                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-10-2002

Hunterson v. DiSabato
Precedential or Non-Precedential: Precedential

Docket No. 01-1805




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PRECEDENTIAL

       Filed October 10, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-1805

NEIL HUNTERSON

v.

MARY KEATING DISABATO, Chairman, N.J. State Parole
BD.; MICHAEL R. MCKEEN, Administrator, S.S.C.F.; THE
ATTORNEY GENERAL OF THE STATE OF NEW JERSEY,
PETER VERNIERO,
       Appellants

On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 98-cv-00482)
District Judge: Honorable Joseph H. Rodriguez

Argued January 7, 2002

Before: MANSMANN,* RENDELL and FUENTES, Circuit   Judges

Reargued May 2, 2002

Before: RENDELL, FUENTES and COWEN, Circuit Ju dges

(Filed October 10, 2002)
_________________________________________________________________

* Hon. Carol Los Mansmann, Judge of the United States Court of
Appeals for the Third Circuit, died on March 9, 2002.


       James D. Harris, Esq. [ARGUED]
       Office of Attorney General of
        New Jersey
       Division of Law
       25 Market Street
       Trenton, NJ 08625
        Counsel for Appellants

       John S. Furlong, Esq. [ARGUED]
       Furlong & Krasny
       820 Bear Tavern Road
       Mountain View Office Park,
        Suite 304
       West Trenton, NJ 08626
        Counsel for Appellee

OPINION OF THE COURT

RENDELL, Circuit Judge.

Neil Hunterson was convicted of first-degree murder and
kidnaping in 1972. He was sentenced to two life terms of
imprisonment. In July 1992, he was paroled. His parole
was revoked on November 1, 1995,1 and a five-year future
eligibility term ("FET") was imposed. Hunterson has been
challenging the revocation of his parole and the imposition
of the five-year FET ever since, claiming that it was not
based on any "danger to society" he posed, but instead was
a result of the New Jersey Parole Board’s animus toward
him.

After exhausting his appeals in the New Jersey court
system, Hunterson filed a petition for a writ of habeas
corpus in the United States District Court for the District of
New Jersey. In his petition, Hunterson alleged a wide-range
of constitutional violations, and a conspiracy to violate his
rights, by a variety of state actors, including various
individuals, the Parole Board, and the New Jersey Supreme
Court.
_________________________________________________________________

1. He had been detained since June 15, 1995.

                                2


The District Court granted the petition, concluding that
Hunterson’s substantive due process rights were violated.
Hunterson v. DiSabato, 137 F. Supp. 2d 529 (D.N.J. 2001)
(Hunterson I). The Court thereafter issued a second opinion
focusing only on the remedy. Hunterson v. DiSabato, 140 F.
Supp. 2d 353 (D.N.J. 2001) (Hunterson II). In this later
opinion, the Court addressed the alleged conspiracy against
Hunterson, concluding that the circumstances of the case
were so unusual that release was the only appropriate
remedy. Id. at 380, 382. The District Court accordingly
ordered his release on March 16, 2001.

The government respondents, Mary Keating DiSabato,
Chairperson, New Jersey State Parole Board ("Board" or
"Parole Board"), and Michael R. McKeen, Administrator,
Southern State Correctional Facility, now appeal. As we
conclude that the District Court did not conduct its review
of the Parole Board’s decision and the state appellate
court’s affirmance of it in accordance with the constraints
of the Antiterrorism and Effective Death Penalty Act
("AEDPA"), we will reverse and remand to the District Court
to consider the remaining claims presented in Hunterson’s
habeas petition.2

I. FACTS

This case comes to us with a complex procedural history
presenting the matter in an unusual posture. Not only were
there numerous appeals within the state system, and
subsequent affirmances and reversals, but there were also
two separate opinions issued by the District Court-- first
granting the writ and thereafter ordering Hunterson’s
release. In its two published opinions the District Court set
forth the underlying proceedings in great detail and we will
not restate them here. Instead, we will set forth only those
facts necessary to our analysis.

In 1972, Hunterson, then president of the Henchmen
motorcycle gang, was convicted of the kidnaping and first-
_________________________________________________________________

2. As we discuss below, the reversal of the District Court’s release order
will result in the immediate return of Hunterson to confinement.
However, further proceedings regarding his additional claims, if still
viable, should occur forthwith.

                                3


degree murder of a rival motorcycle gang member. He was
sentenced to two life terms. After serving approximately
twenty years of his sentence, he was paroled on July 29,
1992. The current controversy involving the revocation of
his parole had its origins on September 29, 1994, when
Hunterson was arrested and charged with possession of
marijuana and possession with intent to distribute
approximately 50 grams of marijuana. The distribution
charge was subsequently dropped, and Hunterson pled
guilty to a disorderly persons offense for possession of less
than fifty grams of marijuana.

