WADE v. WARDEN FCI FAIRTON et al

Filing 15

OPINION FILED. Signed by Judge Renee Marie Bumb on 10/31/16. (js)

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

HUGH MAURICE ALLEN WADE,
Petitioner,
v.
WARDEN, FCI FAIRTON, and
U.S. PAROLE COMMISSION
Respondents.

:
:
: Civil Action No. 15-8925 (RMB)
:
:
:
OPINION
:
:
:
:
:
:

BUMB, District Judge
This

matter

comes

before

the

Court

upon

Petitioner’s

submission of an Amended Petition under 28 U.S.C. § 2241 (ECF
Nos. 1, 8); Respondents’ Answer to the Amended Petition (ECF
Nos. 7, 12); and Petitioner’s Response (ECF No. 9.) Also before
the Court is Petitioner’s letter request for a hearing and for
appointment of pro bono counsel. (ECF No. 14.) For the reasons
discussed

below,

Petitioner’s

request

for

a

hearing

and

for

appointment of pro bono counsel will be denied, and the habeas
petition will be denied.
I.

BACKGROUND OF PAROLE REVOCATION
Petitioner, Hugh Maurice Allen Wade, is a federal inmate

confined at the Federal Correctional Institution in Fairton, New

Jersey (“FCI-Fairton”) (ECF No. 1, ¶2.) On January 30, 1979,
Petitioner was sentenced in the United States District Court for
the District of Maryland to a prison term of fifteen years for
distribution

of

heroin,

a

consecutive

ten

years

for

bank

robbery, and a 5-year special parole term to follow. (Gervasoni
Certificate, ECF No. 7-4, Ex. 1 [Sentence Monitoring Computation
Data, pp. 7-8]).
The Commission paroled Petitioner from this aggregate 25year sentence on September 29, 1986, to remain under “regular”
parole supervision until July 24, 2002.1 (Id., Ex. 2 [Certificate
of Parole]). The Commission revoked Petitioner’s parole on April
11, 1991, ordering that he receive no credit for time spent on
parole. (Id., Ex. 3 [Notice of Action]). The period forfeited
was from February 23, 1979 through September 29, 1986. (Id., Ex.
1 [Sentence Monitoring Computation Data, p. 7, “date committed”
and p. 9, “actual satisfaction date”]).
Petitioner

was

reparoled

July

3,

1992,

to

remain

under

regular parole supervision until November 23, 2006. (Id., Ex. 4
[Certificate of Parole]).
The Commission revoked Petitioner’s parole again on April
25, 1995, ordering that he receive no credit for time spent on
parole, and that he serve 32 months prior to reparole. (Id., Ex.

1 Special parole follows termination of the “regular” parole
supervision. See 28 C.F.R. §2.57(a).
2

5 [Notice of Action]). He forfeited credit for this revocation
from July 2, 1992 through December 28, 1994 (warrant executed).
(Gervasoni Certificate, Ex. 1 [Sentence Monitoring Computation
Data,

p.

3,

“date

warrant

executed”

and

p.

6,

“actual

satisfaction date”]). Based on an institutional rule infraction,
the reparole date was extended by 60 days. (Id., Ex. 6 [Notice
of Action]).
Petitioner

was

again

paroled

on

October

28,

1999,

with

parole supervision extending until May 19, 2009. (Id., Ex. 7
[Certificate of Parole and Certificate of Special Parole]). The
BOP also issued a certificate of special parole, showing that
Petitioner’s special parole term, assuming successful parole,
would commence May 20, 2009, and run until May 19, 2014. (Id.)
On May 13, 2003, the Commission issued a warrant charging
Petitioner with violating the conditions of parole by committing
violations

of

law

including

theft,

possession

of

controlled

dangerous substance, fraud by identity theft and forgery,. (Id.,
Ex.

8

[Warrant

Application

and

Warrant]).

The

Commission

instructed the United States Marshals Service that its warrant
should be placed as a detainer. (Id., Ex. 9 [Memorandum]). The
warrant was executed on October 1, 2014. (Id., Ex. 11 [Warrant
Return]).
On June 1, 2005, the Baltimore City Circuit Court sentenced
Petitioner to an aggregate 21-year sentence for theft, forgery
3

and related counts. (Id., Ex. 9, p. 2.) On October 14, 2014, the
Commission

supplemented

(Gervasoni

its

Certificate,

warrant

Ex.

