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April 21, 1982


The opinion of the court was delivered by: MUIR

I. Introduction.

 A. Procedural History.

 Petitioner Joseph DiNapoli filed this action requesting a writ of habeas corpus pursuant to 28 U.S.C. § 2241 on February 3, 1981. Following referral of the matter to United States Magistrate John Havas, respondents filed an answer to the petition on February 24, 1981, to which DiNapoli replied on March 9, 1981. Respondents filed a sur-reply brief on March 20, 1981. On March 31, 1981, the Magistrate issued his report recommending that DiNapoli be granted habeas corpus relief. Respondents filed exceptions to the Magistrate's report on April 13, 1981 and on April 20, 1981, DiNapoli filed a response to those exceptions. On May 8, 1981, this Court issued an opinion denying DiNapoli's petition for a writ of habeas corpus. The basis for the Court's decision was that, as a result of the Parole Commission's action in reopening DiNapoli's file and scheduling a new parole hearing for April 1981, the posture of the case warranted imposition upon DiNapoli of the requirement that he exhaust his newly available administrative remedies with respect to any decision rendered by the Parole Commission upon the April 1981 hearing.

 DiNapoli filed a Notice of Appeal to the Third Circuit Court of Appeals from this Court's order of May 8, 1981 denying DiNapoli's petition. On January 4, 1982, the Court of Appeals issued a per curiam opinion concluding that while this Court did not err in requiring DiNapoli to exhaust his administrative remedies, all administrative proceedings now have been concluded. Accordingly, DiNapoli's case was remanded to this Court for consideration of the merits of DiNapoli's petition. DiNapoli vs. United States Parole Commission et al., 676 F.2d 684 (3d Cir. 1982).

 On January 27, 1982, the Respondents filed a return and answer to DiNapoli's petition for a writ of habeas corpus and a brief in opposition to the petition. On January 29, 1982, the Respondents filed documents in support of their brief opposing the petition. On February 25, 1982, DiNapoli filed a traverse to the Respondents' brief in opposition to the petition. On March 31, 1982, United States Magistrate John Havas filed a report recommending that DiNapoli's petition for a writ of habeas corpus be granted. On April 9, 1982, the Respondents filed exceptions to the Magistrate's report and a memorandum of law in support thereof. The matter is now ripe for disposition by this Court.

 B. Relevant Facts.

 The relevant facts are not in dispute. DiNapoli is presently serving an aggregate sentence of 21 years and four months imposed upon him by the Federal District Court for the Southern District of New York on January 4, 1973 and May 7, 1974 as a result of his convictions of one count of income tax evasion, one count of extortion conspiracy and single counts each of conspiring to sell and selling heroin. DiNapoli became eligible for parole consideration in February of 1980. It is uncontradicted that DiNapoli has a very good institutional adjustment record.

 In accordance with applicable regulations, DiNapoli was scheduled and appeared for his initial parole hearing on December 4, 1979. However, on that date, parole examiners determined that DiNapoli's file lacked sufficient information upon which the examiners' decision could be made. Specifically, the examiners noted that the record was devoid of any information concerning the income tax evasion conviction and that there were few details concerning the narcotics offense. DiNapoli and his attorney were advised by the Parole Commission examiners that more information was needed before a parole determination could be reached. The initial hearing was postponed.

 Efforts were then undertaken by a Parole Commission case analyst to obtain the necessary information from the United States Probation Office for the Southern District of New York. In a reply by that office dated January 31, 1980, the probation authorities basically advised the Parole Commission that no further information concerning the offenses in which the Commission was interested was available. The United States Attorney's Office advised the Probation Office that it had no definitive information in its files as to the quantity, quality, or street value of the heroin involved and that the Court had ordered no pre-sentence report on the income tax evasion charge. The United States Attorney's Office indicated that its file draft of the indictment on the income tax evasion charge was incomplete.

 Accordingly, on February 19, 1980, a case analyst was directed to contact the Probation Office and to advise DiNapoli that there would be a delay in processing his case. In the following weeks, the Parole Commission made at least two efforts to obtain the necessary information from the Probation Office by telephone without result, and on April 22, 1980, Nardoza met with the Administrative Hearing Examiner and regional counsel to determine a course of action. Plans were made to contact the United States Attorney's Office for the Southern District of New York and Regional Counsel subsequently made telephone calls to the United States Attorney as well as to the Probation Office for the Southern District of New York. Finally, the Parole Commission was referred to an opinion of the Second Circuit Court of Appeals affirming DiNapoli's conviction and further information concerning DiNapoli's narcotics conviction was derived therefrom. See United States vs. Tramunti, 513 F.2d 1087 (2d Cir. 1975). On May 5, 1980, the Parole Commission received a letter from the Probation Office stating that it had finally obtained a copy of DiNapoli's indictment on the income tax evasion charge. At that time Nardoza determined that all the information relevant to DiNapoli's case had been obtained by the Parole Commission. Thus, DiNapoli's case was set down for a new initial parole hearing.

