United States District Court, D. New Jersey
August 5, 2005.
MARLIN W. RUSSELL, Petitioner,
JONATHAN C. MINER and UNITED STATES PAROLE COMMISSION, et al., Respondents.
The opinion of the court was delivered by: ROBERT KUGLER, Magistrate Judge
Petitioner Marlin W. Russell, currently confined at the Federal
Correctional Institution at Fairton, New Jersey, has submitted a
petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241. Respondents are the United States Parole Commission and
Jonathan C. Miner, Warden of F.C.I. Fairton. BACKGROUND
Petitioner was sentenced to 30 years incarceration by the
District of Columbia Superior Court, and was sentenced under the
Federal Youth Corrections Act. On February 11, 2000, he was
paroled from his sentence. He was to remain under supervision
until October, 2015.
In 2001, the Parole Commission ("the Commission") learned that
Petitioner had been arrested on weapons charges, and that he had
submitted urine specimens which tested positive for marijuana. On
June 18, 2001, the Commission issued a warrant charging
Petitioner with violating parole for using illegal drugs, and for
an incident involving assault with a deadly weapon.
The assault charge stemmed from an incident on May 22, 2001,
when Petitioner was arrested after a fight. An officer observed
Petitioner with a knife, struggling with the victim. The officer
ordered Petitioner to drop the knife, which he did, but the
victim told police that Petitioner stabbed him while they were
fighting. The victim was brought to the hospital for treatment
for a laceration on his stomach. Petitioner denied committing the
assault, and said that he was trying to stop a fight between the
victim and another man. He said he did not possess a knife during
the incident. Petitioner stated that the police misinterpreted the incident, and that he was trying to help the
The parole warrant was executed in July, 2002, and a revocation
hearing was held on October 24, 2002. Petitioner appeared with
counsel. Petitioner admitted guilt as to the drug charges, and
the Commission decided to revoke parole based on those two
administrative charges. They ordered that the hearing be
continued to subpoena the police officer and victim with regard
to the assault with a deadly weapons charge.
Approximately a month later, on November 27, 2002, a hearing
examiner conducted the continued hearing. Petitioner was
represented by counsel. The examiner considered the testimony of
Petitioner, as well as the testimony of the police officer who
responded to the scene of the fight. Although the examiner found
that the victim, who was incarcerated at the time of the hearing,
was unavailable with good cause, he did consider a letter that
Petitioner submitted from the victim. The letter stated that
Petitioner was trying to calm him down, and supported
Petitioner's arguments. The victim stated that Petitioner was
wrongly arrested and that the criminal charges against him were
eventually dropped. (See Exhibit 9 to Respondents' Answer).
The examiner found the testimony of the police officer more
credible than that of Petitioner. Based upon a preponderance of
the evidence, the examiner found that Petitioner committed the assault as charged. Noting that Petitioner's parole had already
been revoked due to Petitioner's admission of the administrative
drug charges, the examiner assessed a salient factor of 2, and
rated his parole violation behavior as Category Five severity. A
rehearing was scheduled for April 2003. As the November hearing
was a continued hearing, this date for a rehearing was assessed
by counting six months from the original October 2002 hearing.
The Commission entered its Notice of Action on December 10, 2002.
Petitioner now claims that the Commission's decision and his
rating as a Category Five violator was based upon an inaccurate
factual predicate, as the information used by the Commission was
not corroborated or supported by the alleged victim in the case.
He states that the decision was arbitrary and an abuse of
discretion. Petitioner also claims that the Commission provided
inaccurate reasons to deny parole, and failed to state with
particularity the reasons for denying parole, "when after being
presented at the interim hearing with significant new information
that called into question the credibility of the testimony of the
A. Standard of Review
United States Code Title 28, Section 2241 provides in relevant
part as follows:
(a) Writs of habeas corpus may be granted by the
Supreme Court, any justice thereof, the district
courts and any circuit judge within their respective
* * *
(c) The writ of habeas corpus shall not extend to a
prisoner unless . . . (3) He is in custody in
violation of the Constitution or laws or treaties of
the United States. . . .
A pro se pleading is held to less stringent standards than more
formal pleadings drafted by lawyers. See Estelle v. Gamble,
429 U.S. 97
, 106 (1976); Haines v. Kerner, 404 U.S. 519
(1972). A pro se habeas petition and any supporting submissions
must be construed liberally and with a measure of tolerance.
