The opinion of the court was delivered by: CONABOY
Richard P. Conaboy, United States District Judge
We have received a Magistrate's Report in the above-captioned matter. The Magistrate's Report includes a recommendation as to the proper disposition of this case. Petitioner Williams has filed timely exceptions to the contents of the Magistrate's Report. We have considered these exceptions, the Report itself, and the case file in reaching our decision herein.
Petitioner is a federal prisoner under sentence of 18 years imprisonment. That sentence is a result of his conviction in 1974 on bank robbery and related charges. He was paroled from this sentence in October of 1979 on condition that he remain under supervision until 1991. In early September of 1982 he was arrested in Michigan on various state charges which included a weapons violation. This incident provoked revocation of his parole by the United States Parole Commission (hereinafter the Commission). Said revocation gave rise to this habeas corpus action pursuant to 28 U.S.C. § 2241. Petitioner is currently incarcerated at U.S.P. Lewisburg as a result of this new criminal behavior which the Commission has rated as category 5 severity under the guidelines in effect in 1983. This rating resulted in a finding by the Commission that Petitioner should serve 72 months in prison with a presumptive parole date of September 2, 1988. Petitioner contends that the Commission violated its own guidelines in reaching this computation. Petitioner takes the position that if the appropriate guidelines had been applied to him he would have had to serve no more than 44 months unless the Commission could state a rationale for taking him beyond the guidelines. This, however, is an over-simplification of Petitioner's case and we shall consider what we perceive to be the five separate aspects of his claim sequentially.
Petitioner's first argument in support of his application is that the Commission should not have found him guilty of possession of a sawed-off shotgun since that charge was dismissed by the prosecuting authorities in Hillsdale, Michigan. Petitioner had originally been charged with said weapons violation, felonious assault, breaking and entering an occupied dwelling with intent to commit a felony, and felonious assault by knife. Petitioner ultimately pleaded no contest to an amended charge of malicious destruction of property and disorderly conduct. He was sentenced to 90 days incarceration and the remaining charges were dismissed. A federal parole violation warrant was executed on December 27, 1982 and Petitioner entered federal custody where he remains.
It is beyond question that the Commission has the authority to find that an individual committed acts in violation of his parole notwithstanding the fact that related criminal charges have been dismissed. This is true provided such finding is supported by a preponderance of the evidence. See 18 U.S.C. § 4214(d). It is for the Commission to decide whether such a preponderance exists. Our task is merely to determine whether the Commission abused its broad discretion by inquiring as to whether there is a rational basis in the record for the Commission's conclusion. See Zannino v. Arnold, 531 F.2d 687 at 691 (3d Cir. 1976). We find that a rational basis does exist in support of the Commission's conclusion that Petitioner did possess a sawed-off shotgun during the incident which led to his Michigan convictions.
In "Petitioner's Exceptions to the Report of the Magistrate" it is contended that it was irrational for the Commission to rely upon the statements made by one Carolyn Wood
on the night of Petitioner's arrest as opposed to the self-contradictory testimony she offered at Petitioner's parole revocation hearing. This Court cannot agree. In his effort to denigrate Miss Wood's initial statement that he had threatened her life with a sawed-off shotgun, Petitioner states ". . . the record is clear that Carolyn Wood was hysterical the night of my arrest and did not recover until much later."
We cannot, however, fault the Commission's decision to accord greater weight to Miss Wood's initial representations than to her subsequent recantation. On the contrary, we think there is a great likelihood that the truth emerged "in the heat of the moment" rather than after a lapse of time which quite possibly permitted unfathomable influences to change the shape of her testimony. Human experience teaches us that people often speak truthfully when under great stress. We must conclude, then, that considering Miss Wood's testimony and the fact that the investigating officers recovered a sawed-off shotgun at the scene of Petitioner's arrest,
it was not irrational for the Commission to find that Petitioner had possessed said weapon. Where conflicting evidence is presented in a parole revocation hearing, the issue of the reliability of such evidence is properly a matter for the Commission. Lewis v. United States Parole Commission, 448 F. Supp. 1327 (E.D. Mich. 1978). The Commission is vested with broad discretion with respect to such credibility determinations. Iuteri v. Nardoza, 732 F.2d 32, 38 (1984). Thus, we find no fault with the Commission's finding that Petitioner committed the weapons violation alluded to above.
Petitioner's second argument in support of his application is that the Commission's failure to advise him of its finding that he possessed a sawed-off shotgun, until he received a corrected notice of action on October 11, 1984, so prejudiced his defense efforts as to amount to a denial of due process. Here again, this Court disagrees. It is true that the notice of action of October 11, 1984 was the first document which mentioned the weapons violation in the form of a formal charge. However, the record clearly indicates that Petitioner was not prejudiced by this procedural defect since he was earlier advised that the Commission considered a weapons violation to be part and parcel of his new criminal activity.
Moreover, he and his attorney addressed this issue at length at his parole revocation hearing. Therefore, the Respondent contends that the corrected notice of action of October 11, 1984 cures any procedural error in this case. We agree based upon our perception that Petitioner received de facto notice of the weapons charge and an opportunity to be heard thereon. Due process demands no more.
Petitioner's third claim in support of his application is that the Administrative Hearing Examiner, the Regional Commissioner, and the National Commissioners did not have authority to disagree with the hearing panel's assessment that a preponderance of the evidence did not exist to show that Petitioner had possessed the shotgun. Petitioner bases this claim on the fact that the Commission took no action within the 21 day period prescribed by 18 U.S.C. § 4214(e). The record does verify the fact that some 41 days did elapse between the time of Petitioner's hearing and the time he received notification of the Commission's decision to supersede the recommendation of the hearing panel that Petitioner be reincarcerated and paroled effective September 2, 1983.
The Magistrate was of the opinion that since ". . . petitioner has not established that he was substantially prejudiced by this procedural error involving a mere passage of time. . .", that he is entitled to no relief on this aspect of his claim.
Petitioner argues that:
. . . The examiners, as the Regional Commissioner's representatives, made a decision which she then had 21 days within which to disagree. By not doing so within that time frame, I contend that she thereby affirmed the panel's decision. There appears to be more involved here than a "mere passage of time". It has to do with the finality of the decision. The law ...