Appeal from a judgment of the United States District Court for the District of Connecticut, Warren W. Eginton, Judge, denying appellant's petition for a writ of habeas corpus.
Timbers, Kearse and Pierce, Circuit Judges.
Appellant Iuteri appeals from a judgment of the United States District Court for the District of Connecticut, Warren W. Eginton, Judge, entered April 8, 1983, denying his petition for a writ of habeas corpus. Iuteri v. Nardoza, 560 F. Supp. 745 (D. Conn. 1983).
He argues that his habeas corpus petition should have been granted because (1) the parole retardation procedure employed by the United States Parole Commission ("Commission") pursuant to 28 C.F.R. § 2.28(f) denied his constitutional right to due process, (2) the information upon which the Commission relied to reopen his case did not constitute "new" information under 28 C.F.R. § 2.28(f), and (3) the Commission abused its discretion in going beyond its own guidelines in extending his period of incarceration, on the basis of the allegedly new information, by four and one-half years. We do not find these contentions meritorious and, therefore, we affirm the judgment of the district court.
The relevant facts in this case are set forth succinctly in the district court's opinion, Iuteri v. Nardoza, 560 F. Supp. 745 (D. Conn. 1983), and familiarity therewith is assumed. See also Iuteri v. Nardoza, 662 F.2d 159 (2d Cir. 1981). We do summarize the basic facts.
On July 8, 1980, Iuteri was convicted in the United States District Court for the District of Hawaii of conspiracy to commit wire fraud, interstate travel in furtherance of a scheme to defraud, aiding and abetting the use of interstate travel in furtherance of a scheme to defraud, and interstate transportation of fraudulently obtained money. After a two-day sentencing hearing -- during which the government introduced evidence indicating that Iuteri had an extensive history of serious criminal behavior, including allegations of homicide, assault, fraud, kidnapping, narcotics offenses and extortion -- Judge Samuel P. King of the District of Hawaii sentenced Iuteri pursuant to 18 U.S.C. § 4205(b)(2) to consecutive terms of imprisonment totalling fifteen years.*fn1 Judge King explained that in his experience, the Commission usually imposed longer periods of incarceration when an inmate was sentenced under section 4205(b)(2) rather than under other sections. He also commented that "if there were ever a case for using the maximum, this is the case for the particular charges . . . here."
Iuteri received his initial parole hearing in April, 1981, and was given a presumptive parole date of July 2, 1981. During the Commission's examination of Iuteri's case, the Commission did not have before it either the transcript of the sentencing hearing in the District Court of Hawaii or the report of the prosecuting attorney, Form 792, customarily completed and forwarded to the Commission by the United States Attorney who prosecuted the case. The Commission did consider a presentence report which contained allegations about murder charges pending against Iuteri in New Haven, Connecticut,*fn2 general allegations that Iuteri was a "bad man," and claims that he had threatened to kill anyone who testified against him.
The sentencing hearing material that the Commission did not have at the time of its initial parole determination -- the Form 792 and the transcript of the hearing before Judge King -- contained some allegations of which the Commission already was aware (the pending murder charges and the threat to kill anyone who testified against him). The Form 792 and the hearing transcript, however, contained additional information which was not before the Commission at the time of the initial parole determination.
In June, 1981, attorneys from the Federal Organized Crime Strike Force learned that Iuteri was about to be released on parole. After a brief investigation, the Strike Force attorneys discovered that the Commission had made its parole decision while unaware of some of the information contained in the sentencing hearing materials, namely, Judge King's sentencing remarks and the information that Iuteri had beaten a man (Satmary) with a blackjack, seriously injuring him, and had held a female (Foote) against her will for several weeks forcing her into prostitution. The government attorneys asked the Commission to consider this allegedly new information before releasing Iuteri on parole. On July 1, 1981, one day before Iuteri was to be released on parole, Joseph A. Nardoza, Parole Commissioner, Northeast Region, recommended pursuant to 28 C.F.R. § 2.28(f)*fn3 that the Commission open Iuteri's case for reconsideration in light of "new and significant adverse information" which the Commission had received. Nardoza's recommendation and vote for reconsideration automatically delayed Iuteri's release date pending a decision by the National Commissioners as to whether to reopen and, if the National Commissioners decided to reopen, pending a final reconsideration hearing and decision. On July 10, 1981, the National Commissioners voted to reopen the case and scheduled the reconsideration hearing for the next available date, August 17, 1981. The Commission's Notice of Action explained that the reconsideration hearing would be held "to consider Form USA 792 submitted by Special [United States] Attorney Bent and the sentencing remarks by the Federal District Judge in Hawaii. Also letter from Attorney Gregorie, U.S. Department of Justice dated June 26, 1981." Iuteri was duly notified of the rehearing and of the documents that would be at issue. The August 17th hearing was postponed at Iuteri's request until October 22, 1981. The hearing examiners considered the new information at the hearing and recommended that the Commission delay Iuteri's parole release for an additional four and one-half years. The Commission adopted the hearing examiners' finding and in a Notice of Action dated November 2, 1981, explained its decision, as follows:
Your offense behavior has been rated as moderate severity because it involved a fraud of about $15,000. Your salient factor score (SFS-81) is 10 . . . . You have been in custody a total of 18 months. Guidelines established by the Commission for adult cases which consider the above factors indicate a range of 10-14 months to be served before release for cases with good institutional program performance and adjustment. After review of all relevant factors and information presented, a decision above the guidelines appears warranted because you are a poorer risk than indicated by your salient factor score in that: on the basis of the information reviewed at your special reconsideration hearing (including Form 792 submitted by Special Attorney Bent, sentencing transcrip[t] of hearing of July 7, 1980 and June 26, 1981 letter of Department of Justice Attorney Gregorie) the Commission finds that you attac[k]ed a man viciously with a blackjack shattering his nose and also forced a young woman into prostitution. These actions evince a criminal orientation not generally seen by the Commission in offenders with your salient factor score of 10.
On July 9, 1981, prior to the Commission's final determination, Iuteri filed a habeas corpus petition in the District Court for the District of Connecticut. Pursuant to his request, the district court granted bail pending the outcome of the habeas corpus petition. On appeal, this court reversed the grant of bail, holding that Iuteri's petition failed to raise substantial claims with a likelihood of success. Iuteri v. Nardoza, 662 F.2d at 161. This court concluded that Iuteri's first claim -- that he was denied due process when his parole date was automatically delayed without a hearing pursuant to 28 C.F.R. § 2.28(f) pending determination of whether his case should be reopened -- was insubstantial for bail purposes. The court also concluded that Iuteri was not likely to succeed on his claim that the information relied upon to reopen his case did not constitute new information pursuant to 28 C.F.R. § 2.28(f). Id.
On March 10, 1982, while his final appeal to the Commission was pending, Iuteri filed an amended habeas petition. He renewed the two claims set out in the initial petition -- that the retardation procedures under section 2.28(f) violated his due process rights, and that the information on which the Commission relied to reopen his case did not constitute "new" information for section 2.28(f) purposes. He also argued that the Commission had abused its discretion by going above the ...