See Royce v. Hahn, 151 F.3d 116
, 118 (3d Cir. 1998); Lewis
v. Attorney General, 878 F.2d 714
, 721-22 (3d Cir. 1989);
United States v. Brierley, 414 F.2d 552
, 555 (3d Cir. 1969),
cert. denied, 399 U.S. 912
B. The Petition Will Be Denied.
A federal court's review of a Commission decision is limited.
See Furnari v. Warden, 218 F.3d 250, 254 (3d Cir. 2000). "The
appropriate standard of review of the Commission's findings of
fact `is not whether the [Commission's decision] is supported by
the preponderance of the evidence, or even by substantial
evidence; the inquiry is only whether there is a rational basis
in the record for the [Commission's] conclusions embodied in its
statement of reasons.'" Id. (quoting Zannino v. Arnold,
531 F.2d 687, 691 (3d Cir. 1976)). In addition, the review should
consider whether the Commission "`has followed criteria appropriate, rational and consistent' with its enabling
statutes so that its `decision is not arbitrary and capricious,
nor based on impermissible considerations.'" Id. (quoting
Zannino, 531 F.2d at 690).
Further, credibility determinations by the Commission are not
reviewable through habeas petitions. See Pacelli v. Hurley,
1997 WL 416395 at *4 (D.N.J. June 16, 1997) (unpubl.) (citing
Billiteri v. United States Board of Parole, 541 F.2d 938, 944
(3d Cir. 1976)) (other citations omitted).
In Petitioner's case, the hearing examiner considered all
testimony, including the letter submitted by the victim, and made
a credibility determination. The examiner clearly set forth
findings of fact in the Revocation Hearing Summary. The officer's
testimony that she saw Petitioner and the victim struggling, and
that her investigation afterward did not support Petitioner's
version of the facts, created a rational basis for the
Commission's findings. Thus, this Court may not disturb the
findings of the Commission.
Petitioner also claims that the Commission did not fully
explain the reasons for its decision. Petitioner cites to Funari
v. Warden, 218 F.3d 250, 255 (3d Cir. 2000) in support of his
argument. Funari, however, dealt with evidence submitted at an
interim hearing. An interim hearing is conducted to consider
"significant developments or changes in the prisoner's status that may have occurred subsequent to the initial hearing." See
Funari, 218 F.3d at 255 (quoting 28 C.F.R. § 2.14(a)). In
Funari, the Commission's findings did not mention new
information presented at the petitioner's interim hearing.
Therefore, the Court concluded, it was impossible to tell whether
or not the Commission considered the new evidence, or whether it
considered it but found it incredible. The Court concluded that
the Commission must state reasons for a denial of parole, not
just conclusions. See id. at 256.
Petitioner's case is factually different from Mr. Funari's
case. First, the hearing at issue in Petitioner's case was a
continuation of a previous hearing, not an interim hearing held
because of a change in Petitioner's status. Second, the evidence
presented by Petitioner of the victim's statement exonerating him
was considered by the examiner, even though the victim's oral
testimony could not be ascertained "live" at the hearing. Third,
Petitioner and the victim's version of events countered the
version testified to by the police officer. The examiner made a
credibility determination based upon all the evidence presented
to believe the officer's version, and clearly stated so in the
Revocation Hearing Summary. The Commission accepted the
examiner's report, based upon the testimony of the police
officer. Petitioner argues in his Traverse that there was no rational
basis for the Commission's findings, because he was not able to
cross-examine the victim. Citing Morrissey v. Brewer,
408 U.S. 471, 489 (1972), Petitioner further argues that the Commission
violated his constitutional rights by not allowing him to
cross-examine the victim. However, Morrissey notes that
Petitioner should be permitted to confront and cross-examine
adverse witnesses, "unless the hearing officer specifically
finds good cause for not allowing confrontation." Morrissey,
408 U.S. at 489 (emphasis added). In this case, the examiner
found good cause for not allowing confrontation; the victim was
incarcerated out of state. This Court will not disturb this
finding of good cause by the examiner. Further, as Petitioner
points out, the victim, although considered an adverse witness,
actually would have provided testimony to support Petitioner. It
is highly probable that the victim would have testified to the
same facts as he wrote in the letter which was presented to the
examiner and considered. Thus, it is unclear as to what
Petitioner would have gained by "cross-examining" the victim, a
convicted criminal himself, in person.
Therefore, because there was a rational basis for the
Commission's revocation of parole, and because this Court cannot
review credibility determinations of the Commission, the instant
Petition for a Writ of Habeas Corpus will be denied. Petitioner has not demonstrated that he is in custody in violation of the
laws or Constitution of the United States.
For the reasons set forth above, the Petition must be denied.
An appropriate order follows.
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