Andreozzi v. United States Parole Commission

Filing 30

ORDER ACCEPTING REPORT AND RECOMMENDATION 24 - The Petition for writ of habeas corpus (Doc. 1 ) is denied without prejudice. A certificate of appealability and leave to proceed in forma pauperis on appeal are denied. The Clerk of the Court is directed to terminate this action. (See document for further details). Signed by Judge David G Campbell on 2/3/17. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Armand Andreozzi,
Petitioner,

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ORDER

v.

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No. CV-16-00669-PHX-DGC

United States Parole Commission,

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Respondent.

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On March 9, 2016, Petitioner Armand Andreozzi filed a pro se petition for writ of

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habeas corpus pursuant to 28 U.S.C. § 2241 raising two grounds for relief. Doc. 1. The

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Court referred the petition to Magistrate Judge Bridget S. Bade.

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Respondent United States Parole Commission had filed its response (Doc. 13) and a

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supplemental response requested by Judge Bade (Doc. 16), Petitioner filed a motion to

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amend his petition on October 7, 2016 (Doc. 21). Judge Bade issued a report and a

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recommendation that the Court deny the habeas petition, and denied Petitioner’s motion

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to amend (“R&R”). Doc. 24. Petitioner filed pro se objections to the R&R (Doc. 19),

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and the Parole Commission filed a response (Doc. 29). For the reasons set forth below,

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the Court will deny Petitioner’s objections and adopt Judge Bade’s recommendation.

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I.

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Doc. 3.

After

Background.
Judge Bade provided the following summary of Petitioner’s sentencing and parole

proceedings:

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A.

Court-Martial Proceedings and Sentences

On June 12, 1998, Petitioner was convicted of violating several provisions
of the Uniform Code of Military Justice. (Doc. 13-1 at 2, 7.) Petitioner
was sentenced to confinement for twenty-seven years. (Id.) On November
13, 1998, Petitioner pleaded guilty to charges in a second court-martial and
was found guilty. (Id. at 7.) Petitioner was sentenced to confinement for
fifteen years, to run consecutively to his sentence imposed in June 1998.
(Id.) Petitioner was dishonorably discharged from the U.S. Army. (Id. at
8.) In accordance with a Memorandum of Agreement (MOA) between the
U.S. Army and the Bureau of Prisons (BOP), in 2006, Petitioner was
transferred to the BOP to serve his sentences. (Id. at 2.)

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B.

Parole Proceedings

On April 29, 2008, the United States Parole Commission (the Commission)
conducted an initial parole hearing for Petitioner. (Doc. 13-1 at 11-15.) At
the time of the hearing, the Commission had received input from the victim
of the first offenses. (Doc. 13-1 at 13.) The Commission calculated
Petitioner’s parole guideline range as 124-192 months to be served prior to
parole, and ordered a presumptive parole date of December 1, 2013, after
service of 190 months’ confinement. (Doc. 13-1 at 17.) The National
Appeals Board (the Board) corrected the parole guideline range to 124-190
months, and otherwise affirmed the Commission’s decision on
administrative appeal. (Doc. 13-1 at 20-22.)
On June 15, 2010, Petitioner received a statutory interim hearing,
conducted by videoconference, before the Commission. (Doc. 13-1 at 2326.) The Commission ordered no change in the previously-ordered
presumptive parole date of December 1, 2013. (Doc. 13-1 at 27-29.) The
Board affirmed this decision on administrative appeal. (Doc. 13-1 at 3031.) On October 26, 2012, Petitioner received another statutory interim
hearing before the Commission again conducted by videoconference. (Doc.
13-1 at 32-35.) The Commission ordered no change to the presumptive
parole date. (Doc. 13-1 at 36-38.) Petitioner did not administratively appeal
that decision.
In a February 1, 2013 notice of action, the Commission notified Petitioner
that it was reopening his case under 28 C.F.R. § 2.28(f), based on new
adverse information. (Doc. 13-1 at 39-40.) In a March 13, 2013 notice of
action, the Commission clarified that, by reopening Petitioner’s case, it was
rescinding the previous presumptive parole date and scheduling a
reconsideration hearing on the next available docket to consider new
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adverse information. (Doc. 13-1 at 41-42.)
On June 15, 2013, the Commission conducted the special reconsideration
hearing by videoconference. (Doc. 13-1 at 43-47.) The hearing examiner
reviewed with Petitioner the new information that would be considered
including victim statements, a May 2, 2013 Disciplinary Hearing Officer
finding for fighting, and Petitioner’s unsuccessful discharge from the sex
offender treatment program on February 28, 2012. (Id.) Petitioner
indicated that he did not know that the victim would participate in the
hearing. (Id.) The examiner asked Petitioner whether he was prepared to
proceed with the hearing, and Petitioner responded that he was ready to
proceed. (Id.) During the hearing, the hearing examiner heard testimony
from the victim of Petitioner’s second court-martial conviction, and the
victim’s father. (Doc. 13-1 at 44-45.) The victim testified to suffering ongoing trauma resulting from Petitioner’s crimes, including Post Traumatic
Stress Disorder and depression. (Id.)
Based on the new information presented at the hearing, the Commission
concluded that Petitioner was not suitable for parole release, and ordered
that he serve his sentence until a fifteen-year reconsideration hearing in
April 2023, or to the expiration of his sentence, whichever came first.
(Doc. 13-1 at 48-50.) This decision imposed confinement above the
guideline range. The Commission explained that its decision was based on
its findings that parole would deprecate the seriousness of Petitioner’s
offenses and promote disrespect for the law, new information about the
lasting impact and severe impacts of Petitioner’s violent acts on the victims,
Petitioner’s expulsion from sex offender treatment, and his fight with
another inmate:
After review of all relevant factors and information, a
decision above the guideline range is warranted because the
Commission finds that your release on parole would
depreciate the seriousness of your offenses and promote
disrespect for the law. The Commission has received new
adverse information in your case that leads to this conclusion.
The highly aggravating factors to your offense behavior were
previously considered at your initial hearing in April 2008 to
set a release date at the top of your guidelines (190 months).
However, the Commission was unaware of the lasting and
severe impacts that your violent acts continue to have on your
victim(s) even many years after the offense. In addition, you
have been expelled from the Sex Offender Treatment
program and recently engaged in a fight with another inmate.
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(Doc. 13-1 at 49.)