10

with

this

[Supplement

information.
to

Warrant

Application]). Petitioner’s parole revocation hearing was held
on

March

Summary])

4,

2015.

(Id.,

Ex.

12,

p.

1

[Revocation

Hearing

The Commission ordered his parole revoked, with no

credit for time spent on parole, and further ordered that he
serve to the expiration of his sentence. The time forfeited was
from October 28, 1999 (parole) release through October 1, 2014
(execution of warrant). (Id., Ex. 7, 11 [Certificate of Parole
and Warrant Return]).
The

decision

was

a

departure

from

Petitioner’s

parole

guideline range, which was 60-72 months. (Id., Ex. 13, p. 2
[Federal Institutional Revocation]). Instead, Petitioner would
serve about 214 months to expiration of his sentence. (Id., Ex.
12, p. 4 [Revocation Hearing Summary]). The Commission gave the
following reasons for departure:
After review of all relevant factors and
information, a decision above the guidelines
is warranted because you are a more serious
risk than indicated by your salient factor
score due to your history of repetitive
sophisticated criminal behavior involving
fraud, identity theft, and the manufacture
and cashing of counterfeit business payroll
checks. Specifically, you have two prior
convictions, committed while on parole for
Bank Robbery, that involves sophisticated
fraud similar to your current violation
behavior.
4

. . .
This now marks your third consecutive parole
revocation due to new convictions involving
check
fraud
and
the
manufacture
of
counterfeit
checks
for
cashing.
The
Commission finds, with each consecutive
conviction,
the
fraud/theft
scheme
and
counterfeit check operations have become
more sophisticated through the use of new
technology
(i.e.,
computers,
programs,
scanners, and printers), and larger in both
scale and scope, in that the new conduct
also involves Identity Theft and credit
cards.
Additionally, the Commission finds
that prior lengthy prison terms have not
deterred you from committing similar crimes.
The Commission further finds your advanced
age of 67 will not likely deter you from
committing similar crimes if paroled because
were already older than 41-years-old when
you committed the conduct resulting in your
first
parole
revocation.
Thus,
the
Commission concludes, neither length of
sentence
nor
advanced
age
are
good
indicators of a reduced risk to recidivate.
After consideration of all relevant factors,
the
Commission
finds
your
pattern
of
repetitive sophisticated criminal behavior
creates a reasonable probability you will
commit similar crimes if released, and your
continued incarceration is necessary to
protect the public welfare.
(Gervasoni Certificate, Ex. 13, pp. 3-4 [Revocation Hearing
Summary]).
Petitioner

filed

an

administrative

appeal

in

which

he

argued that a decision outside the guidelines was not supported.
(Id., Ex. 14 [Appeal]). The National Appeals Board affirmed the
Commission’s

decision.

(Id.,

Ex.

Appeal]).

5

15

[Notice

of

Action

on

II.

DISCUSSION
A.

Jurisdiction

A habeas petition under 28 U.S.C. § 2241 is the proper
vehicle

for

a

prisoner

to

challenge

the

execution

of

his

sentence, including parole decisions by the United States Parole
Commission. U.S. v. Kennedy, 851 F.2d 689, 690 (3d Cir. 1988)
(citing

United

States

v.

Ferri,

686

F.2d

147,

158

(3d

Cir.

1982), cert. denied, 459 U.S. 1211 (1983)). Habeas relief is
available

when

Constitution

or

a

person
laws

or

“is

in

custody

treaties

of

in

the

violation

United

of

States.”

the
28

U.S.C. § 2241(c)(3). A federal court’s standard of review over a
Parole

Commission’s

decision

is

whether

there

is

a

rational

basis in the record for the Commission’s conclusions. Furnari v.
Warden, 218 F.3d 250, 254 (3d Cir. 2000).
B.
If

Evidentiary Hearing
a

habeas

petition

presents

only

issues

of

law

an

evidentiary hearing is not required. 28 U.S.C. § 2243; Yohn v.
Love, 76 F.3d 508, 515 (3d Cir. 1996)(an evidentiary hearing in
a habeas proceeding under 28 U.S.C. § 2241 is not mandatory if
the court can decide the issues on the evidence contained in the
record.) All of the issues presented in the petition can be
determined

without

additional

fact-finding.

Petitioner’s request for a hearing is denied.
C.

