Milano v. Jett

424 F. Supp. 1208, 1976 U.S. Dist. LEXIS 12144
CourtDistrict Court, C.D. California
DecidedNovember 23, 1976
DocketNo. 76-2573-AAH
StatusPublished
Cited by1 cases

This text of 424 F. Supp. 1208 (Milano v. Jett) is published on Counsel Stack Legal Research, covering District Court, C.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Milano v. Jett, 424 F. Supp. 1208, 1976 U.S. Dist. LEXIS 12144 (C.D. Cal. 1976).

Opinion

DECISION DENYING PETITION FOR WRIT OF HABEAS CORPUS

HAUK, District Judge.

This case, having come on for argument and hearing on November 1, 1976, the Court, being fully advised in the premises, now renders its decision denying the Petition for Writ of Habeas Corpus.

On August 31, 1974, (by jury verdict), on April 9,1975 (by negotiated guilty plea) and on May 16,1975, (by negotiated guilty plea), the Petitioner, Peter John Milano, was convicted on three separate charges for violations of 18 U.S.C. §§ 3711 and 19552 (conspiracy to operate an illegal gambling busi[1209]*1209ness in channels of interstate commerce); 18 U.S.C. § 1962(d)3 (conspiracy to engage in an enterprise affecting interstate commerce through a pattern of racketeering involving extortion, gambling and fraud); and 21 U.S.C. § 8464 and § 841(a)(2) and [1210]*1210(b)5 (conspiracy to possess heroin with the intent to distribute it). After being sentenced to negotiated terms of three 4-year concurrent periods, the petitioner voluntarily surrendered to prison officials at the Terminal Island Federal Correctional Institution at San Pedro, California, and is currently incarcerated in that facility. On December 9,1975, the petitioner was designated a “Special Offender” under Bureau of Prisons Policy Statement 7900.47, dated April 30,1974. Upon successive administrative appeals from the “Special Offender” classification, and on April 29, 1976, the “Special Offender” designation was removed and the petitioner was re-classified as a “Central Monitoring Case” within the Central Monitoring System pursuant to Policy Statement 7900.53, dated April 7, 1976, issued by the Federal Prison System.6

Upon further appeal to the Regional Director, the new classification of “Central Monitoring Case” was affirmed on May 24, 19767 and reaffirmed by the Central Office General Counsel on August 3, 1976.8

In seeking habeas relief before this Court, the petitioner makes the following contentions:

(1) That he has suffered a “grievous loss” of liberty as a result of his Special Offender/Central Monitoring designation; and

(2) That he was denied due process of law, because he was not afforded notice and a hearing with the opportunity to present documentary evidence and oral testimony, and to confront witnesses, all with the aid of retained counsel, at the occasions of his Special Offender/Central Monitoring classifications.

The Ninth Circuit has held that “[t]he right to procedural due process turns upon whether there is an infringement of ‘liberty’ (Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 33 L.Ed.2d 484 [1972]), not upon whether the deprivation is characterized as ‘administrative’ rather than ‘disciplinary,’ or involves loss of a ‘privilege’ rather than a ‘right.’ Clutchette v. Procunier, 510 F.2d 613, 615 (9th Cir. 1975).” Lokey v. Richardson, 527 F.2d 949, 952 (9th [1211]*1211Cir. 1975). It is the contention of the petitioner that his classification as a “Special Offender/Central Monitoring Case” has resulted in the loss of “social furloughs” previously afforded to him prior to his classifications as a “Special Offender/Central Monitoring Case,” thereby resulting in a loss of a “right” and therefore a “deprivation of liberty” that mandates procedural due process.

Although the loss alleged by the petitioner at first glance would seem to fall within those types of “marked changes” in an inmate’s status, which as a result of such a designation create a loss of “liberty,” Lokey, 527 F.2d at 953, this Court finds that the factual setting here involved distinguishes this case from the authority upon which the petitioner relies. It is true that the Lokey decision and the other cases cited by the petitioner — Cardaropoli v. Norton, 523 F.2d 990 (2d Cir. 1975), and Catalano v. United States, 383 F.Supp. 346 (D.Conn. 1974) — require that the due process procedural safeguards of notice and a hearing be afforded in “Special Offender” classification matters. In each of these cases, the classifications in question resulted from unsubstantiated allegations or mere investigative reports of the types of activities which would permit the classification of an inmate under the “Special Offender” Policy Statement. Lokey v. Richardson, 527 F.2d 949, 950 (9th Cir. 1975); Cardaropoli v. Norton, 523 F.2d 990, 992 (2d Cir. 1975); Catalano v. United States, 383 F.Supp. 346, 347 — 48 (D.Conn.1974). However, in the present case the petitioner’s own moving papers reveal that the basis for the classification under the “Central Monitoring System” Policy Statement was Milano’s conviction for “racketeering activities.”9 18 U.S.C. § 1962(d)10

This Court finds and concludes that the basis of petitioner Milano’s classification is necessarily in accord with the facts of the case of Marchesani v. McCune, 531 F.2d 459 (10th Cir. 1976), wherein the Tenth Circuit held that the classification of an inmate as a “Special Offender” based upon the nature of his actual criminal conviction, rather than upon unsupported allegations of possible connections to organized crime, did not violate due process of law. 531 F.2d at 460-61.

The petitioner contends that his conviction under the racketeering statute (18 U.S.C. § 1962[d]), which was the result of an “Alford plea” pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), distinguishes his situation from the Marchesani decision where the underlying conviction used as the basis for the “Special Offender” classification was the product of a trial by jury. This Court rejects the petitioner’s contention and finds that Milano’s guilty plea in the racketeering case serves as a sound basis for his classification as a “Central Monitoring Case” under the “Central Monitoring System” of the Federal Prison System Policy Statement 7900.53. See Appendix A.

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Cite This Page — Counsel Stack

Bluebook (online)
424 F. Supp. 1208, 1976 U.S. Dist. LEXIS 12144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/milano-v-jett-cacd-1976.