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CARMEL v. THOMAS

UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF NEW YORK


March 23, 1981

Jerald CARMEL, Petitioner,
v.
Dale THOMAS, Warden, Metropolitan Correctional Center, Respondent

The opinion of the court was delivered by: HAIGHT

MEMORANDUM OPINION AND ORDER

Petitioner Jerald Carmel brings this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 seeking his release from custody. *fn1" Specifically, Carmel challenges the action of the United States Parole Commission in revoking his parole in part on the basis of his convictions under the laws of France and Sweden. For the reasons stated, the petition is denied.

 In a prior habeas corpus petition, Carmel asserted a denial of his due process rights arising from the Commission's failure to accord him a final parole revocation hearing within ninety days of his arrest on a parole violator warrant as required by 18 U.S.C. § 4214(c). Judge Weinfeld denied that petition, finding that much of the delay in scheduling the hearing was occasioned by Carmel's own request and, in any event, that he was unable to point to any specific prejudice flowing from the delay. Carmel v. United States Parole Commission, 489 F. Supp. 113, 115 (S.D.N.Y.), appeal dismissed, No. 80-2143 (2d Cir. July 11, 1980). The factual background is drawn from Judge Weinfeld's opinion and the pleadings in this action.

 I.

 Carmel was convicted in the Eastern District of New York of bank robbery and was sentenced in July 1961 to a 15-year term of imprisonment. On August 21, 1972, he was released from federal custody to parole supervision with 2,455 days remaining on the original sentence. His parole was to terminate on May 12, 1979. However, on September 26, 1972, the Commission was advised by petitioner's probation officer that Carmel had absconded from supervision. On October 10, 1973 a parole violator warrant was issued charging Carmel with parole violations arising from his failure to submit supervision reports and for failure to report his change in residence. Subsequently, the Commission learned that Carmel had fled the country and had encountered further difficulties with law enforcement officers abroad. More particularly, the Commission was advised on March 14, 1975 that Carmel had been arrested in France on charges of possession of a firearm and forgery; later, the Commission learned that Carmel had been sentenced on those charges and had escaped from a French penitentiary. Further, the Commission was advised on March 17, 1977 that Carmel had been arrested in Sweden on fraud charges, which led to his conviction and eventual expulsion from that country.

 The more recent history begins with Carmel's arrest on the parole violator warrant on August 4, 1979 as he entered the United States from Canada. On August 22, 1979, a preliminary interview was conducted by a United States probation officer in Albany, New York, pursuant to 18 U.S.C. § 4214(a), *fn2" during which Carmel, represented by an attorney, admitted the charges on which the warrant against him was based. On September 17, 1979, the Commission found probable cause to believe that Carmel had violated the conditions of his parole and requested pursuant to 28 C.F.R. § 2.49(c) *fn3" that he be designated to a federal institution for a final revocation proceeding. Carmel was sent to the United States Penitentiary at Lewisburg, Pennsylvania.

 A revocation hearing was scheduled at Lewisburg for October 11, 1979 but Carmel requested and was granted a continuance until the December 1979 parole hearing docket. A hearing was scheduled for December 12, 1970 when it was determined that Carmel had been removed from the Lewisburg facility on a writ of habeas corpus ad testificandum. For reasons which remain unclear, the Commission was unaware of Carmel's whereabouts until March 5, 1980, when it was served with his first petition seeking his release from custody, then at the Metropolitan Correctional Center (the "MCC") in New York City. The Commission responded in part by scheduling a revocation hearing for March 26, 1980, at which time Carmel requested and was granted a further continuance for the purpose of obtaining counsel and procuring witnesses. In the interim, Judge Weinfeld denied Carmel's first petition which, as noted earlier, challenged the timeliness of the hearing.

 Finally, a revocation hearing was held on May 29, 1980 at the MCC. The two-member hearing panel made formal findings of fact on the basis of Carmel's admissions to the examiner panel in March 1980 and the evidence developed before the hearing panel on May 29, 1980 that Carmel had violated the conditions of his release as charged originally, and in respect of the additional charges of leaving the district to which parole supervision had been transferred without permission and the convictions in France and Sweden. The hearing panel recommended that parole be revoked with credit for the time spent on parole from the date of his release from prison until July 6, 1973 when he absconded. The proceeding was referred to the Regional Commissioner for resolution of a split in the panel's recommendation regarding re-parole; one examiner recommended a continuance of the hearing pending collection of more precise information regarding the two foreign convictions and the other examiner, on the basis of the information already in the record, recommended a presumptive release date of May 24, 1982.