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Petitioner administratively appealed this decision to the Board. (Doc. 13-1
at 51-86.) Petitioner raised numerous issues, including whether the
information considered at the hearing could be considered “new,” and
whether he had received appropriate notice of the hearing and material to
be considered. (Id.) Petitioner did not raise the issues that he presents in
the Petition. The Board affirmed the Commission’s decision. (Doc. 13-1 at
87-89.)

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The Commission ordered that Petitioner receive a statutory interim hearing
in 2015. (Doc. 13-1 at 49.) Petitioner, however, waived this hearing on
October 28, 2015, the date on which the Commission attempted to conduct
the hearing. (Doc. 13-1 at 90-92.) As a result of this waiver, and
Petitioner’s failure to re-apply for a parole hearing, Petitioner has not
received a hearing since June 2013.

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Doc. 24 at 3-5.

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II.

The Petition and the R&R.

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Petitioner seeks habeas relief on two grounds: (1) 18 U.S.C. § 4208(e) and

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Petitioner’s Fifth Amendment due process rights were violated when his 2010 and 2012

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statutory interim hearings and his 2013 reconsideration hearing were conducted by video

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conference, and (2) 18 U.S.C. § 4208(g) and Petitioner’s Fifth Amendment due process

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rights were violated when Petitioner was denied his right to have a personal conference

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with the examiner subsequent to the denial of parole at his 2013 reconsideration hearing.

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Doc. 1 at 4-5.

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Judge Bade did not reach the merits of Petitioner’s underlying claims because she

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found that he had not exhausted his administrative remedies by bringing these claims to

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the National Appeals Board on administrative appeal. Doc. 24 at 6. She also concluded

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that Petitioner did not satisfy any of the exceptions to the exhaustion requirement.

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Id. at 7. Additionally, Judge Bade denied Petitioner’s motion to amend his petition for

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failure to comply with Local Rule of Civil Procedure 15.1. Id. at 2.

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III.

Petitioner’s Objections.

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Petitioner first objects to the denial of his Rule 12(f) motion to strike from the

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record all documents and submissions related to his court-martial proceedings.

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Doc. 28 at 1-2.

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impertinent.” Id. at 2. Next, Petitioner objects to Jude Bade’s denial of his motion to

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amend. Id. Petitioner attaches a copy of his amended complaint, for the first time, and

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asks that the Court consider it in the service of “judicial economy.” Id. at 2, 8-14.

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Finally, Petitioner argues that administrative exhaustion requirements do not apply to

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habeas petitions and, if they do, he can satisfy all three of the exceptions to those

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requirements. Id. at 3-7. The Court reviews Petitioner’s objections de novo; the portions

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of the R&R to which he does not object will be adopted without further discussion. See

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Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1); United States v. Reyna-Tapia, 328 F.3d

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1114, 1121 (9th Cir. 2003).

