Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hunterson v. DiSabato

September 10, 1998

NEIL HUNTERSON, PETITIONER
v.
MARY KEATING DISABATO, CHAIRPERSON, NEW JERSEY STATE PAROLE BOARD, ET AL. RESPONDENTS



The opinion of the court was delivered by: Hon. Joseph H. Rodriguez

ORDER

This matter is before the court on motion of pro se Petitioner, Neil Hunterson, for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner also filed a motion to compel discovery. The Court, after considering the submission of the parties, and for the reasons set forth below, grants the petition and dismisses the motion to compel discovery as moot.

BACKGROUND

A. Factual and Procedural History

Petitioner Neil "Dutch" Hunterson was originally convicted of murder and kidnaping in the Superior Court of New Jersey, Camden County on July 28, 1972. He was paroled on July 29, 1992, after serving approximately twenty years of a life sentence. Over two years later, Petitioner was rearrested and imprisoned on minor drug charges, beginning his struggle through a long and complex procedural morass that Petitioner alleges to be the result of retaliatory motives of the New Jersey Bureau of Parole designed to keep him imprisoned despite having properly completed his prison sentence. Specifically, Petitioner argues that his confinement is retaliation by the New Jersey Department of Corrections ("DOC") for both his personal relationship with Deborah Hansen, the former Deputy Director of Interstate Parole Services, and their public statements criticizing the DOC for their handling of the Robert "Mudman" Simon case. *fn1 According to the petition and various newspaper articles written about the couple, copies of which were included as exhibits to the petition, Hansen was suspended from her job when the Bureau of Parole learned of their relationship. It was felt that this type of relationship created a conflict of interest.

From Petitioner's version of the facts, *fn2 it appears that the New Jersey Department of Corrections Bureau of Parole first learned about their relationship sometime in the first half of 1994. From that point on, he claims the DOC conspired to destroy the relationship and terminate Hansen's employment. *fn3 To further punish her, Petitioner claims that the Bureau of Parole attempted to revoke Petitioner's parole based on an old marijuana possession charge. See, e.g., Larry King and Maureen Graham, The Biker and the bureaucrat, THE PHILADELPHIA INQUIRER, June 18, 1995; Pet'r's Ex. 35.

The events most relevant to this petition began on September 29, 1994, when Petitioner, while released on parole, was rearrested on charges of possession of marijuana and possession with intent to distribute approximately fifty grams of marijuana. He was released on his own recognizance. On October 3, 1994, when Petitioner reported to his parole office as directed, he was arrested on a parole violator warrant based on urine specimens that allegedly tested positive for controlled substances. The Bureau of Parole then filed a notice of probable cause hearing with the New Jersey Parole Board ("Board") based on the allegedly tainted urine specimens.

Probable cause for the parole violator warrant was found at a hearing held on October 21, 1994, and Petitioner was ordered to be held pending final revocation proceedings. On October 27, 1994, while Petitioner was waiting for his appeal to the Appellate Division of the New Jersey Superior Court to be heard, a supplemental Notice of Probable Cause Hearing was filed, based on both the marijuana arrest and tainted urine samples. The original parole violator warrant, however, was found to be without probable cause by the Appellate Division on November 2, 1994 and the three urine samples were suppressed because the State could not establish the proper chain of custody. *fn4 A third Notice of Probable Cause Hearing was issued on November 4, 1994, again referencing the marijuana charge. On November 15, 1994, Petitioner received a letter stating that the Probable Cause Hearing was indefinitely postponed pending the outcome of Petitioner's marijuana charge and Petitioner was released. Letter to Pet'r dated 11/15/95; Pet'r's Ex. 24. Also sometime in November, 1994, the possession with intent to distribute charge was dropped, but Petitioner was indicted on one count of possession of 51.1 grams of marijuana, a fourth degree offense. On December 27, 1994, the second parole violator warrant was vacated by the Appellate Division. *fn5

Still prior to any adjudication on the possession of marijuana charge and approximately eight months later, on June 15, 1995 a third Probable Cause Hearing was conducted. Probable cause was found, but after another emergent appeal to the Appellate Division, this warrant was also vacated for lack of probable cause. *fn6 Accordingly, on June 20, 1995, Petitioner was again ordered to be released.

