United States District Court, S.D. New York
LORETTA A. PRESKA, Chief District Judge.
On May 11, 2012, pro se petitioner Kevin Razzoli ("Razzoli" or "Petitioner"), a federal prisoner, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (See Pet. for Writ of Habeas Corpus, dated May 2, 2012 (the "Petition" or "Pet.") [dkt. no. 1].) Respondents the Federal Bureau of Prisons, United States Navy, United States Marshals Service, United States Probation Department, and the Geo Group (collectively, "Respondents") opposed the Petition. (See Resp'ts' Mem. of Law in Opp'n to Pet. for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241, dated Aug. 17, 2012 (the "Opposition" or "Opp'n") [dkt. no. 14].) On July 10, 2013, Magistrate Judge Kevin Nathaniel Fox issued a Report and Recommendation (the "Report") [dkt. no. 31], recommending that the Petition be dismissed but that Razzoli be given an opportunity to amend certain of the Petition's claims. For the reasons set forth below, the Report is ADOPTED IN PART, and the Petition is DISMISSED with prejudice.
The Court accepts the Report's recitation of the facts at bar and repeats them below for context.
1. Allegations in the Petition
Razzoli alleges that he "is being illegally confined against his will by U.S. PAROLE COM'N & also BOP/US DOJ & U.S. NAVY, '" in violation of 18 U.S.C. §§ 241, 242, 1001, 1961-1964 and 10 U.S.C. § 858(a). (See Pet. at 3.) Razzoli further claims that "on March 3, 2012, December 3, 2011, and in the past, " Respondents "have used COINTEL-PRO/Mkultra'... and intentionally deny him the right to review & subpoena any Wittiness & Documents to show that U.S. MARSHALS, FBI, BOP, TOP ECHILON RATS' working for the FBI/SIA RAT PROGRAM'... engaged in ACT of CIVIL RICO in unison & concert with one another to deny... Razzoli... his right to operate RAZ TRADING LLC in New York, New Jersey, Phila, Penn., ... and also interfered with VENEZUELAN, Canadian[, ] Spanish, Italian, ' INTERNATIONAL TRADE & INTER-STATE COMMERCE[.]" (Id.) Razzoli alleges that the Respondents used "FALSE FBI REPORTS" and that "such ACTS DENIED RIGHT TO HAVE CHILDREN.'" (Id. at 4.) Razzoli therefore requests a "COURT HEARING and [the] PRODUCTION of" various government officials and employees "to prove that ALL TOP ECHILON RATS ACTED under the Direction [of] CHIEF U.S. DOJ & CHIEF FBI COUNSEL' which caused RACKETEERING ACTS' that U.S. DOJ STATED resulted in such INJURIES at MDC BROOKLYN which was later used to PROLONG' such illegal incarceration." (Id.)
2. Facts Set Forth in Respondents' Return
On December 1, 1987, Razzoli was convicted of attempted murder and other offenses by a Navy Court Martial and sentenced to a term of twenty-five years' imprisonment. (Return, dated Aug. 17, 2012 (the "Return") [dkt. no. 13] ¶ 1.) On January 23, 2009, Razzoli was paroled by the United States Parole Commission (the "Commission"), which placed him under supervision in the Southern District of New York. (Id. ¶ 2 & Ex. 2.) On January 28, 2010, the Commission issued a violator warrant for Razzoli, charging him with: (1) using dangerous and habit forming drugs, namely cocaine; (2) failing to submit to drug testing; (3) failing to report a change in employment; (4) leaving the district without permission; and (5) failing to report to his supervising officer as directed. (Id. ¶ 4 & Exs. 4, 5.) Razzoli was arrested pursuant to this warrant on March 4, 2010. (Id. & Ex. 6.)