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IV.

According to Petitioner, these submissions are “immaterial and

Analysis.

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A.

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The court may “strike from a pleading an insufficient defense or any redundant,

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immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). Motions to strike

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are generally disfavored and “should not be granted unless it is clear that the matter to be

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stricken could have no possible bearing on the subject matter of the litigation.” Johnson

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v. Cal. Medical Facility Health Servs., 2015 WL 4508734, at *6 (E.D. Cal. July 24,

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2015). “A matter is impertinent if it consists of statements that do not pertain and are not

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necessary to the issues in question.” Torres v. Goddard, No. CV-06-2482-PHX-SMM,

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2008 WL 1817994, at *1 (D. Ariz. Apr. 22, 2008). “Immaterial matter is that which has

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no essential or important relationship to the claim for relief or the defenses being

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pleaded.” Vesecky v. Matthews (Mill Towne Ctr.) Real Estate, LLC, No. CV-09-1741-

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PHX-JAT, 2010 WL 749636, at *1 (D. Ariz. Mar. 2, 2010) (quotation marks omitted).

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“Any doubt regarding the redundancy, immateriality, impertinence, scandalousness or

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insufficiency of a pleading must be decided in favor of the non-movant.” Id.

Motion to Strike.

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Petitioner argues that because his petition does not challenge the court-martial

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proceedings, any documents or submissions related to these proceedings should be struck

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from the record as “immaterial and impertinent.” Doc. 28 at 1-2. Judge Bade found that

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the records are relevant because they provide context for the habeas petition. Doc. 15.

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The Court agrees.

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adequacy of his parole hearings. Doc. 1. The conviction and sentencing records are

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relevant to those claims.

Petitioner’s claims concern his continued incarceration and the

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B.

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Petitioner sought leave to amend his petition on October 7, 2016, almost seven

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months after filing his original petition. Doc. 21. When issuing her R&R, Judge Bade

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denied the motion to amend for failure to submit a proposed amended pleading in

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compliance with Local Rule 15.1(a).

Motion to Amend.

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A petition for writ of habeas corpus “may be amended or supplemented as

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provided in the rules of procedure applicable to civil actions.” 28 U.S.C. § 2242. Thus, a

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petition may be amended as a matter of course 21 days after service or 21 days after

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service of a responsive pleading, whichever is later. Fed. R. Civ. P. 15. Because the

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deadline for amending as a matter of course has passed, Petitioner may amend “only with

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the opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2).

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Leave to amend is given freely “when justice so requires,” id., but may be denied if the

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court finds “undue delay, bad faith or dilatory motive on the part of the movant, repeated

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failure to cure deficiencies by amendments previously allowed, undue prejudice to the

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opposing party by virtue of allowance of the amendment, [or] futility of amendment.”

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Foman v. Davis, 371 U.S. 178, 182 (1962). The decision whether to grant leave “is

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within the discretion of the District Court.” Id.

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“A party who moves for leave to amend a pleading must attach a copy of the

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proposed amended pleading as an exhibit to the motion, which must indicate in what

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respect it differs from the pleading which it amends, by bracketing or striking through the

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text to be deleted and underlining the text to be added.” LRCiv 15.1(a). This rule carries

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“‘the force of law.’” Eldridge v. Schroeder, No. CV-14-01325-PHX-DGC-ESW, 2016

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WL 354868, at *2 (D. Ariz. Jan. 28, 2016) (citing Hollingsworth v. Perry, 558 U.S. 183,

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191 (2010)). Courts in this district “routinely den[y] motions for leave to amend for

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failure to comply with LRCiv 15.1(a),” id. (collecting cases), and it is well within their

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discretion to do so. See, e.g., Young v. Nooth, 539 F. App’x 710, 711 (9th Cir. 2013)

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(“The district court did not abuse its discretion in denying Young leave to amend his

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complaint because Young failed to attach a proposed amended complaint as required by

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local rule.”).

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Petitioner was required to attach a proposed amended petition to his motion, but

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did not do so. In addition, his motion did not provide Judge Bade with any indication of

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what new or altered information the amended petition would contain. The first time any

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judicial officer saw Petitioner’s proposed amended petition was when he provided it to

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this Court on December 15, 2016, more than a month after Judge Bade issued her R&R.

