
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________            No.  96-2358                                RAFAEL MORENO-MORALES,                                Petitioner, Appellant,                                          v.                           UNITED STATES PAROLE COMMISSION,                                Respondent, Appellee.                                 ____________________                                     ERRATA SHEET                                     ERRATA SHEET                      The opinion  of this  court issued  on January  20,            1998, is corrected as follows:                      On the cover page,  the name of the district  court            judge whose  decision we  review is  changed from  "Fusto" to            "Fuste".            [  N  O  T     F  O  R     P  U  B  L  I  C  A  T  I  O  N  ]                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________            No.  96-2358                                RAFAEL MORENO-MORALES,                                Petitioner, Appellant,                                          v.                           UNITED STATES PAROLE COMMISSION,                                Respondent, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                      [Hon. Jose A. Fuste, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Campbell, Senior Circuit Judge,                                      ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________                Irma R. Valldejuli for appellant.                __________________                Isabel Munoz Acosta,  Assistant U.S. Attorney,  with whom                ___________________            Guillermo  Gil,  United  States Attorney,  was  on  brief for            ______________            appellee.                                 ____________________                                   January 20, 1998                                 ____________________                                         -2-                                          2                      Per Curiam.   Rafael  Moreno-Morales  is serving  a                      __________            thirty year  sentence for convictions of obstructing justice,            giving  false testimony,  suborning  perjury, and  committing            perjury.   After  being denied  parole, he  sought a  writ of            habeas corpus, arguing  that the  Parole Commission  violated            its  own  rules  and  that its  decision  was  arbitrary  and            capricious.  The district court denied relief.  We affirm.                                           I                                          I                      The  infamous Cerro  Maravilla incident  underlying            the criminal conviction of  Moreno-Morales, a police officer,            has been well described in other opinions.  See, e.g., United                                                        _________  ______            States  v. Reveron  Martinez, 836  F.2d 684 (1st  Cir. 1988);            ______     _________________            United  States  v.  Moreno-Morales, 815  F.2d  725  (1st Cir.            ______________      ______________            1987); In re Grand Jury Investigations of the Cerro Maravilla                   ______________________________________________________            Events, 783 F.2d  20 (1st Cir. 1986).   For present purposes,            ______            we sketch the  facts pertinent to the decision  of the Parole            Commission.                      On  July  25,  1978,  members  of  the  "Movimiento            Revolucionario   Armado,"   a  radical   Puerto   Rican  pro-            independence  movement,  attempted  to destroy  a  television            tower at Cerro Maravilla.  The members included Arnaldo Dar o            Rosado, Carlos Soto Arriv , and  a third individual who was a            police informant.   The  Puerto Rico Police  learned of  this            planned  sabotage  through  the informant  and  ambushed  the                                         -2-                                          2            group.    Appellant  Moreno-Morales   was  among  the  police            officers at the scene.                        After a  shoot-out,  Dar o Rosado  and Soto  Arriv             surrendered and were  taken into custody.   In custody, while            handcuffed, Dar o Rosado  and Soto Arriv  were  brutalized by            the police.   One police  officer killed Dar o Rosado  with a            shotgun blast to the chest.  A second police officer shot and            wounded Soto Arriv  with  a pistol.  Moreno-Morales took  the            pistol and shot Soto Arriv  again, killing him.                      The police concealed their deeds by rearranging the            scene to  make it seem  the two men  had not been  taken into            custody.  They fabricated a  story that Dar o Rosado and Soto            Arriv  had been killed in a shoot-out while resisting arrest.            Moreno-Morales  and the  other officers  told  this story  to            local district  attorneys investigating the shootings.   When            the  victims' survivors brought a civil rights action against            the  Commonwealth  of  Puerto  Rico  in  federal  court,  the            officers told the same  story in deposition testimony.   They            also  told this story  to a federal  grand jury investigating            the event.                        In February 1984, after  prolonged investigation, a            federal  grand  jury  returned  indictments  against  Moreno-            Morales  and  he  was convicted  after  trial  of obstructing            justice,  giving  false  testimony,  suborning  perjury,  and            committing perjury.                                         -3-                                          3                      In January  1985, Moreno-Morales was  charged under            Puerto Rico  law with murder  for the deaths of  Dar o Rosado            and Soto  Arriv .   Moreno-Morales was  convicted of  second-            degree murder as to the death of Soto Arriv  and sentenced to            twenty-two  to  thirty  years  in  jail.    That sentence  is            consecutive to his federal sentence.                                          II                                          II                      Moreno-Morales    was    eligible     for    parole            consideration on March 27, 1995.   Under 18 U.S.C.   4208(a),            an initial parole  hearing is to be held,  when feasible, not            later than thirty days prior  to the parole eligibility date.            The Parole Commission  delayed the hearing beyond  the thirty            days until  it obtained  additional information.   