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Andreozzi v. United States Parole Commission

United States District Court, D. Arizona

February 3, 2017

Armand Andreozzi, Petitioner,
United States Parole Commission, Respondent.


          David G. Campbell United States District Judge

         On March 9, 2016, Petitioner Armand Andreozzi filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 raising two grounds for relief. Doc. 1. The Court referred the petition to Magistrate Judge Bridget S. Bade. Doc. 3. After Respondent United States Parole Commission had filed its response (Doc. 13) and a supplemental response requested by Judge Bade (Doc. 16), Petitioner filed a motion to amend his petition on October 7, 2016 (Doc. 21). Judge Bade issued a report and a recommendation that the Court deny the habeas petition, and denied Petitioner's motion to amend (“R&R”). Doc. 24. Petitioner filed pro se objections to the R&R (Doc. 19), and the Parole Commission filed a response (Doc. 29). For the reasons set forth below, the Court will deny Petitioner's objections and adopt Judge Bade's recommendation.

         I. Background.

         Judge Bade provided the following summary of Petitioner's sentencing and parole proceedings:

         A. Court-Martial Proceedings and Sentences

         On June 12, 1998, Petitioner was convicted of violating several provisions of the Uniform Code of Military Justice. (Doc. 13-1 at 2, 7.) Petitioner was sentenced to confinement for twenty-seven years. (Id.) On November 13, 1998, Petitioner pleaded guilty to charges in a second court-martial and was found guilty. (Id. at 7.) Petitioner was sentenced to confinement for fifteen years, to run consecutively to his sentence imposed in June 1998. (Id.) Petitioner was dishonorably discharged from the U.S. Army. (Id. at 8.) In accordance with a Memorandum of Agreement (MOA) between the U.S. Army and the Bureau of Prisons (BOP), in 2006, Petitioner was transferred to the BOP to serve his sentences. (Id. at 2.)

         B. Parole Proceedings

         On April 29, 2008, the United States Parole Commission (the Commission) conducted an initial parole hearing for Petitioner. (Doc. 13-1 at 11-15.) At the time of the hearing, the Commission had received input from the victim of the first offenses. (Doc. 13-1 at 13.) The Commission calculated Petitioner's parole guideline range as 124-192 months to be served prior to parole, and ordered a presumptive parole date of December 1, 2013, after service of 190 months' confinement. (Doc. 13-1 at 17.) The National Appeals Board (the Board) corrected the parole guideline range to 124-190 months, and otherwise affirmed the Commission's decision on administrative appeal. (Doc. 13-1 at 20-22.)

         On June 15, 2010, Petitioner received a statutory interim hearing, conducted by videoconference, before the Commission. (Doc. 13-1 at 23-26.) The Commission ordered no change in the previously-ordered presumptive parole date of December 1, 2013. (Doc. 13-1 at 27-29.) The Board affirmed this decision on administrative appeal. (Doc. 13-1 at 30-31.) On October 26, 2012, Petitioner received another statutory interim hearing before the Commission again conducted by videoconference. (Doc. 13-1 at 32-35.) The Commission ordered no change to the presumptive parole date. (Doc. 13-1 at 36-38.) Petitioner did not administratively appeal that decision.

         In a February 1, 2013 notice of action, the Commission notified Petitioner that it was reopening his case under 28 C.F.R. § 2.28(f), based on new adverse information. (Doc. 13-1 at 39-40.) In a March 13, 2013 notice of action, the Commission clarified that, by reopening Petitioner's case, it was rescinding the previous presumptive parole date and scheduling a reconsideration hearing on the next available docket to consider new adverse information. (Doc. 13-1 at 41-42.)

         On June 15, 2013, the Commission conducted the special reconsideration hearing by videoconference. (Doc. 13-1 at 43-47.) The hearing examiner reviewed with Petitioner the new information that would be considered including victim statements, a May 2, 2013 Disciplinary Hearing Officer finding for fighting, and Petitioner's unsuccessful discharge from the sex offender treatment program on February 28, 2012. (Id.) Petitioner indicated that he did not know that the victim would participate in the hearing. (Id.) The examiner asked Petitioner whether he was prepared to proceed with the hearing, and Petitioner responded that he was ready to proceed. (Id.) During the hearing, the hearing examiner heard testimony from the victim of Petitioner's second court-martial conviction, and the victim's father. (Doc. 13-1 at 44-45.) The victim testified to suffering ongoing trauma resulting from Petitioner's crimes, including Post Traumatic Stress Disorder and depression. (Id.)

         Based on the new information presented at the hearing, the Commission concluded that Petitioner was not suitable for parole release, and ordered that he serve his sentence until a fifteen-year reconsideration hearing in April 2023, or to the expiration of his sentence, whichever came first. (Doc. 13-1 at 48-50.) This decision imposed confinement above the guideline range. The Commission explained that its decision was based on its findings that parole would deprecate the seriousness of Petitioner's offenses and promote disrespect for the law, new information about the lasting impact and severe impacts of Petitioner's violent acts on the victims, Petitioner's expulsion from sex offender treatment, and his fight with another inmate:

After review of all relevant factors and information, a decision above the guideline range is warranted because the Commission finds that your release on parole would depreciate the seriousness of your offenses and promote disrespect for the law. The Commission has received new adverse information in your case that leads to this conclusion. The highly aggravating factors to your offense behavior were previously considered at your initial hearing in April 2008 to set a release date at the top of your guidelines (190 months). However, the Commission was unaware of the lasting and severe impacts that your violent acts continue to have on your victim(s) even many years after the offense. In addition, you have been expelled from the Sex Offender Treatment program and recently engaged in a fight with another inmate.
(Doc. 13-1 at 49.)
Petitioner administratively appealed this decision to the Board. (Doc. 13-1 at 51-86.) Petitioner raised numerous issues, including whether the information considered at the hearing could be considered “new, ” and whether he had received appropriate notice of the hearing and material to be considered. (Id.) Petitioner did not raise the issues that he ...

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