MCGILL v. NOGAN et al

Filing 13

OPINION filed. Signed by Judge Freda L. Wolfson on 5/7/2018. (mmh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
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JOHN MCGILL,
Petitioner,
v.
PATRICK NOGAN,
Respondent.

Civ. No. 14-6126 (FLW)

OPINION

FREDA L. WOLFSON, U.S.D.J.
I.

INTRODCUTION

Petitioner John McGill (“Petitioner”), has brought a Petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. (ECF No. 3-3.) For the reasons stated herein, Petitioner’s habeas
petition is DENIED, and Petitioner is DENIED a certificate of appealability.
II.

BACKGROUND

The following procedural history and factual summary is taken from the opinion of the
Superior Court of New Jersey, Appellate Division, denying Petitioner’s appeal from the decision
of the New Jersey State Parole Board (“Board”):
In 1982, McGill was sentenced to a five-year term of
imprisonment for theft by deception and to a consecutive eighteenmonth term for forgery, for a total term of six years and six
months. In 1983, McGill was found guilty of murder and was
sentenced to a term of life imprisonment with twenty-five years to
be served before parole eligibility. He was given 205 days of jail
credits and the sentence was to run consecutively to the 1982
sentence.
After McGill requested that his PED [parole eligibility] date be
determined, the Board calculated his earliest eligibility date for

parole as April 21, 2009. He appealed, claiming that his parole
ineligibility term cannot exceed twenty-five years, the minimum
ineligibility term under the murder conviction. We affirmed[.]
...
A two-member panel of the Board denied McGill’s first
application for parole on December 4, 2008, and referred the
matter to a three-member panel of the Board to establish an FET
[future eligibility term]. See N.J.A.C. 10A:71-3.21(d)(1). On
April 15, 2009, the three-member panel issued its notice of
decision setting a ten-year FET for McGill. The PED calculation
indicated that McGill was entitled to 996 days of commutation
credit to reduce the ten-year FET.
On November 5, 2009, McGill was found guilty of institutional
infractions and sanctioned to, inter alia, the loss of 365 days of
commutation credit. The Board adjusted McGill’s FET to account
for this sanction as follows: McGill had a balance of ninety-one
days of commutation credit on the twenty-month parole eligibility
term on the five-year (theft by deception) sentence, and forty-four
days of commutation credit on the six-month parole eligibility term
on the eighteen-month (forgery) sentence. The balances were
combined (135 days) and deducted from the 365-day sanction,
leaving a balance of 230 days, which was deducted from the 996
days applied to the FET.
McGill challenged this determination and on June 26, 2012, the
Board rejected his appeal, finding it moot in light of our prior
affirmance of the Board’s calculation of McGill’s PED.
(ECF No. 11-2 at 41–43.)
As noted in the opinion above, Petitioner appealed the Board’s application of his loss of
commutation credits to his ten-year future eligibility term (“FET”), and on June 26, 2012, the
Board affirmed. (ECF No. 11-2 at 33–34.) Petitioner then appealed to the Superior Court of
New Jersey, Appellate Division, and on November 27, 2013, the Appellate Division affirmed the
Board’s calculation of Petitioner’s FET. (ECF No. 11-2 at 40–46.) The Supreme Court denied
certification on March 27, 2014. (ECF No. 11-3 at 26.) Petitioner then filed a habeas petition
with this Court, which he executed on October 28, 2014, raising a single ground for habeas
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relief: “Denial of Fourteenth Amendment Right to Due Process.” 1 (ECF No. 3-3.) Respondents
argue that Petitioner fails to demonstrate that his constitutional rights have been violated. (ECF
No. 11 at 6–11.) The Court agrees.
III.

LEGAL STANDARD

Under 28 U.S.C. § 2254(a), the district court “shall entertain an application for a writ of
habeas corpus [o]n behalf of a person in custody pursuant to the judgment of a State court only
on the ground that he is in custody in violation of the Constitution or laws or treaties of the
United States.” A habeas petitioner has the burden of establishing his entitlement to relief for
each claim presented in his petition. See Price v. Vincent, 538 U.S. 634, 641 (2003); Harrington
v. Richter, 562 U.S. 86, 98 (2011). District courts are required to give great deference to the
determinations of the state trial and appellate courts. See Renico v. Lett, 559 U.S. 766, 773
(2010).
Where a claim has been adjudicated on the merits by the state courts, the district court
shall not grant an application for a writ of habeas corpus unless the state court adjudication
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d)(1)–(2). Federal law is clearly established for these purposes where it is
clearly expressed in “only the holdings, as opposed to the dicta” of the opinions of the United

