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Hubbard v. D'Ilio

United States District Court, D. New Jersey

June 12, 2018

FRANK HUBBARD, Petitioner,
v.
STEPHEN D'ILIO, et al., Respondents.

          Frank Hubbard, Petitioner pro se

          Christopher C. Josephson, Deputy Attorney General Office of the New Jersey Attorney General R.J. Hughes Justice Complex Attorney for Respondents Stephen D'llio, Attorney General of the State of New Jersey, and New Jersey Parole Board

          OPINION

          ANNE E. THOMPSON, U.S. DISTRICT JUDGE

         I. INTRODUCTION

         Petitioner Frank Hubbard ("Petitioner") has submitted a petition, pro se, for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (See Am. Pet., ECF No. 3.) Respondents Stephen D'Ilio, Attorney General of the State of New Jersey, and New Jersey Parole Board (collectively "Respondents") oppose the petition. (Answer, ECF No. 11.) For the reasons stated herein, the Court concludes that it cannot grant the petition and that no certificate of appealability is warranted.

         II. BACKGROUND

         On July 6, 1982, the New Jersey Superior Court sentenced Petitioner to a term of life imprisonment.[1] (See July 6, 1982 J. of Conviction, ECF No. 11-4 at p. 45.) Petitioner has been incarcerated since that time. Petitioner was denied parole for the first time in 2006. In 2012, [2] the New Jersey Parole Board (the “Board") again denied Petitioner parole.

         It is the Board's 2012 parole denial which Petitioner is challenging in this § 2254 matter. Petitioner principally argues that the Board impermissibly considered and emphasized Petitioner's pre-1982 criminal history and pre-2006 history of institutional infractions when it denied him parole in 2012.[3]

         Initially, this Court notes that the Board's authority to consider Petitioner's pre-2006 actions is the result of a 1997 amendment deleting the word "new" from § 30:4-123.56(c) of the New Jersey Parole Act of 1979 (the "Parole Act"). Hubbard v. New Jersey State Parole Bd., No. A-0205-12T2, 2014 WL 901933, at *2 ( N.J.Super.Ct.App.Div. Mar. 10, 2014). As explained by the New Jersey Superior Court, Appellate Division:

         Prior to 1997, [N.J. Stat. Ann. §] 30:4-123.56(c) addressed the criteria for considering parole after an initial denial:

An inmate shall be released on parole on the new parole eligibility date unless new information . . . indicates by a preponderance of the evidence that there is a substantial likelihood that the inmate will commit a crime under the laws of this State if released on parole at such time.
In 1997, the [New Jersey] Legislature adopted various amendments to the parole law, including an amendment deleting the word 'new' from [§ 30:4-123.56(c)], permitting the Board to consider any information at the subsequent hearing. That amendment was enacted to allow the Board to weigh all relevant information in an inmate's record when considering that inmate's parole eligibility at second and subsequent hearings.
Another amendment modified the criteria for denial, changing it from "substantial likelihood that the inmate will commit a crime ... if released on parole" to "has failed to cooperate in his or her own rehabilitation or . . . there is a reasonable expectation that the inmate will violate conditions of parole[.]"

Id. at *2 (emphasis added) (citations omitted). In other words, as a result of these amendments, § 30:4-123.56(c) of the Parole Act, now reads, in pertinent part, as follows:

An inmate shall be released on parole on the new parole eligibility date unless new information . . . indicates by a preponderance of the evidence that there-is-a substantial-likelihood-that-the-inmate-will-commit-a crime under the laws of this State if released on parole at such time the inmate has failed to cooperate in his or her own rehabilitation or that there is a reasonable expectation that the inmate will violate conditions of parole imposed ... if released on parole at that time.

         N.J. Stat. Ann. § 30:4-123.56(c) (language stricken by the 1997 amendments included).

         Against this statutory backdrop, the Appellate Division summarized Petitioner's relevant parole proceedings as follows:[4]

[Petitioner] was first considered for parole in 2006. Parole was denied and [Petitioner] received a ninety-six-month [Future Eligibility Term (“FET")]. The panel explained, “after twenty-six (26) years of incarceration, you have not shown the requisite amount of rehabilitative progress in reducing the likelihood of future criminal activity."
(Petitioner] was again considered for parole in September 2011. The hearing officer referred the matter to a Board panel for a hearing. [Petitioner] appeared before a two-member Board panel in November 2011. The panel denied parole for the following reasons: [Petitioner's] prior criminal record; the nature of [Petitioner's] crimes were increasingly more serious; he was incarcerated for multi-crime convictions; his parole had been revoked in the past for commission of a new offense; [Petitioner's] prior incarceration and a prior opportunity of parole failed to deter his criminal activity; his institutional infractions were "numerous[, ] persistent [and] serious in nature;" and [Petitioner] had displayed "[insufficient problem resolution." The panel amplified the final reason as follows:
[Petitioner was] involved in murder while on parole for murder but he appears to believe that since he didn't pull the trigger, he was less responsible for his criminal behavior. He cannot explain why he was participating in a robbery while on parole.
[Petitioner] was referred to a three-member Board panel for the establishment of an FET. In his argument for mitigation before the three-member panel, [Petitioner] again maintained that he was not the shooter during the robbery of [David] O'Neil and the prosecutor's claim to the contrary was not true. On February 1, 2012, the three-member Board panel established an FET of eighty-four months for [Petitioner].
[Petitioner] appealed to the full Board and on July 25, 2012, the Board adopted the panel decisions denying parole and setting ...

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