THOMPSON v. D'ILIO

Filing 9

OPINION. Signed by Judge Freda L. Wolfson on 10/27/2016. (km)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

RICHARD THOMPSON,

Civil Action No. 13-6282 (FLW)

Petitioner,
v.

OPINION

STEPHEN D’ILIO,
Respondent.

WOLFSON, United States District Judge:
I.

INTRODUCTION
Petitioner Richard Thompson (“Petitioner” or “Thompson”), a federal prisoner, has

submitted a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, alleging that the
United States Parole Commission (“Parole Commission”) violated his due process rights under
the Fifth Amendment by failing to set a final parole date at his last parole hearing and for
imposing a sex-offender special condition on any eventual parole. Shortly after he filed his
Petition, Petitioner asked the Court to “supplement” his original Petition. In that Supplement to
his original Petition, he seeks a new parole hearing because the Parole Commission allegedly
withheld from Petitioner a letter submitted by the Bureau of Prisons (“BOP”) opposing his
release on parole. The named respondent in this action is Stephen D’Ilio, the Administrator at
the New Jersey State Prison where Petitioner was confined at the time he filed this Petition.
For the reasons as set forth below, the claims raised in Petitioner’s original Petition will
be denied. Respondent has not responded to the allegations in Petitioner’s supplement to the
original Petition. However, because it appears from the record that Petitioner was set to receive
a new interim parole hearing in May 2015, his request for relief may be moot. Furthermore, it
1

appears that Petitioner is no longer at New Jersey State Prison, and that he has not updated his
address pursuant to L. Civ. R. 10.1. For these reasons, the Court, having dismissed Petitioner’s
original Petition, will administratively terminate the action at this time, and issue an Order to
Show Cause requiring Petitioner to update his address and notify the Court within 30 days as to
whether the claim raised in his supplement is moot or whether still seeks relief on this claim.
II.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Court recounts only the facts necessary to the instant Opinion. In 1974, Petitioner

was serving an eight-year term under the Youth Corrections Act for rape. (See Exhibit 1 to
Gervasoni Certification attached to Respondent’s Answer; see also Thompson v. Warren, No.
CIV.A. 11-4813 JAP, 2012 WL 4889234, at *1 (D.N.J. Oct. 12, 2012) (explaining same).) 1
While serving that sentence, Petitioner killed another inmate and was convicted for that murder,
by judgment of conviction entered on June 27, 1977 before the United States District Court for
the Central District of California. Petitioner was sentenced to life in prison on the murder
conviction. (Id.) On June 4, 1980, Petitioner was released from his Youth Corrections Act
sentence to serve his consecutive life sentence. (Id.) While incarcerated on his life sentence,
Petitioner committed other offenses for which he was sentenced. (Id.) Most notably, on August
2, 1985, Petitioner was sentenced by the United States District Court for the Southern District of
Illinois to five years for attempted escape and a ten-year consecutive term for assaulting a federal
corrections officer. (Id.)
The Parole Commission conducted an initial parole hearing for Thompson in 1992,
denied parole, and ordered that he continue to serve his sentence until his 15-year

1

Unless otherwise noted, all exhibits referenced in this Opinion are exhibits to the Gervasoni
Certification, which is attached to Respondent’s Answer.
2