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It also appears that Petitioner has previously filed a habeas Petition with the Court that
was denied on November 19, 2014. McGill v. Hastings, No. 12-5346, 2014 WL 6474292
(D.N.J. Nov. 19, 2014). There, Petitioner alleged that his Due Process rights were violated by
the Board’s determination of his parole eligibility date, and that the Board’s findings were
inauthentic. Id. at *1. The Court found the claims meritless, and that Petitioner had failed to
demonstrate “any federal constitutional right which ha[d] been violated”. Id. at *4.
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States Supreme Court. See Woods v. Donald, 135 S. Ct. 1372, 1376 (2015). “When reviewing
state criminal convictions on collateral review, federal judges are required to afford state courts
due respect by overturning their decisions only when there could be no reasonable dispute that
they were wrong.” Id. Where a petitioner challenges an allegedly erroneous factual
determination of the state courts, “a determination of a factual issue made by a State court shall
be presumed to be correct [and the] applicant shall have the burden of rebutting the presumption
of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
IV.

DISCUSSION

In Petitioner’s facts supporting his claim for habeas relief, he states:
The petitioner was found guilty of two DOC disciplinary
infractions and lost 365 days of commutation time. He submitted a
request to the DOC to have a portion of the time restored and once
it was, the Parole Board advance[d] his elig[i]b[i]lity date by the
same amount of time. Because the DOC and the Parole Board are
independent agencies, the petitioner appealed the change in his
eligibility date to the Board based on the fact that an inmate’s
eligibility date is under the Board’s sole jurisdiction, and it cannot
be altered by actions taken by the DOC. By legislation, before an
eligibility date is changed the inmate must be notified, and
notification did not take place. Whenever an eligibility date is
altered because of an infraction, the Board must refer to the
schedule that is published in its administrative code, and the
infractions the petitioner was found guilty of were not on the
schedule’s list. The Board was informed that ac[c]ording to
legislation, any change to an eligibility date due to an institutional
infraction is offset by the commutation time removed by the DOC,
so even if the Board had the authority to change the date, it would
still have to make the offset. There is a presumption an inmate will
be released at the time he becomes eligible for parole, because the
Board has followed these practices, there is a difference between
what the eligibility date is and what it should be.
(ECF No. 3-3 at 6.)
While Petitioner’s claim is not a model of clarity, in the record below he appears to argue
that the Board erred in deducting the lost 365 days of commutation time (less 135 days of
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commutation credit from his other two offenses) from his total 996 days of commutation credit
applied to his ten-year FET. (See Petitioner’s parole eligibility appeal to the Board, ECF No. 112 at 31–32, for a clearer explanation of his claim.) He asserts that the Department of Corrections
(“DOC”) and the Board are independent agencies, and that the Board exceeded its authority in
applying the lost commutation time to his FET, since it was the DOC that found him guilty of
institutional infractions and not the Board. He also indicates that the Board never notified him
before recalculating his FET and that the infractions he was found guilty of by the DOC, are not
within the list of applicable infractions the Board is permitted to assess when calculating the
FET. In sum, Petitioner argues that these errors violated his Due Process rights.
Petitioner raised this claim on appeal from the Board’s decision, and the Appellate
Division affirmed, stating:
McGill did not challenge the 365–day sanction he received for the
institutional infraction. We are satisfied that the Board correctly
determined that only a portion of that sanction could be applied to
McGill’s primary eligibility term and properly deducted the
balance of 230 days from the 996 days applied to the FET.
(ECF No. 11-2 at 44–46) (emphasis added).
As a preliminary matter, parole is not a constitutionally protected liberty interest unless
the state explicitly establishes procedures to offer parole. See Swarthout v. Cooke, 562 U.S. 216,
220 (2011) (“There is no right under the Federal Constitution to be conditionally released before
the expiration of a valid sentence . . .[w]hen, however, a State creates a liberty interest, the Due
Process Clause requires fair procedures for its vindication[.]”) (internal citation omitted); see
also Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 7–9 (1979). There is
no dispute that New Jersey’s parole statute has established certain limited Due Process rights.
See N.J. Parole Bd. v. Byrne, 460 A.2d 103, 111 (N.J. 1983) (finding that the New Jersey parole

