Smaldone v. United States

• Decision Date: 29 August 1978
• Docket Number: No. 77-3116.,77-3116.
• Citation: 458 F. Supp. 1000
• Parties: Eugene SMALDONE, Petitioner, v. UNITED STATES of America et al., Respondents.
• Court: U.S. District Court — District of Kansas

458 F. Supp. 1000

Eugene SMALDONE, Petitioner, v. UNITED STATES of America et al., Respondents.

No. 77-3116.

United States District Court, D. Kansas.

August 29, 1978.

COPYRIGHT MATERIAL OMITTED

James R. Wyrsch, Kansas City, Mo., for petitioner.

MEMORANDUM AND ORDER

THEIS, Chief Judge.

This civil action was initiated in the United States District Court for the Western District of Missouri. The Government filed a Response urging that the complaint be treated as a petition for writ of habeas corpus. Thereafter, the matter was transferred to this court for the reason that petitioner, Eugene Smaldone, Jr., is currently incarcerated within this judicial district.

Several different bases for jurisdiction are asserted. For the reasons stated in the first four pages of the Government's Response, we agree that the only appropriate basis for jurisdiction is the federal habeas corpus statute, 28 U.S.C. § 2241. Accord, Geraghty v. United States Parole Commission, 429 F.Supp. 737 (M.D.Pa.1977).

Smaldone is confined in the United States Penitentiary, Leavenworth, Kansas, by virtue of two concurrent terms, one of ten and the other of four years. The four-year sentence was imposed on October 27, 1972, for operating an illegal gambling business in violation of Colorado law and 18 U.S.C. §§ 1955 and 2. The ten-year term with three years special parole was imposed on January 1, 1973, for conspiracy to import narcotics (cocaine) in violation of 21 U.S.C. § 963.

Smaldone began serving his aggregated terms of ten years on January 5, 1973, and became eligible for parole consideration on May 2, 1976. On April 19, 1976, an initial parole hearing was held before a panel of examiners. On April 29, 1976, petitioner was notified that his case had been designated "original jurisdiction" and referred to the National Directors for decision. The reason given for the original jurisdiction classification was that the offense was part of a "large scale criminal conspiracy." On May 14, 1976, petitioner was notified of the National Directors' decision to continue the matter for an institutional review hearing in April, 1978. The reasons stated for denial of parole were:

Your offense behavior has been rated as very high severity because the offense involved conspiracy to import cocaine and conducting illegal gambling business. You have a salient factor score of 7. You have been in custody a total of 40 months. Guidelines established by the Board of adult cases which consider the above factors indicate a range of 36-45 months to be served before release for cases with good institutional program performance and adjustment. After review of all relevant factors and information presented, it is found that a decision above the guidelines at this consideration appears warranted because you were involved in a large-scale and ongoing criminal enterprise.

Smaldone appealed this decision to the Commission as a whole as permitted under 28 C.F.R. § 2.27. He was notified on October 21, 1977, that the previous decision was modified to a statutory review hearing in April, 1978, to reflect that his continuance was limited by the new Parole Commission and Reorganization Act, 18 U.S.C. §§ 4201 et seq., (1978 Supp.). In all other respects the original determination was affirmed.

On November 1, 1976, the Commission was notified that a report it had received two weeks earlier from the Organized Crime Unit of the Department of Justice for consideration in deciding petitioner's appeal had pertained to petitioner's father, Eugene Smaldone, Sr., rather than petitioner, although it did refer to "young Gene" as well. The Commission thereafter obtained a report on the younger Smaldone and reopened his case to reconsider his application in light of the error and the correct report. On February 22, 1977, the Commission notified Smaldone that no change would be made in the previous order dated October 21, 1976, which continued the matter until April, 1978.

Petitioner contends that actions of the Parole Commission have violated his constitutional rights. In support of this contention he asserts that (1) the administrative regulations governing parole are void; (2) that the denial of his application for parole was violative of due process standards; and (3) that the designation of his case as "original jurisdiction" was without due process.

First, we examine petitioner's attacks on the general validity of the Parole Commission's regulations. It is asserted that "the classification of petitioner under the Parole Commission regulations" violates due process because the regulations are vague. The administrative regulations governing parole decision-making are not penal statutes or rules capable of reaching expression sheltered by the First Amendment and, thus, are not susceptible to the same "void for vagueness" strictures. Rather, they are merely flexible "guideposts which assist the Parole Commission" in exercising its statutorily-endowed discretion. Ruip v. U. S., 555 F.2d 1331, 1335 (6th Cir. 1977); 18 U.S.C. § 4206(c).