reconsideration hearing in February 2007. 2 Id. He received statutory interim hearings in 1994,
1996, 1998, 2001, and 2003, after which the Commission ordered no change in the prior order
that he serve until his fifteen-year reconsideration hearing. (Id.; see also Exhibits 5-9.)
The Commission conducted a de novo reconsideration hearing on September 20, 2006,
and ordered that Thompson remain incarcerated until the expiration of his sentence. (Id.; see
also Exhibit 10.) The National Appeals Board affirmed the decision on January 19, 2007. (Id.;
see also Exhibit 12.) Another statutory interim hearing was held in 2009, and the Commission
ordered no change. (Id.; see also Exhibit 13.) Thompson then received another statutory interim
hearing in March 2011, which became the subject of the Court’s decision denying habeas relief
in Thompson v. Warren, 2012 WL 4889234 (D.N.J. Oct. 12, 2012). See Thompson, 2012 WL
4889234, at *2.
In Thompson, the Court, rejected Thompson’s challenge to the denial of parole at his
March 2011 hearing, finding that there was no due process violation in the failure of the
Commission to give Thompson a final release date because the Commission was not within its
“winding up” period, and also that Thompson did not have a constitutional right to a
representative at his parole hearing. (See id. at *4-5).
On May 7, 2013, the Parole Commission conducted another statutory interim hearing for
Thompson, which forms the basis for the current habeas petition. (See Exhibit 20.) At the
hearing, the Commission noted Thompson’s history of violence, including the murder of a fellow
inmate, an escape attempt, and an incident in which he stabbed a correctional officer 17 times; it
ordered no change in its prior order that Thompson serve until the expiration of his sentence.

2

Before the Sentencing Reform Act and imposition of the Sentencing Guidelines, prisoners
sentenced to life imprisonment under the “old law” were eligible for parole after serving 30 years
of any sentence of 45 years or more.
3

(Id.) The Commission further ordered that Thompson would be subject to a “Special Sex
Offender Aftercare Condition,” which would have required him, upon his release, to participate
in an in-patient or out-patient mental health program as directed by his probation officer. (See
Exhibit 21.) The Commission further scheduled Petitioner’s next statutory interim hearing for
May 2015. (Id.)
Petitioner appealed that decision administratively, and filed the instant habeas Petition
prior to receiving a decision from the National Appeals Board. Petitioner’s original Petition,
dated October 6, 2013, was initially assigned to the Honorable Joel A. Pisano and was docketed
on October 22, 2013. (ECF No. 1.) At the time he filed his Petition, Petitioner was incarcerated
at New Jersey State Prison in Trenton, New Jersey. In his Petition, Petitioner alleges that the
United States Parole Commission violated his due process rights (1) by failing to set a final
parole date for him, and (2) by attaching a sex-offender special condition to any eventual parole
he might receive. (ECF No. 1, Pet. at 2.) He seeks a new hearing from the Parole Commission
and the removal of the sex-offender special condition. (Id., Pet. at 7.) On November 8, 2013,
the National Appeal Board issued its decision and ordered that the Special Sex Offender
Condition be withdrawn, but otherwise affirmed the May 2013 Parole Commission decision.
(See Exhibit 22.)
On December 22, 2013, Petitioner signed and submitted for filing a document titled
“Supplement to Petitioner’s Writ of Habeas Corpus Under 28 U.S.C. § 2241.” In that
submission, which was docketed on December 30, 2013, Petitioner asks the Court to permit him
to supplement his Petition filed on October 22, 2013, and alleges that his due process rights were
violated when the Parole Commission contacted the Bureau of Prisons (“BOP”) about the

4

feasibility of granting Petitioner parole without making Petitioner aware of the BOP’s opposition
to Petitioner’s parole, and by subsequently denying his parole. (ECF No. 2, Supp. Pet. at 1-2.)
On January 30, 2014, the Court ordered Respondent to answer the Petition. The Court
did not rule on Petitioner’s request to supplement his Petition, and the Order to Answer does not
reference the Supplement to his Petition. (See ECF No. 3.) On March 3, 2014, Respondent
filed its Answer to the Petition, along with the accompanying exhibits. 3 (ECF No. 4.) The
Answer does not address the claim raised in the supplement.
On March 6, 2014, Petitioner submitted his traverse. In his Traverse, Petitioner attempts
to distinguish his current challenge to the setting of a parole date from his challenge rejected by
the Court in 2012. (ECF No. 6, Traverse at 2.) Petitioner acknowledges that the second ground
for relief related to the sex-offender special condition has been mooted by the decision of the
National Appeals Board, which removed that restriction. (Id. at 3-4.) Petitioner notes that
Respondent did not respond to his supplement, and requests that the Court view this failure to
respond as “an admission of guilt” and grant habeas relief on this basis.
On March 10, 2015, the matter was transferred to the undersigned. (ECF No. 8.) A
recent search of the federal and New Jersey inmate locators indicates that Petitioner is no longer
at NJSP and may have been moved to a Federal Resident Re-Entry Facility. (See
https://www.bop.gov/inmateloc/, last visited on Oct. 26, 2016; see also
https://www20.state.nj.us/DOC_Inmate/inmatesearch, last visited on Oct. 26, 2016.)