Four additional facts are especially important since they
were repeatedly relied upon in the course of the revocation
proceedings, and have been consistently challenged by
Hunterson as insignificant or improperly considered. On
July 9, 1992, while still incarcerated and in New Jersey for
a parole hearing, Hunterson allegedly threatened Ralph
DeFabio, another former biker gang member, over the
telephone. On August 5, 1992, less than a week after his
release on parole, he again called DeFabio and made
arguably threatening comments. This conversation was
recorded by DeFabio.3 On April 21, 1995, Hunterson
attended a fundraiser for a member of a motorcycle gang
known as "the Egyptian." Finally, Hunterson admitted to
his parole officer that he had been using marijuana. 4

Central to Hunterson’s claims is his view that his
romantic relationship with Deborah Hansen caused the
Parole Board to be biased against him in the state
revocation proceedings. When Hunterson and Hansen
began dating, she was the Deputy Director of Interstate
Parole Services for New Jersey. Hunterson claims that his
_________________________________________________________________

3. The transcribed conversation is included in the Board’s September 9,
1998 decision. The verbal altercation appears to be about a car
Hunterson believes DeFabio took from him, as well as DeFabio’s role in
his being arrested for the murder twenty years earlier. At one point
Hunterson says: "I’ll come to your house with your family, fuck you,
your kids and your mother, punk."

4. In her testimony, Elaine Torres, one of Hunterson’s parole officers,
explained that Hunterson had admitted his marijuana use, and she had
thought it was understandable given the stressors in his life, including
his mother’s serious illness.
                                4


relationship with Hansen, who during this time became his
fiancee, was the real motivation for the Parole Board’s
actions. During their relationship, and around the time of
Hunterson’s marijuana arrest, Ms. Hansen was a vocal
critic of the Department of Corrections. Specifically, Ms.
Hansen publicly criticized the department’s mishandling of
interstate parole, illustrated by the murder committed by
one interstate parolee, Robert "Mudman" Simon. After
William Fauver, the Corrections Commissioner at the time,
testified before a state senate subcommittee, Hunterson
and Hansen held an impromptu news conference attacking
the accuracy of his testimony.

As a result of Hunterson’s marijuana arrest and urine
tests showing signs of drug use (which were eventually
deemed inadmissible because of problems with the chain of
custody), parole revocation proceedings were undertaken.
New Jersey law provides that "[a]ny parolee who has
seriously or persistently violated the conditions of his
parole, may have his parole revoked and may be returned
to custody . . . ." N.J.S.A. 30:4-123.60. According to the
New Jersey Supreme Court, the proper consideration in
parole proceedings is whether the individual is likely to
engage in further criminal activity. Trantino v. New Jersey
State Parole Bd., 711 A.2d 260, 270 (N.J. 1998)[Trantino
VI]. The New Jersey Administrative Code sets forth the
factors to be considered at parole hearings. N.J.A.C.
10A:71-3.11. First, it explains that "[p]arole decisions shall
be based on the aggregate of all pertinent factors." N.J.A.C.
10A:71-3.11(a). It provides a list of twenty-three factors that
should be considered, including, the nature and pattern of
previous convictions, adjustment to parole, facts and
circumstances of the offense, aggravating and mitigating
factors surrounding the offense, parole plans and the
investigation thereof, and status of family or marital
relationship. N.J.A.C. 10A:71-3.11(b). It also provides that
the Board "may consider any other factors deemed
relevant." N.J.A.C. 10A:71-3.11(b).

After a series of hearings and apparent procedural errors
by the Board (reversed by the New Jersey appellate courts),
a two-member panel of the Board revoked Hunterson’s
parole in November 1995, stating:

                                5


       His behavior in [respect to his marijuana possession]
       projects a troubling immaturity of judgment, as well as
       an inability to abide by limitations imposed by
       administrative and statutory authority. When coupled
       with the threats to DeFabio, the admitted marijuana
       use and his presence at the April 1995 Pagan benefit,
       there begins to emerge the profile of an individual
       constitutionally incapable of adopting a manner of
       living which requires strict adherence to the rules of
       society.

The panel then had the duty of setting a FET, providing the
next date when he would be eligible for parole.

Under New Jersey law, the presumptive future eligibility
term for Hunterson’s parole was twelve months, subject to
a three-month increase if the panel determined "the
circumstances of the parole violation and the
characteristics and past record of the parolee warrant such
adjustment." N.J.A.C. 10A:71-7.17( b) and (c). However, the
state administrative code provides that if the two-member
panel found that this term was "clearly inappropriate . . .
the two-member Board panel shall refer such case for a
three-member Board panel review for the purpose of
establishing a future parole eligibility date." N.J.A.C.
10A:71-7.17(p). The two-member panel concluded that the
presumptive twelve-month term, or even the fifteen-month
term, was inappropriate and therefore referred the case to
a three-member panel. Based largely on the issues noted by
the two-member panel, as well as the conviction underlying
his parole and history of alcohol and drug use, the three-
member panel concluded that "public safety requires that a
substantial parole eligibility term be imposed" and
established a five-year FET.5
_________________________________________________________________

5. As with other sentences, the FET period can be shortened by certain
credits. For example, Hunterson actually received a hearing for parole on
February 13, 1998, only 2-1/2 years into his five-year FET. However,
Hunterson was denied parole, and on November 30, 1998, a three-
member panel of the Parole Board determined that an eight-year FET
was appropriate in his case because he had "never seriously addressed
in counseling session issues such as why [he had] in the past reflected
a need to associate with individuals involved in criminal activity and the

                                6


Throughout these proceedings, Hunterson has sought
release -- initially appealing the various decisions of
hearing officers and the New Jersey State Parole Board, and
eventually filing a petition for a writ of habeas corpus in
federal court.

