RAZZOLI v. US PAROLE COM'N et al

Filing 8

OPINION. Signed by Chief Judge Jerome B. Simandle on 11/2/2012. (dmr)(n.m.)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
KEVIN RAZZOLI,
Petitioner,
v.
US PAROLE COM’N, et al.,
Respondents.

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Civil Action No. 11-7227 (JBS)
OPINION

APPEARANCES:
Petitioner pro se
Kevin Razzoli
F.C.I. Fairton
Fairton, NJ 08320
SIMANDLE, Chief Judge
Petitioner Kevin Razzoli, a prisoner currently confined at
the Federal Correctional Institution at Fairton, New Jersey, has
submitted a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 22411 and an application for leave to proceed in forma

1

Section 2241 provides in relevant part:

(a) Writs of habeas corpus may be granted by the
Supreme Court, any justice thereof, the district courts
and any circuit judge within their respective
jurisdictions.
(c) The writ of habeas corpus shall not extend to a
prisoner unless-- ... (3) He is in custody in violation
of the Constitution or laws or treaties of the United
States ... .

pauperis.2

The respondents are the U.S. Parole Commission, the

Secretary of the U.S. Navy, the Executive Office of the U.S.
Marshals, and the Warden of the Federal Correctional Institution
at Fairton, New Jersey.3
I.

BACKGROUND

Petitioner was convicted of attempted murder and attempted
kidnapping following a Navy court martial and was sentenced to a
twenty-five year term of imprisonment in 1987.

See Razzoli v.

Sullivan, No. 94-55645, 1995 WL 77569, at *1 (9th Cir. 1995)
(affirming district court denial of Petitioner’s writ of habeas
corpus challenging his 1987 military conviction).

Petitioner

challenged the conviction by writ of habeas corpus.

The Court of

Appeals for the Ninth Circuit affirmed the district court’s
denial of the habeas petition.

Id.

Petitioner was subsequently

transferred into the Federal Bureau of Prisons.

He has been

granted parole on multiple occasions, but his parole has been

2

This Court previously administratively terminated this
matter because Petitioner neither prepaid the filing fee nor
submitted an application for leave to proceed in forma pauperis.
Petitioner has now submitted a complete application for leave to
proceed in forma pauperis. Accordingly, this Court will re-open
this matter and grant Petitioner leave to proceed in forma
pauperis.
3

As the only proper respondent to a habeas petition
challenging current confinement is the warden of the facility
where the prisoner is being held, this Petition will be dismissed
without prejudice as to all Respondents except the Warden of the
Federal Correctional Institution at Fairton. See Rumsfeld v.
Padilla, 542 U.S. 426 (2004).
2

revoked repeatedly.
(3d Cir. 2007).

See Razzoli v. U.S. Navy, 248 Fed.Appx. 473

It appears from an attachment to his current

Petition that Petitioner is presently confined pursuant to yet
another revocation of parole.
Unfortunately, Petitioner’s Petition and brief in support
are largely unintelligible.

In its previous Memorandum Opinion

and Order, this Court ordered Petitioner to accompany any
application to re-open this matter with an amended petition
clearly setting forth his claims for relief.

Petitioner has

failed to submit an amended petition.
II.

STANDARDS FOR A SUA SPONTE DISMISSAL

United States Code Title 28, Section 2243 provides in
relevant part as follows:
A court, justice or judge entertaining an
application for a writ of habeas corpus shall forthwith
award the writ or issue an order directing the
respondent to show cause why the writ should not be
granted, unless it appears from the application that
the applicant or person detained is not entitled
thereto.
A pro se pleading is held to less stringent standards than
more formal pleadings drafted by lawyers.

Estelle v. Gamble, 429

U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972).
A pro se habeas petition and any supporting submissions must be
construed liberally and with a measure of tolerance.

See Royce

v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Attorney
General, 878 F.2d 714, 721-22 (3d Cir. 1989); United States v.

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Brierley, 414 F.2d 552, 555 (3d Cir. 1969), cert. denied, 399
U.S. 912 (1970).

Nevertheless, a federal district court can

dismiss a habeas corpus petition if it appears from the face of
the petition that the petitioner is not entitled to relief.

See

Lonchar v. Thomas, 517 U.S. 314, 320 (1996); Siers v. Ryan, 773
F.2d 37, 45 (3d Cir. 1985), cert. denied, 490 U.S. 1025 (1989).
See also 28 U.S.C. §§ 2243, 2255.
III.

ANALYSIS

As noted above, the Petition is largely unintelligible.
Nevertheless, it appears under any conceivable construction of
the Petition that Petitioner failed to exhaust his administrative
remedies before coming to this Court.
Although 28 U.S.C. § 2241 contains no statutory exhaustion
requirement, a federal prisoner ordinarily may not bring a
petition for writ of habeas corpus under 28 U.S.C. § 2241,
challenging the execution of his sentence, until he has exhausted
all available administrative remedies.

See, e.g., Callwood v.

Enos, 230 F.3d 627, 634 (3d Cir. 2000); Arias v. United States
Parole Comm’n, 648 F.2d 196, 199 (3d Cir. 1981); Soyka v.
Alldredge, 481 F.2d 303, 306 (3d Cir. 1973).