3

The Court addresses the content of the Answer in the Analysis section of the Opinion.
5

III.

ANALYSIS
a. Claims Raised in Petitioner’s Original Habeas Petition
Plaintiff’s original Petition raises two claims for relief, alleging that the United States

Parole Commission violated his due process rights (1) by failing to set a final parole date for
him, and (2) by attaching a sex-offender special condition to any eventual parole he might
receive. (ECF No. 1, Pet. at 2.) Petitioner, however, has conceded in his Traverse that his
second claim related to the sex-offender condition has been mooted by the subsequent decision
of the National Appeals Board, which removed that restriction. (ECF No. 6, Traverse at 3-4;
Exhibit 22.) The Court agrees and therefore addresses only his first claim related to the Parole
Commission’s alleged failure to set a final parole date.
The Sentencing Reform Act of 1984, at § 218(a)(5), 98 Stat. 2027, abolished the Parole
Commission. However, Section 235(b)(1)(A), 98 Stat. 2032, kept the Parole Commission in
existence for five years after the effective date of the Act (November 1, 1987), until October 31,
1992, to process the cases of prisoners convicted of crimes committed before the effective date
of the Act, who would still be incarcerated after that date. See Romano v. Luther, 816 F.2d 832
(2d Cir. 1987); Lightsey v. Kastner, 846 F.2d 329 (5th Cir. 1988). This five-year extension has
subsequently been extended by Congress to ten, then fifteen, then eighteen, then twenty- one,
then twenty-four, then twenty-six, and most recently to thirty-one years. 4

4

Section 315 of the Judicial Improvements Act of 1990 extended the Parole Commission for five
additional years, until October 31, 1997. Pub. L. 101-650, 104 Stat. 5115. Section 2(a) of the Parole
Commission Phaseout Act of 1996 extended the existence of the Commission for an additional
five years to November 1, 2002. Pub. L.104-232, 110 Stat. 3055, Sec. 2(a) (Oct. 2, 1996). On
November 2, 2002, Congress extended the existence of the Parole Commission for three more
years, until October 31, 2005, by the21st Century Department of Justice Appropriations Act. 21st
Century Department of Justice Appropriations Act, Pub. L. 107- 273, 116 Stat. 1758, Sec. 11017
(Nov. 2, 2002). On September 29, 2005, Congress extended the Commission for three additional
years, until October 31, 2008, by the United States Parole Commission Extension and Sentencing
6