On appeal, the Superior Court of New Jersey Appellate
Division ("Appellate Division"), the state court that hears
direct appeals from the Parole Board, ruled repeatedly in
Hunterson’s favor and reversed or vacated the Parole
Board’s decisions based on various defects in the
proceedings. First, on November 2, 1994, the Appellate
Division reversed the original finding of probable cause for
the parole violator warrant: "In view of the State’s
representation that it cannot establish the chain of custody
of the three urine tests, the finding of probable cause of
October 21, 1994 is reversed." Second, on December 27,
1994, the Appellate Division vacated the parole violator
warrant for the drug charges: "The issuance of the parole
warrant is summarily reversed. The warrant is vacated.
Defendant may be released. The Board may continue
statutorily authorized parole revocation proceedings." Third,
on June 20, 1995, the Appellate Division vacated the parole
violator warrant for lack of probable cause and ordered
Hunterson released. In its strongest criticism of the Parole
Board, the Appellate Division found the revocation
procedure employed by the Board to be procedurally and
substantively flawed:

       The procedures set forth in N.J.S.A. 30:4-123.60 and
       N.J.A.C. 10A:71-7.3 were not followed by the parole
       authorities in this case. As a result, a warrant was
       issued and Hunterson was returned to jail without the
       required findings that the charge against him is serious
       and that he poses a danger to the public safety.
_________________________________________________________________

causes of [his] substance abuse problem." This eight-year FET is not
before us on appeal, nor was it before the District Court when it issued
its original order granting the writ. During oral argument, Appellants’
counsel indicated that if we were to reverse the District Court, it would
not enforce the eight-year FET, and the Parole Board would immediately
hold a new hearing and would exclude members previously involved in
the case.

                                7


       Hunterson is charged with a fourth-degree possessory
       drug offense. In light of the fact that he was arrested
       on this charge over nine months ago and the parole
       warrant did not issue until June 15, 1995, it is obvious
       that no emergency justifying departure from the
       mandatory statutory and regulatory procedures exists.
       The June 15 warrant is vacated. Hunterson is to be
       released immediately. Nothing in this order precludes
       the parole authorities from continuing parole
       revocation procedures against Hunterson in
       accordance with [the] law.

The New Jersey Supreme Court stayed the release order.
Fourth, on July 24, 1995, the Appellate Division ordered
Hunterson released pending a final decision of the Parole
Board. The New Jersey Supreme Court reversed the July
1995 order that directed the immediate release of
Hunterson and directed that parole revocation proceedings
should be commenced immediately.

The Appellate Division’s final decision in this case-- and
the ruling that is urged by Hunterson to be flawed-- was
its review on direct appeal of the imposition by the Parole
Board of the five-year FET.6 The court affirmed the Parole
Board’s decision. Hunterson’s brief alleged a wide range of
violations of his rights, and generally argued that his parole
had been revoked and a five-year FET imposed not because
of his prior crimes and later conduct, but because of his
relationship with Ms. Hansen. He claimed that the Board’s
ruling was motivated by bias against him, and that its
actions were arbitrary, capricious, retaliatory, and violative
of fundamental fairness under, inter alia, the due process
clause of the Fourteenth Amendment. The Appellate
Division specifically recounted all of the arguments made
by Hunterson in his original and amended briefs (sixteen in
number), reviewed Hunterson’s post-release conduct, and
determined that it would not disturb the Parole Board’s
ruling:

       Thereafter, he returned to his errant ways through
       continued drug abuse; association with motorcycle
_________________________________________________________________

6. The New Jersey Supreme Court denied certification on January 15,
1998.

                                8


       gang members; and threats, ten years after the fact,
       against a person he apparently believed was
       responsible for connecting him to the original murder.
       This is a shocking turn of events and Hunterson’s
       insistence on characterizing the case as one involving
       conviction for a disorderly persons offense simply
       misconceives the nature and import of his problematic
       conduct. Standing alone, the disorderly persons offense
       (which does not qualify as criminal conduct) could
       have subjected Hunterson to a one year FET with a
       possible upgrade to 15 months at the hands of a two
       member panel. N.J.S.A. 30:123:64(b); N.J.A.C. 10A:71-
       7.16(b)(4). Referral to the three member panel was
       based on the two member panel’s conclusion that the
       guideline figure was clearly inappropriate. Given that
       immediately upon parole, Hunterson fell back into the
       type of conduct which led to his initial convictions for
       serious crimes, we cannot say that the parole
       revocation and the five year FET set by the three
       member panel and approved by the Board was
       arbitrary or lacked inherently credible supporting
       evidence.

