United States District Court, D. New Jersey
Stanley R. Chesler, U.S.D.J.
matter has been opened to the Court by Petitioner's
filing of an Amended Petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, contending that the New
Jersey State Parole Board (“NJSPB”) improperly
denied him parole. Having reviewed the Amended Petition,
Respondent's Answer, Petitioner's reply, and the
relevant record, the Court will deny the Amended Petition for
the reasons stated in this Opinion and will also deny a
certificate of appealability.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
following facts regarding Petitioner's criminal history
are taken from the Appellate Division's 2014 decision
affirming the denial of parole:
Russo . . . was convicted of the capital murder of an
off-duty police officer in 1961 and sentenced to death. In
January 1972 the death sentence was commuted to a term of
life imprisonment. On August 12, 1975, after serving fourteen
years in prison, Russo was paroled.
However, in September 1981, Russo was charged with receipt of
stolen property and removing a vehicle identification number.
On February 26, 1982, a jury returned a verdict finding Russo
guilty of both charges. He was sentenced to a four year term,
with a two-year parole disqualifier.
Russo was paroled again on April 24, 1984, but was arrested
one month later in connection with the purchase of 5000
pounds of marijuana. In October 1986, a jury found Russo
guilty of conspiracy and various controlled dangerous
substance offenses. Russo received a fifty-year aggregate
term, with a twenty-year parole disqualifier, to run
consecutive to his sentence for the parole violation on the
In March 2003, while serving his sentence in the minimum
security unit at Bayside State Prison, Russo escaped from
custody. Eventually Russo turned himself in to police and was
charged with escape. In December 2003, he was sentenced to a
three year term, to run consecutive to his then current
Russo v. New Jersey State Parole Bd., No.
A-5237-12T4, 2014 WL 3396085, at *1 ( N.J.Super.Ct.App.Div.
July 14, 2014).
first became eligible for parole in 2007, and on May 7, 2007,
Russo appeared before a two-member panel of the NJSPB, which
denied him parole and established the thirty-six month FET.
See Russo v. New Jersey State Parole Bd., No.
A-3455-07T2, 2008 WL 5083505, at *1 ( N.J.Super.Ct.App.Div.
Dec. 4, 2008). On December 4, 2008, the Appellate Division
affirmed the NJSPB's decision. Id. at *5. On
June 29, 2011, the NJSPB denied parole again, establishing a
thirty-four month FET, see Russo v. New Jersey State
Parole Bd., No. A-5971-10T1, 2012 WL 2160288, at *1 (
N.J.Super.Ct.App.Div. June 15, 2012), and the Appellate
Division affirmed the NJSPB's decision on June 15, 2012.
Id. at *3.
29, 2013, the NJSPB again denied Russo parole and established
a thirty-four month FET. (ECF Nos. 19-14, 19-15, Exhs. K, L).
Russo retained counsel and appealed the decision to the
Appellate Division. On July 14, 2014, the Appellate Division
affirmed the decision of the NJSPB in its entirety. (ECF No.
19-15, Exh. L). Russo filed a petition for certification to
the Supreme Court of New Jersey. On December 16, 2014, the
Supreme Court denied Russo's petition for certification.
Russo v. State Parole Bd., 104 A.3d 1077 (N.J.
petition for writ of habeas corpus was initially docketed on
September 8, 2015. (ECF No. 1.) Not long after filing the
petition, Russo learned that he would soon be released on
parole, and he asked the Court to withdraw the petition
without prejudice. (ECF No. 5.) The Court granted his request
and dismissed the Petition without prejudice on November 23,
2015. (ECF Nos. 6-7.)
was subsequently granted parole and released from the
NJDOC's custody on or about January 11, 2016.
(See ECF Nos. 19-19, 19-20, Exhs. P, Q.) The parole
supervision is applicable to his life sentence for murder,
his 50-year sentence with a 20-year parole disqualifier for
the drug charges, and his 3-year sentence for the escape
charge. (See ECF No. 19-20, Ex. Q.) Russo currently
resides in Davie, Florida; the Florida parole authorities are
supervising him on the NJSPB's behalf. (Id.)
Petitioner subsequently wrote to the Court seeking to reopen
his habeas petition, and, on May 20, 2016, the Court reopened
the matter and permitted Petitioner to submit an Amended
Petition. (ECF No. 11.) The Amended Petition was docketed on
June 13, 2016. (ECF No. 14.) On July 8, 2016, the Court
directed Respondents to answer the ...