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ALBANO v. ANDERSON

March 8, 1979

Vincent W. ALBANO
v.
Robert O. ANDERSON et al.



The opinion of the court was delivered by: NEALON

MEMORANDUM AND ORDER

I.

 This is a petition for a writ of habeas corpus under 28 U.S.C. § 2241. Petitioner, an inmate at the Allenwood Federal Prison Camp, Montgomery, Pennsylvania, challenges the validity of the September 21, 1977 decision of the United States Parole Commission (Commission) to deny him parole and continue his case for a statutory review hearing in eighteen months, some twelve months beyond the one-third point of his sentence. Specifically, he contends (1) that the Commission's "paroling policy guidelines" *fn1" constitute an unwarranted intrusion into the sentencing process; (2) that his unblemished institutional record militated for a favorable parole release decision prior to the one-third point of his sentence; and (3) that he was entitled to another parole determination at or shortly prior to the one-third point of his sentence.

 Respondents have submitted the pertinent records of petitioner's parole proceedings, which they claim establish that petitioner did not exhaust available administrative remedies. Respondents contend that petitioner thereby waived his right to proceed in federal court and request dismissal of the action on this ground. Alternatively, respondents argue that even if petitioner has not forfeited his right to proceed in this court, habeas corpus relief should be denied because the decision to deny parole and continue his application for a statutory review hearing in eighteen months is consonant with applicable statutory and constitutional standards.

 Since the material facts are not in dispute, an evidentiary hearing is unnecessary. See 28 U.S.C. § 2243; DeVyver v. Warden, 388 F. Supp. 1213, 1215-16 (M.D.Pa.1974). See generally C. A. Wright, Procedures for Habeas Corpus, 77 F.R.D. 227, 245 (1978). After reviewing the record and the pertinent statutory and case law, I am persuaded that, while respondents have not shown a deliberate bypass of administrative remedies, petitioner's claims do not warrant relief at this time. Accordingly, the petition for a writ of habeas corpus will be denied.

 II.

 Petitioner is currently serving a three year sentence for income tax evasion imposed on March 31, 1977 by Judge Thomas Platt of the United States District Court for the Eastern District of New York. Judge Platt directed that petitioner's parole eligibility was to be governed by 18 U.S.C. § 4205(b)(2). *fn2" The initial hearing on petitioner's parole application was conducted on August 11, 1977. The hearing examiners referred the case to the Regional Commissioner, who, by "Notice of Action" dated August 29, 1977, informed petitioner that his case had been designated as an "original jurisdiction case" and had accordingly been referred to the National Commissioners under 28 C.F.R. § 2.17. *fn3" By "Notice of Action" dated September 21, 1977, petitioner was advised of the National Commissioners' decision to deny release on parole and to schedule a statutory review hearing in eighteen months. *fn4"

 Petitioner did not file an administrative appeal from this decision until April 19, 1978, some six months after the thirty day appeal time limit had expired. See 28 C.F.R. § 2.27 (1978). The appeal was subsequently dismissed as untimely and the matter was referred to the Regional Commissioner to determine whether reopening of the case under 28 C.F.R. § 2.28 (1978) was warranted. By letter dated May 26, 1978, petitioner was informed that his appeal had not presented any new or significant information sufficient to reopen his case. Petitioner then instituted this action on July 24, 1978.

 III.

 Respondents contend that by foregoing the administrative appeal until it was time-barred petitioner failed to exhaust his administrative remedies and thereby waived the right to petition this court for habeas corpus relief. The question, however, is not whether petitioner failed to exhaust administrative remedies. The exhaustion requirement applies only where there are administrative remedies still open to the habeas corpus applicant at the time he institutes his action in the federal courts, See Humphrey v. Cady, 405 U.S. 504, 516-17, 92 S. Ct. 1048, 31 L. Ed. 2d 394 (1972); United States ex rel. Sanders v. Arnold, 535 F.2d 848, 850 (3d Cir. 1976); Talerico v. Warden, 391 F. Supp. 193, 195 (M.D.Pa.1975), and, since petitioner had resorted to all remedial avenues and no other administrative appeal was available to him when he filed this petition with the court, the exhaustion requirement has been satisfied. *fn5" Rather, the issue here is whether petitioner's forfeiture of the administrative remedies by reason of the procedural default waives his right to pursue this action. See Daniels v. Fenton, Civil No. 78-598, slip op. at 5 (M.D.Pa., filed Dec. 29, 1978). The test, as the late Chief Judge Sheridan in Talerico v. Warden noted, is whether the inmate deliberately bypassed the available administrative remedy, i. e., knowingly and understandingly decided not to pursue it. Id., 391 F. Supp. at 196.

 The record in the instant case only shows that petitioner did not appeal the National Commissioners' decision of September 21, 1977 within the prescribed time limit. Respondents have not come forward with any information to suggest that petitioner knowingly and understandingly decided to forego his administrative appeal until it was too late. At best, the present record indicates dilatoriness on the part of petitioner in raising his claims and not the intentional circumvention of administrative processes that the deliberate bypass rule is designed to prevent. Thus, I believe that a finding of deliberate bypass cannot be made on the basis of the present record and will therefore address petitioner's challenge to the parole denial. *fn6"

 IV.

 The scope of judicial review of parole decisions is closely circumscribed. The court is to ascertain whether the Commission "has followed criteria appropriate, rational, and consistent with the statute and that its decision is not arbitrary and capricious, nor based on impermissible considerations." Zannino v. Arnold, 531 F.2d 687, 690 (3d Cir. 1976).

 Petitioner argues that the Commission's failure to consider his institutional record as the most significant factor in its deliberations on his case was improper; that its decision to continue him for a statutory review hearing one year beyond the one-third point of his sentence was erroneous; and that its guidelines constitute an ...


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