The opinion of the court was delivered by: Rodriguez, J.
Two and one-half years ago, this Court ordered petitioner's immediate release from prison upon finding that the New Jersey State Parole Board violated petitioner's substantive due process rights by imposing a future eligibility term far in excess of the norm imposed for petitioner's actual parole violation, and that the Board's action was arbitrary, capricious, and an abuse of discretion, and, in addition, that the New Jersey Superior Court, Appellate Division's affirmance of the Board's decision was unreasonable.
Rather than comply with this Court's Order, however, respondents waited four days and then filed a motion for a stay of the Order granting habeas corpus relief along with a motion for reconsideration accompanied by a confidential psychological evaluation. The Court granted in part respondents' motion for reconsideration in light of the Third Circuit's holding in Gambino v. Morris, 134 F.3d 156 (3d Cir. 1998), which instructs that absent unusual circumstances, a remand to the Parole Board, or something other than immediate parole release, is the appropriate remedy to be afforded a petitioner who succeeds in obtaining a writ of habeas corpus. Since that time, this Court has noted repeatedly that its reconsideration of the earlier Order would be limited to determining only the appropriate remedy to be applied in this case, and that it would not revisit its grant of habeas corpus relief. This matter is now before the Court as a result of simultaneous briefing by the parties on the limited issue of the appropriate remedy to be afforded petitioner.
A. The Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254
On September 10, 1998, this Court granted petitioner Neil Hunterson's petition for a writ of habeas corpus filed on February 6, 1998 pursuant to 28 U.S.C. § 2254, and ordered his immediate release. The September 10, 1998 Order painstakingly laid out the procedural history of petitioner's parole revocation which led to his filing the instant petition, including:
§ petitioner's September 29, 1994 arrest for possession and possession with intent to distribute 50 grams of marijuana, for which he was released on his own recognizance;
§ his immediate subsequent (October 3, 1994) arrest on a parole violator warrant based on allegedly positive drug tests, which warrant on its own was found to be without probable cause by the New Jersey Superior Court, Appellate Division on November 2, 1994 *fn1 due to chain of custody problems (although the New Jersey Parole Board had found that probable cause for the warrant existed at a October 21, 1994 hearing);
§ a supplemental notice of probable cause hearing, issued October 27, 1994, based on both the marijuana arrest and the drug tests;
§ a third notice of probable cause hearing issued on November 4, 1994, again referencing the marijuana charge;
§ the Appellate Division's decision of December 22, 1994 to vacate summarily the second parole violator warrant;
§ the Appellate Division's June 20, 1995 decision to vacate the third warrant for lack of probable cause, although the Parole Board had found probable cause at a June 15, 1995 probable cause hearing;
§ the New Jersey Supreme Court's grant of a stay of the June 20, 1995 order releasing petitioner and allowing the Chief of the Bureau of Parole to apply to the Parole Board for accelerated parole revocation proceedings;
§ a July 6, 1995 probable cause hearing which culminated in a July 10, 1995 decision by the hearing officer that, although probable cause existed to believe petitioner violated his parole, his parole should be continued pending final determination by the paroling authority, and the Parole Board's decision to overrule this determination of the hearing officer and keep petitioner incarcerated pending the Board's review of the case;
§ the Appellate Division's July 24, 1995 decision that petitioner was to be released because, as he had yet not been convicted of the marijuana charge, (1) the offense with which he was charged was not serious and (2) the record did not support that he was a danger to the public safety;
§ the New Jersey Supreme Court's unexplained July 25, 1995 reversal of the Appellate Division's decision;
§ several pages of summaries of the testimony offered at the September 29, 1995 final parole revocation hearing, at which petitioner was represented by privately retained counsel and the
Bureau of Parole was represented by Mario Paparozzi, Esq.;
§ the October 30, 1995 hearing summary submitted to the Adult Panel of the Parole Board which resulted in a two-member board revoking petitioner's parole on November 1, 1995 and referring his case to a three-member panel to impose a future eligibility term outside the guidelines;
§ the imposition of a five-year FET by a three-member panel on January 24, 1996;
§ the April 3, 1996 denial by the Parole Board of petitioner's administrative appeal;
§ the Appellate Division's remand for the Board to reconsider the denial in light of the fact that the Board was not aware that the March 3, 1996 guilty plea to possession of marijuana was downgraded from a fourth degree offense to a disorderly persons offense;
§ the April 10, 1996 decision by a three-member panel of the Board to sustain the FET, the August 5, 1996 final administrative decision of the full Board to deny all relief, the September 5, 1997 decision of the Appellate Division to deny petitioner's appeal of the final administrative decision, and the January 15, 1998 denial of certification by the New Jersey Supreme Court.