 Upon review in the Regional Office pursuant to 28 C.F.R. § 2.23(c), *fn4" the Administrative Hearing Examiner reviewed the foregoing and voted to revoke Carmel's parole, to give Carmel credit for time under supervision from the date of his release until July 6, 1973, and to continue Carmel to a presumptive parole date on May 24, 1982. This became the recommendation of the panel and, with the Regional Commissioner's concurrence, the decision of the Commission pursuant to 28 C.F.R. § 2.23(d). *fn5" Carmel was so advised by three Notices of Action dated June 19, 1980. *fn6"

 Carmel filed this petition on July 17, 1980 while still incarcerated at the MCC. The petition asserts that his custody is unlawful due to the Commission's consideration of his two foreign convictions in its determination to revoke his parole and establish a presumptive parole date. An application praying for an order restraining officials of the Bureau of Prisons from transferring Carmel to another institution pending the determination of the instant petition was denied in a Memorandum Opinion and Order dated September 26, 1980 and Carmel was transferred back to the United States Penitentiary at Lewisburg.

 The respondent does not contest this Court's jurisdiction of the petition; nor could he, since "the passing about of the body of a prisoner from one custodian to another after a writ of habeas corpus has been applied for (does not) defeat the jurisdiction of the court to grant or refuse the writ on the merits of the application." Ex parte Catanzaro, 138 F.2d 100, 101 (3d Cir. 1943), cert. denied, 321 U.S. 793, 64 S. Ct. 789, 88 L. Ed. 1083 (1944); Smith v. Campbell, 450 F.2d 829, 832-33 (9th Cir. 1971). The Government does contend, however, that the petition should be dismissed for Carmel's failure to exhaust his administrative remedies and, alternatively, on the ground that the Commission's decision did not violate Carmel's constitutional rights or abuse its discretion. These contentions are considered in turn.

 II.

 It is settled law that a petitioner seeking a writ of habeas corpus must exhaust available administrative remedies as a prerequisite to habeas relief. E.g., Guida v. Nelson, 603 F.2d 261, 262 (2d Cir. 1979); Lambert v. Warden, 591 F.2d 4, 8 (5th Cir. 1979); United States ex rel. Sanders v. Arnold, 535 F.2d 848, 851 (3d Cir. 1976); Willis v. Ciccone, 506 F.2d 1011, 1015 (8th Cir. 1974). An aggrieved parolee can seek reconsideration of an adverse parole determination such as modification or revocation of parole by written application to the appropriate regional commissioner not later than thirty days after the decision is rendered, 18 U.S.C. § 4215(a); *fn7" following an adverse determination thereon, an appeal lies to the National Appeals Board pursuant to 18 U.S.C. § 4215(b). *fn8" See also 28 C.F.R. §§ 2.25 and 2.26. *fn9" Carmel has pursued neither level of review according to the Commission's file. Affidavit of Michael J. Santella, sworn to August 26, 1980 ("Santella Affidavit"), at P 13. In these circumstances, the petition is subject to dismissal for failure to exhaust available administrative remedies.

 III.

 In the alternative, I find that the petitioner has failed to demonstrate that the Commission's action violated his constitutional rights or that the Commission abused its discretion in considering his foreign convictions for the purpose of revoking his parole and establishing a presumptive release date. See generally Billiteri v. United States, 541 F.2d 938, 944 (2d Cir. 1976).

