Opinion
Civ. Action No. 97-2931 (JBS).
May 17, 2000.
Paul Auge, #57688, New Jersey State Prison, Trenton, New Jersey, Petitioner pro se.
John J. Farmer, Jr., Attorney General of New Jersey, By: Daniel F. Dryzga, Jr., Senior Deputy Attorney General, Trenton, New Jersey, Attorneys for Respondents.
This matter is before the Court on petitioner Paul Auge's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The primary issue for decision is whether the application of the Parole Act of 1979, N.J.S.A. 30:4-123.45, et seq., to a prisoner who committed an offense in 1976 is a violation of the ex post facto clause of the federal Constitution. Because the petitioner has failed to establish that applying the newer parole act violated the laws or constitution of the United States, or that his calculated parole date was an unreasonable determination of the facts at hand, Auge's petition will be denied.
BACKGROUND
On September 8, 1975, petitioner, then a twenty-five year old man, was in custody awaiting a hearing at Lower Township Municipal Court. Before making his appearance in court, petitioner escaped from custody and fled the courthouse. While on escape, petitioner entered the Erma, New Jersey home of sixty-eight year old William Morgan and his wife Edna. Petitioner stabbed Mr. Morgan in the back with a knife and bound the couple to their bed. The victims were discovered by police the following day. Mr. Morgan was pronounced dead at the scene, while Mrs. Morgan survived. (Pet. Ex. 3.) Petitioner was apprehended a short time later in Villas, New Jersey.
After his arrest, petitioner was indicted on September 16, 1975 with murder, escape, carrying a dangerous weapon, and larceny. Subsequently, petitioner stood trial and was convicted on all counts by jury on February 27, 1976 in Cape May County Court. At sentencing on March 5, 1976, petitioner, who at that point already had a prior record which included a conviction for involuntary manslaughter, was sentenced to fifteen and-a-half to seventeen years imprisonment, plus a life sentence for murder to be served consecutive to his sentences on the other crimes. (Pet. Ex.1.) In explaining the rationale behind the life sentence, the sentencing court remarked upon the violent and cold-blooded manner in which petitioner committed his crimes. Id. The petitioner's primary parole eligibility date was calculated as January 10, 1994, by which time petitioner's sentences for escape, carrying a dangerous weapon, and larceny had expired and his continued custody was based solely on his life sentence for murder.
After petitioner had served over eighteen years in custody, the New Jersey Parole Commission for the first time conducted a parole eligibility review. At this review, which took place on July 1, 1994, a two member panel denied parole, and determined the next date upon which petitioner would again be eligible for review. The presumptive eligibility schedule, which normally controlled such scheduling, provided that, ordinarily, petitioner's file would again be reviewed in 27 months, which would mean another review date on or about October 1996. The panel determined, however, that due to the heinous nature of the underlying murder, and petitioner's 36 prison infractions between 1976 and 1987 — which included citations for fighting, attempted escape, and assault, and petitioner's unresolved drug problem, a twenty-seven month (+ 9 months) future eligibility date was inappropriate in petitioner's case. The two member panel then referred the matter to a the full board to establish a future eligibility term ("FET"), which would act to set the next date upon which petitioner would be eligible for parole. (Pet. Ex. 3.)
The full board on October 26, 1994 established that petitioner's FET was to be fifteen years, which meant that he would not again come up for parole review until sometime in the year 2009. Explaining the lengthy future parole eligibility term, the board noted the same factors noted in the two-member panel's decision. The board concluded that "the punitive aspects of your sentence have not been satisfied", and that petitioner presented a substantial likelihood of recidivism if released on parole. (Pet. Ex. 4.)
The board later amended its decision slightly, finding that petitioner had successfully addressed his drug problem, a finding contrary to that of the two-member panel. (Pet. Ex. 5, 6.)
