The opinion of the court was delivered by: John G. Koeltl, District Judge
The petitioner, Robert James Young, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. The petitioner challenges a decision of the U.S. Parole Commission that revoked his parole and ordered that he be reconsidered for parole in fifteen years. For the reasons explained below, the petition is denied.
In his petition Young challenges his imprisonment at the Federal Correction Institution in Otisville, New York, following revocation of his parole, as a violation of his due process rights under the Fifth Amendment to the United States Constitution.
On January 31, 1975, Young abducted a ten-year-old girl and a nineteen-year-old woman, assaulted both of them, and sexually molested the ten-year-old victim and threatened to kill her, but instead left the girl naked and tied to a tree.
On August 11, 1975, Young entered a plea of guilty to a one-count information charging him with Interstate Transportation of a Kidnapped Person in violation of 18 U.S.C. § 1201(a). On October 7, 1975, Young was sentenced to life imprisonment for this offense. Because Young's original sentence was imposed prior to November 1, 1987, the date on which the United States Sentencing Guidelines and the abolition of the parole system took effect, Young was eligible for parole on his 1975 conviction.*fn2
At a parole hearing held in 1984, the U.S. Parole Commission (the "Commission") continued the matter to a fifteen-year reconsideration hearing to be held in 1999. (U.S. Parole Comm'n Notice of Action at 1, Jan. 4, 1985, Ex. E to Cert. of Douglas W. Thiessen, Jan. 24, 2006.) The Commission subsequently ordered Young to be paroled effective April 3, 1999 "subject to the Special Mental Health Aftercare Condition." (Notice of Action, Sep. 22, 1998, Ex. F to Thiessen Cert.) Under this condition, Young was required to "participate in an in-patient or an out-patient mental health program as directed by [his] U.S. Probation Officer." (Id.) Young was in fact released from the McKean Federal Correctional Institution, under lifetime parole in the Western District of Michigan, on April 2, 1999. (Cert. of Parole at 1, signed April 1, 1999, Ex. G to Thiessen Cert.) The Certificate of Parole, which Young signed, specified that Young fully understood the conditions of his parole and knew that, if he violated any of those conditions, he could be recommitted. (Id.)
On September 30, 1999, Young's probation officer, Tony Anderson, wrote a letter to case analyst Scott Kubic at the Commission to notify the Commission that Young had failed to comply with his mental health treatment on September 27, 1999. (Letter from Tony V. Anderson at 1, Sept. 30, 1999, Ex. H to Thiessen Cert.) This letter further stated that Young had been evicted from his residence for nonpayment of rent, had failed to notify his Probation Officer of his change of residence as required under the conditions of his parole, and was a suspect in both the recent burglary of his ex-wife's home and a check larceny. (Id. at 2.) The Probation Officer indicated that Young had committed three violations of the conditions of his parole: failure to notify his probation officer of a change of address, failure to respond to a Probation Office Directive to call the Probation Office, and failure to notify the local police department of a change of address. (Id. at 2-3.) On the basis of this letter, case analyst Kubic recommended that a warrant for Young's arrest be issued. (Warrant Application, Ex. I to Thiessen Cert.) On November 1, 1999, the Commission issued a warrant for Young's arrest. (Warrant, Ex. I to Thiessen Cert.)
In May 2000, Young was arrested in Marion County, Ohio, following an incident in which he was alleged to have threatened the husband of a recent acquaintance and other persons with a rifle in the street. At the time of Young's arrest for this incident, he was in possession of a loaded semiautomatic rifle, a power scope, a stun gun, and a butterfly knife. (Letter from Tony V. Anderson at 2, Jan. 5, 2001, Ex. J to Thiessen Cert.; Ohio Uniform Incident Report, Ex. M to Thiessen Cert.) On August 31, 2000, Young pleaded guilty in state court in Ohio to charges of Having a Weapon While Under Disability and Receiving Stolen Property (with an additional Firearm Specification), and he was sentenced to a total of four years' imprisonment.*fn3 (Entry of Guilty Plea, Aug. 31, 2000, Ex. M to Thiessen Cert.; Judgment Entry of Sentencing at 2, Sept. 6, 2000, Ex. M. to Thiessen Cert.)
Following this conviction, the Commission added a supplement to its November 1, 1999 parole violator warrant to reflect the crimes committed in Ohio. (Supplement, Ex. K to Thiessen Cert.) Upon Young's release from state prison in Ohio on May 21, 2004, the United States Marshals Service executed the Commission's warrant. (Executed Warrant, Ex. L to Thiessen Cert.) Young was charged with Failure to Report Change in Residence and with having violated the law in three ways: by Having Weapons While Under Disability, by Receiving Stolen Property, and by Assault with a Dangerous Weapon. (Summ. Report of Prelim. Interview at 3, Ex. N to Thiessen Decl.)
A preliminary interview of Young by the U.S. Probation Office in the Southern District of Ohio was conducted in the presence of counsel on July 12, 2004, during the course of which Young admitted that, in September 1999, he had failed to report his change of residence to his Probation Officer, as required by the conditions of his parole, and that he had violated the law by having a weapon while under disability and receiving stolen property. (Id. at 2--6.) On the basis of this interview, the interviewing Probation Officer concluded that probable cause existed to believe that Young had violated the conditions of his parole with respect to all charges. (Id. at 2.)