In the Petition, Thompson claims that the Parole Commission violated § 235(b)(3) of the
Sentencing Reform Act, which is commonly referred to as the “winding up” provision. As
originally enacted, this section required the Parole Commission to set release dates within the
applicable parole guideline range for inmates still incarcerated after the 5-year winding-down
period. However, Section 235(b)(3) was amended in 1987 by Section 2(b)(2) of the Sentencing
Act of 1987, and no longer requires the Commission to make decisions within the guidelines for
those still incarcerated after the abolition of the Commission. Section 235(b)(3), as amended by
subsequent amendments, reads as follows:
The United States Parole Commission shall set a release date, for
an individual who will be in its jurisdiction on the day before the
expiration of five years after the effective date of this Act, pursuant
to section 4206 of title 18, United States Code. A release set
pursuant to this paragraph shall be set early enough to permit
consideration of an appeal of the release date, in accordance with
Parole Commission procedures, before the expiration of five years
following the effective date of this Act.
Section 235(b)(3) of the Sentencing Reform Act of 1984 (Title II of Comprehensive Crime
Control Act of 1984, Pub. L. 98-473, 98 Stat. 1987, as amended).
The pertinent language in Section 235(b)(3) has been construed by the Third Circuit in
Furnari v. U.S. Parole Comm'n, 531 F.3d 241, 248 (3d Cir. 2008):
When Congress enacted section 235(b)(3) the Parole Commission
was scheduled to expire five years after the effective date of the
Commission Authority Act of 2005, Pub. L. 109-76, 119 Stat. 2035, Sec. 2 (September 29, 2005).
On August 12, 2008, Congress extended the Commission for three additional years, until October
31, 2011, by the United States Parole Commission Extension Act of 2008. Pub. L. 110- 312, 122
Stat. 3013 (Aug. 12, 2008). On October 21, 2011, Congress extended the Commission for two
additional years, until October 31, 2013, by the United States Parole Commission Extension Act
of 2011. Pub. L. 112-44, 125 Stat. 532 (October 21, 2011). And on October 30, 2013, Congress
extended the Commission for five additional years, until October 31, 2018, by the United States
Parole Commission Extension Act of 2013. Pub. L. 113-47 (October 30, 2013).
7

Sentencing Reform Act and thus it is clear that Congress
contemplated that the Parole Commission should not expire
without setting release dates for prisoners within its jurisdiction.
Though the phrase “early enough to permit consideration of an
appeal of the release date” obviously is not precise, it is applied to
require that between three to six months before the date of its
expiration, a date that has been extended several times, the Parole
Commission must set a release date which, of course, could be
scheduled for long in the future. See 28 C.F.R. § 2.64(b) (1996)
(“The release dates required by section 235(b)(3) need not be set
any earlier than the time required to allow an administrative appeal
within the ten-year period, i.e., three to six months before the end
of that period.”); Lightsey v. Kastner, 846 F.2d 329, 332 (5th
Cir.1988).
Id. In Furnari, the Parole Commission denied Furnari parole on July 8, 2005, and did not set a
release date in the three-to-six-month period before October 31, 2005, when, prior to its latest
extension, the Commission was scheduled to expire. As explained by the Third Circuit,
“[t]hough the Parole Commission's failure to set a release date might have been problematical,
Congress eliminated, or at least postponed, the problem when on September 29, 2005, it
extended the life of the Parole Commission to October 31, 2008, when it now will expire unless,
as the Government contemplates will happen, Congress extends its life.” Furnari, 531 F.3d at
249 (emphasis added); see also Hackley v. Bledsoe, 350 F. App'x 599, 601 (3d Cir. 2009) (“The
Parole Commission has never had to apply § 235(b)(3), because the commencement of the
winding up process has been continuously postponed by Congress”). Thus, under Furnari, it
appears that the Parole Commission’s failure to set a final release date in compliance with the
statute is actionable only if Congress also fails to act to extend the life of the Parole
Commission. 5

5

As explained by Respondent, other courts have consistently interpreted § 235(b)(3) as a
“winding up” provision, only requiring action by the Parole Commission when it is actually
sunsetting. See Romano v. Luther, 816 F.2d at 832; Lightsey v. Kastner, 846 F.2d at 329; Stange
v. U.S. Parole Comm’n, 875 F.2d 760 (9th Cir. 1989) (Parole Commission not required to set
8