By  letter            dated March  8, 1995, the  Parole Commission asked  the Chief            Probation  Officer for  the District  of Puerto  Rico  for an            explanation  of  Moreno-Morales's  involvement in  the  Cerro            Maravilla killings.  The letter explained that the Commission            needed "further information  . . . to conduct  the hearing in            conformity  with  the  Commission procedures."      The Chief            Probation Officer  referred the  matter to  attorneys at  the            Criminal Section  of the Civil Rights Division  of the United            States Department of Justice.   On June 30, 1995, an attorney            from  the Justice  Department  wrote a  letter to  the Parole            Commission explaining Moreno-Morales's role  in the killings.            Moreno-Morales was not copied on the letter.                                         -4-                                          4                      The  Parole  Commission  scheduled Moreno-Morales's            hearing for July 20,  1995.  On July 17, 1995, the Commission            sent a copy of the Justice Department letter to the Bureau of            Prisons with instructions  to disclose the letter  to Moreno-            Morales  but not to furnish a copy of  it to him.  The Bureau            of Prisons did this on July 18, 1995.                        On July 20, the hearing occurred before one hearing            examiner, as  permitted by  Commission regulations.   See  28                                                                  ___            C.F.R.   2.13(a).   At the  hearing, Moreno-Morales  admitted            shooting Soto Arriv , saying he did so when he "lost control"            after Soto  Arriv  shot at  him.  Moreno-Morales  also argued            that some witnesses had been  paid by the government to alter            their testimony.  The hearing examiner instructed that a copy            of  the Justice  Department  letter  should  be  provided  to            Moreno-Morales.                      On August 9, 1995, the Commission issued its Notice            of Action denying parole.  The Notice stated:                      Your offense behavior has been rated as a                      Category   Eight   severity   because  it                      involved  murder.   Your  salient  factor                      score (SFS-81) is  10.  You have  been in                      federal confinement  as a result  of your                      behavior  for  a  total  of  124  months.                      Guidelines established by  the Commission                      indicate  a range  of  100+ months  to be                      served before release for cases with good                      institutional   adjustment   and  program                      achievement.     After   review  of   all                      relevant    factors    and    information                      presented a decision more  than 48 months                      above  the  minimum   guidelines  appears                      warranted because  your offense  behavior                      involved   the   following    aggravating                                         -5-                                          5                      factors:   An unarmed person  detained by                      police  and   handcuffed  was   shot  and                      killed.            Although the Notice was issued  on August 9, 1995, the Bureau            of Prisons did not deliver the Notice to Moreno-Morales until            December 8, 1995.                        On December 15,  1995, Moreno-Morales appealed  the            decision  to the  National Appeals  Board,  arguing that  the            Commission  did not follow correct procedures in deciding his            case   and  that  the  Commission  should  have  granted  him            leniency.  On March 13,  1996, the Board affirmed the hearing            examiner's  decision.   The  Board rejected  Moreno-Morales's            arguments:                      You were  not prejudiced by the fact that                      your initial hearing was held four months                      after  your  completion of  your  minimum                      term.       The   Commission's    current                      regulations   state   that   "an  initial                      hearing shall  be conducted  by a  single                      hearing  examiner  unless   the  Regional                      Commissioner orders  that the  hearing be                      conducted by  a panel of  two examiners."                      28  C.F.R.    2.13(A).   Therefore, there                      was  no error in  the fact that  only one                      examiner  conducted your  hearing.   Your                      notice  of action was issued on August 9,                      1995, within 21 days after  your July 20,                      1995 hearing, as  required by regulation.                      The  fact that the  Bureau of Prisons may                      not have immediately delivered the NOA to                      you is not the fault of the Commission.            The Board  also  rejected  Moreno-Morales's  claim  that  the            Commission  did not  disclose the  Justice  Department letter            prior to  the hearing by pointing  out that, in fact,  he had            been shown  the letter.  Finally, the  Board rejected Moreno-                                         -6-                                          6            Morales's claim  that he  should have  been granted  leniency            because a co-defendant had been  granted leniency.  The Board            stated there  were  significant mitigating  factors  in  that            case,  and leniency  granted  in one  case  does not  require            leniency in another.                      On  May  16,  1996, Moreno-Morales  filed  a habeas            corpus petition, again arguing that the Parole Commission had            acted  capriciously and  that  it had  failed  to follow  its            internal regulations.  The district court denied the petition            without a hearing.  Moreno-Morales appeals.                                         III                                         III                      While  there is  some debate  among  the courts  of            appeal as  to the scope  and standard of review  of different            types of  Parole Commission decisions,1 for  present purposes            we will  assume this decision  is reviewable and test  it for            whether  it  is  irrational, arbitrary  or  capricious.   The            decision is plainly none of these things.                      Under  the Parole  Commission's guidelines,  parole            determinations  are based upon two factors:  offense category                                            ____________________            1.  