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process creates a liberty interest sufficient to invoke procedural protection). Correspondingly,
while there is no federal right to commutation credits, states may create a Due Process right
through which the credits cannot be “arbitrarily abrogated.” See Wolff v. McDonnell, 418 U.S.
539, 557 (1974); see also Thompson v. Maurer, No. 04-5140, 2006 WL 517686, at *4 (D.N.J.
Mar. 2, 2006) (finding that “New Jersey has created a statutory right to commutation credit, as
well as procedures and guidelines regarding forfeiture of these credits for misconduct”).
Here, however, Petitioner is not challenging his loss of 365 days of commutation time, as
the Appellate Division notes, nor is he challenging his 10-year FET, both of which may raise
federal issues. Instead, Petitioner only appears to challenge the Board’s application of the lost
commutation credits to his FET. In doing so, the Court finds that Petitioner has failed to raise a
federal claim.
First, the Court notes that Petitioner failed to raise this claim as a Due Process violation
below. Instead, Petitioner raised it as a violation of N.J. Stat. Ann. § 30:4-123.52(a) and N.J.
Admin. Code § 10A:71-3.4, by arguing that the Board is only authorized to remove commutation
credits awarded by the Board (not the DOC), for infractions found within the schedule listed
under N.J. Admin. Code § 10A:71-3.4. (See ECF No. 11-1 at 8–11.) See Estelle v. McGuire,
502 U.S. 62, 67–68 (1991) (“[i]t is not the province of a federal habeas court to reexamine statecourt determinations on state-law questions” instead “a federal court is limited to deciding
whether a conviction violated the Constitution, laws, or treaties of the United States.”)
Second, Petitioner has pointed to no case law or authority to support his argument that the
Board may not apply lost commutation credits to an inmate’s FET. See Price, supra, 538 U.S. at
641 (explaining that a habeas petitioner bears the burden of establishing his entitlement to relief).
Nor has this Court found any law to support Petitioner’s argument. In fact, under New Jersey

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state law, it appears that the parole board is indeed given the legislative authority to both apply
commutation credits in determining an inmate’s parole eligibility date (“PED”) and may deduct
“any loss of commutation time imposed by the Department of Corrections” when increasing an
inmate’s PED. See N.J. Stat. Ann.§ 30:4-123.52(a); N.J. Stat. Ann. § 30:4-123.51(a). Thus, as
evidenced by the plain language of the statute, there is in fact a concomitant relationship between
the DOC and the Board—loss of commutation time imposed by the DOC can increase an
inmate’s parole eligibility, which is determined by the Board. See, e.g., Barnes v. New Jersey
State Parole Bd., 2008 WL 1968831, at *1, *3 (N.J. Super. Ct. App. Div. May 8, 2008)
(affirming parole board’s revised calculation of inmate’s PED, based on inmate’s 365-day loss of
commutation credits for committing institutional infraction); see also Vessels v. New Jersey State
Parole Bd., 2017 WL 1422877, at *1 (N.J. Super. Ct. App. Div. Apr. 21, 2017) (affirming parole
board’s 240-month FET, which considered, among other things, inmate’s commission of
numerous institutional infractions, in determining his FET).
Finally, because this case arises under 28 U.S.C. § 2254, the Court must ascertain
whether the Appellate Division decision is contrary to clearly established Supreme Court
precedent; whether it is “diametrically different,” “opposite in character or nature,” or “mutually
opposed.” Fischetti v. Johnson, 384 F.3d 140, 147 (3d Cir. 2004) (citing Williams v. Taylor, 529
U.S. 362, 364 (2000). “As a condition for obtaining habeas corpus from a federal court, a state
prisoner must show that the state court’s ruling on the claim being presented in federal court was
so lacking in justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103.
Because Petitioner has failed to supply any Supreme Court case that calls into question the
Appellate Division’s finding that the Board “properly deducted” Petitioner’s commutation time

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from his commutation credit applied to his FET, Petitioner has failed to demonstrate that his
constitutional rights have been violated. Therefore, Petitioner’s claim for habeas relief must be
denied.
Petitioner includes a number of other arguments, that fail to change the outcome of this
Petition. He points to N.J. Admin. Code § 10A:71-3.4, in arguing that his disciplinary
infractions, .709 (failure to comply with a written rule or regulation), and *.009 (misuse or
possession of electronic equipment), are not among the listed infractions that may increase an
inmate’s PED. The statute reads:
(a) It shall be the responsibility of the chief executive officer,
within seven days of resolution of any administrative appeal, to
notify in writing the senior Board representative at the institution
that an adult inmate has committed an institutional infraction listed
in (c) below.
...
(b) Except as otherwise provided in N.J.A.C. 10A:71–5, upon
being advised by the senior Board representative at the institution
that an adult inmate has committed an institutional infraction listed
in (c) below, the appropriate Board panel or designated hearing
officer may increase the inmate's eligibility date according to the
schedule listed herein.
...
3. Infraction Category C shall consist of .003, Assaulting any
person with a weapon; .006, Extortion, blackmail, protection,
demanding or receiving favors, money or anything of value in
return for protection against others, to avoid bodily harm, or under
threat of informing; .101, Escape (provided such escape is from a
minimum security location); .102, Attempting or planning escape
(provided such attempt is from a medium or maximum security
location); .202, Possession or introduction of a gun, firearm,
weapon, sharpened instrument, knife, or unauthorized tool
(provided such weapon is not a gun or other firearm); .252,
Encouraging others to riot; and .551, Making or possessing
intoxicants or alcoholic beverages.

