The opinion of the court was delivered by: NEALON
Prior to being sentenced on January 30, 1975, for the above-described offenses, petitioner was serving a term of twelve years incarceration with a special parole term of five years imposed by the same court on July 31, 1973 following petitioner's plea of guilty to the charge of conspiring to violate narcotic laws, 21 U.S.C. § 846. In addition to the sentence, petitioner was fined $10,000. Subsequent to his beginning service of that sentence on December 5, 1973, the term of incarceration originally imposed was reduced to eleven years. According to the uncontroverted affidavit of Daniel J. Capodanno, an analyst for the National Appellate Board of the United States Board of Parole, the 1973 conviction was vacated on April 17, 1975 "because the consequences of the five (5) year special parole term were not explained by the Judge at the time Mr. Foddrell entered his guilty plea."
On October 23, 1975, petitioner received his initial parole hearing at Lewisburg. By Notice of Action dated November 4, 1975, petitioner was informed that parole had been denied and that his case had been continued for a hearing at the one-third point of his sentence pursuant to 18 U.S.C. § 4208(a)(2) and 28 C.F.R. 2.14(b)(September 5, 1975). The following reasons were given for parole denial:
"Your offense behavior has been rated as very high severity. You have a salient factor score of 9. You have been in custody a total of 27 months. Guidelines established by the Board for adult cases which consider the above factors indicate a range of 26-36 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 at this consideration above the guidelines appears warranted because there is evidence of a large scale conspiracy and sophisticated operation involving large amounts of heroin. Board policy prohibits a continuance past one-third of your sentence at initial hearing. Therefore, your case has been scheduled for further consideration at one-third of your sentence."
The decision of the Examiner panel having been affirmed on appeal to both the Regional Director, 28 C.F.R. § 2.25, and the National Appellate Board, 28 C.F.R. 2.26, petitioner now seeks habeas corpus relief in this Court.
It appears that the main gist of his complaint is that the Parole Board based its decision, in part, on a presentence report which had been prepared following his 1973 conviction. Petitioner contends that the sentence he is presently serving is a result of his conviction for the offense of conspiring with two other individuals to sell on June 13, 1972, one-eighth of a kilogram of heroin for $3,600. He maintains that the "Board's reason for parole denial has no basis in petitioner's file." Claiming, in essence, that the Board has no "discretionary right, power, or privilege" to consider or rely on information outside the scope of the crime established by a verdict or plea of guilty, petitioner asserts that the Board has in the instant matter violated petitioner's constitutional rights to due process and equal protection. The Court does not agree; the Parole Board's scope of inquiry cannot be so narrowly restricted.
In our opinion, the Board's regulations
permit the Board, in the exercise of its discretion to rely on the information which petitioner here deems objectionable. Addressing the issue of whether the Board may give any consideration to allegations of criminal conduct that have not resulted in conviction, the Court in Lupo v. Norton, 371 F. Supp. 156 (D. Conn. 1974) stated:
"When the Board uses an alleged offense as a basis for parole-decision making, this requirement of stating reasons becomes the prisoner's sole protection against the risk that he may be unfairly penalized because of charges on which he was never convicted and which he may be able to controvert, either at the parole hearing or upon administrative appeal from an adverse decision . . . The Board's regulation requiring a statement of reasons can be satisfied only if the prisoner is told that his alleged offense was the basis for parole denial and how that alleged offense was used." 371 F. Supp. at 161, 162
Thus, the Board can consider information found in presentence reports
and other data relating to unadjudicated criminal offenses provided that it informs the applicant of its reliance on that particular information and offers the applicant an opportunity to dispute its accuracy. Grattan v. Sigler, 525 F.2d 329 (9th Cir. 1975).
On the basis of the record now before this Court, it appears that the petitioner did engage in some discussion with the hearing examiner panel concerning his prior criminal activity and, according to the uncontroverted affidavit of Mr. Capodanno, petitioner "admitted to the examiners that he was 'involved in arranging' drug sales and receiving commissions therefor from 1970 to 1972." Moreover, by its Notice of Action of November 4, 1975, the Board clearly stated its reasons for denying parole, thereby offering petitioner sufficient opportunity to contest on administrative appeal the validity of the Board's reasoning.
In determining the procedural protections due an inmate prior to the imposition of the "special offender" designation on that inmate's central file, and the extent to which information relied on in making that decision can be challenged, an issue analogous to that raised herein, the Second Circuit approved the usage of the presentence report and the information contained therein, holding that the opportunity for confrontation and cross-examination is
" unnecessary in the overwhelming majority of Special Offender classification proceedings where 'the source of the information against the prisoner is contained in his ...