Petitioner appealed this fifteen year future parole eligibility term to the Superior Court of New Jersey, stating ten grounds for relief. These were, in short, that: (1) the board should have prepared his pre-parole reports, interviewed him, and conducted a hearing in advance of petitioner's primary eligibility date of January 10, 1994; (2) the board should have provided petitioner with sound transcripts of all relevant proceedings; (3) the board relied on inaccurate information in determining his FET; (4) the board should have found that petitioner had adequately dealt with his problems; (5) the board should not have mechanically applied aggravating factors in determining his FET; (6) the board should have not have considered petitioner's institutional charges; (7) the board should have used the same criteria in determining his parole in 1994 as it did when paroling him on his term sentences in 1981; (8) the board should not have stated that it was denying parole due to the seriousness of the charge; (9) the board should not have stated that the punitive nature of petitioner's sentence had not been carried out; and (10) it was a violation of the ex post facto clauses of the state and federal constitutions to set petitioner's FET as fifteen years. (Pet. Ex. 8 at 3.) The Appellate Division affirmed the Board's determinations in a brief Opinion filed April 8, 1996, stating that, after the board amended its decision to note that petitioner had addressed his substance abuse problem, all others errors were harmless. (Id.)
The New Jersey Supreme Court denied petitioner's application for certification of the Appellate Division's judgment on July 11, 1996, making final the fifteen year FET. (Pet. Ex. 9.) From 1994 forward, the Parole Board has conducted annual review hearings pursuant to N.J.A.C. 10A:71-3.21(f). (Respt. Supp. Ex. A.)
On June 19, 1997, petitioner filed the present petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. As grounds for habeas relief, petitioner asserts that (1) the Parole Board's action in setting petitioner's future parole eligibility term at fifteen years violated the Ex Post Facto clause; (2) the board violated his right to Due Process under the federal constitution when it considered that the "punitive aspects" of his sentence had not yet been satisfied; and (3) by considering petitioner's already-expired sentences when setting petitioner's new parole eligibility date, the Parole Board violated the Due Process clause of the United States Constitution. (Pet. at 3-4.) In addition, currently pending is petitioner's motion reconsideration of this Court's Order denying his request that the Court take judicial notice of certain facts, and for copies of this information and other court documents. For reasons discussed below, petitioner's application for habeas relief now will be denied on the merits, and his pending motion will be denied.
DISCUSSION
A. Standard of Review
A federal court must deny a state prisoner's petition for federal habeas corpus relief on any claim that was adjudicated on the merits in state court unless the state court's adjudication of that claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d)(1) and (2).
The Supreme Court has held that § 2254(d)(1) requires a two-step analysis:
the writ may issue only if one of the following two conditions is satisfied — the state-court adjudication resulted in a decision that (1) "was contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States." Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.Williams v. Taylor, U.S., 120 S.Ct. 1495, 1523 (2000); accord Mateo v. Superintendent, SCI Albion, 171 F.3d 877, 891 (3d Cir. 1999).
A petitioner who claims that the state court's adjudication of his claim was based on an unreasonable factual determination entitling him to relief under § 2254(d)(2) faces a heavy burden of proof, as "a determination of a factual issue made by State court shall be presumed to be correct" unless the petitioner rebuts that presumption "by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also Meyers v. Gillis, 93 F.3d 1147, 1149 n. 1 (3d Cir. 1996) (noting that § 2254(e)(1), adopted as part of the April 1996 amendment of § 2254 under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), is even more demanding that the standard embodied in the former § 2254(d)(8), which required federal courts to presume the correctness of state court findings of fact unless they were not fairly supported by the record).
Moreover, a prisoner pursuing a habeas petition in federal court must first exhaust the remedies available in the courts of the State, unless there is "an absence of available State corrective process, or circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b)(1). State courts must have had an opportunity to pass upon and correct alleged constitutional violations. Evans v. Court of Common Pleas, Delaware County, Pennsylvania, 959 F.2d 1227, 1230 (3d Cir. 1992). A claim must have been presented not only to the trial court, but also to the state's intermediate court and to its supreme court. Id. Section 2254(c) states that a petitioner will "not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c). The Third Circuit has interpreted that provision narrowly, however, so that a petitioner who has raised an issue to the state's intermediate and highest courts on direct appeal is not required to raise it again in a state post-conviction proceeding.Evans, 959 F.2d at 1230.
B. Petitioner's Arguments for Vacating his Parole Determination
Petitioner challenges the board's 1994 determination that he would not again be eligible for parole for fifteen years. As grounds, petitioner first contends that since the law applicable to his 1976 convictions was the New Jersey Parole Act of 1948, the board erred in applying the more stringent standards of the Parole Act of 1979 in determining his fifteen year FET. The main thrust of petitioner's argument on this point is that he had a legitimate expectation that he would receive a three-year "hit" (in other words, a three year term before his next parole review) based on the 1948 Act, and that the length added to his FET under the 1979 Act amounts to additional punishment in violation of the ex post facto clause. (Pet. Mem. at 5.)