II. FEDERAL COURT PETITION

Hunterson filed his writ of habeas corpus in the United
States District Court for the District of New Jersey in
February 1998. The pro se petition alleged a number of
violations of his constitutional rights, and generally accused
the Parole Board of being involved in a vast and complex
conspiracy in an effort to return Hunterson to prison. Most
of Hunterson’s petition is dedicated largely to recitations of
facts and allegations of corruption, with little in the way of
explication of the claims in legal terms. According to
Hunterson, the Parole Board was motivated not by a
concern that Hunterson posed a danger to society, but by
its anger at Hunterson and his fiancee, Deborah Hansen,
for exposing the improper activities of the New Jersey
Department of Corrections and the Parole Board.

Hunterson claims that the Parole Board’s actions violated
his federal constitutional rights under the First, Fourth,
Fifth, Sixth, Eighth, and Fourteenth Amendments. The
petition does not make clear precisely how he believes that
                                9


each of these rights was violated. In several instances he
simply says that the hearings were held without his being
afforded constitutional protections, or he asserts in
conclusory fashion that an individual’s action was
"unconstitutional." Of course, as this is a pro se petition,
we will construe it liberally. See, e.g., United States v.
Garth, 188 F.3d 99, 108 (3d Cir. 1999) (providing that we
use a "more forgiving lens . . . to construe pro se habeas
petitions"). Among his more specific allegations, Hunterson
claims:

       1) His First Amendment rights were violated because
       he was incarcerated as punishment for speaking
       out publicly against the Department of Corrections
       and Parole Board.

       2) The New Jersey Supreme Court violated his
       Fourteenth Amendment rights to due process and
       equal protection each time it reversed the Appellate
       Division.

       3) Referral to the three-member panel was based on
       an unconstitutional hearing.

       4) The five-year FET was excessive and violated the
       Eighth and Fourteenth Amendments.

       5) The Board’s subsequent confirmation of the five-
       year FET violated his Fourteenth Amendment
       rights and his Eighth Amendment protections
       against cruel and unusual punishment.

       6) His September 29, 1995 hearing was not
       conducted before an impartial hearing officer in
       violation of his due process and equal protection
       rights.

He further claims his constitutional rights were specifically
violated during the September 1995 hearing in five ways:

       1) reliance on a three-year-old threat;

       2) witness (DeFabio) was not produced, and therefore
       his procedural due process rights were violated;

       3) hearsay and vouching violated his due process and
       equal protection rights;

                                10


       4) use of urine tests, ruled inadmissible by the
       Appellate Division, during questioning of witnesses,
       violated his Fifth, Sixth, and Fourteenth
       Amendment rights; and,
       5) the Special Prosecutor removed all mitigating files
       in an effort to prejudice the hearing’s outcome in
       violation of his Fourteenth Amendment rights.

The District Court had jurisdiction pursuant to 28 U.S.C.
S 1343. We have jurisdiction under 28 U.S.C.SS 1291 and
2253. No certificate of appealability is required for the state
to appeal the District Court’s order. Fed. R. App. P. 22(b)(3).
And, "[b]ecause the District Court relied exclusively on the
state court record and did not hold an evidentiary hearing,
our review of its decision is plenary."7 Moore v. Morton, 255
F.3d 95, 103 (3d Cir. 2001).

III. DISCUSSION

The District Court acknowledged that its review was
governed by the standards set forth in AEDPA. Hunterson I,
137 F. Supp. 2d at 541. It concluded that Hunterson’s
substantive due process rights had been violated because
the "Appellate Division’s affirmance of the Board’s decision
to impose a five-year FET was unreasonable," id. at 546,
and that "[t]he decision to impose the five year term was
arbitrary and capricious, and a clear abuse of discretion."
Id. at 545 (emphasis added). The District Court also found
that the state courts had made an unreasonable
determination of facts because "petitioner’s substantive due
process rights were violated because the Board’s decision
was arbitrary and capricious and not a reasonable
determination of the evidence presented at the revocation
hearing." Hunterson II, 140 F. Supp. 2d at 378. The District
_________________________________________________________________

7. In this case, the District Court held an evidentiary hearing, but only
in connection with the remedy after it had ruled on the merits of the
petition. Therefore, as that evidence was not used for the purpose of
granting the petition, we will conduct our review as if the hearing had
not been held. If the District Court had held an evidentiary hearing upon
which its decision was based, we would still conduct a plenary review of
the District Court’s legal conclusion but review its factual conclusions
for clear error. Stevens v. Delaware Corr. Ctr. , 295 F.3d 361, 368 (3d Cir.
2002).

