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Russo v. The Attorney General

United States District Court, D. New Jersey

June 5, 2018

ANTHONY RUSSO, Petitioner,
v.
THE ATTORNEY GENERAL, et al., Respondent.

          OPINION

          Stanley R. Chesler, U.S.D.J.

         I. INTRODUCTION

         This 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.

         II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         The 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 murder charge.
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 sentences.

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).

         Russo 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.

         On May 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. 2014).

         Petitioner's 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.)

         Russo 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 ...


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