Here, the Court finds that because Congress acted on October 30, 2013, to extend the
existence of the Parole Commission until October 31, 2018, the Commission is not in its final
“winding up” period, and any failure to set final release date for Thompson is not actionable.
The facts here are indistinguishable from Furnari, described above, and the 2012 Thompson
decision, in which the Court found that although the Parole Commission had not set a release
date within the three-to-six months before its then-scheduled expiration in October 2011, the
“failure” to do so was not actionable because Congress had extended the life of the Parole
Commission. Here, just as in Thompson’s previous case, the Parole Commission did not set a
release date in the three-to-six months prior to its then-scheduled expiration on October 31, 2013,
but, on October 30, 2013, Congress acted to extend the life of the Parole Commission through
October 2018. Further, Thompson had been scheduled for a statutory interim hearing in May
2015. (See Exhibit 21.) Accordingly, Thompson has no claim premised on the alleged “failure”
to set a release date at this time, and the Court will deny this claim for relief. See Thompson,
2012 WL 4889234, at *4-5.
b. Plaintiff’s Supplement to his Original Petition
In December 2013, several months after he submitted his original Petition, Petitioner
submitted a request to “supplement” the original Petition. In that Supplement, he seeks a new
parole hearing because the Parole Commission allegedly withheld from Petitioner a letter
submitted by the Bureau of Prisons (“BOP”) opposing his release on parole. Respondent’s
Answer did not address the claim raised in Petitioner’s supplement.

final release dates for prisoners under its jurisdiction until just prior to its abolition (then set for
November 1, 1992)); Kele v. Carlson, 854 F.2d 338, 340 (9th Cir. 1988).
9

It appears from the record, however, that Petitioner was scheduled to receive a new
interim parole hearing in May 2015. Because Petitioner seeks only a new parole hearing, his
request to supplement his Petition may be moot if he in fact received a new hearing. Generally, a
case becomes moot when the issues presented no longer present a live controversy or the parties
lack a cognizable interest in the outcome. See County of Morris v. Nationalist Movement, 273
F.3d 527, 533 (3d Cir.2001); Spencer v. Kemna, 523 U.S. 1 (1998); Powell v. McCormack, 395
U.S. 486 (1969); Prysock v. U.S. Parole Comm'n, No. CIV.08-5116 (JBS), 2010 WL 1838415, at
*3 (D.N.J. May 6, 2010). In the context of habeas challenges to parole refusals, a subsequent
parole hearing generally moots claims where the proper relief is a new parole hearing. See, e.g.,
Rollins v. Kerestes, No. 13-7473, 2015 WL 418154 (E.D. Pa. Jan. 30, 2015) (habeas challenge to
prior parole refusals became moot after new parole decision was issued, only most recent parole
denial reviewed). Notably, a search of the federal and New Jersey inmate locators indicates that
Petitioner is no longer at NJSP and may have been moved to a Federal Resident Re-Entry
Facility. (See https://www.bop.gov/inmateloc/, last visited on Oct. 26, 2016; see also
https://www20.state.nj.us/DOC_Inmate/inmatesearch, last visited on Oct. 26, 2016.) Thus, it
appears that Plaintiff has not complied with his obligation under L. Civ. R. 10.1 to notify the
Court of his new address, and it is not clear whether the claim raised in the supplement is moot
or whether Petitioner still seeks relief with respect to this claim.
For these reasons, the Court, having now dismissed the claims in the original Petition,
will administratively terminate the action at this time, and issue an Order to Show Cause
requiring Petitioner to update his address and notify the Court within 30 days as to whether the
claim raised in his supplement is moot or whether he still seeks relief on this claim.

10

IV.

CONCLUSION
For the reasons stated in this Opinion, Petitioner’s original Petition is denied. Having

dismissed the claims in the original Petition, the Court will administratively terminate the action
at this time, and issue an Order to Show Cause requiring Petitioner to update his address and
notify the Court within 30 days as to whether the claim raised in his supplement is moot or
whether he still seeks relief on this claim. An appropriate Order follows.

/s/ Freda L. Wolfson
Freda L. Wolfson, U.S.D.J.
Date: October 27, 2016

11