                                11


Court did not detail precisely how it reached either of these
conclusions, but it is clear that it believed the five-year FET
was not justified and that the state court should have
found that bias was at the heart of the Board’s ruling.8

While one might second-guess the Parole Board’s
decision, and state court’s approval of it, it is not the role
of the federal courts to do so. Our review, and that of the
District Court, is quite distinct from that of the state
appellate courts. The Supreme Court has explained that
because our review on habeas is collateral, and not
supervisory, "not every trial error or infirmity which might
call for application of supervisory powers correspondingly
constitutes a ‘failure to observe that fundamental fairness
essential to the very concept of justice.’ " Donnelly v.
DeChristoforo, 416 U.S. 637, 642 (1974) (citation omitted).
_________________________________________________________________

8. The District Court reasoned as follows at various junctures in its two
opinions: "From the time of Petitioner’s initial arrest on September 29,
1994 for what ultimately turned out to be a disorderly persons
marijuana possession, it is evident that the parole authorities have put
forth a great deal of effort to see him imprisoned for a substantial and
disproportionate period of time." Hunterson I , 137 F. Supp. 2d at 546-47.
"The Petitioner’s final accelerated parole revocation hearing (filed on an
accelerated basis even though it was not conducted until September 29,
1995, exactly one year after his initial arrest) was similarly injected with
the bias." Id. at 547. "Petitioner presented a considerable amount of
evidence that tended to show that the parole authorities were
impermissibly motivated by many external factors. Their motivations,
however, are not important to the analysis, which focuses on their
conduct." Id. at 547 n.25. In concluding its second opinion, which
focused on the remedy, the Court explained:

       The Court is aware that the Appellate Division did not have the
       benefit of the recent discovery when it affirmed the Board’s decision.
       Nevertheless, the reasons advanced by the Board for its decision to
       impose a five-year FET fail because they are not in keeping with
       current New Jersey law; the severity of the violations does not
       warrant an FET above the presumptive term. Thus, even on the
       record available at the time of this Court’s original Order, the
       Appellate Division’s affirmance of the Board’s actions was
       unreasonable because the Board’s decision to impose such a harsh
       term in this case was arbitrary and capricious.

Hunterston II, 140 F. Supp. 2d at 383.

                                12


Additionally, federal court review in this case is strictly
limited by AEDPA, as Hunterson filed his petition after its
enactment. AEDPA provides:

       (d) An application for a writ of habeas corpus on behalf
       of a person in custody pursuant to the judgment of a
       State court shall not be granted with respect to any
       claim that was adjudicated on the merits in State court
       proceedings unless the adjudication of the 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. S 2254(d)(1)-(2).9 Therefore, the considerations
under AEDPA are divided into an examination of the legal
analysis and a separate consideration of the factual
determinations.

In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme
Court explained in detail the proper means by which a
federal court is to undertake a review of the state court’s
_________________________________________________________________

9. However, if an issue presented to the state court was not "adjudicated
on the merits," we conduct a pre-AEDPA de novo review. Everett v.
Beard, 290 F.3d 500, 507-08 (3d Cir. 2002). In this case, the District
Court explicitly stated that its review was governed by AEDPA, and it
never suggested that this argument was not adjudicated on the merits
below. Hunterson argues on appeal, in the alternative, that his
substantive due process claim was not adjudicated, as he "attempted to
raise the issue of bias and conspiracy in the state proceedings but was
not permitted to do so." We disagree. In this case, the same arguments
regarding bias and illicit motives were presented to the Appellate
Division as were made before the District Court. The Appellate Division
considered the merits of Hunterson’s claims and did not fault the Parole
Board’s refusal to hear evidence in this regard. The court measured
them against a standard that was consistent with federal law and found
that the allegations of bias would not have affected the outcome. See
Marshall v. Hendricks, No. 00-9004, ___ F.3d ___, 2002 WL 31018600, at
*69 n.18 (3d Cir. Sept. 11, 2002) (stating that, in Everett, the state court
decision was not analyzed under the AEDPA standard of review because
the court had applied the incorrect legal standard under federal law).

                                13


legal analysis. First, the "contrary to" provision is only
implicated if the state court "applies a rule that contradicts
the governing law set forth" by the Supreme Court or if it
arrives at a different result when confronted by"facts that
are materially indistinguishable" from those previously
before the Supreme Court. Id. at 405-06 (O’Connor, J.,
concurring) (controlling opinion). Hunterson does not argue
that the state court’s analysis was "contrary to" federal law,
but instead claims that it was an unreasonable application
of federal law. In Hameen v. State of Delaware , quoting
Williams, we explained: "[U]nder the‘unreasonable
application’ clause, ‘a federal habeas court may not issue
the writ simply because that court concludes in its
independent judgment that the relevant state-court
decision applied clearly established federal law erroneously
or incorrectly. Rather, that application must also be
unreasonable.’ " 212 F.3d 226, 235 (3d Cir. 2000), cert.
denied, 532 U.S. 924 (2001) (quoting Williams, 529 U.S. at
411).

In contrast, the unreasonable determination of the facts
standard is a somewhat less amorphous standard.
Adhering to the words of the statute, federal court review
considers only whether the state court adjudication
"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. S 2254(d)(2). The
statute directs the federal court to presume that all
determinations of fact made by the state court are correct
and requires that the petitioner present "clear and
convincing evidence" to rebut this presumption. 28 U.S.C.
S 2254(e)(1); see also Stevens v. Delaware Corr. Ctr., 295
F.3d 361, 368 (3d Cir. 2002).

