308 F.3d 236 | 3rd Cir. | 2002
RENDELL, Circuit Judge.(cid:13) Neil Hunterson was convicted of first-degree murder and(cid:13) kidnaping in 1972. He was sentenced to two life terms of(cid:13) imprisonment. In July 1992, he was paroled. His parole(cid:13) was revoked on November 1, 1995,1 and a five-year future(cid:13) eligibility term ("FET") was imposed. Hunterson has been(cid:13) challenging the revocation of his parole and the imposition(cid:13) of the five-year FET ever since, claiming that it was not(cid:13) based on any "danger to society" he posed, but instead was(cid:13) a result of the New Jersey Parole Board’s animus toward(cid:13) him.(cid:13) After exhausting his appeals in the New Jersey court(cid:13) system, Hunterson filed a petition for a writ of habeas(cid:13) corpus in the United States District Court for the District of(cid:13) New Jersey. In his petition, Hunterson alleged a wide-range(cid:13) of constitutional violations, and a conspiracy to violate his(cid:13) rights, by a variety of state actors, including various(cid:13) individuals, the Parole Board, and the New Jersey Supreme(cid:13) Court.(cid:13) _________________________________________________________________(cid:13) 1. He had been detained since June 15, 1995.(cid:13) 2(cid:13) The District Court granted the petition, concluding that(cid:13) Hunterson’s substantive due process rights were violated.(cid:13) Hunterson v. DiSabato, 137 F. Supp. 2d 529 (D.N.J. 2001)(cid:13) (Hunterson I). The Court thereafter issued a second opinion(cid:13) focusing only on the remedy. Hunterson v. DiSabato, 140 F.(cid:13) Supp. 2d 353 (D.N.J. 2001) (Hunterson II). In this later(cid:13) opinion, the Court addressed the alleged conspiracy against(cid:13) Hunterson, concluding that the circumstances of the case(cid:13) were so unusual that release was the only appropriate(cid:13) remedy. Id. at 380, 382. The District Court accordingly(cid:13) ordered his release on March 16, 2001.(cid:13) The government respondents, Mary Keating DiSabato,(cid:13) Chairperson, New Jersey State Parole Board ("Board" or(cid:13) "Parole Board"), and Michael R. McKeen, Administrator,(cid:13) Southern State Correctional Facility, now appeal. As we(cid:13) conclude that the District Court did not conduct its review(cid:13) of the Parole Board’s decision and the state appellate(cid:13) court’s affirmance of it in accordance with the constraints(cid:13) of the Antiterrorism and Effective Death Penalty Act(cid:13) ("AEDPA"), we will reverse and remand to the District Court(cid:13) to consider the remaining claims presented in Hunterson’s(cid:13) habeas petition.2(cid:13) I. FACTS(cid:13) This case comes to us with a complex procedural history(cid:13) presenting the matter in an unusual posture. Not only were(cid:13) there numerous appeals within the state system, and(cid:13) subsequent affirmances and reversals, but there were also(cid:13) two separate opinions issued by the District Court-- first(cid:13) granting the writ and thereafter ordering Hunterson’s(cid:13) release. In its two published opinions the District Court set(cid:13) forth the underlying proceedings in great detail and we will(cid:13) not restate them here. Instead, we will set forth only those(cid:13) facts necessary to our analysis.(cid:13) In 1972, Hunterson, then president of the Henchmen(cid:13) motorcycle gang, was convicted of the kidnaping and first-(cid:13) _________________________________________________________________(cid:13) 2. As we discuss below, the reversal of the District Court’s release order(cid:13) will result in the immediate return of Hunterson to confinement.(cid:13) However, further proceedings regarding his additional claims, if still(cid:13) viable, should occur forthwith.(cid:13) 3(cid:13) degree murder of a rival motorcycle gang member. He was(cid:13) sentenced to two life terms. After serving approximately(cid:13) twenty years of his sentence, he was paroled on July 29,(cid:13) 1992. The current controversy involving the revocation of(cid:13) his parole had its origins on September 29, 1994, when(cid:13) Hunterson was arrested and charged with possession of(cid:13) marijuana and possession with intent to distribute(cid:13) approximately 50 grams of marijuana. The distribution(cid:13) charge was subsequently dropped, and Hunterson pled(cid:13) guilty to a disorderly persons offense for possession of less(cid:13) than fifty grams of marijuana.