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UNITED STATES EX REL. ADDONIZIO v. ARNOLD

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


May 3, 1976

UNITED STATES OF AMERICA ex rel. HUGH J. ADDONIZIO, Petitioner
v.
FLOYD E. ARNOLD, Warden, Federal Penitentiary, Lewisburg, Pennsylvania, Respondent

Herman

The opinion of the court was delivered by: HERMAN

MEMORANDUM

Before the court is a petition for a writ of habeas corpus on behalf of Hugh J. Addonizio, a federal prisoner presently incarcerated at the Lewisburg Farm Camp. The petition represents a due process challenge to the utilization of a "special offender" designation by the Bureau of Prisons in petitioner's case. Petitioner requests that a writ issue discharging him from federal custody or, alternatively, expunging from his files all "special offender" classification notations unless and until he is afforded a hearing on the facts underlying that determination. An evidentiary hearing on the petition has been held.

 Petitioner first asserts that because of the special offender designation he cannot be transferred to another institution without the approval of the Central Office of the Bureau of Prisons. The respondent does not deny this.

 Next, petitioner avers that his requests for reduced custody status were denied due to the special offender designation. *fn1" However, we find, based on the record before us, that Addonizio's requests for reduced custody status were denied because of the length of his sentence and the time remaining to be served, not by his designation as a special offender. Likewise, we reject his contention that furloughs were denied him based on the special offender notation in his files. The testimony at the hearing established that petitioner's furlough requests were denied because of his custody status at the time, which was medium. It was stated at the hearing that Bureau of Prison's policy precludes social or regular furloughs except for those in minimum custody. As petitioner did not qualify for minimum custody at the time, he also did not qualify for furloughs. *fn2" There is nothing in the record supporting the argument that the furlough denials were attributable to the special offender designation.

 The final adverse consequence allegedly flowing from the characterization of Addonizio as a special offender involves the denial of his parole application. On this question, a brief factual background is in order. On June 2, 1975, petitioner appeared before an examiner panel of the Board of Parole. Pursuant to 28 C.F.R. Section 217, the panel referred petitioner's application for parole to the Regional Office. *fn3" The Regional Office forwarded the matter to a three-man panel of the National Board which denied Addonizio's application on July 8, 1975. *fn4" On appeal to the full National Board the denial of petitioner's parole was affirmed. Therefore, petitioner has exhausted his administrative remedies.

 Petitioner contends that his parole application was denied because of his "special offender" designation. He finds support for his argument in the reasons given for denial of parole, which include the statement that his offense was "part of a large scale or organized criminal conspiracy" (see n.4). Although it is undoubtedly true that the Bureau of Prisons in designating Addonizio a "special offender" considered the same or similar underlying facts as did the Board of Parole, it does not follow that the Board's decision was based on the Bureau's designation. The factors upon which either the Board or the Bureau could have acted are found in UNITED STATES v. ADDONIZIO, 451 F.2d 49 (3d Cir. 1972), which summarizes the evidence adduced by the government at petitioner's trial, which resulted in his conviction.

 Furthermore, there was testimony at the hearing in this case that a "special offender" designation does not enter into the decision-making considerations undertaken by parole examiners. We find that to be the case. In accord, MALLORY v. UNITED STATES ATTORNEY GENERAL, Civil No. 75-1286 (M.D. Pa. filed January 29, 1976).

 To summarize, we conclude that petitioner's designation as a "special offender" did not impede his efforts to attain reduced custody, furloughs, or parole. The designation does require that interinstitutional transfers, requests for community treatment and furloughs be approved by the Central Office.

 We are faced with decisions, in this district and elsewhere, holding that a "special offender" designation may result in "grievous loss" sufficient to warrant due process protection. Cardaropoli v. Norton, 523 F.2d 990 (2d Cir. 1975); CATALANO v. UNITED STATES, 383 F. Supp. 346 (D. Conn. 1974); UNITED STATES OF AMERICA ex rel. PONZIO v. ARNOLD, Et Al., Civil No. 75-1394 (M.D. Pa., filed April 16, 1976); FANELLI v. JENSEN, Civil No. 75-1026 (M.D. Pa., filed February 27, 1976); RAIA v. ARNOLD, Civil No. 75-28 (M.D. Pa. filed July 7, 1975); SALLI v. UNITED STATES, Civil No. 75-595 (M.D. Pa., filed August 8, 1975). The above-cited cases hold that sufficiently adverse consequences flow from a "special offender" designation as to justify due process protection. Although the record before us does not reveal that Addonizio suffered any significant deprivations attributable to the designation, we are constrained to agree that the prospect of marked changes in an inmate's status due to the designation require procedural safeguards. Having found that process is "due", we adopt as our own the specific procedural safeguards set forth in RAIA v. ARNOLD, supra.

 An appropriate order will be entered.

 R. Dixon Herman / United States District Judge [EDITOR'S NOTE: The following court-provided text does not appear at this cite in 423 F. Supp.]

 ORDER

 AND NOW, this 3nd day of May 1976, IT IS ORDERED that the respondent remove all "special offender" notations from petitioner's records and files in the Bureau of Prisons.

 IT IS FURTHER ORDERED that respondent refrain from redesignating petitioner a "special offender" until such time as he is afforded a hearing in conformance with the due process procedures set forth in RAIA v. ARNOLD, 405 F. Supp. 766 (M.D. Pa., 1975).

 In all other respects the petition is denied.

 BY THE COURT:

 R. Dixon Herman / United States District Judge


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