The Court noted that the respondents originally submitted a two and one-half page Answer to the petition on March 4, 1998, contending that the petition should be dismissed for petitioner's failure to exhaust his administrative remedies. After petitioner filed a traverse refuting their argument, on March 28, 1998, respondents sent a two-page letter reasserting their exhaustion argument and stating that petitioner was scheduled to be given a parole release hearing in May of 1998 and that it was respondents' belief, in any event, that petitioner failed to present "true federal claims."
On April 29, 1998, petitioner filed a motion to compel discovery which included a request for production of documents he alleged were necessary to fully develop the facts of his claim. The respondents did not respond.
On July 6, 1998, this Court issued an Order which found that the exhaustion argument was moot, and directed respondents to file an Answer to the Petition in conformance with the habeas corpus rules, because they had never addressed the merits of petitioner's claims. On July 14, 1998, the Court received an Answer that stated that the Appellate Division found petitioner's claims to be without merit on September 5, 1997, and that under the strict standard of review, that determination did not rise to the level of unreasonableness and, therefore, could not support the granting of a writ of habeas corpus.
On May 21, 1998, approximately three and one-half months after the petition was filed, petitioner received a hearing before a panel of the Board and was denied parole. A thirty-six month FET was imposed. The following day, however, that decision was vacated and petitioner received another hearing before a different panel of the Board on May 27, 1998. This panel also denied parole but did not impose an FET at that time. On August 24, 1998, Douglass Chiesa, the Deputy Executive Director of the New Jersey Bureau of Parole, confirmed with chambers that no further action had been taken. This was noted on pages 19-20 of the September 10, 1998 Order.
On September 10, 1998, this Court determined that the Parole Board, in revoking petitioner's parole and imposing a future eligibility term outside the guidelines, *fn2 acted impermissibly and in violation of petitioner's substantive due process rights. The Court found that although the Appellate Division's affirmance of the Board's initial decision on November 1, 1995 to revoke petitioner's parole was satisfactorily supported by the record and therefore not inappropriate, the affirmance of the Board's March 13, 1996 imposition of a longer FET than normally required by statute was unreasonable under the circumstances.
B. Respondents' Motion for a Stay
On September 15, 1998, after considering the September 14, 1998 submissions of the respondents which included documents submitted for in camera review, the Court stayed the execution of the September 10, 1998 Order. Respondents' submission included a Notice of Decision suspiciously dated September 9, 1998 which was supposed to have been based on the May 27, 1998 hearing. The Notice of Decision relied on a March 11, 1998 confidential psychological evaluation *fn3 to deny parole and refer petitioner's case to a three-member panel for establishment of an FET. *fn4
C. Respondents' Motion for Reconsideration
On June 10, 1999, this Court granted respondents' motion for reconsideration of the September 10, 1998 Order in light of Third Circuit authority which indicates that the proper remedy in a case such as this one ordinarily would be something other than petitioner's release. Specifically, the Order reads, "the Court will grant the Motion for Reconsideration, and will reconsider its decision in order to formulate a proper remedy to afford petitioner habeas relief." (June 10, 1999 Order, p.1.)
The Court stated that it would not consider the psychological report submitted under seal (or an allegedly-perjurious affidavit of former Chairman Andrew Consovoy) in making a decision on the reconsideration motion, because it was not "newly discovered" and
an exercise of due diligence would have put these documents before the Court at the time of its original decision in September of 1998. The Court found in its earlier decision that the Board's determination was arbitrary and irrational and that the Board failed to explain adequately its decision and the reasoning therefor. The new Affidavit and attached psychological evaluation appear to be a classic attempt at a "second bite at the apple" and, as such, will not be considered.
However, because the respondents rightly contend that the Court overlooked controlling decisions of law which hold that the proper remedy in a situation such as this one would have been something other than ordering petitioner's release, see, e.g., Gambino v. Morris, 134 F.3d 156 (3d Cir. 1998), the Court will grant the instant motion and will reconsider its September 10, 1998 decision.
The problem now before the Court is fashioning the proper remedy to be applied. The respondents suggest that the proper remedy at the time of the original decision would have been to remand the case to the Parole Board with directions to set a new FET or to hold a new hearing immediately. Petitioner suggests that the appropriate remedy is reinstatement to parole status. However, since the September 10, 1998 Order of this Court was entered, petitioner received a new parole hearing and parole was denied. Further, the Court is mindful of the petitioner's belief that this case presents a political situation in which official misconduct and retaliation may occur at any time.
