United States District Court, W.D. Pennsylvania
ORDER ADOPTING THE REPORT AND RECOMMENDATION AND
DENYING WRIT OF HABEAS CORPUS
BARBARA J. ROTHSTEIN, UNITED STATES DISTRICT JUDGE.
the Court are Petitioner's Objections  to the Report
and Recommendation (“R&R”)  of the
Honorable Susan Paradise Baxter, United States Magistrate
Judge, recommending denial of Petitioner's petition for a
writ of habeas corpus. Having reviewed the Petition, the
parties' briefs, and the R&R and objections thereto,
the Court adopts the decision of the Magistrate Judge.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
12, 1998, Petitioner was convicted by United States Army
General Court Martial of multiple felonies, including the
rape of his ex-wife. Federal Initial Prehearing Assessment,
Doc. 1-1 at 2. Petitioner was sentenced to an aggregate term
of 27 years imprisonment. Id. Three days later,
during Petitioner's off-site medical appointment,
Petitioner “rushed” his escorting officer,
Matthew Mann. Id. Petitioner gained control of
Mann's gun; blind-folded and handcuffed Mann in the back
of the officer's van; and then fled on foot. Id.
Petitioner was eventually apprehended and found guilty of
multiple corresponding felonies. Id. On November 13,
1998, Petitioner was sentenced to a consecutive term of 15
years imprisonment. Id.
a parole hearing approximately ten years later, in April
2008, the United States Parole Commission (“the
Commission”) set a presumptive parole date of December
1, 2013. Hr'g Summary, Doc. 1-2. As a
“condition” of his presumptive release, the
Commission “recommend[ed]” that Petitioner
participate in Sex Offender Treatment. Id. at 5.
Petitioner's presumptive release date of December 1, 2013
remained unchanged following both a statutory interim hearing
in April 2010, and a hearing conducted pursuant to
Petitioner's appeal in October 2012. Statutory Interim
Hr'g, Doc. 1-3; 12/7/12 Notice of Action, Doc. 1-4.
January 30, 2013, a victim witness coordinator with the
Commission sent an internal memorandum requesting that
Petitioner's “case be reopened.” 1/30/13
Mem., Doc. 1-7. The coordinator wrote that while the
Commission, at Petitioner's first hearing, had
“considered the input from the victim of the first
offense, ” i.e., Petitioner's ex-wife,
“the Commission did not have input from the victims of
the second offense, ” i.e., Mann and his
family. Id. at 2. Mann and Mann's ex-wife, the
coordinator explained, incorrectly believed that they were
registered in the relevant electronic system such that they
would be notified of any of Petitioner's parole hearings.
See id. at 3. The Manns, the coordinator continued,
did not know about Petitioner's earlier parole hearings,
objected to Petitioner's release, and “continue to
fear for their safety.” Id. The Manns
submitted letters to this effect, which the coordinator
attached to her memorandum. See id.
Commission considered the Manns' letters “new
adverse information, ” and, pursuant to 28 C.F.R.
§ 2.28(f), reopened Petitioner's case. 2/1/13 Notice
of Action, Doc. 5-12. The Commission notified Petitioner of
its decision to reopen his case by letter dated February 1,
2013. Id. Approximately six weeks later, the
Commission further notified Petitioner that it had rescinded
his presumptive parole date of December 1, 2013, and that it
would schedule a “Reconsideration Hearing on the next
available docket.” 3/13/13 Notice of Action, Doc. 1-6.