It is clear that the Appellate Division considered all of
Hunterson’s claims, most of which emphasized his view
that the Parole Board was improperly motivated to prevent
his early release. While his pro se submissions did not
allege chapter and verse of the applicable constitutional
principles, they clearly urged due process violations,
substantive and procedural, focusing principally on
"arbitrary" and retaliatory rulings by the Parole Board. And,
the Appellate Division just as clearly considered these

                                14


claims, concluding that the Parole Board’s determinations
were well-founded and not arbitrary. While the Appellate
Division’s ruling was somewhat conclusory and did not
analyze Hunterson’s claims or relate them to specific
Supreme Court precedent, it is, nonetheless, apparent that
Hunterson’s claims were adjudicated on the merits. We
have recently noted that such summary adjudications are
to be subjected to the AEDPA standard of review under
S 2254(d). Chadwick v. Janecka, 302 F.3d 107, 116 (3d Cir.
2002).

However, reading the District Court opinion, we are
compelled to conclude that it skewed the analysis under
the AEDPA standard, and that its conclusion that the writ
should be granted was based not on the analysis dictated
under Williams, but, essentially, on its sincere
disagreement with the ruling of the Parole Board. It is
important to note at the outset that neither Hunterson nor
the District Court focuses on any specific facts that
demonstrate either that the FET was out of line with other
FETs meted out to persons previously convicted of similar
offenses, or that the Parole Board acted out of bias rather
than based on evidence regarding Hunterson’s crime and
problematic conduct. Nor can we find in the record a
"smoking gun," let alone any probative facts that would
warrant our grant of the writ under the applicable
standard. In view of the state of the record, neither the
District Court’s analysis, nor its ruling that Hunterson is
entitled to release, can pass muster.

1. Unreasonable Application of the Law

There is no question in this case that Hunterson’s
possession of marijuana violated the terms of his parole
and therefore provided a basis for revocation. Hunterson’s
substantive due process argument accordingly challenges
not the revocation itself, but, rather, the period of time
Hunterson was to be incarcerated before being eligible for
parole -- the FET. His argument, therefore, is that the
imposition of the five-year FET violates substantive due
process. But this type of constitutional challenge to a state
court proceeding is not easily mounted. We have made
clear that the federal courts, on habeas review, are not to
"second-guess parole boards," and the requirements of

                                15
substantive due process are met if there is some basis for
the challenged decision." Coady v. Vaughn, 251 F.3d 480,
487 (3d Cir. 2001).

At oral argument, Hunterson’s attorney conceded that,
based on Hunterson’s conduct, imposition of the five-year
term alone is not so great a departure that it would amount
to a violation of his constitutional rights, but, rather, it is
the presence of the alleged bias that raises it to that level.
The relevant level of arbitrariness required in order to find
a substantive due process violation involves not merely
action that is unreasonable, but, rather, something more
egregious, which we have termed at times "conscience
shocking" or "deliberately indifferent." 10

We agree that the mere length of the FET is not so
egregious, since, after all, Hunterson is a convicted
kidnaper and murderer who was sentenced to two life
_________________________________________________________________

10. At times our court has confronted the applicable standard with some
level of uncertainty regarding its precise formulation. See, e.g., Ziccardi
v. City of Philadelphia, 288 F.3d 57, 64 (3d Cir. 2002) (noting that the
issue of the "intent needed to support a substantive due process claim
is a question that has long troubled our court."). The issue has arisen
most often in connection with civil suits underS 1983, and we therefore
face a somewhat different application here. We do not and need not hold
precisely which terminology is most apt, however, as we find in any
event that the District Court applied a less egregious standard than is
required for a substantive due process violation. We do note that we
have frequently employed the "shocks the conscience" standard when
considering a claim that an executive action amounted to a substantive
due process violation. See, e.g., Gottlieb v. Laurel Highlands Sch. Dist.,
272 F.3d 168 (3d Cir. 2001) (assistant principal shoved student); Eddy
v. Virgin Islands Water and Power Auth., 256 F.3d 204 (3d Cir. 2001)
(employee required to replace switch on high voltage power line); Miller
v. City of Philadelphia, 174 F.3d 368 (3d Cir. 1999) (children removed
from mother’s custody in ex parte hearing). See also Hawkins v.
Freedman, 195 F.3d 732, 738 (4th Cir. 1999) (applying the "shocks the
conscience" standard in a parole revocation setting and concluding that
there was not a substantive due process violation). We need not
definitely determine in this matter the precise standard which is needed
to prove a substantive due process violation by state officials engaged in
a non-physical confrontation. This is because any such standard would
require the finding of a level of intent that we find is significantly absent
in this case.

                                16


terms, violated his parole by possessing marijuana, and
failed to steer clear of trouble, as reflected in his phone
calls to DeFabio and his ongoing use of marijuana.

