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ALESSI v. THOMAS

October 29, 1985

VIRGIL ALESSI, Petitioner,
v.
DALE THOMAS, Warden, Metropolitan Correctional Center, BENJAMIN F. BAER, Chairman, United States Parole Commission, and UNITED STATES PAROLE COMMISSION, Respondents



The opinion of the court was delivered by: KEENAN

OPINION and ORDER

JOHN F. KEENAN, United States District Judge:

Petitioner Virgil Alessi ("Alessi") petitions this Court for a writ of habeas corpus. Alessi, who is incarcerated at the Metropolitan Correctional Center in New York City, asserts that the revocation of his parole for violation of a parole condition was without basis and unlawful. He argues that his conduct did not constitute "association" within the meaning of the condition. Furthermore, he claims that the parole condition, which read, "[y]ou shall not associate with persons who have a criminal record unless you have permission of your probation officer," was unconstitutionally vague as applied to him. Thirdly, Alessi asserts that the decision to incarcerate him for an additional period of thirty months prior to a presumptive parole, a period greater than the nine-month period set forth in the United States Parole Commission's ("Commission's") guidelines, was arbitrary, capricious and an abuse of the Commission's discretion.

 Finally, Alessi contends that the Commission's February 21, 1985 remand of Alessi's case to the regional Commissioner violated his right to due process of law. Alessi also seeks release on bail pending the determination of the instant petition.

 For the reasons set for the below, the Court will not issue a writ of habeas corpus. However, the case is remanded to the Commission for redetermination of the appropriate period of incarceration prior to Alessi's parole.

 FACTS

 The facts pertaining to Alessi's conviction, parole and parole revocation, as well as his prior application for a writ of habeas corpus, were set forth in this Court's June 12, 1985 Opinion and Order denying the writ on grounds of failure to exhaust administrative remedies. Alessi v. Thomas, NO. 85-4053 (JFK) (June 12, 1985 S.D.N.Y.). For the purposes of completeness and clarity, these facts are repeated here.

 Alessi was convicted of possession with intent to distribute heroin in the Southern District of New York and on January 5, 1977 was sentenced to a prison term of 13 years to be followed by 6 years on special parole. Alessi was first released on parole by court order on October 26, 1982, but was returned to custody on August 24, 1983 upon the reversal of the order by the Court of Appeals for the Second Circuit. Alessi was again released on parole on September 30, 1983. He was arrested and detained for a parole violation on October 23, 1984, and remains in federal custody.

 Alessi's September 30, 1983 parole was conditioned on eleven enumberated points which were listed on the Certificate of Parole (Exhibit 1 to Declaration of Noel Anne Ferris, August 8, 1985) ("August Ferris Declaration"). Number 10 among them was the prohibition against "association" with persons having a criminal record, cited supra at 1. Alessi admits that he received numerous telephone calls from four individuals with criminal records while on parole between February, 1983 and June, 1984. *fn1"

 In September, 1984, Alessi's probation officer advised the Regional Commissioner of the Parole Commission by letter that Alessi was associating with other convicts (Exhibit 3 to August Ferris Declaration). The Commission issued a parole violation warrant against Alessi on October 15, 1984 (Exhibit 5 to August Ferris Declaration). The warrant was executed on October 23, 1984. On November 14, 1984 a preliminary hearing was held on the issue of revocation of Alessi's parole. The Regional Commissioner found probable cause to hold petitioner for a final revocation hearing. Alessi was informed of this decision by letter dated November 30, 1984 (Exhibit 7 to August Ferris Declaration).

 The final revocation hearing was held on January 4, 1985 at the Metropolitan Correctional Center ("MCC") in New York, New York. The hearing examiners prepared a report (Exhibit 8 to August Ferris Declaration) and concluded that Alessi's parole be revoked, that the time served on parole should be credited to Alessi's sentence, but that he would receive an additional five months for the violation.

 The Regional Commissioner reviewed and confirmed the recommendations including the five month term of imprisonment suggested by the panel and also adopted by the Administrative Hearing Examiner. By Notice of Action dated January 17, 1985, Alessi's case was referred to the National Commissioners for decision, pursuant to 28 C.F.R. ยง 217-07 (Exhibit D to Affidavit of Ivan S. Fisher, July 24, 1985) ("July Fisher Affidavit").

 While the case was before the National Commissioners, an Assistant United States Attorney, at the request of the Chief Analyst, National Appeals Board, (Exhibit 10 to August Ferris Declaration) sent a Form 792 Report on Convicted Prisoner by United States Attorney from the Southern District of New York ("Form 792 Report") to the National Commissioners (Exhibit 11 to August Ferris Declaration). The report was signed by Rhea Kemble Brecher, Chief of the Narcotics Unit, and was based upon a review of Alessi's file by a paralegal in the United States Attorney's Office, as well as on conversations between the paralegal and probation officers.

 Alessi's case was remanded to the Regional Commissioner for rehearing on the basis of Ms. Brecher's submission (Exhibit F to July Fisher Affidavit). On or about May 4, 1985, *fn2" Alessi's case was reheard by the panel examiners. Alessi was invited to respond to the Form 792 Report. No new evidence was submitted except an affidavit prepared by Alessi's previous attorney (Exhibit G to July Fisher Affidavit) *fn3" and a transcript of the first revocation hearing. The panel found that Alessi had violated his parole. It recommended revocation of parole, the credit ...


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