Second, petitioner argues that his due process rights were violated when the board in denying parole relied on its finding that the punitive aspects of his sentence had not been satisfied. Petitioner argues that such a consideration only should be taken into account upon determination of a prisoner's Primary Parole Eligibility date, and not when making the decision whether or not to grant parole. (Id. at 6, 10-11.) Petitioner also argues that it was improper for the board to consider his expired sentences for escape, larceny and carrying a dangerous weapon when determining the FET on his murder conviction. According to petitioner, only information gathered after his 1994 primary eligibility date should have been considered. (Id. at 16-17.)
As relief, petitioner requests only equitable relief, namely, that this Court invalidate all previous parole decisions related to his life sentence for murder and order the board to rehear his application for parole within 60 days or release him. (Id.)
C. Whether There is Legal Authority for Petitioner's Ex Post Facto Arguments
Strikingly similar arguments to those made by petitioner were rejected by the Court of Appeals in Royster v. Fauver, 775 F.2d 527 (3d Cir. 1985) (Becker, J.). In Royster, the appellant, an inmate serving a life sentence for murder committed in 1968, in 1981 was denied parole under the New Jersey Parole Act of 1979 based on the unsatisfied punitive aspects of his sentence, and given an FET of nine years. Id. at 531. Appellant first argued that the a nine year FET would not have been permitted under the 1948 Act in effect at the time of his murder conviction, and that application of the 1979 Act therefore was an ex post facto violation. Second, appellant argued that the board misapplied the 1979 Act when it considered the unsatisfied punitive aspects of his sentence, because, under the 1979 Act, the board was not permitted to consider the punitive aspects of punishment, but rather should base its decision only on likelihood of recidivism. Id. at 532.
The Royster court began its analysis with a discussion of the differences between the 1948 and 1979 Acts, noting that in 1979, the New Jersey penal laws underwent a change which shifted from the parole board to the sentencing judge the responsibility of seeing to it that the "punitive aspects" of a convicted person's sentence would be satisfied.Id. at 529 (citing Assembly Committee Statement to Assembly No. 3039 (1979).) As a result, under the 1979 Act the parole board was no longer permitted to consider whether the punitive aspect of a prisoner's punishment had been served, and instead was to consider only the likelihood of recidivism. Id. The Royster court held, however, that based on the New Jersey Supreme Court's construction of the two acts in In re Trantino Parole Application, 89 N.J. 347 (1982), nothing precluded applying the principles of the 1948 Act to an inmate convicted and sentenced prior to the enactment of the 1979 Act, and specifically found that notwithstanding the recidivism focus of the 1979 Act, the boardshould consider the punitive aspects of a pre-1979 sentence. Id. at 533. In fact, the Royster court concluded, the parole standards under the two acts are "precisely the same" when applied to murderers convicted and sentenced before the enactment of the new code. Id. Under either statute, the Parole Board and reviewing court must consider recidivism and "welfare of society", or punitive aspects of the inmate's sentence.Id. Because the standards are the same under either Act, the court held, there was no ex post facto violation in applying to the appellant the 1948 Act's provisions allowing consideration of a sentence's punitive considerations. Furthermore, the court continued, there was nothing in the 1948 Act to indicate that longer FETs are not permitted, and thus there was no indication that the passage of the 1979 Act imposed a stricter practice of imposing longer FETs. Id. at 535.
The Courts of New Jersey also have held that the imposition of a longer FET to a pre-1979 conviction does not violate the ex post facto clause. In Thompson v. New Jersey State Parole Bd., 210 N.J. Super. 107 (App. Div. 1986), a prisoner convicted in 1968 challenged the 1984 imposition of a twelve-year FET, arguing that the new Act imposed conditions more onerous than those in effect at the time of his convictions. The court disagreed, finding that even if the new Act imposed new "laws", because of the provision for annual review, the regulations did not impose more onerous terms of imprisonment than did the original Parole Act. Id. at 112.
D. Analysis
1. Petitioner's Liberty Interest in a Shorter FET
Petitioner first advances the argument that his 15 year FET violates ex post facto clause because, prior to 1979, it was the official practice of the parole board to give three year "hits" to inmates seeking parole. With the institution of the new parole code, petitioner argues, came a policy of mandating longer FETs, such as the fifteen year interim at issue in this case. Because the new code effected a regimen of longer FETs, Auge maintains, it imposed additional punishment.