The test of whether an administrative regulation is void for vagueness is whether it "`delineates its reach in words of common understanding.'" Brennan v. Occupational Safety & Health Rev. Com'n, 505 F.2d 869, 872 (10th Cir. 1974); Cameron v. Johnson, 390 U.S. 611, 616, 88 S.Ct. 1335, 20 L.Ed.2d 182 (1968). Administrative regulations are presumptively valid, and one who attacks them has the burden of showing their invalidity. New York Foreign Frgt. F. & B. Ass'n v. Federal Maritime Com'n, 337 F.2d 289, 295 (2d Cir. 1964), cert. denied sub nom., National Customers Brokers & Forwarders Ass'n of America, Inc. v. Federal Maritime Commission, 380 U.S. 914, 85 S.Ct. 902, 13 L.Ed.2d 800 (1965).

Petitioner's mere conclusory allegations in this regard are not sufficient to sustain that burden. The court has, however, scrutinized the regulations governing parole decision-making published in Title 28 of the Code of Federal Regulations, Sections 2.1 through 2.29, and finds that they are not impermissibly vague under the Brennan test. Accordingly, the vagueness claim shall be dismissed.

Petitioner's second broad attack is that the regulations violate the separation of powers doctrine by allowing the Parole Commission to assume the judicial function of fixing punishment. We find this claim to be equally without merit since a decision to grant or deny parole does not modify or otherwise alter a prisoner's sentence. Spoon v. Benson, No. 77-3133 (D.Kan. Dec. 5, 1977); United States ex rel. Marrero v. Warden, 483 F.2d 656, 661, rev'd on other grounds, 417 U.S. 653, 94 S.ct. 2532, 41 L.Ed.2d 383 (1974); Geraghty v. United States Parole Commission, supra; Garcia v. United States Board of Parole, 409 F.Supp. 1230, 1239 (N.D.Ill.1976), rev'd on other grounds, 557 F.2d 100 (7th Cir. 1977). It is simply a determination as to whether the sentence imposed by the court shall be served within or without prison walls. Foddrell v. Sigler, 418 F.Supp. 324 (M.D.Pa. 1976).

Moreover, the general validity of the Commission's current regulations has been consistently upheld. Rumfelt v. United States, No. 76-57-C3 (D.Kan.1976), aff'd, No. 76-1708 (10th Cir.) (unpublished); Garcia v. United States Board of Parole, supra; Wiley v. United States Board of Parole, 380 F.Supp. 1194 (M.D.Pa.1974). For the foregoing reasons, we reject petitioner's broad challenges to the validity of the regulations governing parole.

We proceed to examine petitioner's more specific claims. Petitioner contends that the Parole Commission's denial of his application for parole violated due process. He asserts three bases in support of this contention. First, he asserts that the Commission wrongfully considered factors other than the "offense for which he is serving his sentence." This claim is without legal basis. It is well-settled that the Commission is not restricted in its deliberations to consideration of the offense of conviction only. Wyatt v. United States Parole Commission, 571 F.2d 1089 (9th Cir. 1977); Wayman v. Ciccone, 541 F.2d 189 (8th Cir. 1976); McArthur v. United States Board of Parole, 434 F.Supp. 163 (S.D.Ind.1976), aff'd 559 F.2d 1226 (7th Cir. 1977); Foddrell v. Sigler, supra; see also Spoon v. Benson, supra; Billiteri v. United States Board of Parole, 541 F.2d 938 (2d Cir. 1976); Bistram v. United States Board of Parole, 535 F.2d 329 (5th Cir. 1976); Manos v. United States Board of Parole, 399 F.Supp. 1103 (M.D.Pa. 1975); Lupo v. Norton, 371 F.Supp. 156 (D.Conn.1974). On the contrary, the Commission is directed by statute to take into account a variety of relevant information, 18 U.S.C. § 4207.

The second asserted basis for petitioner's challenge to the denial of his parole application is that he is entitled to be released because he has served the time suggested by the Commission's guidelines.

The guidelines do not provide an inflexible schedule of the time prisoners will be required to serve prior to being released on parole. As previously stated, they are merely guideposts which aid the Commission in exercising its discretion. The Parole Commission is given express authority to make decisions outside the guidelines in 18 U.S.C. § 4206(c). Brown v. Lundgren, 528 F.2d 1050, 1055 (5th Cir. 1976), cert. denied 429 U.S. 917, 97 S.Ct. 308, 50 L.Ed.2d 283 (1976); Mayo v. Sigler, 428 F.Supp. 1343 (N.D.Ga.1977). Thus, petitioner may not validly claim a right to be released on parole simply because he has been incarcerated for the time suggested in the guidelines.

Petitioner's third basis for challenging the decision to deny his parole application is that the "above the guidelines" decision was wrongfully based upon a finding that he was "involved in a large scale and ongoing criminal enterprise." He contends that this is an improper basis since it refers to his conviction for operating an illegal gambling business even though the mandatory release date has passed on his four-year sentence...