ALFRED RALPH PETRONE, PETITIONER-APPELLANT,
v.
AUDREY KASLOW ET AL., RESPONDENTS-APPELLEES
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The court held that a prisoner cannot collaterally attack a sentence based on the frustration of the sentencing judge's subjective intent, as parole decisions are committed to the Parole Commission's discretion.
Petitioner filed a habeas corpus petition arguing the Parole Commission's decision to delay parole consideration beyond the one-third point of his sen…
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PER CURIAM:
Petrone filed a petition for a writ of habeas corpus contending that the Parole Commission’s decision to continue further consideration of his parole beyond the one-third point of his eight-year sentence (18 U.S.C. § 4205(b)(2)) denied him meaningful consideration.
Petitioner’s contention that the Parole Commission’s determination frustrated the sentencing court’s intent has been rejected by the Supreme Court in United States v. Addonizio, - U.S. -, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979). Even if the sentencing judge’s expectations were frustrated by the Parole Commission’s extension of time served, the prisoner cannot rely upon that fact to support a collateral attack on the original sentence. As the Addonizio Court stated: “[T]here is no basis for enlarging the grounds for collateral attack to include claims based not on any objectively ascertainable error but on the frustration of the subjective intent of the sentencing judge. . . .
“The decision as to when a lawfully sentenced defendant shall actually be released has been committed by Congress, with certain limitations, to the discretion. of the Parole Commission. . . . ” (Id. at -, 99 S.Ct. at 2242.)
Under the Parole Commission and Reorganization Act, the scheduling of parole hearings in “(b)(2) cases is now defined by statute, 18 U.S.C. §§ 4208(a) and (h).” Under this statutory scheme, both (b)(2) prisoners and those with statutory minimum periods of incarceration receive the same treatment in being cbnsidered for parole. Accordingly, Petrone’s reliance upon Grasso v. Norton, 520 F. 2d 27 (2d Cir. 1975) and Garafola v. Benson, 505 F. 2d 1212 (7th Cir. 1974), antedating the new statute, is misplaced.
The record does not support the contention that the Parole .Commission did not give adequate attention to Petrone’s institutional adjustment. We also reject his contention that the Parole Commission could not take into account all of his prior criminal record. We cannot say from the record before us that the Parole Commission abused the discretion committed to it by Congress. Finally, the notice of action given to Petrone adequately complied with constitutional standards of notice.
AFFIRMED.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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United States v. Wickham, 618 F.2d 1307 (9th Cir. 1979)
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Walker v. United States, 816 F.2d 1313 (9th Cir. 1987)
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Hatton v. T.M. Keohane, 693 F.2d 88 (9th Cir. 1982)
Authorities Cited
- United States v. Addonizio, 442 U.S. 178 (U.S. 1979)
- Garafola v. Benson, 505 F.2d 1212 (7th Cir. 1974)
- Grasso v. Norton, 520 F.2d 27 (2d Cir. 1975)