Appointment of Pro Bono Counsel
6

Therefore,

There

is

no

constitutional

or

statutory

right

to

appointment of counsel in a civil proceeding. Ray v. Robinson,
640

F.2d

474,

478

(3d

Cir.

1981).

28

U.S.C.

§

1915(e)(1)

provides: “[t]he court may request an attorney to represent any
person unable to afford counsel.” In exercising its discretion
to request that an attorney represent a civil litigant on a pro
bono basis, the court must consider as a threshold matter the
claims have “some merit in law and fact.” Tabron v. Grace, 6
F.3d 147, 155 (3d Cir. 1993).

(quoting Maclin, 650 F.2d at 887

(quoting Spears v. United States, 266 F.Supp. 22, 25–26 (S.D.
W.Va.

1967)).

The

habeas

petition

passes

this

threshold

requirement. Therefore, the court must weigh additional factors
in determining whether to appoint pro bono counsel. Id.
The first factor is the litigant’s ability to present his
or her case. Id. at 156. This factor is significant here because
Petitioner has ably presented an extensive habeas petition and
on his own behalf, successfully sought to amend the petition to
add

additional

Petitioner

claims,

and

replied

demonstrates

an

ability

to
to

Respondents’
address

a

Answer.
complex

statutory and regulatory scheme regarding parole decisions.
A

second

investigation

factor
will

be

is

the

required.

degree

to

Id.

additional

No

which

factual
factual

development is necessary for the Court to decide the issues of
law presented in the habeas petition. Furthermore, the case is
7

not likely to turn on credibility determinations and will not
require expert witnesses. Therefore, the factors weigh against
appointing counsel in this § 2241 proceeding, and the Court will
deny Petitioner’s request for appointment of pro bono counsel.
D.

Exhaustion of Administrative Remedies

Respondents assert Petitioner has not exhausted any of the
three levels of the administrative remedy process concerning his
claim

that

the

BOP

erroneously

(Ground

Twelve),

and

against

Old

inmates

Law

his

denied

Industrial/Work

claim

that

the

(unlike

“New

Law”

BOP

Credit

discriminates

inmates

–

whose

convicted offenses were committed on or after November 1, 1987)
by holding them to higher standards to receive “Reductions in
Sentences”

(RIS)(Ground

Thirteen).

(Declaration

of

Patricia

Kitka, ECF No. 7-1, ¶¶ 6-10).
The Third Circuit Court of Appeals applies the exhaustion
doctrine

to

petitions

for

a

writ

of

habeas

corpus

under

28

U.S.C. § 2241. Gambino v. Morris, 134 F.3d 156, 171 (3d Cir.
1998).

Federal

prisoners

are

ordinarily

required

to

exhaust

their administrative remedies before filing a petition for a
writ of habeas corpus under 28 U.S.C. § 2241. Moscato v. Federal
Bureau of Prisons, 98 F.3d 757, 761-62 (3d Cir. 1996). The goals
of the exhaustion doctrine are (1) facilitating judicial review
by allowing the agency to develop a factual record and apply its
expertise,

(2)

conservation

of
8

judicial

time

if

the

agency

grants

the

relief

sought,

and

(3)

giving

an

agency

the

opportunity to correct its own errors. Id. Failure to exhaust
administrative remedies creates a procedural default barring a §
2241

habeas

petition

absent

a

showing

of

cause

and

actual

prejudice to excuse the default. Id. at 762.
Petitioner has not addressed Respondents’ contention that
he failed to exhaust the BOP administrative remedy process for
the claims against the BOP raised in his petition. See 28 C.F.R.
§§ 542.10-18 (describing BOP administrative remedy procedure).
Although

there

requirement,

is

a

futility

Petitioner

has

exception

not

to

attempted

the
to

exhaustion
demonstrate

futility. See Gambino, 134 F.3d at 171 (noting exhaustion is not
required “when the petitioner demonstrates that it is futile.”)
Therefore, the Court will dismiss these claims without prejudice
because

Petitioner

failed

to

exhaust

his

administrative

remedies.2
E.

Ground One

In Ground One, Petitioner contends the Commission used a
1991 conviction that had been vacated to determine he was a poor
parole

risk.