The Third Circuit rejected an argument very similar to this inRoyster. In that case, as discussed above, the petitioner asserted that under the 1948 Act, he would not have received a nine year FET, and that the longer FET was somehow mandated by the 1979 Act. The Royster court found nothing in either Act providing would prohibit a nine-year FET, and its independent research found nothing to support the argument that under the 1948 Act an FET should be for less than a nine-year term. A similar finding was reached by the Appellate Division in Thompson, supra.
In this case, petitioner concedes that Royster facially bars his argument that the 1979 Act imposes longer FETs. He attempts to distinguish Royster, however, by asserting that, under the 1948 Act, it was the "official practice or policy" of the board to give FET hits of three years, as manifested in the parole decisions and records of 1975. (Pet. Mem. at 5.) This policy was followed, petitioner argues, because the board interpreted the 1948 Act, N.J.S.A. 30:4-123.56(a) (repealed), "to mean that there would be no hits greater than three years." (Id. at 4.) After the advent of the 1979 Act, he contends, the board abandoned this official policy, and thus imposed additional punishment on inmates who subsequently came up for review. (Id.) While it is true that a petitioner can have a protected liberty interest in an official policy or practice, Sheehan v. Beyer, 51 F.3d 1170, 1175 (3d Cir. 1995), this Court already has held that petitioner failed to adduce any evidence that the Parole Board had adopted a custom or practice of shorter FETs prior to the enactment of the 1979 Act. Moreover, the Court already has denied petitioner's request for judicial notice on this topic (see Order dated Feb. 1, 2000), and, as will be discussed below, petitioner's motion for reconsideration of this Order will also be denied.
Petitioner's liberty interest arguments lose force when one considers that he has received annual parole reviews every year since 1994 pursuant to N.J.A.C. 10A:71-3.21(f) (Respt. Supp. Ex. A), and that he has received one month sentence reductions in his FET in 1996 and 1997. These annual reviews serve as a safeguard against overlong FETs, and blunt the possibility that the new Act imposed stricter parole conditions. The annual parole review lessens the likelihood that a prisoner will be given a too-long parole hit under the new Act.
2. The Board's Consideration of the Punitive Aspects of Petitioner's Sentence
In this case, as in Royster, the Court is presented with the argument that in denying parole the New Jersey Parole Board should not have considered the punitive aspects of petitioner's sentence. As discussed above, the Royster court followed the New Jersey Supreme Court's decision in Trantino, supra, in holding that there was no constitutional violation in considering the punitive aspects of a sentence imposed prior to the enactment of the 1979 Act. Here, petitioner's claim is practically identical to the punitive aspect claim rejected by the Court of Appeals in Royster, and this aspect of his petition will be denied accordingly. Petitioner's only grounds for ignoring this on-point holding in Royster is that the Royster court was mistaken in following Trantino. (Pet. Opp'n to Mot. to Dismiss at 3.) This argument is without merit. This Court is not at liberty to question a holding of the Court of Appeals, and even if it were, this Court would also follow Trantino, an opinion of this state's highest court and thus the final word on New Jersey law. Because petitioner's argument with respect to consideration of punitive aspects is precluded by the holding in Royster, this aspect of his petition will be denied. Thus, this Court holds that the decision of the parole board on October 26, 1994 establishing a future eligibility term of 15 years, was neither an unreasonable application of federal law, nor an unreasonable determination of the facts under 28 U.S.C. § 2254(d)(1)(2), supra.
To the extent that petitioner's brief might be interpreted as an attack on the constitutionality of Royster and Trantino , the argument fails for petitioner's lack of standing to make such a challenge.
E. Petitioner's Motion for Reargument of this Court's Order Denying Judicial Notice and Discovery
As discussed above, this Court already has denied petitioner's request for judicial notice and copies of material judicially noticed. This Court found, in its Order of February 1, 2000, that the existence of an unwritten policy or practice of the Parole Board is not a matter susceptible to proof by judicial notice under Rule 201 of the Federal Rules of Evidence. Petitioner now moves this Court to reconsider its denial of this request, asserting that this Court "misunderstood" the meaning of petitioner's original motion. Despite the fact that Auge's original motion was styled as a "Motion for Judicial Notice", Auge now argues that what he really intended was to move for leave to take discovery aimed at compelling the Parole Board to produce all past records regarding the average length of FETs. As further support for his motion for reargument, Auge encloses additional evidence not before the Court upon deciding the original motion. Specifically, Auge has submitted several bar charts, prepared by another inmate, that compare the average FET "hits" before and after the decision in Trantino, supra.