 In determining whether to revoke parole, "all that is required is that the evidence and facts reasonably demonstrate that the person's conduct has not been as good as required by the terms and conditions of the release." Mack v. McCune, 551 F.2d 251, 254 (10th Cir. 1977). The Commission is "vested with the broadest discretion consistent with due process to act upon reliable evidence in revoking parole." United States ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161, 1163 (2d Cir. 1970). See also, United States ex rel. De Fillo v. Fitzpatrick, 378 F.2d 85, 87 (2d Cir. 1967) ("(T)he test is not whether there was substantial evidence to support the Board's decision revoking his release, but whether, as a matter of law, the revocation on its face appears to be without any support. If the process requirements of the statute have been observed and there has been a violation of parole "the effect of (the Board's) action of revocation cannot be touched' and the defendant is not entitled to release from such custody through a writ of habeas corpus") (citations omitted); Hyser v. Reed, 115 U.S. App. D.C. 254, 318 F.2d 225, 234 (D.C.Cir.) (Burger, J.), cert. denied, 375 U.S. 957, 84 S. Ct. 446, 11 L. Ed. 2d 315 (1963) ("Congress has granted the (Commission) power to revoke a conditional release upon determining that a condition of the parole has been violated") (footnote omitted). Indeed, the Commission's wide discretion includes the authority to deviate from the Parole Regulations, 28 C.F.R. § 2.1 et seq., as long as its decision is reasonable and appropriate in the circumstances. Mayo v. Sigler, 428 F. Supp. 1343, 1348 (N.D.Ga.1977).

 The Commission is authorized by statute to fix appropriate terms and conditions of parole. 18 U.S.C. § 4209. *fn10" The Commission has promulgated standard parole conditions, see 28 C.F.R. § 2.40(a)(1)-(11), *fn11" which are printed on the release certificate itself. Carmel's Certificate of Parole provides in pertinent part:

 

"3. You shall not leave the limits fixed by this CERTIFICATE OF PAROLE without written permission from the probation officer.

 

"4. You shall notify your probation officer immediately of any change in your place of residence.

 

"5. You shall make a complete and truthful written report (on a form provided for that purpose) to your probation officer between the first and third day of each month, and on the final day of parole. You shall also report to your probation officer at other times as he directs.

 

"6. You shall not violate any law. Nor shall you associate with persons engaged in criminal activity. You shall get in touch immediately with your probation officer or his office if you are arrested or questioned by a law enforcement officer."

 Santella Affidavit, Ex. A. See 28 C.F.R. § 2.40(a)(3)-(6).

 There can be no serious doubt that each of the five charges laid against Carmel in the revocation proceeding would, if proved, constitute violations of the foregoing terms and conditions of parole. Significantly, Carmel does not dispute the sufficiency of the evidence which the Commission relied upon to sustain the charges. Moreover, no challenge is laid with respect to the charges of leaving the supervising district without permission, failure to report changes in address and failure to submit monthly reports as required, violations of the third, fourth and fifth conditions of Carmel's parole, respectively, each of which could independently support the Commission's determination to revoke parole. Thus, the only issue presented by the petition is whether the Commission abused its discretion or violated Carmel's constitutional rights in considering the fourth and fifth charges of parole violation, i.e., his convictions under the laws of foreign sovereigns. Carmel attacks the Commission's use of his foreign convictions as "arbitrary, capricious and unlawful," claiming that "the Petitioner did not violate any Federal, State or local laws," and asserting that "the Parole Commission has no right to judge the laws of a foreign country where what would be considered a crime in Europe as to the laws of the United States." Petition at 5. These claims are without merit.

 Congress has mandated that the Commission consider a wide range of factors in making determinations relating to release on parole; in addition to staff recommendations, and official reports of a prisoner's prior criminal record, presentence investigations and physical, mental or psychiatric examinations, the governing statute expressly requires the Commission take into account "such additional relevant information concerning the prisoner (including information submitted by the prisoner) as may be reasonably available." 18 U.S.C. § 4207. *fn12" Payton v. Thomas, 486 F. Supp. 64, 68 (S.D.N.Y.1980). Any information which can inform the Commission's decision and which it finds "helpful" may be considered. United States ex rel. Goldberg v. Warden, 622 F.2d 60, 63 (3d Cir. 1980). Indeed, the Commission is concerned "with all facets of a prisoner's character, make-up and behavior..." Billiteri v. United States Board of Parole, supra, 541 F.2d at 944. Determining the relevance and weight to be accorded these myriad factors is placed " "solely within the province of the (Commission's) broad discretion.' " Richards v. Crawford, 437 F. Supp. 453, 455 (D.Conn.1977) (Newman, J.) (citation omitted).

 In addition to these pronouncements respecting the Commission's authority and, indeed, obligation to consider any relevant information in making parole determinations, the Commission's consideration of Carmel's foreign convictions is supported by the sixth condition of his parole:

 

"You shall not violate any law. Nor shall you associate with persons engaged in criminal activity. You shall get in touch immediately with your probation officer or his office if you are arrested or questioned by a law enforcement officer." Santella Affidavit, Ex. A (emphasis added).

