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November 24, 1999


The opinion of the court was delivered by: Simandle, District Judge.


This matter is before the court on application of petitioner Boris Goldberg for writ of habeas corpus pursuant to 28 U.S.C. § 2241. In his petition, Goldberg claims that his due process rights have been violated. The U.S. Parole Commission (the "Commission") has allegedly relied upon an erroneous presentence report in calculating his minimum length of sentence. This Court will first determine whether petitioner has failed to exhaust available administrative remedies before mounting the challenge to the Commission's decision. Reaching the merits, the principle issue is whether the decision of the U.S. Parole Commission denying Golberg's release from confinement is based on criteria that are appropriate, rational and consistent with the law. For reasons explained below, the Court finds that petitioner has exhausted available administrative remedies and that this petition will be denied in its entirety upon the merits.


Petitioner is presently incarcerated at FCI Fort Dix serving a pre-guidelines sentence of 15 years incarceration imposed by the U.S. District Court for the Eastern District of New York following his plea of guilty to one count of RICO conspiracy. The relevant background facts are as follows.

A. Petitioner's Conviction and Judicial Appeals

After being arrested on RICO Conspiracy charges on September 17, 1991, petitioner accepted the U.S. Attorney's plea-bargain offer to plead guilty to one count of RICO conspiracy in violation of 18 U.S.C. § 1962(d), a Class C Felony with a maximum penalty of twenty years imprisonment, in return for a dismissal of all other counts in the indictment.

The plea agreement left open the length of sentence to the sentencing judge's discretion, and a presentence investigation report ("PSIR") was ordered. On July 28, 1992, the U.S. Probation Department issued a PSIR outlining the foundations for the RICO charge, which included, inter alia, allegations of murder, attempted murder, racketeering, and robbery. The presentence report did not make any specific recommendations as to length of sentence. Soon after the PSIR was issued, the Parole Commission issued on September 25, 1992 a Parole Guideline Estimate Worksheet that estimated that petitioner would have to serve 100 months before being eligible for parole.*fn1 On October 13, 1992, after a review of the PSIR and after hearing all the relevant evidence, the trial judge imposed upon petitioner the current fifteen year sentence, plus a $250,000 fine and a $50 dollar special assessment.

Petitioner appealed his sentence, arguing that the district court violated his due process rights by improperly relying on hearsay testimony about his involvement with a murder and three attempted murders in determining that he should be sentenced as the leader of the charged criminal enterprise. In an unpublished decision, the Second Circuit affirmed petitioner's sentence. United States v. Goldberg, 996 F.2d 301 (2d Cir. 1993).

Petitioner then filed a motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255 before the sentencing court. Petitioner claimed: (1) that the sentencing court erred in not accurately advising him of the maximum possible penalty; (2) that the sentencing court erred by failing to consider the factual basis of his guilty plea and by failing to advise petitioner of his right to withdraw his plea if the court chose not to accept his plea agreement; and (3) that he received ineffective assistance of counsel during the guilty plea and sentencing phases of his criminal case. The sentencing court found no merit in petitioner's contentions and denied the motion. Goldberg v. United States, 1995 WL 87304 (E.D.N.Y. Feb.15, 1995). The sentencing court also denied petitioner's motion for reconsideration. Goldberg v. United States, 1995 WL 228382 (E.D.N.Y. April 11, 1995).

Petitioner then appealed the sentencing court's denial of his § 2255 petition. On appeal, petitioner argued that he received ineffective assistance of counsel at his sentencing and that the sentencing court erred (1) in failing to determine whether he was able to pay the fine imposed as part of his sentence, (2) in not ordering an evidentiary hearing to consider whether he was able to pay the fine or whether a new presentence report was warranted, and (3) in denying his motion for a new presentence investigative interview and presentence report as the present report included unreliable hearsay. In an unpublished decision, the Second Circuit rejected each claim, specifically noting that Goldberg's attorney had challenged the credibility of the hearsay witnesses at the presentence hearing, and affirmed the sentencing court's denial of petitioner's § 2255 motion. Goldberg v. United States, 100 F.3d 941, 1996 WL 10104 (2d Cir. 1996).

B. Petitioner's Administrative Appeals

In the period during which Goldberg was pursuing judicial appeals of his sentence, the Parole Commission held hearings to officially determine the point at which Goldberg would be eligible for parole. To this end, the Commission conducted an initial parole hearing for petitioner on December 6, 1994. (Resp't's Ex. 3.) In its report dated December 27, 1994, the Commission assessed Goldberg's "salient factor score" at nine (9), placing him in the lowest category of risk for parole violation, but rated the severity of his offense as Category Eight (8) based on its finding that, as detailed in the PSIR, in the course of committing the underlying RICO offense, Goldberg had conspired to commit the murder of rivals Ilia Goldstein and Evsie Agron. Id. This combination of salient factors and offense severity yielded a parole guideline range of 100 months to be served prior to release. See 28 C.F.R. § 2.20 (1992), Guidelines for Decision-Making.*fn2 Pursuant to these findings, the Commission ordered that Goldberg serve approximately 107 months, making Goldberg eligible for parole in approximately September 2000. (Notice of Action, Resp't's Ex. 4 at 3.)

After his parole hearing, Goldberg twice petitioned the U.S. Probation Department to amend his PSIR to reduce his offense level downward from Category Eight. Both requests were denied. In a June 20, 1996 letter sent to Goldberg's FCI Fort Dix Correctional Counselor, Joseph Kalinowski, the probation department stated that it would not consider a defendant's objection to a PSIR once the defendant had been sentenced. Apparently, this was also the position taken by the Probation Department in a March 3, 1995 letter written to Goldberg by Probation Officer Kearns. (See June 20, 1996 Ltr. of Juanita Basnight, Asst. Dep. Chief U.S. Probation Officer, Presentence Division, Pet'r's Ex. D (noting previous correspondence with Goldberg)).