Respondents

assert

the

Commission

first

revoked

Petitioner’s parole based on a July 24, 1990 conviction for

2

The
Court
notes
that
if
all
additional
avenues
of
administrative remedy are now closed to Petitioner, his
unexhausted claims are procedurally defaulted, absent a showing
of cause and prejudice. Moscato, 98 F.3d at 762.
9

conspiracy

and

uttering,

for

which

he

received

a

ten-year

sentence. (Id., Ex. 3 [Notice of Action]).
Furthermore, Respondents claim Petitioner explained, during
his most recent revocation hearing, that the sentence for the
1990 conviction was suspended. (Gervasoni Certificate, Ex. 16
[Revocation Summary]). In reply, Petitioner submits that he was
mistaken

about

the

suspended

sentence;

the

conviction

was

actually vacated but he has been unable to obtain documents
supporting

this

claim.

(Id.)

In

any

event,

Respondents

note

Petitioner admitted, at the most recent revocation hearing, that
he cashed a counterfeit check and “was involved with two other
checks”

in

connection

with

the

1990

conviction.

(Gervasoni

Certificate, Ex. 16 [Revocation Summary]). Even assuming that
the conviction was vacated, Respondents contend the Commission’s
reasons
vacation

for
of

departure
the

from

conviction

the

guidelines

because

are

Petitioner

unaffected

by

admitted

the

underlying misconduct.
First, the Court notes Petitioner’s Salient Factor Score
for prior convictions under the Parole Guidelines is the same
whether he had two rather than three prior convictions. See 28
C.F.R. § 2.20, Salient Factor Scoring Manual, Item A. Second,
the Commission is authorized to make “parole decisions outside
the

guidelines

Campbell

v.

where

U.S.

‘good

Parole

cause’

Com’n,
10

704

is

determined

F.2d

106,

to

111

exist.”
(3d

Cir.

1983)(quoting

18

U.S.C.

§

4206(c)(1976)).

Even

if

the

Court

assumes Petitioner was innocent of the 1990 conviction, his two
subsequent
provide

convictions

good

cause

for

for

crimes
the

committed

Commission’s

while

on

exercise

parole
of

its

discretion in departing upward from the guidelines. A habeas
court “cannot disturb the Parole Commission’s ruling unless it
acted arbitrarily or capriciously or abused its discretion in
reaching its result.” U.S. v. Friedland, 83 F.3d 1531, 1542 (3d
Cir. 1996). Therefore, the Court will deny Ground One of the
Amended Petition.
F.

Ground Two

Petitioner contends there are mitigating circumstances that
justify a different decision by the Commission, including his
diagnosis of multiple myeloma in 2009, his confinement to a
wheelchair for the last several years, and that he served 12
years imprisonment in the State of Maryland on the conviction
for

which

Commission

his

parole

considered

was

but

revoked.

rejected

Respondents

these

factors.

argue

the

(Gervasoni

Certificate, Ex. 12, p. 1 [Revocation Hearing Summary]; id., Ex.
14 [Appeal]). The Parole Commission “has the complete authority
to assign the weight to any mitigating factors in determining
whether

to

grant

parole.”

Furnari,

531

F.3d

at

255

(citing

Campbell, 704 F.2d at 113.) Therefore, this Court cannot dictate
to the Commission the weight to be given to Petitioner’s age and
11

medical condition. Petitioner is not entitled to habeas relief
on Ground Two of the Amended Petition.
G.

Ground Three

Petitioner
because

the

asserts

Parole

he

was

treated

Commission

did

not

unequally
follow

from

others

precedent

in

awarding parole violator credit for time he served in a state
facility. He seeks credit for 12 years served in the Maryland
Department of Corrections.
Respondents
convictions

as

explain
a

basis

that
for

the

the

Commission

forfeiture

of

considers

street

time,

pursuant to 18 U.S.C. § 4210(b)(2) and 28 C.F.R. § 2.52(c)(2).
18 U.S.C. § 4210(b)(2)(repealed) provides that in the case of
any prisoner “who has been convicted of any offense” that is
punishable

by

a

term

of

incarceration,

the

Commission

shall

decide “whether all or any part of the unexpired term being
served

at

the

time

of

parole

shall

run

concurrently

or

consecutively with the sentence imposed for the new offense.”
28

C.F.R.

§

2.52(c)(2)

provides

that

"[i]t

is

the

Commission's interpretation of 18 U.S.C. § 4210(b)(2) that, if a
parolee has been convicted of a new offense committed subsequent
to his release on parole which is punishable by any term of
imprisonment, detention, or incarceration in any penal facility,
forfeiture of time from the date of such release to the date of

12

execution of the warrant is an automatic statutory penalty, and
such time shall not be credited to the service of the sentence."
The Commission gave Petitioner “reparole guidelines credit”
for

the

137

Certificate,

months
Ex.

he

12,

served

p.