 On May 7, 1980, a memorandum was sent to the United States Penitentiary at Lewisburg indicating that DiNapoli's case should be placed on the June 1980 parole hearing docket. 28 C.F.R. § 2.28(a) was cited as authority for reopening DiNapoli's case for a new initial hearing. However, that citation was in error and according to Nardoza, the proper authority for the action taken is found at 28 C.F.R. § 2.55(f) because no earlier decision had been finalized.

 On June 12, 1980, DiNapoli was afforded a new initial hearing. The examiner panel recommended that DiNapoli be considered for a presumptive parole after service of 97 months of incarceration. On June 25, 1980, Nardoza reviewed DiNapoli's case and determined that it fit the criteria of "original jurisdiction designation" found at 28 C.F.R. § 2.17(b)(2). Nardoza disagreed with the Parole Commission examiner panel and determined that DiNapoli's incarceration should be continued until the expiration of his term. Pursuant to 28 C.F.R. § 2.17, Nardoza referred DiNapoli's case to the National Commissioners for a decision. By notice of action dated July 16, 1980, the National Commissioners voted to deny DiNapoli's parole application on the basis that parole would depreciate the seriousness of his offense behavior and jeopardize the public welfare. DiNapoli then filed an appeal to the full National Commission under 28, C.F.R. § 2.27 and on October 28, 1980, the National Commission affirmed the previous decision. DiNapoli was advised of this affirmance by a Notice of Action dated October 28, 1980.

 Upon receipt of the present petition for a writ of habeas corpus filed by DiNapoli on February 3, 1981, Regional Counsel for the Parole Commission realized that disclosure of reliance by the Parole Commission on the decision rendered by the Second Circuit Court of Appeals affirming DiNapoli's conviction had not been made to DiNapoli prior to his June 1980 parole hearing. Accordingly, on February 20, 1981, Nardoza ordered that DiNapoli's case be reopened pursuant to 28 C.F.R. § 2.28(a) and that a special reconsideration hearing be scheduled for the April 1981 docket. As a result of the April 1981 parole hearing, on April 7, 1981, the full National Commission reversed its prior determination (which had denied DiNapoli any parole) and set December 20, 1982 as the date of DiNapoli's presumptive parole.

 In remanding this matter back to this Court, the Court of Appeals noted that DiNapoli raised two issues which it could not resolve on appeal. First, DiNapoli claims that he was wrongfully denied parole "by reason of an erroneous and arbitrary offense severity rating of 'greatest II'" and second, that the "greatest II" classification "violated the ex post facto provision of the United States Constitution." DiNapoli, No. 81-2061 slip op. at 11. In his report and recommendation of March 31, 1982, the Magistrate did not address in detail the ex post facto issue. However, the Magistrate concluded that the Parole Commission's designation of DiNapoli's offense severity as "Greatest II" is an arbitrary and capricious act of the Parole Commission.

 II. Review of the Parole Commission's Actions.

 A. DiNapoli's "Greatest II" Offense Severity Rating.

 In order for this Court to overturn the Parole Commission's determination that DiNapoli's offense severity rating should be "Greatest II", this Court must determine that there was no rational basis in the record for the Parole Commission's conclusion. Zannino vs. Arnold, 531 F.2d 687 (3d Cir. 1976). The reasoning of the Parole Commission in determining that DiNapoli's offense severity rating should be "Greatest II" is stated in the Parole Commission's July 16, 1980 Notice of Action. The Notice of Action explains as follows:

Your offense behavior has been rated as Greatest II severity because it involved income tax evasion, extortion where a person was beaten and violation of narcotics laws where you had a managerial interest in a conspiracy that involved multi-kilogram quantities of heroin... It is noted that you committed perjury while a federal prisoner; your diversified criminal activities and your association with organized figures evince a pattern of disrespect for the law. You were arrested with a suitcase containing over $ 967,000. This evidence was presented in your narcotics trial, and your defense was that the money was derived from your illegal loansharking situation. This is an aggravating factor of your offense behavior and ...

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