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Lombardo v. Wilkinson

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


March 25, 1985

RUSSELL LOMBARDO APPELLANT
v.
G. WILKINSON, WARDEN AND U.S. PAROLE COMMISSION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA, (D.C. Civil No. 83-1066), District Judge: Hon. William J. Nealon, Jr.

Author: Gibbons

Before: GIBBONS, SLOVITER and VAN DUSEN, Circuit Judges

MEMORANDUM OPINION OF THE COURT

GIBBONS, Circuit Judge:

Russell Lombardo appeals from an order denying his petition for habeas corpus relief. Lombardo, a prisoner at the United States Penitentiary at Lewisburg, Pennsylvania, having exhausted administrative remedies, sought by habeas corpus to review the action of the U.S. Parole Commission denying his parole eligibility. The trial court referred the petition to a United States magistrate for a report and recommendation. After reviewing the record and Lombardo's exceptions to the Magistrate's Report, the court approved the recommendation that habeas corpus relief be denied.

On appeal Lombardo contends that habeas corpus relief should be granted because the Parole Commission, in calculating his severity rating for purposes of parole eligibility, relied on hearsay about his activities contained in a presentence investigation report. he urges that the Parole Commission should be subject to the same limitations with respect to use of hearsay statements in presentence investigation reports as are applicable to sentencing judges. See United States v. Tucker, 404 U.S. 443 (1972). The Tucker rule limits the discretion of the sentencing judge in considering previous felony convictions obtained in violation of constitutional rights. In Strader v. Troy, 571 F.2d 1263, 1266 (4th Cir. 978), the Court of Appeals for the Fourth Circuit held that the Tucker rule applied to parole eligibility determinations.

Assuming, arguendo, that the Tucker rule applies to parole eligibility determinations, it does not apply in this case, because the Commission did not rely on convictions obtained in violation of Lombardo's Constitutional rights. The Commission is directed by 18 U.S.C. ยง 4207(3) (1982) to consider the contents of the presentence investigation report. Obviously Congress contemplated reliance on hearsay. Thus the Commission acted in compliance with the governing statute. We decline to hold that reliance on hearsay in the parole eligibility determination violates due process.

The judgment appealed from will therefore be affirmed.

19850325

© 1998 VersusLaw Inc.



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