4

in

state

[Revocation

custody.

Hearing

(Gervasoni

Summary](“The

subject has been in custody 143 months as of 3/25/2015, which
includes guideline credit of 137 months for time in custody in
service

of

the

execution.”);

conviction

id.,

Ex.

in

13,

charge

p.

2

1

prior

[Notice

to

of

the

warrant

Action](“As

of

2/23/2015, you have been in confinement as a result of your
violation behavior for a total of 142 months.”)
Regulations require the Commission to give credit against
the

reparole

guidelines

for

periods

of

time

a

parolee

was

incarcerated on a new state or federal sentence. 28 C.F.R. §
2.21(c) provides:
Time served on a new state or federal
sentence shall be counted as time in custody
for reparole guideline purposes. This does
not affect the computation of the expiration
date of the violator term as provided by
§§2.47(d) and 2.52(c) and (d).
(emphasis added).
28
parole

C.F.R.
is

federal,

§

2.47(e)(1)

revoked

state,

or

"shall
local

be

provides
given

that

credit

confinement

on

a

a

violator

for
new

all

whose

time

offense

in
for

purposes of satisfaction of the reparole guidelines at §§ 2.20

13

and 2.21." See Staege v. U.S. Parole Commission, 671 F.2d 266,
269

(8th

Cir.

1982)(recognizing

distinction

between

reparole

guidelines credit and calculation of violator term.)
Respondents
determine

when

are
a

correct.

prisoner

Reparole

will

be

credit

reparoled

on

is
his

used

to

revoked

sentence, not when the sentence will expire. See Smith v. U.S.
Parole Com’n, 563 F. App’x 99, 102 (3d Cir. 2014). Under the
regulations, Petitioner is entitled only to reparole guidelines
credit for time served on his state sentence. Therefore, Ground
Three of the Amended Petition fails.
H.

Ground Four and Supplemental Grounds One and Two

In Ground Four, Petitioner contends the Commission violated
his right to due process by not giving him advance notice that
his previous violations would be used against him as aggravating
circumstances to go above the guidelines. Therefore, he was not
prepared to argue that one of the convictions used against him
was vacated.
Similarly,

in

Supplemental

Ground

One

of

the

Amended

Petition (ECF No. 8), Petitioner asserts that the Commission
denied his right to due process by not advising him that he was
exposed to a confinement beyond the parole guidelines by virtue
of having three new criminal conduct violations. In support of
this

claim,

Petitioner

argues

the

Armed

Career

Criminal

Act

requires fair notice of enhanced sentencing, and the same should
14

apply to parole revocation. Finally, in Supplemental Ground Two
of the Amended Petition, Petitioner contends the Commission did
not properly certify his 1990 conviction, which was used to
exceed the guidelines at his revocation hearing.
Respondents argue Petitioner does not have a due process
right

to

against

notice

him

in

of

previous

determining

violations

that

he

was

that
a

might

poor

be

parole

used
risk.

Furthermore, Petitioner had a right under 28 C.F.R. § 2.56(a) to
request copies of disclosable records in his file; and such
requests are “answered as soon as possible in the order of their
receipt.” (Respondents’ Answer to Pet. for a Writ of Habeas
Corpus

Pursuant

to

28

U.S.C.

§

2241,

ECF

No.

7

at

21.)

Respondents assert, however, that Petitioner does not have a
right to be notified of his right to request documents.
The minimal due process requirements for a final parole
revocation hearing include:
(a) written notice of the claimed violations
of parole; (b) disclosure to the parolee of
evidence against him; (c) opportunity to be
heard in person and to present witnesses and
documentary evidence; (d) the right to
confront and cross-examine adverse witnesses
(unless the hearing officer specifically
finds
good
cause
for
not
allowing
confrontation); (e) a ‘neutral and detached’
hearing body such as a traditional parole
board, members of which need not be judicial
officers or lawyers; and (f) a written
statement by the factfinders as to the
evidence relied on and reasons for revoking
parole. We emphasize there is no thought to
15

equate
this
second
stage
of
parole
revocation to a criminal prosecution in any
sense. It is a narrow inquiry; the process
should
be
flexible
enough
to
consider
evidence including letters, affidavits, and
other material that would not be admissible
in an adversary criminal trial.
Morrissey, 408 U.S. at 489.
Although due process requires disclosure of the evidence to
be used against the parolee at his parole revocation hearing, it
is

unclear

information

whether
that

this

the

extends

Commission

to

advance

may

deem

disclosure
an

of

aggravating

circumstance warranting a decision beyond the guidelines. See
Kell

v.

