The opinion of the court was delivered by: James C. Francis IV United States Magistrate Judge
Wayne Hunt brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging decisions by the United States Parole Commission (the "Parole Commission" or the "Commission") revoking his parole and denying him re-parole. He claims that the Commission (1) failed to conduct his revocation hearing in a timely manner; (2) denied him due process by voiding a prior proceeding; (3) improperly relied in its decisions on conduct for which he was either not charged or not convicted; (4) based its decisions on incomplete information; (5) violated his due process rights by refusing to take testimony from a witness by telephone; (6) wrongfully departed upward from parole guidelines when it denied him re-parole following revocation; and (7) erroneously considered information that should have been the subject of an earlier revocation proceeding and was not included in the current parole violator warrant.
The parties consented to my exercising jurisdiction over the petition for all purposes pursuant to 28 U.S.C. § 636(c). For the reasons that follow, the petition is denied.
In February 1977, Wayne Hunt pled guilty in the United States District Court for the Western District of Louisiana to a charge of kidnaping in violation of 18 U.S.C. § 1201. (Certificate of Douglas W. Thiessen dated Dec. 27, 2005 ("Thiessen Cert."), Exh. B). He had lured a twelve year old boy from his home in Lewisburg, Louisiana with promises of money, clothing, and a motorcycle, and he held the boy captive for several weeks, reportedly wielding a .357 magnum pistol during that time. (Thiessen Cert., Exh. B). At the time of his arrest, the petitioner had a criminal record dating back to 1964 when he was charged with desertion from the Navy. He had been charged with sexual perversion in 1973 and served three years of probation after conviction on a lesser charge, and in 1975 he was arrested for taking indecent liberties with a child, a charge for which no disposition was recorded. (Thiessen Cert., Exh. B). Following his conviction for kidnaping, Mr. Hunt was sentenced to life imprisonment, a term that was later reduced to ten years. (Thiessen Cert., Exh. A).
In July 1985, the petitioner's federal probation officer notified the Parole Commission that Mr. Hunt had been indicted in Troy, New York for sodomy in the second degree and sexual abuse of a minor in the second degree in connection with his molestation of two different boys, and that a bench warrant had issued when he failed to appear to answer the charges. (Thiessen Cert., Exh. D). Consequently, the Commission issued a parole violator warrant based on these charges as well as on Mr. Hunt's failure to report to his parole supervisor and his failure to report a change in address. (Thiessen Cert., Exh. E). In November 1985, the Commission supplemented the warrant based on the petitioner's having been charged in August 1985 with grand larceny. (Thiessen Cert., Exh. F). Then, in January 1986, the Commission again supplemented the warrant, this time to indicate that the petitioner had pled guilty to the sodomy and grand larceny charges. (Thiessen Cert., Exh. G). Mr. Hunt was sentenced to concurrent terms of two to four years of imprisonment on these state charges. (Thiessen Cert., Exh. G).
While in state custody, the petitioner was notified that the Parole Commission intended to conduct a dispositional review of the outstanding parole violator warrant. (Thiessen Cert., Exh. H). Mr. Hunt's attorney responded with a statement signed by the petitioner. (Thiessen Cert., Exh. J). Upon completion of its review in March 1987, the Commission determined to maintain the warrant as a detainer until the petitioner completed his state sentence. (Thiessen Cert., Exhs. M, N).
Mr. Hunt's original term expired in February 1987, ten years after he had been sentenced. However, in December 1987, the United States Probation Office for the Northern District of New York notified the Parole Commission that the petitioner had been charged in Rensselaer County Court in a 50-count indictment for acts committed between 1982 and 1985 and had pled guilty in November 1987 to two counts of kidnaping in the second degree, five counts of use of a child for sexual performance, two counts of promoting sexual performance, six counts of sodomy in the first degree, and three counts of sodomy in the second degree. (Thiessen Cert., Exh. O). He received a total aggregate sentence of twelve and one-half to twenty-five years imprisonment. (Thiessen Cert., Exh. O). The Commission advised the Probation Office that it could not supplement the parole violator warrant because Mr. Hunt's original term had expired, but it noted that the conduct that had now come to light could be considered in connection with adjudication of the existing warrant. (Thiessen Cert., Exh. P).