Because of the inference of unconstitutional retaliation and in order to assist petitioner in rebutting the psychological evaluation presented by the respondents, this Court appointed counsel to petitioner. Presently, petitioner and his attorney are working to secure an independent psychological evaluation and to discover other materials which could have relevance to the Board's latest decision.
In sum, it is this Court's intention to allow this case to proceed under its jurisdiction, perhaps to a hearing, to develop a complete record. Once discovery has been completed, the Court will reconsider its September 10, 1998 Order, as discussed both above and at the May 13, 1999 status conference. Thus, respondents' Motion for Reconsideration will be granted and the case will proceed under the jurisdiction of this Court. (June 10, 1999 Order, p. 5-6.)
In that same Order, the Court denied petitioner's motion to vacate the stay, "as discussed during a status conference in this matter, because of the sensitive nature of the `danger to the public' aspect raised by the confidential psychological evaluation in this case," (June 10, 1999 Order, p. 6) and the Board's interpretation of that evaluation.
On August 5, 1999, petitioner's motion to compel discovery was granted. The Order stated, "this Court has already found that the Board has made arbitrary and capricious decisions with regard to the petitioner, and that in doing so, the Board has abused its power and violated petitioner's substantive due process rights." (August 5, 1999 Order, p. 5.) The Order continued:
Petitioner has not just thrown out unsupported allegations of unconstitutional retaliation, he is forming a record of conspiracy and manufactured evidence. In order for petitioner to defend his position, the Court finds that allowing him a certain latitude in discovery is proper in this case.
Petitioner's discovery requests are very specific and the Court finds that all of the information requested appears to be relevant to the underlying habeas petition and respondents' motion for reconsideration. Moreover, obtaining such discovery from the respondents is the only avenue petitioner has to test the validity of his claim that he was not afforded a fair parole hearing in compliance with his due process rights.
On August 16, 1999, the Court allowed petitioner's counsel to obtain an independent psychological evaluation of the petitioner; on September 21, 1999, Dr. Gerald Cooke conducted the evaluation and submitted a report. The evaluation was a positive one.
E. Respondents' Motion to Dismiss the Petition
On February 18, 2000, respondents filed a motion to dismiss the petition, which the Court found to be actually, and finally, in the nature of an Answer. The response argued that the Parole Board's decision to revoke petitioner's parole and impose a sixty-month FET and the Appellate Division's affirmance of that decision were supported by the record and that there was no evidence of selective prosecution against the petitioner. In response, on May 3, 2000, this Court entered an Order clarifying that (1) counsel was appointed to represent the petitioner and discovery granted because of the unique circumstances, including the inference of unconstitutional retaliation, and (2) reconsideration was granted only to determine the appropriate remedy to be applied in the case; the Court would not reconsider either the issue of whether the Board's imposition of a five-year FET was arbitrary, capricious, and an abuse of discretion which violated petitioner's due process rights or the issue of whether the Appellate Division's affirmance of the Board's decision was reasonable.
As discussed previously, the Third Circuit has instructed in Gambino v. Morris, 134 F.3d 156 (3d Cir. 1998), that absent unusual circumstances, a remand to the Parole Board, or something other than immediate parole release, is the appropriate remedy to be afforded a petitioner who succeeds in obtaining a writ of habeas corpus. Discovery was granted in this case to allow petitioner an opportunity to support his claim of unique circumstances and demonstrate that the ordinary remedy of a remand to the Parole Board clearly would be inadequate and inappropriate. Proof of a politically-motivated conspiracy against the petitioner within the Parole Board, as alleged, obviously would argue against remand. Also of importance is a consideration of the constitutional infirmities alleged during the parole panel hearings subsequent to the filing of the instant petition for habeas corpus relief and after this Court's 1998 Order releasing petitioner.
Thus, although the petitioner's allegations of conspiracy were not considered by the Court upon granting the petition, they have become relevant to fashioning a remedy. In addition, although the Court refused to consider the confidential psychological evaluation of Dr. Ferguson in deciding to grant respondents' motion to reconsider, it impliedly considered it in granting the stay and denying petitioner's subsequent motion to vacate the stay. Therefore, Dr. Cooke's evaluation, which rebuts respondents' confidential psychological evaluation and their assertion that petitioner, if released, would be a danger to the public, also becomes relevant at this juncture.