(cid:13) Four additional facts are especially important since they(cid:13) were repeatedly relied upon in the course of the revocation(cid:13) proceedings, and have been consistently challenged by(cid:13) Hunterson as insignificant or improperly considered. On(cid:13) July 9, 1992, while still incarcerated and in New Jersey for(cid:13) a parole hearing, Hunterson allegedly threatened Ralph(cid:13) DeFabio, another former biker gang member, over the(cid:13) telephone. On August 5, 1992, less than a week after his(cid:13) release on parole, he again called DeFabio and made(cid:13) arguably threatening comments. This conversation was(cid:13) recorded by DeFabio.3 On April 21, 1995, Hunterson(cid:13) attended a fundraiser for a member of a motorcycle gang(cid:13) known as "the Egyptian." Finally, Hunterson admitted to(cid:13) his parole officer that he had been using marijuana. 4(cid:13) Central to Hunterson’s claims is his view that his(cid:13) romantic relationship with Deborah Hansen caused the(cid:13) Parole Board to be biased against him in the state(cid:13) revocation proceedings. When Hunterson and Hansen(cid:13) began dating, she was the Deputy Director of Interstate(cid:13) Parole Services for New Jersey. Hunterson claims that his(cid:13) _________________________________________________________________(cid:13) 3. The transcribed conversation is included in the Board’s September 9,(cid:13) 1998 decision. The verbal altercation appears to be about a car(cid:13) Hunterson believes DeFabio took from him, as well as DeFabio’s role in(cid:13) his being arrested for the murder twenty years earlier. At one point(cid:13) Hunterson says: "I’ll come to your house with your family, fuck you,(cid:13) your kids and your mother, punk."(cid:13) 4. In her testimony, Elaine Torres, one of Hunterson’s parole officers,(cid:13) explained that Hunterson had admitted his marijuana use, and she had(cid:13) thought it was understandable given the stressors in his life, including(cid:13) his mother’s serious illness.(cid:13) 4(cid:13) relationship with Hansen, who during this time became his(cid:13) fiancee, was the real motivation for the Parole Board’s(cid:13) actions. During their relationship, and around the time of(cid:13) Hunterson’s marijuana arrest, Ms. Hansen was a vocal(cid:13) critic of the Department of Corrections. Specifically, Ms.(cid:13) Hansen publicly criticized the department’s mishandling of(cid:13) interstate parole, illustrated by the murder committed by(cid:13) one interstate parolee, Robert "Mudman" Simon. After(cid:13) William Fauver, the Corrections Commissioner at the time,(cid:13) testified before a state senate subcommittee, Hunterson(cid:13) and Hansen held an impromptu news conference attacking(cid:13) the accuracy of his testimony.(cid:13) As a result of Hunterson’s marijuana arrest and urine(cid:13) tests showing signs of drug use (which were eventually(cid:13) deemed inadmissible because of problems with the chain of(cid:13) custody), parole revocation proceedings were undertaken.(cid:13) New Jersey law provides that "[a]ny parolee who has(cid:13) seriously or persistently violated the conditions of his(cid:13) parole, may have his parole revoked and may be returned(cid:13) to custody . . . ." N.J.S.A. 30:4-123.60. According to the(cid:13) New Jersey Supreme Court, the proper consideration in(cid:13) parole proceedings is whether the individual is likely to(cid:13) engage in further criminal activity. Trantino v. New Jersey(cid:13) State Parole Bd., 711 A.2d 260, 270 (N.J. 1998)[Trantino(cid:13) VI]. The New Jersey Administrative Code sets forth the(cid:13) factors to be considered at parole hearings. N.J.A.C.(cid:13) 10A:71-3.11. First, it explains that "[p]arole decisions shall(cid:13) be based on the aggregate of all pertinent factors." N.J.A.C.(cid:13) 10A:71-3.11(a). It provides a list of twenty-three factors that(cid:13) should be considered, including, the nature and pattern of(cid:13) previous convictions, adjustment to parole, facts and(cid:13) circumstances of the offense, aggravating and mitigating(cid:13) factors surrounding the offense, parole plans and the(cid:13) investigation thereof, and status of family or marital(cid:13) relationship. N.J.A.C. 10A:71-3.11(b). It also provides that(cid:13) the Board "may consider any other factors deemed(cid:13) relevant." N.J.A.C. 10A:71-3.11(b).