U.S.

1994)(comparing

Parole

Com’n,

statutory

and

26

F.3d

1016,

regulatory

1022

schemes

(10th
for

Cir.

parole

revocations hearings and parole determination proceedings and
due process requirements.)
There is a three-part inquiry for determining whether a
particular

procedure

is

required

by

the

Due

Process

including:
[f]irst, the private interest that will be
affected by the official action; second, the
risk of an erroneous deprivation of such
interest through the procedures used, and
the probable value, if any, of additional or
substitute
procedural
safeguards;
and
finally,
the
Government's
interest,
including the function involved and the
fiscal and administrative burdens that the
additional
or
substitute
procedural
requirement would entail.

16

Clause

Kell, 26 F.3d at 1022 (quoting Matthews v. Eldridge, 424 U.S.
319,

335

(1976)).

context

of

advance

The

parole

disclosure

Tenth

Circuit

revocation,
of

all

due

concluded

process

information

that,

does

the

in

not

the

require

Commission

might

consider as a basis for exceeding the guidelines. Id. at 1023.
The Tenth Circuit reasoned that a parolee has a substantial
interest

in

avoiding

unjustified

departure

from

the

parole

guidelines, but the Government has a substantial interest in
avoiding undue delay in parole revocations proceedings. Id. at
1022. Advance notice of all information the Commission might
treat

as

an

aggravating

pre-revocation
additional
parolee’s

hearing

delay
risk

information

for

that

in

circumstance
review

of

disclosure
the

exceeding

of

Commission
the

would

the

require

parolee’s

the

extensive
file,

information.

could

guidelines

rely
is

on

Id.

and
The

inaccurate

reduced

by

the

parolee’s opportunity to respond by administrative appeal. Id.
The Tenth Circuit determined that advance disclosure would
be of limited value because aggravating circumstances for parole
revocation,
Sentencing

like

upward

Guidelines,

departures

were

in

generally

sentencing
drawn

from

under

the

“documented

administrative history” otherwise available to the parolee. In
other words, a parolee has access to his prior parole revocation
and criminal history before his parole revocation hearing, and
advance notice of such provides little more than “time to refine
17

legal arguments.” Id. at 1023. Given these considerations, this
Court

agrees

process

with

does

information

not

the

the

Tenth

require

Commission

Circuit’s

advance
might

conclusion

disclosure

consider

as

that

due

all

the

basis

for

for

the

of
a

exceeding the guidelines.
Furthermore,

there

is

no

due

process

right

Commission to “certify” a conviction before it can consider the
conviction in determining a person’s parole risk. There is no
basis to impose such a due process right because the Commission
may in fact revoke parole on the basis of charges that the
parolee has been acquitted of in court because the Commission
makes

findings

by

a

preponderance

of

the

evidence

standard,

which is lower than guilty beyond a reasonable doubt. See e.g.,
Standlee

v.

Rhay,

1977)(“collateral
revocation

hearing

557

estoppel
after

F.2d
does

a

1303,

not

criminal

bar

1307
a

(9th

subsequent

acquittal.

The

Cir.
parole

sanctions

imposed and the burdens of proof are different.”)
Finally, there is no basis to impose the standards for
enhancing a sentence under the Armed Career Criminal Act on the
U.S.

Parole

Commission’s

guidelines

determinations

because

parole revocation is not part of a criminal prosecution. See
Morrissey v. Brewer, 408 U.S. 471, 480 (1972). Therefore, the
Court will deny Ground Four and Supplemental Grounds One and Two
of the Amended Petition.
18

I.

Ground Five

Petitioner

believes

the

Commission

improperly

“double-

counted” by using the same factors to designate a guideline
range of 60-72 months as it used to exceed the guideline range.
Respondents disagree because the Commission departed from the
guidelines based on Petitioner’s pattern of fraud offenses of
escalating severity, and his guidelines only took into account
that

his

offense

involved

fraud/theft

of

more

than

$500.

