The opinion of the court was delivered by: Judge Muir
(Petition Filed 02/15/06)
Christopher Furnari, an inmate presently confined in the Allenwood Federal Correctional Institution, White Deer, Pennsylvania (FCI-Allenwood) filed this counseled petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Furnari challenges a November 23, 2005 decision of the United States Parole Commission denying him release on parole. (Doc. No. 1, petition). The instant action is Furnari's fourth habeas corpus petition challenging some aspect of a Parole Commission decision. For the reasons set forth below, the petition will be denied.
Furnari is serving a 100-year sentence for racketeering, extortion, and racketeering conspiracy, imposed by the United States District Court for the Southern District of New York on January 13, 1987. According to the United States Court of Appeals for the Second Circuit, Furnari was the "consigliere" (counselor) of the Lucchese organized crime family, a position identified as "practically the equivalent of the underboss". See United States v. Salerno, 868 F.2d 524, 543 (2d Cir. 1989). Furnari's conviction grew out of his participation in "the Commission", a national ruling body of La Cosa Nostra (Mafia) in the United States, the activities of which included the extortion and other racketeering acts which underlie his conviction. (Id.).
On December 3, 1996, Furnari's initial parole hearing was conducted. By Notice of Action dated January 8, 1997, the Regional Commissioner adopted the hearing examiner's recommendation that Furnari be required to serve to a fifteen-year reconsideration hearing in December, 2011. (Doc. No. 4, Ex. C, Notice of Action). On August 19, 1997, the National Appeals Board affirmed that decision. (Doc. No. 4, Ex. D, Notice of Action on Appeal). The National Appeals Board found that:
You have properly been held accountable for murders committed to further the purposes of the Lucchese or other crime families. At a minimum, as the capo of a crew in the Lucchese family, you were in a position to be informed of murders ordered by the boss of the family. Given the hierarchical nature of the organization, it is likely that you directed the murderous acts of your crew members. And, in fact, the Parole Commission finds the information from the U.S. Attorney's Office on your personal responsibility for several of the murders (victims Schleifer, Taglianetti, and DeCicco) and attempted murder (victim Abinanti) to be credible and reliable, even though much of the information may have come from Anthony Casso, one of the most violent members of your organization. Reliable information on crimes committed through La Cosa Nostra activities has been provided by members of the criminal organization, including those who have committed violent crimes. Even if Casso has continued to commit or plot other crimes after his debriefing by federal law enforcement, this does not disqualify him as a reliable source concerning your criminal activities within the Lucchese family. In many cases, Casso's information is corroborated by information from other sources such as Carew and D'Arco.
Your parole denial is warranted because you approved or participated in the planning of a contract murder. (Taglianetti), the murder of a potential informant/witness (Schleifer), and a murder and attempted murder to further the aims of an on-going criminal organization (DeCicco and Abinanti, respectively). Any one of these crimes would support a parole denial. There are no mitigating factors, including your age, that justify your parole when weighed against the aggravated nature of the crimes.
On February 11, 1998, Furnari filed his first petition for writ of habeas corpus before this Court. See Furnari v. Warden, Civil Action No. 4:98-CV-0222 (M.D. Pa. Feb. 11, 1998). In that petition, Furnari claimed that his rights to due process, as well as the statutory rights afforded him by the Federal statutes and regulations governing parole, were violated in the following ways:
1. The USPC acted arbitrarily and capriciously when it grounded its denial of petitioner's parole almost entirely on the untested, non-specific allegations of Casso, someone, petitioner believes, should be deemed incredible as a matter of law;
2. The USPC incorrectly rated petitioner's offense severity as Category Eight, crediting "untested unsupported hearsay allegations" of Anthony Casso.
3. The government suppressed information revealing that Casso is not a reliable informant.
4. The USPC violated petitioner's due process right by relying on AUSA Kelley's "conclusory" statement that Casso's allegations are corroborated by D'Arco and Carew.
On December 9, 1998, during the pendency of petitioner's habeas corpus proceeding before this Court, the Parole Commission provided a statutory interim hearing to Furnari pursuant to 18 U.S.C. §4208(h)(2). (Doc. No. 16, Ex.3., Review Hearing Summary). At that hearing, Furnari claimed that at the time Assistant U.S. Attorney Kelley was presenting Casso's statements to the Parole Commission,*fn1 other prosecutors were concluding that Casso was not credible and was engaged in new criminal conduct while incarcerated. Id. at p. 3. Furnari presented an affidavit which Assistant U.S. Attorney Stambolidis had submitted in another case, stating that Casso had lied to prosecutors in matters relevant to that case. Id.
The hearing examiner discussed this document and explained his reasons for continuing to credit Casso and corroborating witnesses in the hearing summary. Id. The examiner recommended no change in the prior order that Furnari serve to a 15-year reconsideration hearing in December, 2011. Id. at p. 5. The Parole Commission adopted that recommendation. (Doc. No. 16, Ex.4, Notice of Action). The Parole Commission did not, however, include the reasons for continuing to rely upon the Casso information notwithstanding the Stambolidis letter on the notice of action. Id. On April 2, 1999, the National Appeals Board affirmed the decision that Furnari serve to a 15-year reconsideration hearing in 2011. (Doc. No. 16, Ex.5., Notice of Action on Appeal).
By order dated April 12, 1999, this Court denied Furnari's petition for writ of habeas corpus, finding that there was a rational basis in the record for the Parole Commission's decision. Furnari v. Warden, Civil Action No. 4:98-CV-0222 (M.D. Pa. Feb. 11, 1998). Furnari appealed this decision.
The United States Court of Appeals for the Third Circuit took judicial notice of the interim hearing and the notices of action which followed it.*fn2 See Furnari v. Warden, 218 F.3d 250 (3d Cir. 2000). The Court of Appeals held that the Parole Commission had erred in failing to "make clear in its decision on the interim hearing whether it continued to believe that the discredited witness [Casso] was credible or otherwise concluded that there was sufficient information from other sources to tie Furnari to murder," and had thereby failed to follow its regulation requiring a statement of reasons for denying parole. Id. at 252. The court held, "[i]t is not possible to tell from [the Appeal Board's affirmance after the interim hearing] whether the Parole Commission continues to rely on Casso and find him credible, or has concluded that there is sufficient additional information tying Furnari to murder to conclude that he is a Category Eight even absent the information provided by Casso." Id. at 256. The Court of Appeals ordered the case remanded to the district court "with instructions to grant Furnari's petition conditionally and order the Parole Commission to provide a new statement of reasons consistent with this decision." Id. at 252.
By Order dated September 28, 2000, this Court, consistent with the Third Circuit's mandate, remanded the action to the Parole Commission, directing that the Commission either provide Furnari a new statement of reasons consistent with the Third Circuit's opinion, or afford him a de novo hearing, within ninety days of the date of this Court's Order. Furnari v. Warden, Civil Action No. 4:98-CV-0222 (Doc. No. 18)(M.D. Pa. Feb. 11, 1998).
On December 8, 2000, the Parole Commission conducted a de novo hearing in which the hearing examiner considered the following:
Commission by Assistant U.S. Attorney Kelley, which discussed the circumstances surrounding ...