(cid:13) After a series of hearings and apparent procedural errors(cid:13) by the Board (reversed by the New Jersey appellate courts),(cid:13) a two-member panel of the Board revoked Hunterson’s(cid:13) parole in November 1995, stating:(cid:13) 5(cid:13) His behavior in [respect to his marijuana possession](cid:13) projects a troubling immaturity of judgment, as well as(cid:13) an inability to abide by limitations imposed by(cid:13) administrative and statutory authority. When coupled(cid:13) with the threats to DeFabio, the admitted marijuana(cid:13) use and his presence at the April 1995 Pagan benefit,(cid:13) there begins to emerge the profile of an individual(cid:13) constitutionally incapable of adopting a manner of(cid:13) living which requires strict adherence to the rules of(cid:13) society.(cid:13) The panel then had the duty of setting a FET, providing the(cid:13) next date when he would be eligible for parole.(cid:13) Under New Jersey law, the presumptive future eligibility(cid:13) term for Hunterson’s parole was twelve months, subject to(cid:13) a three-month increase if the panel determined "the(cid:13) circumstances of the parole violation and the(cid:13) characteristics and past record of the parolee warrant such(cid:13) adjustment." N.J.A.C. 10A:71-7.17( b) and (c). However, the(cid:13) state administrative code provides that if the two-member(cid:13) panel found that this term was "clearly inappropriate . . .(cid:13) the two-member Board panel shall refer such case for a(cid:13) three-member Board panel review for the purpose of(cid:13) establishing a future parole eligibility date." N.J.A.C.(cid:13) 10A:71-7.17(p). The two-member panel concluded that the(cid:13) presumptive twelve-month term, or even the fifteen-month(cid:13) term, was inappropriate and therefore referred the case to(cid:13) a three-member panel. Based largely on the issues noted by(cid:13) the two-member panel, as well as the conviction underlying(cid:13) his parole and history of alcohol and drug use, the three-(cid:13) member panel concluded that "public safety requires that a(cid:13) substantial parole eligibility term be imposed" and(cid:13) established a five-year FET.5(cid:13) _________________________________________________________________(cid:13) 5. As with other sentences, the FET period can be shortened by certain(cid:13) credits. For example, Hunterson actually received a hearing for parole on(cid:13) February 13, 1998, only 2-1/2 years into his five-year FET. However,(cid:13) Hunterson was denied parole, and on November 30, 1998, a three-(cid:13) member panel of the Parole Board determined that an eight-year FET(cid:13) was appropriate in his case because he had "never seriously addressed(cid:13) in counseling session issues such as why [he had] in the past reflected(cid:13) a need to associate with individuals involved in criminal activity and the(cid:13) 6(cid:13) Throughout these proceedings, Hunterson has sought(cid:13) release -- initially appealing the various decisions of(cid:13) hearing officers and the New Jersey State Parole Board, and(cid:13) eventually filing a petition for a writ of habeas corpus in(cid:13) federal court.(cid:13) On appeal, the Superior Court of New Jersey Appellate(cid:13) Division ("Appellate Division"), the state court that hears(cid:13) direct appeals from the Parole Board, ruled repeatedly in(cid:13) Hunterson’s favor and reversed or vacated the Parole(cid:13) Board’s decisions based on various defects in the(cid:13) proceedings. First, on November 2, 1994, the Appellate(cid:13) Division reversed the original finding of probable cause for(cid:13) the parole violator warrant: "In view of the State’s(cid:13) representation that it cannot establish the chain of custody(cid:13) of the three urine tests, the finding of probable cause of(cid:13) October 21, 1994 is reversed." Second, on December 27,(cid:13) 1994, the Appellate Division vacated the parole violator(cid:13) warrant for the drug charges: "The issuance of the parole(cid:13) warrant is summarily reversed. The warrant is vacated.(cid:13) Defendant may be released. The Board may continue(cid:13) statutorily authorized parole revocation proceedings." Third,(cid:13) on June 20, 1995, the Appellate Division vacated the parole(cid:13) violator warrant for lack of probable cause and ordered(cid:13) Hunterson released. In its strongest criticism of the Parole(cid:13) Board, the Appellate Division found the revocation(cid:13) procedure employed by the Board to be procedurally and(cid:13) substantively flawed:(cid:13) The procedures set forth in N.J.S.A. 30:4-123.60 and(cid:13) N.J.A.C. 10A:71-7.3 were not followed by the parole(cid:13) authorities in this case. As a result, a warrant was(cid:13) issued and Hunterson was returned to jail without the(cid:13) required findings that the charge against him is serious(cid:13) and that he poses a danger to the public safety.