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...
N.J. Admin. Code § 10A:71-3.4 (emphasis added).
As made clear in the statute and explained by the Board in its decision denying
Petitioner’s appeal of the application of his lost commutation time, the statute does not apply to
Petitioner, because his PED was never actually extended by the loss of commutation time.
Instead, the lost commutation time was deducted from Petitioner’s total commutation credits that
had been previously applied to his total FET. The Parole Board explained that N.J.A.C. §
10A:71-3.4 “refers to the establishment of an additional parole eligibility term pursuant to a
review by an infraction review Panel and not to the forfeiture of previously awarded
commutation time credits pursuant to a DOC imposed sanction for institutional misconduct” and
therefore it had no applicability to Petitioner’s case. (ECF No. 11-2 at 33–34.) Thus, this claim
lacks merit.
Petitioner also argues that the Board failed to notify him when it changed his eligibility
date. However, as evidenced by the record, the DOC notified Petitioner of his lost commutation
credits by first noticing him with a disciplinary report and then by providing him with a copy of
the adjudication of his disciplinary charges (see ECF No.11-1 at 48 at 48–52) and the Board
merely applied the lost commutation time to his overall commutation credit. 2 The Board made
no independent findings of any violations. Thus, insofar as Petitioner is not challenging the loss

Even if the Court could somehow construe the Petition to state a claim that Petitioner was
denied Due Process in the loss of 365 commutation credits, this claim also fails. The record
makes clear that Petitioner was put on notice of the infractions and given a written statement
stating the evidence and reasons for the DOC’s findings. (See ECF No.11-1 at 48 at 48–52).
Petitioner has made no allegations that he was not permitted to call witnesses or present evidence
in his defense. Thus, the procedural protections afforded to him comport with both federal and
state law. See Sanabria v. Ricci, No. 09-3269, 2010 WL 2668515, at *5 (D.N.J. June 28, 2010)
(laying out the minimum Due Process requirements for loss of commutation credits under the
United States Supreme Court case law and New Jersey state law.)
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of commutation time, nor his 10-year FET, the Court can conceive of no possible Due Process
violation. 3 Because Petitioner has failed to show that he is entitled to relief on his claim, the
Court denies him habeas relief.
V.

CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. §2253(c), a petitioner may not appeal from a final order in a habeas
proceeding where that petitioner’s detention arises out of his state court conviction unless he has
“made a substantial showing of the denial of a constitutional right.” “A petitioner satisfies this
standard by demonstrating that jurists of reason could disagree with the district court’s resolution
of his constitutional claims or that jurists could conclude that the issues presented here are
adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327
(2003); see also Slack v. McDaniel, 529 U.S. 473, 484 (2000). Because jurists of reason would
not disagree with this Court’s conclusion that Petitioner has failed to make a substantial showing
of the denial of a constitutional right insomuch as Petitioner’s claims are without merit,
Petitioner’s habeas petition is inadequate to deserve encouragement to proceed further and a
certificate of appealability is therefore denied.

3

The Appellate Division decision, cited above, addressed an additional issue, that
Petitioner does not appear to raise in this Petition, but one that he did raise below and one that he
also appears to have raised in his previous habeas petition with the Court. Namely, that the
Board erred in its initial determination of his PED by failing to apply commutation credits to the
aggregate sentence, and instead applied it to each individual sentence, which he alleges
lengthened his PED. (See ECF No. 11-1 at 12–18.) To the extent Petitioner is attempting to
raise this claim here, the claim similarly fails as it was never raised as a Due Process violation
below. Instead, Petitioner raised this purely as a violation of New Jersey state law under State v.
Ellis, 788 A.2d 849 (N.J. Super. Ct. App. Div. 2002). (See ECF No. 11-1 at 12.) Furthermore,
because the claim was previously denied on the merits by the Court in Petitioner’s previous
habeas petition, and because the Appellate Division appropriately addressed and rejected the
claim under New Jersey state law, the Court finds no reason to address the claim here.
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VI.

CONCLUSION

For the reasons stated above, Petitioner’s habeas petition is denied and Petitioner is
denied a certificate of appealability. An appropriate order follows.

DATED: May 7, 2018

/s/ Freda L. Wolfson
FREDA L. WOLFSON
United States District Judge

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