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Doc. 28. The proposed additions all appear to relate to Petitioner’s 2013 reconsideration

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hearing. Petitioner provides no explanation for the significant delay in submitting these

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allegations. Id. at 2 (asserting that Respondent “opened the door and gave Pet[itioner]

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grounds, and standing for an amended petition[,]” but providing no additional

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information to explain his delay). And Petitioner’s motion to amend was filed after

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Respondent had submitted both its response and its supplemental response to his original

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petition.

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The Court will not overturn Judge Bade’s denial of leave to amend. The motion to

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amend was filed very late in the proceedings, after Respondent had devoted considerable

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resources responding to the initial petition; it did not concern new information, but

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instead made arguments about events that occurred some three years earlier; the motion

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did not comply with Local Rule 15.1; and Petitioner did not describe his proposed

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changes to Judge Bade or otherwise equip her to make an informed decision on what he

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proposed to add to this case. Denial of the motion was justified on the bases of undue

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delay, prejudice to Respondent, and failure to comply with the Local Rules.

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Petitioner also objects to Judge Bade’s determination that his reply (Doc. 4) is

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untimely. Doc. 28 at 1. Because Judge Bade considered the reply, the Court need not

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address this objection.

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C.

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Judge Bade did not reach the merits of Petitioner’s underlying claims because she

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Exhaustion.

found that he had failed to exhaust his administrative remedies. Doc. 24 at 8.
“Judicial review of a decision of the Parole Commission is available under

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28 U.S.C. § 2241 only after administrative remedies have been exhausted.

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administrative remedies, as set forth in 28 C.F.R. § 2.26, provide for appeal to the

The

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[National Appeals Board].

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purposes of judicial review.” Weinstein v. U.S. Parole Comm’n, 902 F.2d 1451, 1453

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(9th Cir. 1990) (citations omitted).

Decisions of the National Appeals Board are final for

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Exhaustion of administrative remedies aids “judicial review by allowing the

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appropriate development of a factual record in an expert forum[,]” and conserves “the

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court’s time because of the possibility that the relief applied for may be granted at the

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administrative level.” Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir. 1983). Moreover, it

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allows “the administrative agency an opportunity to correct errors occurring in the course

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of administrative proceedings.” Id. “When a petitioner does not exhaust administrative

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remedies, a district court ordinarily should either dismiss the petition without prejudice or

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stay the proceedings until the petitioner has exhausted remedies, unless exhaustion is

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excused.” Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th Cir. 2011).

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“Exhaustion is not required if: (1) administrative remedies would be futile; (2) the

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actions of the agency clearly and unambiguously violate statutory or constitutional rights;

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or (3) the administrative procedure is clearly shown to be inadequate to prevent

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irreparable injury.” Terrell v. Brewer, 935 F.2d 1015, 1019 (9th Cir. 1991) (citation

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omitted).

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Petitioner does not dispute that he failed to raise his two habeas claims before the

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National Appeals Board. Doc. 28 at 3; Doc. 24 at 7. Instead, Petitioner contends that the

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alleged “violations of § 4208(e) and § 4208(g) became known [to him] in 2015, [when]

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Pet[itioner] did not have available administrative remedies.” Doc. 28 at 3. Petitioner

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argues that administrative remedies were not available because 28 C.F.R § 2.26(a)(1)

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requires a prisoner to appeal any decision to the National Appeals Board within 30 days

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of the decision. Id. “If a prisoner is unable to obtain an administrative remedy because

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of his failure to appeal in a timely manner, then the petitioner has procedurally defaulted

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his habeas corpus claim. If a claim is procedurally defaulted, the court may require the

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petitioner to demonstrate cause for the procedural default and actual prejudice from the

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alleged constitutional violation.” Sanchez-Alaniz v. Shartle, No. CV-14-00324-TUC-

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RCC, 2015 WL 3774432, at *10 (D. Ariz. June 17, 2015) (citations omitted); Nigro v.

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Sullivan, 40 F.3d 990, 997 (9th Cir. 1994) (“Cause and prejudice may excuse a

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procedural default of administrative remedies.”).

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Cause is defined as a “legitimate excuse for the default,” and prejudice is defined

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as “actual harm resulting from the alleged constitutional violation.” Thomas v. Lewis,

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945 F.2d 1119, 1123 (9th Cir.1991); see Murray v. Carrier, 477 U.S. 478, 488 (1986) (a

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showing of cause requires a petitioner to show that “some objective factor external to the

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defense impeded counsel’s efforts to comply with the State’s procedural rule”).