(cid:13) _________________________________________________________________(cid:13) causes of [his] substance abuse problem." This eight-year FET is not(cid:13) before us on appeal, nor was it before the District Court when it issued(cid:13) its original order granting the writ. During oral argument, Appellants’(cid:13) counsel indicated that if we were to reverse the District Court, it would(cid:13) not enforce the eight-year FET, and the Parole Board would immediately(cid:13) hold a new hearing and would exclude members previously involved in(cid:13) the case.(cid:13) 7(cid:13) Hunterson is charged with a fourth-degree possessory(cid:13) drug offense. In light of the fact that he was arrested(cid:13) on this charge over nine months ago and the parole(cid:13) warrant did not issue until June 15, 1995, it is obvious(cid:13) that no emergency justifying departure from the(cid:13) mandatory statutory and regulatory procedures exists.(cid:13) The June 15 warrant is vacated. Hunterson is to be(cid:13) released immediately. Nothing in this order precludes(cid:13) the parole authorities from continuing parole(cid:13) revocation procedures against Hunterson in(cid:13) accordance with [the] law.(cid:13) The New Jersey Supreme Court stayed the release order.(cid:13) Fourth, on July 24, 1995, the Appellate Division ordered(cid:13) Hunterson released pending a final decision of the Parole(cid:13) Board. The New Jersey Supreme Court reversed the July(cid:13) 1995 order that directed the immediate release of(cid:13) Hunterson and directed that parole revocation proceedings(cid:13) should be commenced immediately.(cid:13) The Appellate Division’s final decision in this case-- and(cid:13) the ruling that is urged by Hunterson to be flawed-- was(cid:13) its review on direct appeal of the imposition by the Parole(cid:13) Board of the five-year FET.6 The court affirmed the Parole(cid:13) Board’s decision. Hunterson’s brief alleged a wide range of(cid:13) violations of his rights, and generally argued that his parole(cid:13) had been revoked and a five-year FET imposed not because(cid:13) of his prior crimes and later conduct, but because of his(cid:13) relationship with Ms. Hansen. He claimed that the Board’s(cid:13) ruling was motivated by bias against him, and that its(cid:13) actions were arbitrary, capricious, retaliatory, and violative(cid:13) of fundamental fairness under, inter alia, the due process(cid:13) clause of the Fourteenth Amendment. The Appellate(cid:13) Division specifically recounted all of the arguments made(cid:13) by Hunterson in his original and amended briefs (sixteen in(cid:13) number), reviewed Hunterson’s post-release conduct, and(cid:13) determined that it would not disturb the Parole Board’s(cid:13) ruling:(cid:13) Thereafter, he returned to his errant ways through(cid:13) continued drug abuse; association with motorcycle(cid:13) _________________________________________________________________(cid:13) 6. The New Jersey Supreme Court denied certification on January 15,(cid:13) 1998.(cid:13) 8(cid:13) gang members; and threats, ten years after the fact,(cid:13) against a person he apparently believed was(cid:13) responsible for connecting him to the original murder.(cid:13) This is a shocking turn of events and Hunterson’s(cid:13) insistence on characterizing the case as one involving(cid:13) conviction for a disorderly persons offense simply(cid:13) misconceives the nature and import of his problematic(cid:13) conduct. Standing alone, the disorderly persons offense(cid:13) (which does not qualify as criminal conduct) could(cid:13) have subjected Hunterson to a one year FET with a(cid:13) possible upgrade to 15 months at the hands of a two(cid:13) member panel. N.J.S.A. 30:123:64(b); N.J.A.C. 10A:71-(cid:13) 7.16(b)(4). Referral to the three member panel was(cid:13) based on the two member panel’s conclusion that the(cid:13) guideline figure was clearly inappropriate. Given that(cid:13) immediately upon parole, Hunterson fell back into the(cid:13) type of conduct which led to his initial convictions for(cid:13) serious crimes, we cannot say that the parole(cid:13) revocation and the five year FET set by the three(cid:13) member panel and approved by the Board was(cid:13) arbitrary or lacked inherently credible supporting(cid:13) evidence.