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BAKER v. MCCALL

December 1, 1981

Steven BAKER, Petitioner,
v.
Cecil McCALL, Chairman, United States Parole Commission, and Michael J. Quinlan, Warden, Federal Correctional Institution, Otisville, New York, Respondents



The opinion of the court was delivered by: SAND

Facts

Petitioner Baker was convicted in this Court for possession and distribution of heroin and conspiracy to distribute narcotics, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) and 846. On January 23, 1978, Judge Henry Werker sentenced him pursuant to 18 U.S.C. § 4205(b)(2) to a thirty year term of imprisonment, a special three year parole term, and a fine of $ 20,000. Petitioner is presently serving his sentence at the Federal Correctional Institution in Otisville, New York.

 Petitioner's initial parole hearing was held on April 23, 1980 in Atlanta, Georgia, before a panel of hearing examiners. The panel recommended that petitioner be continued for presumptive parole in 1985. The panel then referred the case to the regional commissioner for original jurisdiction. Recommending a ten year reconsideration hearing, the Regional Commissioner sent the matter to the National Commission as an original jurisdiction case on June 12, 1980. The National Commission agreed with the determination of the Regional Commissioner and continued the case for a ten year reconsideration hearing in April, 1990. As mandated by statute, an interim hearing was scheduled for April, 1982. Upon petitioner's appeal, the full National Commission affirmed this decision. The petition for writ of habeas corpus was then filed on June 2, 1981.

 Petitioner claims five bases for issuance of the writ. He asserts (1) that information used against him by the Panel of Hearing Examiners was not disclosed to him before the hearing; (2) that the National Commission's decision to continue the case for ten years violated the guidelines set forth at 28 C.F.R. § 2.20 (1980); (3) that the Commission relied on erroneous evidence and failed to take petitioner's favorable institutional record into account; (4) that petitioner was denied meaningful parole consideration because the Regional Commissioner's designation of his case as an original jurisdiction matter prejudiced his application; (5) that the Commission acted arbitrarily by treating petitioner more severely than his co-defendant.

 The Court's ability to review the Parole Commission's decision is circumscribed. The Commission's determination may only be challenged if it is "arbitrary or capricious or an abuse of discretion." Dye v. United States Parole Commission, 558 F.2d 1376, 1378 (10th Cir. 1977). Petitioner's claims, taken either singly or collectively, do not support the conclusion that such abuse has occurred in this case.

 A. Disclosure of Evidence

 Petitioner contends that the evidence used at the initial panel hearing was not adequately disclosed to him. This evidence consisted of a fifteen page pre-sentence report. The record indicates that he was afforded a full opportunity to review the information contained in the report during a recess of the hearing (Ferlazzo Affidavit, P 3). His file also showed that he saw the entire pre-sentence report when he first entered prison (Ferlazzo Affidavit, P 4).

 The Parole Commission's procedure manual mandates prehearing disclosure if a prisoner makes a request thirty days before the hearing (Petitioner's Traverse, P 2). While the Commission did not formally respond to petitioner's timely request for disclosure until the start of the hearing, the delay does not warrant a finding that petitioner's due process rights were violated. Cf. Haymes v. Regan, 525 F.2d 540 (2d Cir. 1975). Petitioner was not prejudiced by the delay in disclosure; he was able to present by way of his regional and national appeals his charges of erroneous information. Payton v. Thomas, 486 F. Supp. 64, 68 (S.D.N.Y.1980).

 B. Deviation from Guidelines

 Pursuant to 18 U.S.C. § 4203(a), the Parole Commission adopted guidelines designed to promote "a more consistent exercise of discretion...." in granting parole. 28 C.F.R. § 2.20(a). Because petitioner's offense fell into the "Greatest I" category and he had a salient factor score of 10, he would normally be entitled to release after 40 to 52 months. In imposing a 10 year reconsideration hearing, the Commission effectively tripled the guidelines. It is well settled, however, that a decision outside the guidelines may be rendered where there is "good cause for so doing" 18 U.S.C. § 4206(c) (1981 Supp.), *fn1" Stoller v. Tennant, 448 F. Supp. 712 (C.D.Cal.1978).

 As the District Court of Connecticut pointed out in Brach v. Nelson, 472 F. Supp. 569 (D.Conn.1979):

 
Good cause has not been defined specifically in either the enabling legislation or the Commission's own regulations. Courts, faced with the task of enunciating the parameters of this standard give the Commission wide latitude so long as it adequately explains the decision to the inmate and the decision is neither arbitrary or capricious. (Citations omitted) 472 F. Supp. at 574.

 In the instant case, the Commission's notice of action declared that a decision above the guidelines appeared warranted because petitioner's offense was "unusually sophisticated" in that he was involved "with at least 13 co-conspirators over a period of approximately four years in the distribution of heroin." Petitioner was also identified "as being a significant narcotic dealer as well as occupying a managerial role in the operation." (Pet. Ex C.)

 To justify a decision outside the guidelines, the reasons given in the notice of action must stand apart from the factors already considered in determining the offense severity rating. Brach v. Nelson, supra; Lupo v. Norton, 371 F. Supp. 156 (D.Conn.1974). Commission regulations mandate a "Greatest I" rating for opiate offenses involving "Possession with intent to distribute/sale (managerial or proprietary interest and a very large scale (e.g., offense involving more than 50 grams of 100% pure heroin or equivalent amount) )." 28 C.F.R. § 2.20. The Notice of Action relied on the unusual sophistication and duration of the conspiracy as well as on the evidence that petitioner was a chief lieutenant to provide the separate aggravating factors that are required. Since the language ...


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