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Prejudice need not be addressed if a petitioner fails to show cause. Thomas, 945 F.2d at

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1123 n. 10. Petitioner asserts that he did not learn of the violations underlying his claims

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until 2015, when he researched and reviewed statutes, Parole Commission regulations,

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and applicable case law. See Doc. 1 at 4. He does not show that this late discovery

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resulted from some objective, external factor that impeded his efforts to comply with the

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procedural rules, and thus he has not shown cause.

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Petitioner also contends that he has already written a letter to the Parole

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Commission requesting administrative relief concerning his claims. Doc. 28 at 4 (citing

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Doc. 14 at 12). Petitioner argues that Respondent’s failure to respond to this letter

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demonstrates that exhaustion of administrative remedies would be futile. Id. But a

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failure of the Parole Commission to respond to Petitioner’s letter does not establish that

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appeal to the National Appeals Board would be futile. This “argument assumes that the

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[Parole] Commission speaks for the National Appeals Board. It does not. If it did,

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exhaustion would always be futile, and the exhaustion requirement would be

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nonsensical.” Medrano v. U.S. Parole Comm’n, No. CV 14-2294 TUC JGZ, 2015 WL

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631281, at *3 (D. Ariz. Feb. 13, 2015). Additionally, a court within the Central District

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of California considering the same issue concluded that “an appeal to the National

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Appeals Board would not have been futile since, on appeal, the Board would have

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considered the Sixth Circuit’s decision in Terrell v. United States, 564 F.3d 442 (6th Cir.

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2009), which supports petitioner’s claim that a videoconference parole hearing violates

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his rights under 18 U.S.C. § 4208(e).” Wooton v. U.S. Parole Comm’n, No. CV 09-7906-

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VBF (RC), 2010 WL 2682387, at *4 (C.D. Cal. Apr. 12, 2010). Petitioner has not shown

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that pursuing administrative remedies would be futile.1

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Additionally, Petitioner has not shown that the actions of the agency in conducting

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video hearings “clearly and unambiguously violate statutory or constitutional rights.”

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Terrell v. Brewer, 935 F.2d at 1019. While the Sixth Circuit found in Terrel v. U.S. that

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videoconference parole hearings violate § 4208(e), the Ninth Circuit has yet to decide this

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issue. A court in the Central District of California has shown that it is inclined to follow

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the Sixth Circuit, but that decision is not binding here. See Morrow v. U.S. Parole

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Comm’n, No. CV 12-700 DSF RZX, 2012 WL 2877602, at *2 (C.D. Cal. Mar. 20, 2012).

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What is more, the Morrow court decided only that the videoconference argument was

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likely to succeed on the merits. Id. This is not sufficient to show that videoconference

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parole hearings “clearly and unambiguously” violated Petitioner’s statutory rights. Judge

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Bade also noted that Respondents provide plausible arguments as to why Terrell v. U.S.

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and Morrow are wrongly decided. Doc. 24 at 7 (citing Doc. 16 at 5-8). Other courts

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within the Ninth Circuit have also concluded that the use of videoconference in parole

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hearings is not a clear and unambiguous violation of statutory rights. See, e.g., Franks v.

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Petitioner also contends that this letter shows he has exhausted his administrative
remedies. But exhaustion of administrative remedies requires appeal of a claim
concerning a parole hearing to the National Appeals Board. Weinstein, 902 F.2d at 1453.
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Sanders, No. CV 09-8690-CBM CW, 2012 WL 4107740, at *4 (C.D. Cal. July 13, 2012).

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The Court agrees.

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Finally, Petitioner has failed to show that administrative remedies are inadequate

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to prevent irreparable injury. See Terrell v. Brewer, 935 F.2d at 1019; Mangum v. Ives,

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No. CV 13-4276-MWF RNB, 2013 WL 5755493, at *4 (C.D. Cal. Oct. 23, 2013);

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Salinas-Becerra v. Woodring, No. CV 08-3018-VBF RNB, 2008 WL 4224563, at *2

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(C.D. Cal. Sept. 11, 2008).

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Because Petitioner did not exhaust his administrative remedies or establish that he

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satisfies any of the exceptions to the exhaustion requirement, the Court will dismiss his

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claims without prejudice.

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IT IS ORDERED:

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Magistrate Judge Bridget S. Bade’s R&R (Doc. 24) is accepted.

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2.

The Petition for writ of habeas corpus (Doc. 1) is denied without prejudice.

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3.

A certificate of appealability and leave to proceed in forma pauperis on

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appeal are denied.

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4.

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Dated this 3rd day of February, 2017.

The Clerk of the Court is directed to terminate this action.

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