Alfred Ralph Petrone v. Audrey Kaslow

Ninth Circuit

Alfred Ralph Petrone v. Audrey Kaslow

603 F.2d 779, 1979 U.S. App. LEXIS 12114

CourtCourt of Appeals for the Ninth Circuit

DecidedSeptember 4, 1979

Docket78-3074

StatusPublished

Cited by7 cases

This text of 603 F.2d 779 (Alfred Ralph Petrone v. Audrey Kaslow) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Alfred Ralph Petrone v. Audrey Kaslow, 603 F.2d 779, 1979 U.S. App. LEXIS 12114 (9th Cir. 1979).

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Opinion

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 *780 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.

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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 *780 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.

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603 F.2d 779, 1979 U.S. App. LEXIS 12114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alfred-ralph-petrone-v-audrey-kaslow-ca9-1979.

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