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MASSELLI v. UNITED STATES PAROLE COMMN.

April 4, 1986

WILLIAM MASSELLI, Petitioner,
v.
UNITED STATES PAROLE COMMISSION, NORMAN A. CARLSON, DIRECTOR OF THE BUREAU OF PRISONS, JOHN CUNNINGHAM, WARDEN, BX HOUSE OF DETENTION, CHAIRMAN, UNITED STATES PAROLE COMMISSION, Respondents



The opinion of the court was delivered by: HAIGHT

MEMORANDUM OPINION AND ORDER

 HAIGHT, District Judge:

 William Masselli petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Masselli is a federal prisoner serving a seven-year term of imprisonment upon conviction in the United States District Court for the Southern District of New York. *fn1" He seeks relief from a determination by the United States Parole Commission (the "Commission") setting his presumptive release date, see 28 C.F.R. § 2.12(b) Respondents contend that Masselli has failed to exhaust his administrative remedies and that the instant petition should therefore be dismissed.

 Masselli began serving his term on February 1, 1982. His full-term release date was calculated as January 29, 1989; his statutory two-thirds release date, see 18 U.S.C. § 4206(d), has been calculated as September 28, 1986. After his initial parole hearing at the Federal Correctional Institution in Tallahassee, Florida on November 29, 1982, see 28 C.F.R. § 2.12(a), Masselli's case was designated for original jurisdiction pursuant to 28 C.F.R. § 2.17. (Ex. A. to Aff. of Jack Schneider). Relying on the Adult Guidelines for Decision Making, 28 C.F.R. § 2.20, the Regional Commissioner and National Commissioners (the "Commissioners") denied Masselli parole and ordered him continued to expiration (Schneider Aff., Ex. B). This order, in effect, required Masselli to remain incarcerated either until his statutory two-thirds release date of September 28, 1986 or until the expiration of his full sentence less "good time," see 18 U.S.C. § 4163. Masselli appealed, and on June 13, 1983, the full Commission affirmed the Commissioners' decision (Schneider Aff., Ex. C). Masselli's petition challenges this initial determination of his presumptive release date on several grounds.

 Masselli was afforded his statutory interim hearing, see 18 U.S.C. § 4208(h); 28 C.F.R. § 2.14(a), on July 1, 1985. The examiners panel recommended no change in the previous decision to continue Masselli to expiration (Schneider Aff., Ex. D). The case retained its original jurisdiction designation, see 28 C.F.R. § 2.14(c), and the National Commissioners issued a decision on September 4, 1985 agreeing that the initial continue to expiration decision should not be changed. (Schneider Aff., Ex. E). For reasons set forth in greater detail below, Masselli was not notified of this decision until December 4, 1985. Masselli appealed on January 1, 1986. That appeal is still pending; it should be decided by the end of April of this year. *fn2"

 Masselli's habeas corpus petition was executed September 4, 1985, and docketed October 7, 1985, after his interim hearing but before he was notified of its results. Respondents argue that the petition must be dismissed for failure to exhaust because his administrative appeal is still pending. I agree.

 It is now well established that a federal prisoner must exhaust available administrative remedies before seeking habeas corpus relief in the district courts. See, e.g., Guida v. Nelson, 603 F.2d 261, 262 (2d Cir. 1979) (per curiam); Miller v. Quinlan, 564 F. Supp. 802, 804 (S.D.N.Y. 1983); Payton v. Thomas, 486 F. Supp. 64, 70 (S.D.N.Y. 1980). Several reasons have been identified for this requirement:

 
(1) judicial review may be facilitated by allowing the appropriate agency to develop a factual record and apply its expertise, (2) judicial time may be conserved because the agency might grant the relief sought, and (3) administrative autonomy requires that an agency be given an opportunity to correct its own errors.

 Arias v. United States Parole Commission, 648 F.2d 196, 199 (3d Cir. 1981) (quoting United States ex rel. Marrero v. Warden, 483 F.2d 656, 659 (3d Cir. 1973), rev'd on other grounds, 417 U.S. 653, 41 L. Ed. 2d 383, 94 S. Ct. 2532 (1974)).

 Neither respondents nor Masselli has cited a case dealing with the particular problem presented here: whether a prisoner who brings a habeas corpus petition challenging the Commission's initial determination of his presumptive release date after his interim hearing is held must await the outcome of the interim review process. However, the second of Arias ' rationales for requiring administrative exhaustion is clearly implicated here. *fn3" Although the Commission does not undertake a de novo review of its initial parole eligibility determination during an interim review, it may advance the prisoner's release date based on developments subsequent to the initial hearing. See 28 C.F.R. § 2.14(a). Therefore, it may grant Masselli the full relief sought in this petition. Cf. Pinnon v. Ciccone, 611 F.2d 252, 253 (8th Cir. 1979) (advancement of presumptive release date after interim hearing moots challenge to presumptive release date set after initial hearing). The important goal of conserving judicial resources counsels that the Commission should first pass on the issue.

 A different result might well obtain if a prisoner filed a habeas corpus challenge to an initial parole eligibility determination before his statutory interim hearing and the interim hearing was held while the prisoner awaited adjudication of the petition. It would seem inequitable to require the prisoner to abandon the statutory right to an interim hearing simply because the courts had not yet ruled on the merits of the petition. But where, as here, the prisoner has waited until after the interim hearing to petition for habeas corpus relief, no unfairness results from requiring that the administrative review process be concluded. More than two years passed between the rejection of Masselli's appeal from his initial parole eligibility determination on June 13, 1983 and his interim hearing on July 1, 1985. Masselli chose to let those two years pass without seeking habeas corpus relief. It works no unfairness to him to now require him to await the final results of that interim review.

 Masselli urges that I rule on the merits of his petition notwithstanding any failure to exhaust administrative remedies. In support of this proposition, Masselli cites Timpani v. Sizer, 732 F.2d 1043, 1047 n.7 (2d Cir. 1984). Masselli asserts that in Timpani, the Court of Appeals "let stand" a ruling by the District Court of Connecticut that a prisoner need not exhaust the Commission's administrative remedies if the presumptive parole date contended for by the prisoner has already passed. Masselli asserts that he is in the same position as Timpani and that I should therefore rule on the merits of his petition.

 Masselli mischaracterizes Timpani. The Court of Appeals in Timpani "express[ed] no view" on the district court's ruling that Timpani did not have to await the outcome of his administrative appeal: Timpani's administrative appeal had been decided before the district court ruled on the merits of his petition, thereby mooting the exhaustion question. Id.

 I must respectfully differ with the district court's dictim *fn4" in Timpani that a federal prisoner need not exhaust administrative remedies once the contended-for presumptive release date has passed. Federal prisoners who challenge revocations of parole must exhaust administrative remedies before seeking habeas corpus relief, even though they claim they are entitled to immediate release. See, e.g., Guida v. Nelson, 603 F.2d 261, 262 (2d Cir. 1979) (per curiam); Miller v. Quinlan, 564 F. Supp. 802, 804 (S.D.N.Y. 1983); Carmel v. Thomas, 510 F. Supp. 784, 785 (S.D.N.Y. 1981). Cf. Lundy v. Osborn, 555 F.2d 534 (5th Cir. 1977) (federal prisoner claiming he should be released from segregation must exhaust administrative remedies). Prisoners who claim ...


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