(Gervasoni Certificate, Ex. 13, pp. 2, 3 [Notice of Action]).
Therefore,

in

considering

the

aggravating

factors,

the

Commission took into account considerations beyond those that
were used in making the guidelines determination.
Double-counting

is

when

the

Commission

uses

“the

same

factor in scoring a prisoner pursuant to the guidelines and as
an

aggravating

factor

justifying

a

decision

above

the

guidelines.” Harris v. Martin, 792 F.2d 52, 55 (3d Cir. 1986).
In

Harris,

because

the

Harris

Commission
conceded

did

his

not

offense

impermissibly
involved

six

double-count
times

more

heroin than the amount used to set the offense severity for the
guidelines. Id.
Good cause for the Parole Commission to depart from the
guidelines includes “consideration of factors such as whether
‘the prisoner was involved in an offense with an unusual degree
of sophistication or planning or has a lengthy prior record, or
19

was part of a large scale conspiracy or continuing criminal
enterprise.’” Furnari, 531 F.3d at 253 (quoting Romano v. Baer,
805 F.2d 268, 270 (7th Cir. 1986)(quotation marks and citation
omitted)).
Here, the Commission scored the offense severity rating as
Category 5 because the crime involved possession of instruments
for manufacture of forged checks. (Gervasoni Certificate, Ex.
12, p. 3 [Revocation Hearing Summary]). The decision to depart
upward

from

the

guidelines

was

based

on

additional

considerations, including that each of Petitioner’s consecutive
convictions for fraud and counterfeit check operations became
more sophisticated and larger in scale and scope. Id. at 34.
Despite

longer

prison

sentences

with

subsequent

convictions,

Petitioner was not deterred from committing similar but more
sophisticated crimes. Therefore, Respondents are correct; the
Commission
beyond

based

those

the

guidelines

considered

in

the

departure
offense

on

considerations

severity

rating.

The

Commission did not violate Petitioner’s due process rights by
“double counting.” The Court will deny Ground Five of the habeas
petition.
J.

Grounds Six and Eight3

Petitioner challenges the calculation of credit for twelveyears served in state custody until he was taken into federal
3

The petition does not contain a Ground Seven.
20

custody on October 1, 2014. Petitioner asserts that because 28
C.F.R. § 2.21 is in conflict with the Commission’s Procedures
Manual Section 2.20-03(D), the rule of lenity should apply and
he should get twelve years credit against his sentence.
Respondents

suggest

Petitioner

misunderstands

the

difference between credit towards satisfaction of his sentence,
and credit towards his reparole guidelines. Section 2.20-03(d)
of the Procedures Manual instructs employees how to calculate
“time in custody” for purposes of the reparole guidelines. This
provision is not in conflict with 28 C.F.R. § 2.21(c), which
instructs that:
Time served on a new state or federal
sentence shall be counted as time in custody
for reparole guideline purposes. This does
not affect the computation of the expiration
date of the violator term as provided by
Sections 2.47(e) and 2.52(c) and (d).
(emphasis added).
In

reply,

Petitioner

states

he

understands

that

the

Government gave him reparole credit for 137 months served in
state custody, but when added to the 17 years he served in
federal custody, it equals 29 years, which is four years more
than his actual sentence.
Petitioner’s claim that §§ 2.21(c) and 2.20-03(d) are in
conflict is incorrect. Credit towards reparole guidelines does
not

affect

the

computation

of

21

the

expiration

date

of

the

violator term. See Smith v. U.S. Parole Com’n, 563 F. App’x 99,
102 (3d Cir. 2014) (per curiam)(describing difference between
reparole date and date when original sentence would expire).
Section
original

2.21(a)

does

sentence.

not

The

apply

to

Commission

the

computation

properly

of

the

calculated

the

expiration date of the violator term pursuant to § 2.47(e).4

4

28 C.F.R. § 2.47(e)(1), (2) provides:
(e)(1) A parole violator whose parole is
revoked shall be given credit for all time
in federal, state, or local confinement on a
new offense for purposes of satisfaction of
the reparole guidelines at § 2.20 and §
2.21.
(2) However, it shall be the policy of the
Commission
that
the
revoked
parolee's
original sentence (which due to the new
conviction, stopped running upon his last
release from federal confinement on parole)
again start to run only upon release from
the confinement portion of the new sentence
or the date of reparole granted pursuant of
these rules, whichever comes first. . . .

