United States District Court, D. New Jersey
August 15, 2005.
TERRY JACKSON, Petitioner,
UNITED STATES PAROLE COMMISSION, et al., Respondents.
The opinion of the court was delivered by: FREDA WOLFSON, Magistrate Judge
Petitioner Terry Jackson, 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. Respondents
submitted an "Answer and Memorandum of Law in Support of Respondents' Motion to Dismiss the Petition for a Writ of Habeas
The following facts are based upon a review of the record
provided by Respondents as Exhibits to their Answer.
In December of 1990, Petitioner was sentenced to nine years and
120 days imprisonment by the District of Columbia Superior Court.
The District of Columbia Board of Parole paroled Petitioner from
the sentence on September 16, 1993, to remain under supervision
until May, 2000.
In 1998, a warrant was issued charging Petitioner with
violating conditions of parole due to an arrest for possession
with intent to distribute heroin. He was transferred to the
jurisdiction of the United States Parole Commission ("the
Commission"). He was arrested on the parole violator warrant in
On June 2, 2004, the Commission held a parole revocation
hearing. A "Proffer of Evidence" revealed that an agent of the
Federal Bureau of Investigation, working with the local police
department was advised that Petitioner was in possession of
$3000.00 cash and a quantity of heroin. The FBI agent relayed the
information to an Officer Cumba, who knew of the Petitioner,
located Petitioner, and stopped him. Petitioner was indeed in
possession of $2435.00 and 11 "zip locks" of heroin. Petitioner admitted that he possessed the heroin, but his
attorney argued at the parole hearing that it was for
Petitioner's own personal use, and that he was not intending to
distribute the drugs. Petitioner's parole was revoked based on
the charge of possession with heroin. The case was continued to
consider the charge of possession with intent to distribute
heroin, and to re-subpoena Officer Cumba, who did not appear for
the initial revocation hearing for evidence relating to the
intent to distribute charge.
On June 14, 2004, the Commission issued a Notice of Action
continuing the hearing with regard to the intent to distribute
charge in order to re-subpoena the officer. However, one week
later, on June 21, 2004, the Commission entered another Notice of
Action stating that a good cause finding had been made not to
re-subpoena the officer. The Commission vacated the portion of
the prior Notice of Action directing that Officer Cumba be
The continued hearing was conducted on July 28, 2004. The
officer again did not appear. Despite the fact that the order to
subpoena the officer was vacated, the hearing examiner held that
he could not make a finding with regard to the possession with
intent to distribute charge without the additional evidence.
However, a reviewing examiner disagreed, and stated that the
Commission found "good cause" for the non-appearance of the officer. The "good cause" was that, based on the arrest report,
the officer could contribute no evidence to the possession with
intent to distribute charge. Thus, the reviewing examiner found
that the officer was not an "adverse witness." The reviewing
examiner then made a credibility determination and recommended
that the Commission find that Petitioner possessed heroin with
intent to distribute. The reviewing examiner based this finding
on the fact that Petitioner admittedly possessed the 11 "zips" of
heroin, as well as a large quantity of cash, and that in the
reviewing examiner's opinion, it was unlikely that he would
possess these items simultaneously with no connection between
On August 17, 2004, the Commission entered a Notice of Action
finding Petitioner in violation of possession with intent to
distribute heroin, and assessing his sentence accordingly.
In this habeas petition, Petitioner claims that he was denied
the right to cross-examine the officer, an adverse witness, at
his revocation hearing. He argues that the Commission did not
find "good cause" for the non-appearance of the officer. Further,
he argues that the Commission placed him in the wrong severity
category, as the Commission failed to produce the witness to
establish intent to distribute. 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
* * *
(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).
Citing Morrissey v. Brewer, 408 U.S. 471, 489 (1972),
Petitioner argues that the Commission violated his constitutional
rights by not allowing him to cross-examine the officer. 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).
An adverse witness is defined as "a person who has given
information upon which revocation may be based."
28 C.F.R. § 2.104(a) (1). In this case, the record reveals that the
Commission concluded that there was good cause for not allowing confrontation because,
"other than the information contained in his arrest report,
Officer Cumba provided no evidence as to whether Jackson intended
to distribute heroin. Thus, his presence was not needed and
Jackson did not have the right to confront him." This Court will
not disturb this finding of good cause by the Commission.
In Petitioner's case, the reviewing examiner, with whom the
Commission apparently agreed in rendering its decision,
considered Petitioner's statements and the evidence presented,
and made a credibility determination. The reviewing examiner
clearly set forth findings of fact in the "Memo Regarding
Hearing." Based upon a review of the record, this Court finds
that there was a rational basis for the revocation of
Petitioner's parole. Thus, this Court may not disturb the
findings of the Commission.
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. CONCLUSION
For the reasons set forth above, Respondents' Motion to Dismiss
will be denied, however, the Petition will be denied on its
merits. An appropriate order follows.
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