A. Respondents' Contentions
Respondents contend that the instant petition for a writ of habeas corpus should be dismissed in its entirety or, in the alternative, that the case should be remanded to the Parole Board because this Court is without authority to order petitioner's release on the basis that the extended FET imposed was not supported by the evidence before the Board. Respondents incorporate by reference their February, 2000 submission, including a ninety-two page motion to dismiss the petition, accompanied by two volumes containing fifty-one exhibits as well as transcripts of the July 6, 1995 probable cause hearing and the September 29, 1995 hearing on the application for accelerated revocation. *fn5
The main point in respondent's February 2000 submission was that the Appellate Division's decision was supported by the record, which respondents contend established that petitioner's parole was revoked and a sixty-month FET was imposed based on the undisputed facts, when taken in the context of his prior sentence for murder and kidnaping, that (1) he possessed in excess of 50 grams of marijuana, (2) he admitted using marijuana while on parole, (3) he threatened violence to an individual and the individual's family, and (4) he associated with outlaw bikers. These circumstances were advanced to show that "immediately upon parole, Hunterson fell back into the type of conduct which led to his initial convictions for serious crimes."
The respondents' second point in February of 2000 was that there was no evidence of selective prosecution against the petitioner, as (1) the statistics do not support a claim of selective enforcement based upon discriminatory revocation of parole because approximately 219 "lifers" have been returned to jail as parole violators *fn6 and there have been seventy-nine instances where the Bureau of Parole has applied for accelerated revocation proceedings stemming from a drug-related offense, and (2) petitioner has not established intentional, purposeful discrimination stemming from impermissible considerations. *fn7
In their brief in support of the instant motion to dismiss, respondents elaborate on the February 2000 submission to argue that petitioner's deposition testimony confirms that many of his allegations are "pure speculation" and that he, therefore, has failed to demonstrate that the Appellate Division's decision was based on either an unreasonable interpretation of Supreme Court precedent or an unreasonable determination of the facts as presented in the State court proceeding. Specifically, respondents argue that petitioner admitted that his allegations regarding the allegedly tainted urine specimen were based upon his own theory or belief. Also, they argue that petitioner conceded, during his deposition, that he has no reason to believe that the current Commissioner of the Department of Corrections, Jack Terhune, is part of any conspiracy against him, or that there is a continuing conspiracy with regard to the entire Parole Board. Rather, he stated that certain Board members would be biased against him.
Respondents also directly address the issue to be decided by arguing that the appropriate remedy in this case would be to remand the matter to the Parole Board to cure any defect found by this Court. Respondents acknowledge that this Court already found that the Board's establishment of an extended FET, which was four times the fifteen-month statutory presumptive FET that otherwise would have applied, was not supported by the evidence before the Board. Although they disagree with the Court's determination, respondents argue that the presumptive remedy in such an instance is remand to the Board for further proceedings consistent with this Court's findings of law and fact. To further facilitate this remedy, respondents have produced an affidavit of the current Vice-Chairman of the New Jersey State Parole Board, William McCargo, indicating that the two Board members petitioner identified as biased against him, Rachel Chowaniec and Rolando Gomez Rivera, would not have any involvement in any determination regarding petitioner's case. Nor would any Board member who previously had any involvement in petitioner's case, including Ruby Washington, sit on any future panel regarding petitioner. Additionally, Mario Paparozzi, now Chairman of the New Jersey State Parole Board, submitted his own affidavit claiming that he "will recuse [himself] from any involvement in any subsequent parole hearing of [petitioner] should this case be remanded to the New Jersey State Parole Board."
B. Petitioner's Contentions
Petitioner's "Brief in Support of Release" argues, through counsel, that the appropriate remedy in this case is his release from custody pursuant to this Court's September 10, 1998 Order because he has marshaled evidence through discovery which indicates that there are unique circumstances present in the form of "constitutional infirmities" and as a result the ordinary remedy of remand to the Parole Board would be inadequate and inappropriate.
It has been petitioner's contention from the outset of this litigation that there exists a conspiracy against him within the New Jersey Department of Corrections. Petitioner reasons that the conspiracy stems from (1) the amorous relationship he developed with Deborah Hansen, former Director of the Office of Interstate Services of the Department of Corrections, and former Deputy Compact Administrator; (2) his repeated success before the Appellate Division, including obtaining release on December 23, 1994; (3) his and Ms. Hansen's attempts to expose an interstate "scheme" controlled by the Bureau of Parole to place parolees in "receiving states" where they would drain welfare and Medicaid funds, including (a) their speaking out at a May 26, 1995 event, (b) their attendance on June 8, 1995 at the New Jersey Senate Judiciary Hearings questioning former Commissioner of New Jersey's DOC, William Fauver, regarding the acceptance and supervision of Robert "Mudman" Simon, a Pennsylvania parolee under the Interstate Compact of Parolees, *fn8 (c) Ms. Hansen's assistance to a State Senator in studying the "scheme," and (d) Ms. Hansen's interview on the State House steps where she contradicted a joint Fauver-Poritz ...