The Parole Commission then initiated another dispositional review of the parole violator warrant. A hearing was held on September 25, 1990, at which Mr. Hunt was represented by counsel. (Thiessen Cert., Exh. T). Based on the petitioner's admissions with respect to the original parole violation charges -- that he had committed sodomy in the second degree and grand larceny and that he had failed to report to his parole officer and had failed to report a change in address -- the hearing officer recommended, among other things, that Mr. Hunt's parole be revoked. (Thiessen Cert., Exh. T). The Commission then revoked the petitioner's parole, denied him credit for the time he had spent on parole, and ordered that the warrant be executed when Mr. Hunt was released from state custody. (Thiessen Cert., Exh. U). It also supplemented the warrant to incorporate the charges from Mr. Hunt's 1987 conviction, even though it had previously determined that it was not permitted to do so. (Thiessen Cert., Exh. V).
On March 11, 2004, the petitioner completed his state sentence, and the United States Marshal for the Northern District of New York took him into custody on the pending parole violation charges. (Thiessen Cert., Exh. Y). Recognizing its earlier error, the Commission removed from the parole violator warrant the supplementary charges relating to Mr. Hunt's 1987 conviction, but it found probable cause to proceed with respect to the other violations. (Thiessen Cert., Exhs. Z, AA).
Prior to the final revocation hearing, the Parole Commission calculated the petitioner's guideline range for re-parole. It determined that he had a salient factor score*fn1 of six based on factors including the nature of his prior offenses, his age, and his parole history and a severity score*fn2 of seven because the offense at issue involved forcible sodomy; these calculations resulted in a guideline range of 64-92 months. (Thiessen Cert., Exh. BB). However, because of the charge of failing to appear, the Commission enhanced Mr. Hunt's potential sentence by 6-12 months, resulting in a total guideline range of 70-104 months. (Thiessen Cert., Exh. BB).
The petitioner's final revocation hearing was held on June 30, 2004. Mr. Hunt, represented by counsel, admitted that he had committed sexual abuse in the second degree and sodomy in the second degree and had failed to appear in court as directed; he admitted that he had failed to report to the parole officer; he admitted that he had failed to report a change in residence; and he admitted that he had committed grand larceny in the third degree. (Thiessen Cert., Exh. CC). On July 14, 2004, the Commission issued a decision revoking Mr. Hunt's parole and denying him credit for time spent on parole. (Thiessen Cert., Exh. DD). However, it deferred decision on whether the petitioner would be eligible for re-parole until it obtained additional data about his disciplinary record in prison and his participation in counseling programs. (Thiessen Cert., Exh. DD).
After receiving the supplemental information, the Parole Commission issued a final determination on March 4, 2005. It departed from the guideline range and required Mr. Hunt to serve out the remainder of his federal sentence. (Thiessen Cert., Exh. II). While acknowledging that the charges relating to the petitioner's 1987 conviction had been withdrawn as a formal violation specification, the Commission relied on the underlying conduct as an important aggravating factor:
After review of all relevant factors and information, a decision above the guidelines is warranted because your offense involved the following aggravating factors: Your admission to Kidnapping [sic] and Sex Acts [in connection with the 1987 charges]. You are a more serious risk th[a]n indicated by your guidelines in that your original 1976 Federal crime involved the Kidnapping [sic] (for several weeks) of a 12-year old boy. In 1985, you sexually assaulted 2 boys and you were convicted by New York State. This, in part, has resulted in your current parole violation. . . . [T]he Commission continues to believe that you are a more serious risk to the community th[a]n indicated by your guidelines and that full service of term is warranted. (Thiessen Cert., Exh. II). The ...