 As noted hereinabove, the Commission had been advised in 1975 and 1977, respectively of Carmel's French and Swedish convictions, information which Carmel himself confirmed in the course of both the preliminary interview and revocation hearing. The Commission was clearly entitled to consider this material as "additional relevant information concerning the prisoner (including information submitted by the prisoner)," 18 U.S.C. § 4207, and to find, on the basis of all the evidence before it, that Carmel had violated the condition of his parole respecting violations of "any law." Certainly nothing in the relevant statutes and regulations expressly limits the Commission's considerations to domestic law violations. The reference in the regulations to "any law" is unqualified as to sovereignty. Although the statute requires the Commission to impose, at the minimum, as a condition of parole that a parolee remain free of violations of Federal, state or local law, see 18 U.S.C. § 4209, *fn13" it also authorizes the imposition of "other conditions of parole to the extent that such conditions are reasonably related to (1) the nature and circumstances of the offense; and (2) the history and characteristics of the parolee..." 18 U.S.C. § 4209(a). The imposition of a stricture against violating "any law" meets these tests and is "sufficiently specific to serve as a guide to supervision and conduct." See 18 U.S.C. § 4209(b). *fn14"

 Significantly, although the Commission's own Procedures Manual precludes the use of a foreign conviction in calculating forfeited "street time," see 18 U.S.C. § 4210(b)(2), *fn15" the Manual does provide that a foreign conviction may be treated as conclusive evidence of a violation of law. Santella Affidavit, Ex. J. The only exception to this treatment of a foreign conviction, the Manual notes, is where the parolee can "provide evidence that the conviction was obtained by blatantly improper means (fraud, duress, etc.) or that the conduct committed is not recognizable as a criminal violation under U.S. domestic law." Id. Carmel has submitted no such evidence. In addition, at least part of the admitted activity which underlies Carmel's French conviction fraudulent use of a credit card is unlawful under United States law. See 15 U.S.C. § 1644. *fn16" In these circumstances, the Commission's consideration of Carmel's foreign convictions in determining to revoke parole was entirely appropriate and abridged no constitutional right.

 IV.

 To the extent that Carmel means to quarrel with the manner in which the Commission calculated his revised presumptive release date in reliance upon his foreign convictions, the claim is meritless.

 The Commission determined in accordance with its regulations, see 28 C.F.R. § 2.20, *fn17" that Carmel's "salient factor score," which refers to the potential risk of parole violation, was 3. Santella Affidavit, Ex. H. Relying solely on Carmel's description of the offense which led to his conviction in France as involving the fraudulent use of credit card in the amount of $ 20,000 for a period in excess of one year, the Commission evaluated the offense behavior of this new criminal activity as High Severity. Id. Together, these two factors typically indicate a guideline of 34-44 months before release. Id. In view of a prior instance of parole violation, the underlying sentence and new criminal conduct during the parole period, the Commission determined that Carmel should serve a total of 47 months three months above the high-end guidelines for Carmel's salient factor score and offense severity rating. See 28 C.F.R. § 2.21(c). *fn18" Taking into account the time spent in foreign and federal custody, the Commission directed that Carmel be continued to a presumptive parole date of May 24, 1982, with credit for the time spent under supervision from the date of his release until July 6, 1973, when he absconded. Santella Affidavit, Ex. I, K. Thus, no consideration of the foreign convictions was made in determining forfeited "street time"; Carmel only forfeited "street time" for the period following the date on which he absconded. This treatment is consistent with the parole guidelines and the Commission's Manual. See Santella Affidavit, Ex. J.

 CONCLUSION

 In sum, the Commission's consideration of Carmel's foreign convictions in its decision to revoke parole and in its determination of Carmel's presumptive re-parole date is reasonable, rational and consistent with law. In these circumstances, the petition presents no grounds for the requested relief.

 Accordingly, petitioner Jerald Carmel's petition pursuant to 28 U.S.C. § 2241 for a writ of habeas corpus is denied.

 Because I find the petition to present no question deserving of appellate review, I decline to issue a certificate of probable cause to appeal. Alexander v. Harris, 595 F.2d 87 (2d Cir. 1979). The Clerk is directed to dismiss the petition forthwith.

 It is So Ordered.


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