(cid:13) II. FEDERAL COURT PETITION(cid:13) Hunterson filed his writ of habeas corpus in the United(cid:13) States District Court for the District of New Jersey in(cid:13) February 1998. The pro se petition alleged a number of(cid:13) violations of his constitutional rights, and generally accused(cid:13) the Parole Board of being involved in a vast and complex(cid:13) conspiracy in an effort to return Hunterson to prison. Most(cid:13) of Hunterson’s petition is dedicated largely to recitations of(cid:13) facts and allegations of corruption, with little in the way of(cid:13) explication of the claims in legal terms. According to(cid:13) Hunterson, the Parole Board was motivated not by a(cid:13) concern that Hunterson posed a danger to society, but by(cid:13) its anger at Hunterson and his fiancee, Deborah Hansen,(cid:13) for exposing the improper activities of the New Jersey(cid:13) Department of Corrections and the Parole Board.(cid:13) Hunterson claims that the Parole Board’s actions violated(cid:13) his federal constitutional rights under the First, Fourth,(cid:13) Fifth, Sixth, Eighth, and Fourteenth Amendments. The(cid:13) petition does not make clear precisely how he believes that(cid:13) 9(cid:13) each of these rights was violated. In several instances he(cid:13) simply says that the hearings were held without his being(cid:13) afforded constitutional protections, or he asserts in(cid:13) conclusory fashion that an individual’s action was(cid:13) "unconstitutional." Of course, as this is a pro se petition,(cid:13) we will construe it liberally. See, e.g., United States v.(cid:13) Garth, 188 F.3d 99, 108 (3d Cir. 1999) (providing that we(cid:13) use a "more forgiving lens . . . to construe pro se habeas(cid:13) petitions"). Among his more specific allegations, Hunterson(cid:13) claims:(cid:13) 1) His First Amendment rights were violated because(cid:13) he was incarcerated as punishment for speaking(cid:13) out publicly against the Department of Corrections(cid:13) and Parole Board.(cid:13) 2) The New Jersey Supreme Court violated his(cid:13) Fourteenth Amendment rights to due process and(cid:13) equal protection each time it reversed the Appellate(cid:13) Division.(cid:13) 3) Referral to the three-member panel was based on(cid:13) an unconstitutional hearing.(cid:13) 4) The five-year FET was excessive and violated the(cid:13) Eighth and Fourteenth Amendments.(cid:13) 5) The Board’s subsequent confirmation of the five-(cid:13) year FET violated his Fourteenth Amendment(cid:13) rights and his Eighth Amendment protections(cid:13) against cruel and unusual punishment.(cid:13) 6) His September 29, 1995 hearing was not(cid:13) conducted before an impartial hearing officer in(cid:13) violation of his due process and equal protection(cid:13) rights.(cid:13) He further claims his constitutional rights were specifically(cid:13) violated during the September 1995 hearing in five ways:(cid:13) 1) reliance on a three-year-old threat;(cid:13) 2) witness (DeFabio) was not produced, and therefore(cid:13) his procedural due process rights were violated;(cid:13) 3) hearsay and vouching violated his due process and(cid:13) equal protection rights;(cid:13) 10(cid:13) 4) use of urine tests, ruled inadmissible by the(cid:13) Appellate Division, during questioning of witnesses,(cid:13) violated his Fifth, Sixth, and Fourteenth(cid:13) Amendment rights; and,(cid:13) 5) the Special Prosecutor removed all mitigating files(cid:13) in an effort to prejudice the hearing’s outcome in(cid:13) violation of his Fourteenth Amendment rights.(cid:13) The District Court had jurisdiction pursuant to 28 U.S.C.(cid:13) S 1343. We have jurisdiction under 28 U.S.C.SS 1291 and(cid:13) 2253. No certificate of appealability is required for the state(cid:13) to appeal the District Court’s order. Fed. R. App. P. 22(b)(3).(cid:13) And, "[b]ecause the District Court relied exclusively on the(cid:13) state court record and did not hold an evidentiary hearing,(cid:13) our review of its decision is plenary."7 Moore v. Morton, 255(cid:13) F.3d 95, 103 (3d Cir. 2001).