At a final parole revocation hearing before a hearing examiner from the Commission on November 17, 2004, which Young attended while represented by counsel, Young admitted both of the charges against him-failure to report a change in residence and violating the law in the three ways charged. (Hearing Summ. at 1-2, Nov. 19, 2004, Ex. P to Thiessen Cert.) The hearing examiner found that, because Young had pointed the rifle at people rather than merely possessed the rifle, his violation fell into Category 5, and the Re-parole Guideline range for his violations was 60-72 months imprisonment. (Id.) The hearing examiner recommended a term of 63 months imprisonment and the imposition of the Mental Health Aftercare/Sex Offender Counseling condition upon completion of Young's re-imprisonment. (Id. at 2-3.)
A member of the Commission considered the recommendation on December 8, 2004, and concluded instead that a departure from the Guidelines was warranted because of Young's lengthy criminal history and his conduct after being released on parole. The Commissioner noted that Young had ten prior convictions and, within about a year of release on parole, Young had committed serious violations of the terms of his parole. Among various other averments, the Commissioner asserted that Young had "absconded from supervision by stealing a car . . . , stealing a gun" and pointing the gun at someone and threatening to kill him. (Mem. from Comm'r Deborah A. Spagnoli, Dec. 8, 2004, Ex. Q to Thiessen Cert.) The Commissioner recommended that Young's parole be revoked in full, with reconsideration in three years. (Id.)
On April 4, 2005, the Commission revoked Young's parole and continued his case for a fifteen-year reconsideration hearing in November 2019 rather than making him eligible for re-parole after 63 months imprisonment, and it imposed more stringent conditions in the event that Young should be released in the future. (Notice of Action at 1, Apr. 4, 2005, Ex. R to Thiessen Cert.) The Commission shared the view that a sentence above the Guidelines range was warranted because, in light of the facts of his case, Young was a more serious risk than his Guidelines range suggested. (Id. at 2.)
On April 27, 2005, Young filed an appeal with the Commission's National Appeals Board. (Appeal, Apr. 27, 2005, Ex. S to Thiessen Cert.) On appeal, Young made three principal arguments. First, Young argued that the Commission violated his due process rights under the Fifth Amendment to the United States Constitution by imposing a sentence above the Guidelines range that was based, in part, upon consideration of the circumstances of his original offense (as recorded in his presentence report), which took place thirty years earlier, and that the Commission exceeded its statutory authority by considering the original offense conduct rather than considering only conduct that had taken place since the preceding parole hearing in 1999. Young also denied that he had stolen a car when he left Michigan for Ohio in September. (Id.) Second, Young argued that the Commission violated the ninety-day statutory limit set forth in 28 C.F.R. § 2.49(f) because his revocation hearing on November 17, 2004 took place almost six months after the execution of the warrant against him on May 21, 2004. (Id.) Third, Young argued that the Commission had failed adequately to consider his psychiatric history and his serious health problems in imposing a sentence above the Guidelines range. (Id.)
On July 19, 2005, the National Appeals Board issued a decision affirming the sentence imposed by the Commission with two exceptions: It vacated the order of a semiannual polygraph test as a condition, and it modified the reasons for the sentence to exclude any reference to allegations that Young stole a car. (Notice of Action on Appeal at 1, July 19, 2005, Ex. T to Thiessen Decl.) The National Appeals Board rejected Young's argument that the Commission could not consider his original offense, stating that the Commission is required by statute to consider "all relevant information about the prisoner, including the 'history and characteristics of the prisoner.'" (Id.) The Board noted, "You have demonstrated that you are capable of committing a violent offense against a child, and this capacity is relevant to any assessment of the risk of you committing another offense and the possibility that the next offense could be as serious as your original offense." (Id.)
The National Appeals Board conceded that Young's parole revocation hearing took place more than 90 days after the warrant against him was executed, but found that Young had failed to demonstrate prejudice as a result of the delay. (Id. at 2.)
The National Appeals Board concluded that Young's record prior to the crime committed in 1975, the circumstances surrounding Young's federal offense in 1975, his failure to comply with the conditions of his parole only a few months after release, and the circumstances of the crimes Young committed in Ohio in 2000-particularly the fact that he was in possession of several weapons and threatened people with a rifle-all justified the Commission's decision to impose a sanction higher than the Guidelines range. (Id. at 1-2.)
On August 17, 2005, Young commenced this action by filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.*fn4
"Federal court review of parole commission decisions is extremely limited, because the [C]ommission has been granted broad discretion to determine parole eligibility." Bialkin v. Baer, 719 F.2d 590, 593 (2d Cir. 1983). This Court therefore reviews the decisions of the Commission for abuse of discretion and must uphold action taken by the Commission if there is a rational basis for the Commission's decision. Id.; see also Crutchfield v. U.S. Parole Comm'n, 438 F. Supp. 2d 472, 476 (S.D.N.Y. ...