On April 21, 2010, the Commission found probable cause that Razzoli had violated his parole. (Id. ¶ 8 & Exs. 8, 10.) The Commission subsequently ordered Razzoli to undergo a mental health evaluation. (Id.) On July 7, 2010, after interviewing Razzoli, a Federal Bureau of Prisons staff psychologist recommended that Razzoli be referred for a forensic evaluation to determine whether Razzoli had a psychotic and personality disorder. (Id. ¶ 9 & Ex. 11.) On July 28, 2010, the Commission informed Razzoli by letter that it had found probable cause that he violated his parole. (Id. ¶ 10 & Ex. 12.) The Commission ordered a hearing to determine whether to revoke Razzoli's parole. (Id.) The Commission received the results of the forensic evaluation on June 7, 2011. (Id. ¶ 13 & Ex. 15.) The evaluation concluded that Razzoli was competent to proceed with the parole revocation hearing, although he presented with a mental disease: delusional disorder with somatic and persecutory delusions. (Id.)
Razzoli's parole revocation hearing was held on September 23, 2011. (Id. ¶ 14 & Ex. 16.) On November 30, 2011, the Commission informed Razzoli, by notice, of its decision to: (1) revoke his parole; (2) withhold credit on the sentence, for the period beginning December 19, 2009 and ending March 3, 2010; and (3) re-parole Razzoli, effective December 3, 2011. (Id. ¶ 15 & Exs. 17, 18.) On December 2, 2011, the Commission reopened Razzoli's case and pushed back his effective parole date to March 3, 2012, because the Federal Correctional Institution in Fairton, New Jersey ("FCI Fairton"), where Razzoli was being held, needed additional time for release planning. (Id. ¶ 16 & Exs. 19, 20.) On December 30, 2011, FCI Fairton reported that Razzoli had been found guilty of fighting and threatening another with bodily harm. (Id. ¶ 17 & Ex. 21.) Because of these rule violations, the Commission pushed back Razzoli's effective parole date another sixty days, to May 2, 2012. (Id. ¶ 18 & Ex. 22.)
Razzoli filed the instant Petition on May 11, 2012. Once paroled, Razzoli was required to remain under parole supervision in the Southern District of New York through November 6, 2013. (Id. ¶ 19 & Ex. 23.) On June 6, 2012, the Commission issued, at the request of United States Probation Officer Robin M. Rice, a violator warrant charging Razzoli with: (1) violating the special residential re-entry center parole condition; (2) violating the special drug and alcohol aftercare parole condition; (3) failing to report his change in residence; and (4) using dangerous and habit forming drugs, namely cocaine. (Id. ¶ 21 & Exs. 25, 26.) Razzoli surrendered on June 8, 2012. (Id. ¶ 22 & Ex. 27.)
On June 14, 2012, the Commission requested that the United States Probation Office for the Southern District of New York conduct an interview with Razzoli to assess whether there was probable cause that Razzoli had violated the abovementioned conditions of his parole. (Id. ¶ 23 & Ex. 28.) On June 20, 2012, Razzoli requested the interview be postponed so that he could obtain representation by counsel and the appearance of witnesses. (Id. ¶ 24 & Ex. 29.) The Commission was later informed that private counsel, instead of the Federal Defenders Office, had been appointed to represent Razzoli in the administrative proceeding due to a conflict of interest. (Id. ¶ 25 & Exs. 30, 31.)
B. The Opposition
In the Opposition, Respondents raise three primary arguments. First, Respondents construe Razzoli's claims to allege that Respondents engaged in a conspiracy to (a) prevent Razzoli from operating Raz Trading LLC, (b) implant various devices into Razzoli, and (c) prevent Razzoli from reproducing. (Opp'n at 6 (citing Pet. at 3, 5, 6).) Respondents argue that these conspiracy claims "should be denied as frivolous." (Id.) Second, Respondents argue that Razzoli's challenge to his March 4, 2010 arrest and the January 28, 2010 parole revocation (which led to the March 4, 2010 arrest) "should be dismissed as successive" because "Razzoli previously filed a habeas petition concerning the March 4, 2010 arrest that was denied." (Id. at 7.) In the alternative, Respondents argue that these claims should be dismissed because "Razzoli makes no allegations demonstrating that the March 4, 2010 arrest or the January 28, 2010 parole warrant were illegal...." ...