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RUSSELL v. MINER

August 5, 2005.

MARLIN W. RUSSELL, Petitioner,
v.
JONATHAN C. MINER and UNITED STATES PAROLE COMMISSION, et al., Respondents.



The opinion of the court was delivered by: ROBERT KUGLER, Magistrate Judge

OPINION

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 victim.

  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 police officer."

  DISCUSSION

  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 jurisdictions.
* * *
(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, 520 (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 (1970).

  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' ...


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