Although Hunterson does not rely on the length of the
FET alone, he essentially argues that the extent of the
departure from the presumptive term was so great that we
must infer that the Parole Board was motivated by animus
rather than the nature of his previous crime and his
behavior while on parole. The District Court’s opinion
seems to adopt this same approach. However, a feeling that
the FET was too long and was not fair does not amount to
a substantive due process violation. We are concerned that,
as we noted above, neither Hunterson nor the District
Court points to specific record facts of bias or Parole Board
misconduct; instead, both rely on timing, speculative
theories, and inferences they have drawn from a variety of
facts that could just as easily be dismissed as innocent. For
example: there are no facts that would render the alleged
"suspicious timing" illicit rather than coincidental; the
questions posed by a panel of the Parole Board about Ms.
Hansen seemed to be a legitimate line of inquiry into the
stability of a parole applicant’s home life; and the parole
officer’s belief that Hunterson’s ongoing use of marijuana
was acceptable does not necessarily make it so.

Hunterson relies to a great extent on the fact that the
Parole Board was chastised repeatedly by the New Jersey
courts for errors in its proceedings. In response to this,
however, we note that while Hunterson was vindicated
repeatedly, obtaining relief several times on direct appeal in
the New Jersey state courts, the very same court that
recognized the errors in the earlier proceedings later
rejected Hunterson’s claims that the FET was imposed in
violation of his rights.

The proper question that must be asked and answered by
the District Court is whether the New Jersey court’s
adjudication involved an unreasonable application of
Supreme Court precedent. The substantive component of
due process recognized by the Fifth Amendment and made
applicable to the states by the Fourteenth Amendment
could, indeed, be implicated in a case such as this. In
Foucha v. Louisiana, 504 U.S. 71 (1992), the Supreme

                                17


Court reiterated: "the Due Process Clause contains a
substantive component that bars certain arbitrary,
wrongful government actions regardless of the fairness of
the procedures used to implement them." Id. at 80 (internal
quotation omitted). However, the Court has made equally
clear that when an executive action is at issue, only the
most egregious conduct will be considered arbitrary in the
constitutional sense. In County of Sacramento , the Court
said that "conduct intended to injure in some way
unjustifiable by any government interest is the sort of
action most likely to rise to the conscience-shocking level."
Id. at 848.

Thus, the "arbitrary and capricious" standard employed
here by the District Court does not comport with Supreme
Court precedent which, under AEDPA, provides our
analytic compass. We submit that the imposition of the
five-year FET alone is not egregious enough to shock the
conscience or constitute arbitrariness bordering on
deliberate indifference to Hunterson’s rights. The issue,
then, is whether the record before the District Court when
it granted the petition was sufficient to establish, first, the
ulterior improper motives that Hunterson alleges, and then,
that the Appellate Division’s failure to find the Parole
Board’s actions sufficiently arbitrary in a constitutional
sense constituted an unreasonable application of United
States Supreme Court precedent. We are compelled to
conclude that neither the record, nor the state court’s
ruling, can serve Hunterson’s purpose. We note that the
District Court stated that Hunterson had submitted
"volumes" of exhibits. Hunterson I, 137 F. Supp. 2d at 532
n.2. Yet, neither the District Court nor Hunterson has
referenced specific evidence that establishes animus or bias
connected to the Parole Board hearing whereby the
proceeding could be said to shock the conscience. Nor can
we find in the record an appropriate factual basis for the
District Court’s conclusion. A string of facts with inferences
that might be drawn from existing facts does not suffice on
habeas review under AEDPA.

The District Court’s analysis also seemed to rely on
inaccurate characterizations of certain aspects of the New
Jersey State proceedings. The Board did not, as the District

                                18


Court suggests, claim that marijuana causes violent
behavior, but instead expressed the Board’s arguably valid
concern that Hunterson was returning to his previous law-
breaking lifestyle. The Court characterized the Board’s
decisions: "[T]he premise of both the Board’s decision and
the appellate court’s affirmance is that Petitioner’s
possession of marijuana evidenced a return to his law-
breaking days because he previously committed murder for
which he was incarcerated while under the influence of
alcohol and marijuana." Id. at 545-46. In actuality, the
Board specifically referenced the crime for which he was
sentenced to two life terms, his prior convictions, his
history of substance abuse, his arrest for drug possession,
the threatening phone calls to Ralph DeFabio, and his
presence at a fundraiser for a motorcycle gang member.

Nor did the District Court examine the directives of
Supreme Court precedent or measure the state court
proceedings against specific principles developed in the
case law. Instead, it measured the Parole Board’s actions
against a standard of reasonableness.

While it is clear that the District Court believed the five-
year FET was not called for in light of the facts of this case,
that is beyond the proper scope of federal court review.
When considering a writ of habeas corpus, it is only for the
District Court to consider whether clearly established
Supreme Court precedent was applied unreasonably . We
conclude that the determination of the New Jersey Supreme
Court did not involve an unreasonable application of
Supreme Court precedent, given the facts before it.

