circumstances of the parole violation and the characteristics and past record of the parolee warrant such adjustment." N.J.A.C. 10A:71-7.17(b) and (c). However, the state administrative code provides that if the two-member panel found that this term was "clearly inappropriate ... the two-member Board panel shall refer such case for a three-member Board panel review for the purpose of establishing a future parole eligibility date." N.J.A.C. 10A:71-7.17(p). The two-member panel concluded that the presumptive twelve-month term, or even the fifteen-month term, was inappropriate and therefore referred the case to a three-member panel. Based largely on the issues noted by the two-member panel, as well as the conviction underlying his parole and history of alcohol and drug use, the three-member panel concluded that "public safety requires that a substantial parole eligibility term be imposed" and established a five-year FET.⁵

Throughout these proceedings, Hunterson has sought release — initially appealing the various decisions of hearing officers and the New Jersey State Parole Board, and eventually filing a petition for a writ of habeas corpus in federal court.

On appeal, the Superior Court of New Jersey Appellate Division ("Appellate Division"), the state court that hears direct appeals from the Parole Board, ruled repeatedly in Hunterson's favor and reversed or vacated the Parole Board's decisions based on various defects in the proceedings. First, on November 2, 1994, the Appellate Division reversed the original finding of probable cause for the parole violator warrant: "In view of the State's representation that it cannot establish the chain of custody of the three urine tests, the finding of probable cause of October 21, 1994 is reversed." Second, on December 27, 1994, the Appellate Division...