In Petitioner’s case, his 25-year sentence for distribution of
heroin, bank robbery, bank larceny, assault during a bank
robbery, and aiding and abetting stopped running on his parole
release date of October 28, 1999, at which time Petitioner had
3,491 days remaining on his 25-year sentence. (Gervasoni
Certificate, Ex. 8, p.3 [Warrant]). The sentence did not begin
to run again until October 1, 2014, when Petitioner was taken
into federal custody on the detainer. Therefore, the 3,491 day
sentence (nine years, six months and 21 days) will start to run
on October 14, 2015, and the Commission properly calculated
Petitioner’s
sentence.
(Id.,
Ex.
1
[Sentence
Monitoring
Computation Data as of 04-29-2015]).
22

Therefore, the Court will deny Grounds Six and Eight of the
petition.
K.

Ground Nine

Petitioner
Parole

alleges

Commission

that

did

when

not

parole

follow

was

the

abolished,

mandate

of

the
the

Administrative Procedure Act, 5 U.S.C. § 553 because the agency
did not give an opportunity to participate in the rule-making
process. In support of this claim, Petitioner alleged the agency
no longer has a Regional Commissioner to approve or deny the
Examiner’s decision. He concludes the agency acted arbitrarily,
and the court can set aside agency action.
Respondents

note

Petitioner

failed

to

point

to

any

particular change in Commission regulations that was not carried
out in accordance with the notice and comment provisions of the
Administrative

Procedures

Act.

Furthermore,

Petitioner

is

incorrect that there are no longer Regional Commissioners to
review recommendations made by hearing officers. Review by the
Regional Commissioner is governed by 28 C.F.R. § 2.24.
Upon

this

Court’s

review

Petitioner

does

not

set

forth

Commission

violated

the

notice

of
a

the

Amended

cognizable
and

comment

claim

Petition,
that

requirement

the
of

Section 4 of the APA, 5 U.S.C. § 553. See Perez v. Mortgage
Bankers Ass’n, 135 S.Ct. 1199, 1203-04 (3d Cir. 2015)(describing

23

three-step notice and comment rulemaking procedure). Therefore,
the Court will deny Ground Nine of the habeas petition.
L.

Ground Ten

Petitioner

contends

the

Parole

Commission

violated

the

Eighth Amendment by giving him a parole date that exceeds his
sentence.
While

it

is

true

that

the

Eighth

Amendment

prohibits

imposition of punishment that is grossly disproportionate to the
severity

of

the

crime,

see

Gregg

v.

Georgia,

428

U.S.

153

(1976), a parole revocation occurs after the end of a criminal
prosecution and does not involve the imposition of punishment in
the same manner as a criminal prosecution. See Morrissey, 408
U.S.

at

481

(“parole

arises

after

the

end

of

the

criminal

prosecution, including imposition of sentence.”) Therefore, the
Eighth Amendment is inapplicable here, and the Court will deny
Ground Ten of the petition.
M.

Ground Eleven

Petitioner claims he should receive a sentencing reduction
based on changes in the Sentencing Guidelines. He recognizes
that he was convicted prior to the new sentencing guidelines,
prohibiting him from filing a motion under 18 U.S.C. § 3582.
Nonetheless, Petitioner argues that under the new guidelines,
his age would reduce his sentence.

24

The U.S. Sentencing Guidelines were promulgated on November
1, 1987, and implemented nationwide in January 1989. Barbara S.
Meierhoefer, The Role of Offense and Offender Characteristics in
Federal Sentencing, 66 S. Cal. L. Rev. 367, 368 (Nov. 1992).
Petitioner’s federal sentence was imposed in 1979, well before
the sentencing guidelines were implemented. See U.S. v. Jones,
350 F. App’x 729, 732 (3d Cir. 2009)(petitioner who was not
sentenced under the applicable Guideline range was unaffected by
amendment

to

Guidelines

and

not

entitled

to

reduction

of

sentence under 18 U.S.C. § 3582.) Therefore, Petitioner is not
entitled to relief on Ground Eleven of the petition.
III. CONCLUSION
In the accompanying Order filed herewith, the Court will
deny Petitioner’s requests for an evidentiary hearing and
appointment of pro bono counsel, and deny the Amended Petition.
DATED: October 31, 2016
s/RENÉE MARIE BUMB
RENÉE MARIE BUMB
United States District Judge

25