For  cases holding decisions of the Parole Commission are            not reviewable for abuse of  discretion, see, e.g., Jones  v.                                                     _________  _____            United  States Bureau  of Prisons, 903  F.2d 1178,  1183 (8th            _________________________________            Cir. 1990);  Wallace v. Christensen, 802 F.2d 1539, 1553 (9th                         _______    ___________            Cir. 1986) (en  banc); Farkas v. United States,  744 F.2d 37,                                   ______    _____________            38-39 (6th Cir. 1984);  Garafola v. Wilkinson, 721  F.2d 420,                                    ________    _________            423-24 (3d Cir. 1983); Garcia v. Neagle, 660 F.2d 983, 988-89                                   ______    ______            (4th Cir.  1981).   For  cases  holding decisions  of  Parole            Commission  are  subject  to deferential  review,  see, e.g.,                                                               _________            Hanahan v. Luther, 693 F.2d 629, 632 (7th Cir. 1982); Simpson            _______    ______                                     _______            v. Ortiz, 995 F.2d 606, 608 (5th Cir. 1993).               _____                                         -7-                                          7            and salient factor score.  See 28 C.F.R.   2.20.  The offense                                       ___            category rates  the severity  of the  inmate's offense.   The            salient factor  score  rates the  inmate's  parole  prognosis            based on  such factors as criminal record and  age.  See id.                                                                  ___ ___            As to  the second prong,  the Commission assigned  to Moreno-            Morales a  salient factor  score of  ten, the most  favorable            rating.                         There are eight offense  categories, and the parole            guidelines  provide  upper and  lower confinement  limits for            categories one through  seven, from which the  Commission may            depart for good cause.  See 18 U.S.C.   4206(c).  There is no                                    ___            upper  limit for  category  eight  offenses  because  of  the            "extreme variability of the cases  within this category."  28            C.F.R.   2.20 n.1.   If the Commission decides to exceed  the            lower limit of category eight parole eligibility by more than            forty-eight  months,  it  must  "specify the  pertinent  case            factors upon which it relied  in reaching its decision."  Id.                                                                      ___                      The base  offense category  for  perjury is  three,            except when the perjury concerns a criminal offense, in which            case  the  offense  category  is  two  categories  below  the            underlying offense.  Because Moreno-Morales committed perjury            while attempting  to conceal  a murder,  an offense  category            eight  crime, his offense  category would ordinarily  be six.            See 28 C.F.R.    2.20 ch.6.  The  Parole Commission, however,            ___                                         -8-                                          8            elevated Moreno-Morales's  offense category to  eight because            of the fact  he had committed murder.   The Parole Commission            may  take into account  any substantial information available            to it  when assessing the  offense category, see 28  C.F.R.                                                           ___            2.19(c), and this decision was entirely rational in  light of            the conviction,  the Justice  Department letter, and  Moreno-            Morales's own admissions.                        Under the guidelines, the Commission was  obligated            to state the reasons for its decision to deny parole.  See 28                                                                   ___            C.F.R.    2.20  n.1.   The Commission  did this,  stating the            decision  was premised upon  the aggravating factor  that "an            unarmed person detained by police and handcuffed was shot and            killed."  That is enough.                                          IV                                          IV                      Moreno-Morales's  arguments  that   the  Commission            failed  to  follow  its  own rules  are  also  without merit.            Moreno-Morales  argues that the  Parole Commission denied him            "reasonable  access" to the  Justice Department letter  and a            meaningful  opportunity to respond to it.  Moreno-Morales saw            the  letter two  days before  his  hearing, a  fact which  he            admits,  and  he  declined the  hearing  examiner's  offer to            continue  the hearing  until a  later date  -- an  offer made            specifically  to  give  Moreno-Morales  the  opportunity   to            consider his response.  Moreno-Morales complains he could not            fully  explain his version  of events because  his translator                                         -9-                                          9            was not fluent in  Spanish, but does  not explain how he  was            prejudiced on this  account.  See Sacasas v.  Rison, 755 F.2d                                          ___ _______     _____            1533, 1535 (11th  Cir. 1985) (petitioner must  demonstrate he            was prejudiced by Parole Commission's  acts to be entitled to            habeas  relief).  In any event,  the hearing examiner plainly            understood at  least the gist of Moreno-Morales's assertions,            as he refers to them in his Initial Hearing Summary.                        Moreno-Morales   also   argues  that   the   Parole            Commission failed to  state the reasons  for its denial  with            particularity as  required by 18  U.S.C.   4206(b).   This is            plainly  incorrect,  as  the  Notice  of  Action specifically            explained that  parole was  denied because  "an armed  person            detained by police and handcuffed was shot and killed."                    We affirm the decision of the district court.2                                            ____________________            2.  At oral  argument, the  government informed  us that  the            Parole Commission conducted another hearing regarding Moreno-            Morales in October  1997 and has yet to  render its decision.            Nothing  in this decision should  be construed to prevent the            Parole  Commission from  reaching its  own  decision in  that            matter.                                         -10-                                          10