It is well settled that in a motion for reconsideration under Local Civil Rule 7.1(g) that "[a] party seeking reconsideration must show more than a disagreement with the court's decision". Panna v. Firstrust Sav. Bank, 760 F. Supp. 432, 435 (D.N.J. 1991) (quoting Carteret Sav. Bank, F.A. v. Shushan, 721 F. Supp. 705, 709 (D.N.J. 1989)). As this Court has stated, "motions for reargument succeed only where a 'dispositive factual matter or controlling decision of law' was presented to the Court but not considered." Damiano v. Sony Music Entertainment, 975 F. Supp. 623, 634 (D.N.J. 1996) (quoting Pelham v. United States, 661 F. Supp. 1063, 1065 (D.N.J. 1987). Where no facts or cases were overlooked, such a motion will be denied, Egloff v. New Jersey Air Nat. Guard, 684 F. Supp. 1275, 1279 (D.N.J. 1988); Resorts International v. Greate Bay Hotel and Casino, 830 F. Supp. 826, 831 (D.N.J. 1992). If the record was inadequately developed on a particular issue, the court has discretion to reconsider the matter, Hatco Corp. v. W.R. Grace Corp., 849 F. Supp. 987, 990 (D.N.J. 1994), but not to the extent of considering new evidence that was available but not submitted while the motion was pending. Florham Park Chevron, Inc. v. Chevron, USA, Inc., 680 F. Supp. 159, 162 (D.N.J. 1988). In other words, a "motion for reconsideration is not a vehicle to reargue the motion or to present evidence which should have been raised before." Bermingham v. Sony Corp. of America, Inc., 820 F. Supp. 834, 856-67 (D.N.J. 1992), aff'd, 37 F.3d 1485 (3d Cir. 1994). As the late Chief Judge Gerry noted, "[w]e are in fact bound not to consider such new materials, lest the strictures of our reconsideration rule erode entirely." Resorts International, 830 F. Supp. at 831 n. 3. (Emphasis in original). Consequently, only when the matters overlooked might reasonably have resulted in a different conclusion if the court had considered them will the court entertain such a motion. Panna, 760 F. Supp. at 435.
While petitioner now has made a proffer of evidence in support of his reconsideration motion, the Court is not at liberty to consider these additional materials. Moreover, Auge has not argued that the Court overlooked any dispositive matters. Instead, petitioner simply voices disagreement with the Court's decision not to take judicial notice of certain matters. Such disagreement is properly addressed to the Court of Appeals, not to this Court in a motion for reargument. Finally, the Court finds no merit in petitioner's suggestion that the Court misunderstood his application. The motion ruled upon was clearly captioned "Motion for Judicial Notice", not an application for leave to take discovery. Thus, to the extent that petitioner now is asking the Court to reconsider its interpretation of this straightforward request for judicial notice, such motion will be denied. For these reasons, petitioner's motion for reargument of this Court's prior ruling on his request for judicial notice will be denied.
CONCLUSION
For the reasons discussed above, petitioner's application for writ of habeas corpus will be denied, and his motion for reconsideration of this Court's Order dated February 1, 2000 also will be denied. The accompanying Order is entered.
O R D E R
THIS MATTER having come before the Court on petitioner's application for writ of habeas corpus pursuant to 28 U.S.C. § 2254, and the Court having reviewed the parties' briefs and supplemental submissions, and for the reasons discussed in today's Opinion;
IT IS this day of May, 2000
ORDERED that petitioner's application for writ of habeas corpus be, and hereby is DENIED; and it is further
ORDERED that petitioner's motion [16-1] for reconsideration of this Courts's Order of February 1, 2000 be, and hereby is, DENIED; and it is further
ORDERED that no certificate of appealability shall issue pursuant to 28 U.S.C. § 2253(c)(2) and Third Circuit LAR 22.2, petitioner having failed to make a substantial showing of the denial of any constitutional right.