2. Unreasonable Determination of the Facts

During oral argument and in his brief, Hunterson
devoted considerable attention to the argument that the
Appellate Division unreasonably determined the facts. In
Hunterson II, the District Court said that the Appellate
Division made an "unreasonable interpretation of the facts."
140 F. Supp. 2d at 375. However, as the Court correctly
states later in its opinion,11 the proper standard is the state
_________________________________________________________________

11. In Hunterson II, the Court claimed that in its earlier opinion it
"concluded that petitioner’s substantive due process rights were violated
because the Board’s decision was arbitrary and capricious and not a
reasonable determination of the evidence presented at the revocation
hearing." Id. at 378.

                                19


court’s determination, not interpretation, of the facts, see id.
at 378, and this distinction is telling here, as Hunterson
seems to be challenging the state court’s view or
interpretation of facts, and not its determination.12 As with
the application of the law standard, the District Court
needs to consider whether the Appellate Division
unreasonably determined the facts, not whether it would
have necessarily reached the same conclusion or
characterized the facts the same way.

The Appellate Division presented the following summaries
of the facts in this case:

       - "[T]he bulk of the evidence including testimony as to
       Hunterson’s arrest on the drug charge; his
       admission to his parole officer of his return to drug
       use; his admission to Trooper Pender that he was
       heading to a motorcycle rally to support ‘Egyptian’
       whose parole had been violated; and the tape of his
       threats to DiFabio, along with evidence surrounding
       his original conviction and his prior record . . . ."

       - After his release on parole "he returned to his errant
       ways through continued drug abuse; association
       with motorcycle gang members; and threats, ten
       years after the fact, against a person he apparently
       believed was responsible for connecting him to the
       original murder."

       - "[I]mmediately upon parole, Hunterson fell back into
       the type of conduct which led to his initial
       convictions for serious crime."

Hunterson’s brief, however, does not challenge these
_________________________________________________________________

12. Appellee argues that the use of "interpretation" instead of
"determination" is a "distinction without a difference." However, we must
disagree, as the two words have distinct meanings and therefore would
provide different standards. To interpret means"1. To explain to oneself
the meaning of[;] [or] 2. To expound the significance of." Webster’s II New
Riverside University Dictionary 638 (1988). To determine, on the other
hand, is defined as: "1.a. to arrive or settle . . . authoritatively or
conclusively[;] 1.b. To end or decide by final, esp. judicial action[;] [or] 2.
To establish or ascertain definitely, as after consideration, investigation,
or calculation." Id. at 369.

                                20


"determinations" by the Appellate Division, but instead
challenges the manner in which the Parole Board describes
or characterizes the facts in its federal appellate brief. It
could be said that the Parole Board’s brief sets forth the
facts in a manner that makes the case against Mr.
Hunterson stronger, but that is certainly not surprising or
unusual, given its vantage point. But, we are reviewing the
state court’s determination of the facts. While Hunterson
admits his marijuana use, he challenges the
characterizations of the other "facts." He claims that
attending the rally for Egyptian was not "associating with
motorcycle gang members," and contends that his heated
exchange with Mr. DeFabio was just "tough talk" and not a
threat. Hunterson, however, is challenging the court’s view
of the gravity of what he did, not its determination of what
occurred. It is not the role of the federal court in habeas
review to second-guess how the state courts viewed the
record facts, but, rather, it can only grant relief if the state
court’s determination of the facts -- presumably given
disputed or incomplete facts -- was unreasonable.

Additionally, Hunterson’s argument consists more of an
attack on certain conclusions that flowed from basic facts,
i.e. that these facts showed that Hunterson had not altered
his behavior or adjusted to his parole and was a danger to
society. But whether he posed a danger is still a factual,
rather than a legal, determination. It is a factual
assessment drawn from basic facts. And, under AEDPA, as
noted above, such factual determinations made by the state
authorities are presumed correct.

The District Court clearly drew inferences from the facts
that the Appellate Division did not. However, if permissible
inferences could be drawn either way, the state court
decision must stand, as its determination of the facts would
not be unreasonable. And we so conclude.

The issue which formed the basis of the District Court’s
ruling was but one of several constitutional challenges
raised by Hunterson. Based on the perceived violation of
substantive due process, the District Court not only
nullified the imposition of the five-year FET, but also
released Hunterson. Our reversal of the District Court
impacts the ruling and result, as we conclude that

                                21


Hunterson’s release was not warranted on substantive due
process grounds. While the issue of the five-year FET alone
has been rendered moot by the passage of time, the issue
of Hunterson’s release has not. Our ruling means that the
revocation of Hunterson’s parole will be reinstated, and he
should again be placed in custody pending the outcome of
further proceedings. We do not decide whether the
remaining constitutional challenges might be such as to
require release. Nor do we address the impact of further
proceedings assured by the state regarding the eight-year
FET imposed after the District Court’s rulings, as we
referenced at footnote 5 above, or the impact of later events.13
In light of the foregoing, we will REVERSE and REMAND to
the District Court for further proceedings consistent with
this opinion.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

________________________________________________________________

13. We note that, recently, the State of New Jersey submitted a letter to
the panel regarding recent events involving appellee. This letter was not
a part of the record before the District Court, and, therefore, is not a
part of the record before us. We have not given it any consideration.

                                22