The New Jersey Supreme Court, however, stayed the order releasing petitioner and allowed the Chief of the New Jersey Bureau of Parole to reapply to the Parole Board for accelerated revocation proceedings. On June 28, 1995, just two days later, the Bureau of Parole filed another Notice of Probable Cause Hearing for pre-conviction revocation of Petitioner's parole. The stay was vacated on June 30, 1995 due to the Board's approval of the Chief's motion for Petitioner's continued detention pending the outcome of the accelerated revocation proceedings. The probable cause hearing was held on July 6, 1995. On July 10, 1995, the Hearing Officer concluded that despite the fact probable cause existed to believe Petitioner violated his parole, his parole should be continued pending final determination by the paroling authority. This decision, however, was overruled by the Parole Board who decided to keep Petitioner incarcerated pending their review of the case. *fn7 After another appeal to the Appellate Division, on July 24, 1995 Petitioner was yet again ordered to be released. *fn8 Nonetheless, the supreme court reversed this order on July 25, 1995 without explanation.

B. The Accelerated Parole Revocation Hearing

The final hearing to adjudicate the Bureau's application for accelerated revocation under N.J. Stat. Ann. § 30:4-123.60 was held on September 29, 1995. Petitioner was represented by privately retained counsel Lawrence Magid, Esq., and the Bureau of Parole was represented by Mario Paparozzi, Esq., the Acting Deputy Compact Administrator of the Office of Interstate Service, Bureau of Parole. In the context of this hearing which was held before Hearing Officer Timothy J. Murphy, the Bureau had the burden of showing by clear and convincing evidence that Petitioner had seriously or persistently violated the conditions of his parole, and that revocation of parole was desirable. See N.J. Admin. Code §§ 10A:71-7.3 and 10A:71-7.12.

A number of people testified at this hearing. First, the Bureau called Officer Charles B. Bitchakjian of the Winslow Township Police Department, the officer who arrested Petitioner a year prior for possession and possession with the intent to distribute marijuana on September 29, 1994. The Hearing Officer found, and it is not seriously contested given Petitioner's subsequent guilty plea (to the possessory offense but not the distribution offense), that Petitioner possessed marijuana on that date. The Hearing Officer also noted that "[t]his determination, however, begins rather than ends the relevant inquiry into the matter, for in its application the Bureau alleges that the pending criminal charge is a serious one and that Mr. Hunterson poses a danger to the public safety." Timothy Murphy's Hearing Summary to Adult Panel at 2 ("Hearing Summary"), dated 10/30/95; Pet'r's Ex. 82-90.

The Bureau next called Ron Holvey, an investigator in New Jersey State Prison Internal Affairs. Investigator Holvey testified to a conversation he had with an inmate who saw Petitioner at a fund-raising benefit for a member of the South Jersey Chapter of the Pagans motorcycle gang on April, 21 1995. *fn9 The inmate allegedly saw Petitioner at this rally with Robert "Mudman" Simon. Investigator Holvey also read from someone else's police report that implicated Petitioner in an allegedly terroristic threat against John Bucanis, Petitioner's half-brother. In his Hearing Summary, the Hearing Officer noted that Investigator Holvey's testimony was rank double-level hearsay but felt it corroborated the testimony of Trooper Glen Pender, who stopped Petitioner en route to the Pagan fund-raiser on April 21, 1995. Hr'g Summary at 5; Pet'r's Ex. 86.

Following Investigator Holvey, the Bureau called Lieutenant A. Potter of the New Jersey State Police to tell of Petitioner's interaction with Ralph DeFabio, a member of the Warlocks motorcycle gang known as Dago, who Petitioner threatened over the telephone on July 9, 1992 and August 5, 1992. The first conversation, introduced only through double-level hearsay, prompted DeFabio to contact law enforcement authorities and record the August 5, 1992 conversation. In this conversation, Petitioner, who apparently was upset that DeFabio had stolen his car and somehow assisted in his murder conviction, suggested that he would seriously harm DeFabio and his family. *fn10 This threat, however, was not previously used to support any of the parole violator warrants and had occurred years before his arrest for marijuana, which was the impetus of the parole revocation proceedings.