Petitioner was not provided any further documentation
regarding the substance of the reconsideration hearing,
including why the Commission reopened his case. See
Doc. 5-1; 5-12; 1-6.
reconsideration hearing was held on June 25, 2013. Doc. 1 at
4. At the beginning of the hearing, the Hearing Examiner told
Petitioner that the hearing had been scheduled for the
Commission to consider the following three pieces of new,
adverse information: “victim opposition to
parole;” a Disciplinary Hearing Officer's 2013
finding that in December 2012, Petitioner physically fought
with another inmate (“DHO decision”); and
Petitioner's “unsuccessful discharge”
from sex offender treatment. Gervasoni Decl., Doc. 5-1
¶¶ 3-5 (quoting Audio recording 6/25/13 Hr'g,
Ex. 13). The Examiner asked Petitioner whether he was
“prepared to go forward today at this hearing to
discuss those issues;” Petitioner responded,
“Yes, ma'am.” Id. at ¶ 6
(quoting Audio recording 6/25/13 Hr'g, Ex. 13). In
addition to considering Petitioner's 2012 fight and his
unsuccessful discharge from sex offender treatment, at the
hearing, the Commission heard testimony from Mann and his
father. 7/25/13 Post Hr'g Summary, Doc. 5-14.
the hearing, the Commission denied Petitioner parole and
continued the matter until at least April 2023. 7/17/13
Notice of Action, Doc. 1-8. Petitioner timely appealed,
requesting immediate parole. See 10/15/13 Appeal,
Doc. 1-10 at 32. The National Appeals Board affirmed the
Commission's decision. 1/27/14 Notice of Action on
Appeal, Doc. 1-11.
filed the instant petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241, alleging that the
Commission failed to comply with 28 C.F.R. § 2.55(a),
which requires that the Commission, at least 60 days in
advance of a parole hearing, notify a prisoner that he may
request disclosure of the documentation on which the
Commission will rely at a parole hearing; and that the
Commission should not have considered the Manns'
statements because in 2013, Petitioner was serving the
sentence imposed for his first set of crimes (against his
ex-wife) and not for those involving Mann. Doc. 1 at 8;
see also Pet'r's Br. in Supp., Doc. 1-11.
According to Petitioner, such failures necessitate that the
Court remand for a new parole hearing. Doc. 1 at 8 (citing
United States ex rel. Schiano v. Luther, 954 F.2d
910, 919 (3d Cir. 2991)).
Judge Baxter issued an R&R recommending that the petition
for a writ of habeas corpus be denied. Doc. 18. Petitioner
timely filed his Objections, arguing that he did not
waive-or, alternatively, that he could not have waived-his
right to request disclosure of the documents on which the
Commission relied, and that the Manns' statements should
not have been considered both because they are irrelevant and
because they are based, in large part, on medical documents
that were not presented at the hearing. See Doc. 22.
Thus, Petitioner argues in his objections, the Commission
violated his due process rights. See id.
STANDARD OF REVIEW
party files objections to an R&R, the district court must
review de novo those portions of the R&R to
which objections are made. See United States v.
Raddatz, 447 U.S. 667, 673 (1980); Fed.R.Civ.P. 72(b).
The District Court may accept, reject, or modify, in whole or
in part, the findings and recommendations made by the
Magistrate Judge. Raddatz, 447 U.S. at 673-74.
district court's “role in reviewing decisions by
the Parole Commission on application for a writ of habeas
corpus is limited.” Gambino v. Morris, 134
F.3d 156, 160 (3d Cir. 1998). “The appropriate standard
of review of the Commission's findings of fact . . . is
only whether there is a rational basis in the record for the
Commission's conclusions embodied in its statement of
reasons.” Id. at 160 (quoting Zannino v.
Arnold,531 F.2d 687, 691 (3d Cir.1976) and citing 28
C.F.R. § 2.18). A court “must ensure that the
Commission has followed criteria appropriate, rational and
consistent with its enabling statutes[.]”
Gambino, 134 F.3d at 160. Additionally, a court must
ensure that the Commission used parole guidelines in
determining whether to grant parole. See id.
However, the Commission is “authorized to ‘deny
release on parole notwithstanding the guidelines if it
determines there is good cause for doing so.'”
Id. (quoting 18 U.S.C. § 4206(c)) (internal
alterations omitted). ...