Opinion
02 Civ. 3884 (MBM).
June 9, 2003.
Joseph Martin, Petitioner pro se.
James B. Comey, Esq., United States Attorney for the Southern District of New York, Michael C. James, Esq., Assistant U.S. Attorney.
OPINION AND ORDER
Joseph Martin petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, seeking release from custody because, as described more fully below, the U.S. Parole Commission failed to provide him with proper hearings in connection with two reincarcerations following parole violations in 1998 and 2002, failed to issue a timely opinion in connection with the 1992 violation, and irrationally revoked his parole after the 1992 violation. For the reasons set forth below, petitioner has been denied no right for which habeas corpus relief is available under § 2241. Therefore, the writ is denied and the petition is dismissed.
I.
Following his conviction in 1986 on his plea of guilty to cocaine distribution in the United States District Court for the District of Maryland, Martin was released from custody on parole in 1992. Following a parole violation he was returned to custody in 1995, and was released on parole again in June 1997. In November 1998, Martin was convicted in Supreme Court, Bronx County, of selling crack cocaine to an undercover police officer, and a parole violation warrant that the Parole Commission had issued earlier was lodged as a detainer with the New York State Department of Corrections. In March 2001, Martin was returned to federal custody and, after a parole violation hearing in September 2001, was confined and then released yet again on parole in December 2001. In January 2002, Martin was found in his sister's apartment with marijuana, drug paraphernalia and ammunition, and taken into custody. He received a parole revocation hearing in March 2002, where he was found in possession of the contraband referred to above, and parole was revoked. Specifically, Martin was found in constructive possession of the ammunition and the marijuana, the former having been found in a bag about four feet from him and the latter having been found in a closet where he kept his clothes. (James July 25, 2002 Decl. Ex. W at 3) He was confined with a statutory interim hearing set for March 2004. Martin's appeal to the Parole Commission was received on May 20, 2002, and the revocation was affirmed on August 27, 2002. (Thiessen Oct. 16, 2002 Decl. Ex. B)
The record of Martin's March 2002 hearing reveals that he chose to proceed at that hearing without counsel, and consented to proceed without the presence of a voluntary witness, his sister, when the hearing officer agreed to accept an affidavit from her stating that the marijuana and drug paraphernalia were hers, and that the ammunition had belonged to her former husband and had been in her possession for many years. (James July 25, 2002 Decl. Ex. W at 1) The record reveals also that although the Hearing Examiner noted that Martin did not abscond even though he was aware a warrant might issue, and that Martin's drug test "came back negative" (id. at 4), he nonetheless, as noted, found that Martin had possessed the contraband (id. at 3).
Martin contended initially that his September 2001 parole hearing was not timely, but when the Parole Commission responded by pointing out that that issue was moot, Martin shifted his focus to the March 2002 hearing. He claims that he was not given adequate notice of the hearing and was not prepared to proceed, and that he was prevented from calling his sister, who would have testified as set forth above, that the marijuana and the drug paraphernalia were hers, and that the ammunition had been in her possession for many years but belonged to her former husband. Martin argues that the Hearing Examiner abused his discretion in not departing from the Parole Commission's Reparole Consideration Guidelines, 28 C.F.R. § 2.21, because Martin was merely a "victim of circumstance for having been given a bad residence to reside in when he presented his `Parole Plan'" in that the contraband materials were present but not his. (Traverse to U.S. Attorney's Answer Etc. at 10) However, the Hearing Examiner found that Martin "was in constructive custody of the ammunition as well as the marijuana. In fact, when the probation officer was questioning him, the marijuana was in a bag about 4 feet from [Martin]." In addition, the Hearing Examiner found that Martin "knows the rules of parole supervision and he had a direct responsibility in this matter. It was his responsibility to insure that the place he was living was an environment in which no new criminal activity was taking place and no prohibited articles were present. In this situation, our subject was living in an apartment where drug use was taking place, drugs were present, drug paraphernalia was present, and ammunition was in plain view in the closet in which he was throwing his clothes in the bedroom in which he was living." (James July 25, 2002 Decl. Ex. W at 3)
The affirmance of the Commission's decision to revoke Martin's parole by the Commission's National Appeals Board notes that Martin proceeded with the March 2002 hearing even though he was given the opportunity to make procedural objection, and thereby waived any such objection, and that the Hearing Examiner and the Commission considered Martin's sister's affidavit in lieu of testimony. In addition, that affirmance rejects Martin's assertion that his situation involved mitigating circumstances sufficient to have warranted a more lenient result. (Thiessen Oct. 16, 2002 Decl. Ex. B)
II.
Martin's procedural objections are either contradicted by the record or otherwise without persuasive force. To the extent that Martin claims he was not given enough time to prepare for his hearing, his claim is undone by his own election to proceed. Nor can Martin show any prejudice either from his alleged lack of preparation time or his inability to call his sister as a witness, inasmuch as the Hearing Officer accepted the affidavit of Martin's sister.
Martin asserts as well that the National Appeals Board of the Parole Commission failed to render a decision within the 60 days its regulations require, which is accurate but not persuasive. Here it must be recalled that in this habeas corpus proceeding, Martin must show that due process was denied him, not simply that there was a failure to comply with a regulation. The mere fact of a delay is not enough to establish a due process violation. Rather, a petitioner must show that the delay was "unreasonable and prejudicial." Heath v. United States Parole Comm'n, 788 F.2d 85, 89-90 (2d Cir. 1986). There has been no such showing here, Martin having suffered no prejudice whatever from the delay in deciding his case.
As regards the substance of the Parole Commission's determination, and its failure to treat Martin as the "victim of circumstance" he claims to be, the standard for reviewing the actions of the Parole Commission is whether the Commission has abused its discretion, and its determinations will not be disturbed unless they lack a rational basis. See Lieberman v.Gunnell, 726 F.2d 75, 77 (2d Cir. 1984); Bialkin v. Baer, 719 F.2d 590, 593 (2d Cir. 1983). Martin appears to be arguing that the Commission should have treated the presence of contraband where he was living as a less serious administrative violation rather than as new criminal conduct. Compare 28 C.F.R. § 2.21(a)(1) ("If revocation is based upon administrative violation(s) only, grade the behavior as if a Category One offense under § 2.20.") with 28 C.F.R. § 2.21(a)(2) ("If a finding is made that the prisoner has engaged in behavior constituting new criminal conduct, the appropriate severity rating shall be calculated."). Here, whatever this Court might have done, it was not irrational for the Parole Commission to endorse the Hearing Examiner's finding that Martin was in possession of the contraband in the apartment, inasmuch as the facts justified a finding at least of constructive possession, to treat Martin's conduct as involving new criminal conduct, and to deal with him according to the regulations applicable to such conduct.
Because there was no procedural irregularity in this case that resulted in a denial of due process, and because the Commission's determination is not without rational basis, habeas corpus relief is not warranted. Therefore, the writ is denied and the petition is dismissed.
SO ORDERED.