On December 12, 1996, the Commission conducted a Statutory Interim Hearing ("SIH") for Goldberg. (Resp't's Ex. 5.) The SIH panel began its report on this hearing by stating that Goldberg is "considered a more serious risk than reflected by the SFS based on his instant federal offense." Stated another way, the SIH panel questioned the initial parole panel's decision to rate Goldberg as presenting a very low risk of parole violation. The report also noted that at the SIH hearing, Goldberg argued that the PSIR upon which the Commission based his term of imprisonment was erroneous because he was not involved in a conspiracy to murder anyone nor did he commit any murders. As support, Goldberg referred to a September 22, 1995 letter from AUSA William Gurin sent to Goldberg's trial judge, the Honorable Eugene Nickerson, U.S. District Judge for the Eastern District of New York, in which Gurin indicated that Ilia Goldstein, whom the September 1992 Parole Guideline Estimate Worksheet listed as murdered, was in fact alive. As the AUSA admits that Goldstein is still alive, Goldberg argued to the SIH panel, the Commission's decision to rate his offense as a Level Eight was in error. Dismissing this argument, the SIH panel stated that, even assuming that Goldstein is alive, it nonetheless believed Goldberg to have been involved with the attempted murder of several individuals, along with other acts of conspiracy. Based on this finding, the panel found, the Commission's initial finding of a Category Eight offense level was correct. (Id. at 2.)

On January 16, 1997, Goldberg filed an appeal to the Commission's National Appeals Board, again challenging the offense severity rating of Category Eight, on the basis that he could not be held responsible for the murder of Ilia Goldstein because Goldstein is still alive. (Resp't's Ex. 7.) The National Appeals Board rejected Goldberg's request to amend his PSIR, and affirmed the SIH panel's finding of a Category Eight offense. The Appeals Board found that, even accepting that Goldberg had nothing to do with the attempt on Goldstein's life, the offense level was still correct because the PSIR contained information that Goldberg arranged the attempted murders of Robert Ferrante and Paul Krupa, and directed the successful murder of Evsie Agron. Any one of the PSIR's allegations related to Ferrante, Agron, or Krupa, the Board held, would justify the Category Eight severity rating and parole ineligibility until 107 months had been served. Moreover, the Board noted, Goldberg's then-pending § 2255 action is not a reason to re-open the case, but if the court were to issue a decision bearing on the parole determination, Goldberg would then be free to request a reopening under 28 C.F.R. § 2.28(a). The Board concluded by noting that "[a]ll decisions of the National Appeals Board are final." (U.S. Parole Commission, Notice of Action on Appeal, Pet'r's Ex. D.)

Despite having been finally denied relief by the National Appeals Board, Goldberg continued to file BOP forms contesting the propriety of the Commission's decision to base his parole guidelines on the PSIR. As far as can be discerned from the materials appended to Goldberg's Brief, the first of these challenges happened on May 29, 1997, when petitioner filed an "Informal Resolution Form" (BOP form # 9), complaining to his Correctional Counselors that the FCI Fort Dix Unit team should be using a different parole guideline sheet to calculate his parole eligibility. Based on handwritten notes at the bottom of this form, it seems that petitioner's counselors advised him to instead file a formal BOP complaint, a form of which was provided to Goldberg. Next, Goldberg filed a June 24, 1997,"Request for Administrative Remedy" (BOP form # 229(13)), asking that his PSIR "be corrected to accurately reflect the facts." This request was rejected on June 27, 1997 on the grounds that requests concerning a PSIR should be made to the probation office, a remedy which, as discussed above, Goldberg had already pursued. Next, petitioner on July 7, 1997 filed a "Regional Administrative Remedy Appeal" (BOP form # 230(13)) appealing the Administrative Staff's June 27, 1999 refusal to consider his PSIR claim. This Appeal was denied on July 23, 1997 on the grounds that such an appeal first must be submitted at the institution level. Goldberg then filed a "Central Office Administrative Remedy Appeal" on August 26, 1999 (BOP form # 231(13)), again raising the argument that his PSIR severity category was improperly raised by the Probation Department's reference to crimes which he did not commit. This appeal was denied on September 12, 1997, again, on the grounds that such an appeal must be submitted at the institutional level.

C. Petitioner's Present § 2241 Motion

Petitioner filed the present petition under ยง 2241 in this Court on April 9, 1998, claiming that his due process rights have been violated because his PSIR contains inaccurate information that the Commission has relied upon to deny him parole. In addition to his pending petition, Goldberg has filed three motions with this Court. First, in an Order dated February 23, 1999, the Court denied as unnecessary Goldberg's motion for additional discovery and Court-ordered subpoenas. (See Court's Order filed Feb. 23, 1999 at 2.) Second, the Court on May 19, 1999 denied Goldberg's motion for leave to amend his petition, finding no subject matter jurisdiction over the following proposed added grounds: (1) that the inclusion of information in his PSIR regarding his alleged involvement with the murder of Ilia Goldstein violated Rule 32, Fed R.Crim. P.; (2) that the trial court violated his due process rights by relying upon the allegedly inaccurate information in the PSIR at sentencing; (3) that the inclusion of the allegedly false information about his alleged involvement in the alleged murders of Ilia Goldstein and Paul Krupa constitutes an impermissible amendment of the indictment; (4) that the government breached its plea agreement with petitioner by introducing evidence of his alleged involvement in the alleged murders or attempted murders of Paul Krupa and others at sentencing through the presentence report; and (5) that he received ineffective assistance of counsel during the guilty plea and sentencing phases of his ...

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