The exhaustion

doctrine promotes a number of goals:
(1) allowing the appropriate agency to develop a
factual record and apply its expertise facilitates
judicial review; (2) permitting agencies to grant the
relief requested conserves judicial resources; and (3)
providing agencies the opportunity to correct their own
errors fosters administrative autonomy.
4

Goldberg v. Beeler, 82 F.Supp.2d 302, 309 (D.N.J. 1999), aff’d,
248 F.3d 1130 (3d Cir. 2000).

See also Moscato v. Federal Bureau

of Prisons, 98 F.3d 757, 761 (3d Cir. 1996).

Nevertheless,

exhaustion of administrative remedies is not required where
exhaustion would not promote these goals.

See, e.g., Gambino v.

Morris, 134 F.3d 156, 171 (3d Cir. 1998) (exhaustion not required
where petitioner demonstrates futility); Lyons v. U.S. Marshals,
840 F.2d 202, 205 (3d Cir. 1988) (exhaustion may be excused where
it “would be futile, if the actions of the agency clearly and
unambiguously violate statutory or constitutional rights, or if
the administrative procedure is clearly shown to be inadequate to
prevent irreparable harm”); Carling v. Peters, 2000 WL 1022959,
*2 (E.D. Pa. 2000) (exhaustion not required where delay would
subject petitioner to “irreparable injury”).
In his original Petition, Petitioner asserts that he is an
“old law” prisoner4 and that he is illegally detained in
violation of the Ex Post Facto clause of the Constitution, citing
to Lyons v. Mendez, 303 F.3d 285 (3d Cir. 2002).
Petitioner attached to the Petition a copy of the October 7,
2011, U.S. Parole Commission “Notice of Action,” memorializing
the Hearing Officer’s decision to revoke Petitioner’s parole,

4

This Court agrees. In Razzoli v. FCI Allenwood, 200
Fed.Appx. 166 (3d Cir. 2006), the Court of Appeals for the Third
Circuit determined that Petitioner committed his offense on
October 15, 1986, as a result of which his parole claims are
governed by the “old” parole law.
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refusing to give Petitioner credit against his sentence for the
street time between December 19, 2009 and March 3, 2011, and
setting a re-parole date effective December 3, 2011.

More

specifically, the “Notice of Action” states:
Revoke Parole. No credit on the sentence shall be
given for the period beginning December 19, 2009 and
ending March 3, 2011. Re-parole effective December 3,
2011 after the service of 21 months.
As of 9/3/2011, you have been in confinement as a
result of your violation behavior for a total of 18
month(s). Guidelines established by the Commission
indicate a customary range of 12-16 months to be served
before release. After review of all relevant factors
and information, a decision above the guidelines is
warranted because you have been in custody for
approximately 18 months at the time of your hearing.
Additional time is needed for release planning
purposes.
(emphasis added).5
In Lyons, the Court of Appeals considered the authority of
the Parole Commission to set parole dates outside the guidelines

5

The Court notes that the Petition is dated December 2,
2011, and that Petitioner’s subsequent filings indicate that he
is confined after the December 3, 2011, re-parole date. In light
of Petitioner’s history of repeated paroles and revocations, it
is not apparent whether Petitioner has been continuously confined
beyond the December 3, 2011, date, or whether he was paroled and
has become re-confined, or whether he committed some act in
prison that caused his re-parole date to be reset. In any event,
as the Petition is dated before Petitioner’s re-parole date, and
as he has failed to submit an amended Petition asserting that he
has been confined beyond his re-parole date for some unlawful
reason, this Court does not construe, and will not re-write, the
Petition as asserting that he was not released timely. The
dismissal of this Petition is without prejudice to Petitioner
filing a new Petition, following exhaustion of administrative
remedies, to the extent he has been unlawfully detained beyond
his release date.
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range under Section 235(b)(3) of the Sentencing Reform Act, as
amended in 1987.

The Court held that individuals who committed

crimes between the enactment of the SRA in 1984 and the amendment
of Section 235(b)(3) in 1987 are entitled to a parole release
date within the guideline range.

By his citation to Lyons,

therefore, it appears that Petitioner (who committed his crime in
1986) seeks to challenge the Hearing Officer’s decision to impose
a re-parole date outside the guideline range.
In addition, however, Petitioner attached to the Petition
his November 16, 2011, Notice of Appeal to the U.S. Parole
Commission challenging the Notice of Action.

Petitioner failed

to attach any decision of the Parole Commission resolving that
appeal.

It appears unlikely that the administrative appeal would

have been resolved before December 2, 2011, the date of the
Petition.

As it appears that Petitioner did not exhaust his

administrative remedies before filing this Petition, and as there
is no reason on the basis of the information before this Court to
conclude that exhaustion would have been futile, this Court lacks
jurisdiction to adjudicate any challenge to the Hearing Officer’s
Notice of Action.

See Hegney v. Hogsten, 318 Fed.Appx. 60 (3d

Cir. 2008) (citing Jones v. Bock, 549 U.S. 199 (2007)).
III.

CONCLUSION

For the reasons set forth above, this action will be reopened, Petitioner will be granted leave to proceed in forma

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pauperis, and the Petition will be dismissed without prejudice
for lack of jurisdiction.

An appropriate order follows.

s/ Jerome B. Simandle
Jerome B. Simandle
Chief Judge
United States District Court
Dated:

November 2, 2012

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