Petitioner also called witnesses in his defense. First, his neighbor Ms. Cynthia Duble who had known Petitioner for sixteen months testified that he was "like a relative" and "is a good man." Tr. Accelerated Revocation Hr'g, Test. of Duble, Sept. 29, 1995 at 110, 114. She also stated that she knew Petitioner was incarcerated for murder but was still comfortable with having her three young children in Hunterson's presence unattended. Tr. Accelerated Revocation Hr'g, Test. of Duble, Sept. 29, 1995 at 115; Hr'g Summary at 5. *fn11

Next, Petitioner called his employer Ray Menear who had known Petitioner for over thirty years and unhesitatingly testified to Petitioner's good character. Petitioner was described as a "[v]ery able worker" and Mr. Menear stated that he had to hire three other workers to replace him. Tr. Accelerated Revocation Hr'g, Test. of Menear, Sept. 29, 1995 at 121. It was also stated that Petitioner was permitted to work on jobs in secure facilities that require background checks, such as for the Federal Reserve. Mr. Menear testified that Petitioner has changed since his 1971 arrest, and when asked if he considered Petitioner to be a danger, he responded:

Not in the least. I mean he's been in my house. He's welcome in my house any time. Other people that he works with he would be welcome at their house. It's hard to believe even like some of the things that's gone on that this is the same person that's done this stuff . . . . Tr. Accelerated Revocation Hr'g, Test. of Menear, Sept. 29, 1995 at 122-23. *fn12

The next witness called to testify was Parole Officer Thomas Flannery, who was Petitioner's parole officer for seven years when he was on regular status as well as his most recent parole officer. Preliminarily, he stated that he knew of no conditions that forbid Petitioner from associating with members of motorcycle gangs. Officer Flannery further testified that Petitioner was functioning well on parole, but that Petitioner sometimes felt angry because he thought that the system was trying to put him back into jail. This anger, however, was not considered to be an indication of violence, *fn13 and Officer Flannery testified that he saw nothing that would indicate Petitioner was a danger to society. Upon questioning by the Hearing Officer, Officer Flannery agreed with the Hearing Officer's hypothetical scenarios where a parolee convicted of murder who was arrested for marijuana possession could represent a danger to the community.

Senior Parole Officer Vincent Piccurelli was Petitioner's parole officer for two months in 1994, and testified that Petitioner was placed in an outpatient drug counseling program *fn14 but that he did not see Petitioner having any problems adjusting to parole. Apparently not satisfied with Officer Piccurelli's testimony that it was peculiar that a fourth degree possessory drug offense would result in an application for accelerated revocation, the Hearing Officer analogized Petitioner to a pedophile:

Q: Well, let me, as an example, if a person were on parole, and was identified as a pedophile was on parole for sexual assault of a six year old, would a fourth degree or even a DP trespass be troublesome if the trespass was at a primary school and he was found to be in the mens-the boy's bathroom?

A: Absolutely.

Q: Whereas trespass in a different scenario may not be so alarming?

A: It may carry different weight, that's correct. Tr. Accelerated Revocation Hr'g, Test. of Piccurelli, Sept. 29, 1995 at 166.

The most striking testimony came from Senior Parole Officer Elaine Catherine Torres, who supervised Petitioner from October, 1992 to June, 1994. She told of how Petitioner had lived and cared for his terminally ill mother and unhesitatingly stated that:

There was nothing [about Petitioner] that was not positive. He was, he was one of the best parolees that I did supervise. He was constantly working to the point where I couldn't even connect to make a positive home visit. At that point I just stopped going to the home and I went to his job. He was always on the job. He was working two jobs, sometimes three jobs. Tr. Accelerated Revocation Hr'g, Test. of Torres, Sept. 29, 1995 at 177.

More importantly, she testified that Petitioner's case was treated differently from the other parolees. First, she commented that it was odd that the Bureau applied for accelerated parole revocation six months after having informed Petitioner that it would suspend revocation proceedings until the charge for marijuana possession was adjudicated. Second, Officer Torres admitted to telling Petitioner that she believed his marijuana arrest was suspicious, because the day before the arrest one of her co-workers told her that he was going to tell the local police about Petitioner's allegedly tainted urine samples. Moreover, after she testified at the July 6, 1995 probable cause hearing where she stated that she did not feel Petitioner was a threat to the community, she received an unscheduled personnel assessment and was lowered two levels. *fn15 Following this, Officer ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.