The opinion of the court was delivered by: MUIR
Petitioner Bruce A. Ronning filed this action pursuant to 28 U.S.C. § 2255 and § 2241 on January 22, 1982, requesting habeas corpus relief and vacation of his criminal sentence. On that date, Ronning's petition was docketed by the Clerk of Court as an action pursuant to 28 U.S.C. § 2255. By order of February 3, 1982, this Court determined that Ronning's petition pursuant to 28 U.S.C. § 2255 was legally frivolous because Ronning challenged not the actions of this Court in imposing Ronning's criminal sentence but the actions of the United States Parole Commission in allegedly improperly considering certain of Ronning's criminal activities in denying his application for parole. The Court dismissed Ronning's § 2255 petition and directed the Clerk of Court to file Ronning's petition as one for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.
By order of February 10, 1982, after giving preliminary consideration to Ronning's § 2241 petition, the Court directed the Respondent to show cause why habeas corpus relief should not be granted. On March 2, 1982, the Respondent filed a return and answer to the Court's Rule to Show Cause and a brief in opposition to Ronning's petition. Ronning filed a traverse to the Respondent's brief on March 8, 1982. By order of March 17, 1982, this Court determined that the Respondent's brief was inadequate in that it failed to respond to several of Ronning's allegations in his petition. The Respondent was directed to file a supplemental brief. On April 1, 1982, the Respondent filed a supplemental brief in opposition to Ronning's petition. On May 4, 1982, Ronning filed a traverse to the Respondent's supplemental brief. The matter is now ripe for disposition.
The relevant facts with respect to Ronning's criminal history and the instant petition are not in dispute. In 1974, Ronning was convicted in the United States District Court for the District of Maryland of one count of transferring and converting funds with the intent to defeat bankruptcy laws, one count of failure to appear pursuant to bail conditions and six counts of making false statements on loan and credit applications. On October 2, 1974, Ronning was sentenced by Judge Herbert L. Merray to a 5-year term of imprisonment on the bankruptcy fraud count and a two-year consecutive term of imprisonment on the failure to appear count. Execution of sentence on the six counts of making false statements in loan and credit applications was suspended by Judge Merray and Ronning was placed on probation for five years to begin on expiration of the term of imprisonment. On May 2, 1978, Ronning was released on parole from his aggregate seven-year sentence and was ordered to remain under parole supervision until May 6, 1981.
On June 13, 1980, Ronning was convicted in the United States District Court for the Middle District of Pennsylvania of five counts of mail fraud in violation of 18 U.S.C. § 1341 and three counts of fraud by wire in violation of 18 U.S.C. § 1343. On June 20, 1980, Ronning was sentenced by this Court to two consecutive 3 1/2 year terms of imprisonment for mail fraud and wire fraud.
On May 21, 1980, Ronning pled guilty in the United States District Court for the Middle District of Pennsylvania to three counts of bank fraud in violation of 18 U.S.C. § 1014. On July 15, 1980, Ronning was sentenced by Judge William Nealon to a term of imprisonment of two years on each of three convictions for bank fraud. The sentences on each of the three counts of bank fraud were to run concurrently with one another and concurrently with the sentence imposed by this Court on June 20, 1980. This resulted in a total sentence for Ronning of 7 years of imprisonment.
On July 28, 1980, the Parole Commission was advised of Ronning's new federal convictions. On August 5, 1980, the Parole Commission issued a parole violation warrant against Ronning for these new federal convictions. On October 20, 1980, Ronning received a combination initial parole hearing and a dispositional parole revocation hearing. As a result of this hearing, Ronning's parole granted May 2, 1978 was revoked and the Parole Commission determined that Ronning forfeit the time he spent on parole. The Parole Commission further determined that Ronning's incarceration was to continue to the expiration of his combined parole violation term and new federal sentences. The Parole Commission's action was affirmed by the Regional Commissioner on July 23, 1981 and was affirmed by the National Appeals Board on December 7, 1981.
Ronning filed this petition on February 4, 1982. Upon review of Ronning's petition, the Regional Counsel for the Parole Commission noted that Ronning's claim of incorrect offense severity rating determination might have merit. Consequently, the Regional Counsel referred this case to the Northeast Regional Office of the Parole Commission. The Regional Office deferred to the advice of Regional Counsel and on February 24, 1982, Ronning's case was reopened pursuant to 28 C.F.R. § 2.28(a). By order of March 17, 1982, this Court determined that the reopening by the Parole Commission of Ronning's case did not mandate that Ronning again exhaust administrative remedies prior to filing a petition for habeas corpus relief. See DiNapoli v. United States Parole Commission, et al., 676 F.2d 684 (3d Cir. 1982). Pursuant to the Parole Commission's reopening of Ronning's case, on April 5, 1982, Ronning was afforded a new initial hearing by the Parole Commission. As a result of that hearing, the Parole Commission found that the combination of Ronning's new offenses and parole violation behavior resulted in a "high" offense severity rating. Ronning's salient factor score was computed as "8." Parole Commission guidelines for cases in Ronning's category dictated a range of confinement from 14 to 20 months. However, as a result of certain aggravating factors, the Parole Commission made a decision to extend Ronning's incarceration for 12 months "above the guidelines" and to continue Ronning's incarceration for a total of 32 months with a presumptive parole date of February 17, 1983. The Parole Commission's decision was affirmed by the Northeast Regional Office on April 26, 1982.
Despite the Parole Commission's revised position with respect to Ronning's parole application, Ronning indicates he wishes to pursue his petition for an immediate writ of habeas corpus. The bases for Ronning's petition are that (1) the Parole Commission erred in computing Ronning's offense severity rating and (2) the Parole Commission erred in going "above the guidelines" with respect to Ronning's parole.
II. Review of the Parole Commission's Actions.
In order for this Court to overturn the Parole Commission's determination of Ronning's new presumptive release date, this Court must find that there was no rational basis in the record for the Parole Commission's actions. Zannino v. Arnold, 531 F.2d 687 (3d Cir. 1976). The reasoning of the Parole Commission in determining that Ronning's incarceration should continue to a presumptive release on parole after service of 32 months is ...