(cid:13) III. DISCUSSION(cid:13) The District Court acknowledged that its review was(cid:13) governed by the standards set forth in AEDPA. Hunterson I,(cid:13) 137 F. Supp. 2d at 541. It concluded that Hunterson’s(cid:13) substantive due process rights had been violated because(cid:13) the "Appellate Division’s affirmance of the Board’s decision(cid:13) to impose a five-year FET was unreasonable," id. at 546,(cid:13) and that "[t]he decision to impose the five year term was(cid:13) arbitrary and capricious, and a clear abuse of discretion."(cid:13) Id. at 545 (emphasis added). The District Court also found(cid:13) that the state courts had made an unreasonable(cid:13) determination of facts because "petitioner’s substantive due(cid:13) process rights were violated because the Board’s decision(cid:13) was arbitrary and capricious and not a reasonable(cid:13) determination of the evidence presented at the revocation(cid:13) hearing." Hunterson II, 140 F. Supp. 2d at 378. The District(cid:13) _________________________________________________________________(cid:13) 7. In this case, the District Court held an evidentiary hearing, but only(cid:13) in connection with the remedy after it had ruled on the merits of the(cid:13) petition. Therefore, as that evidence was not used for the purpose of(cid:13) granting the petition, we will conduct our review as if the hearing had(cid:13) not been held. If the District Court had held an evidentiary hearing upon(cid:13) which its decision was based, we would still conduct a plenary review of(cid:13) the District Court’s legal conclusion but review its factual conclusions(cid:13) for clear error. Stevens v. Delaware Corr. Ctr. , 295 F.3d 361, 368 (3d Cir.(cid:13) 2002).(cid:13) 11(cid:13) Court did not detail precisely how it reached either of these(cid:13) conclusions, but it is clear that it believed the five-year FET(cid:13) was not justified and that the state court should have(cid:13) found that bias was at the heart of the Board’s ruling.8(cid:13) While one might second-guess the Parole Board’s(cid:13) decision, and state court’s approval of it, it is not the role(cid:13) of the federal courts to do so. Our review, and that of the(cid:13) District Court, is quite distinct from that of the state(cid:13) appellate courts. The Supreme Court has explained that(cid:13) because our review on habeas is collateral, and not(cid:13) supervisory, "not every trial error or infirmity which might(cid:13) call for application of supervisory powers correspondingly(cid:13) constitutes a ‘failure to observe that fundamental fairness(cid:13) essential to the very concept of justice.’ " Donnelly v.(cid:13) DeChristoforo, 416 U.S. 637, 642 (1974) (citation omitted).(cid:13) _________________________________________________________________(cid:13) 8. The District Court reasoned as follows at various junctures in its two(cid:13) opinions: "From the time of Petitioner’s initial arrest on September 29,(cid:13) 1994 for what ultimately turned out to be a disorderly persons(cid:13) marijuana possession, it is evident that the parole authorities have put(cid:13) forth a great deal of effort to see him imprisoned for a substantial and(cid:13) disproportionate period of time." Hunterson I , 137 F. Supp. 2d at 546-47.(cid:13) "The Petitioner’s final accelerated parole revocation hearing (filed on an(cid:13) accelerated basis even though it was not conducted until September 29,(cid:13) 1995, exactly one year after his initial arrest) was similarly injected with(cid:13) the bias." Id. at 547. "Petitioner presented a considerable amount of(cid:13) evidence that tended to show that the parole authorities were(cid:13) impermissibly motivated by many external factors. Their motivations,(cid:13) however, are not important to the analysis, which focuses on their(cid:13) conduct." Id. at 547 n.25. In concluding its second opinion, which(cid:13) focused on the remedy, the Court explained:(cid:13) The Court is aware that the Appellate Division did not have the(cid:13) benefit of the recent discovery when it affirmed the Board’s decision.(cid:13) Nevertheless, the reasons advanced by the Board for its decision to(cid:13) impose a five-year FET fail because they are not in keeping with(cid:13) current New Jersey law; the severity of the violations does not(cid:13) warrant an FET above the presumptive term. Thus, even on the(cid:13) record available at the time of this Court’s original Order, the(cid:13) Appellate Division’s affirmance of the Board’s actions was(cid:13) unreasonable because the Board’s decision to impose such a harsh(cid:13) term in this case was arbitrary and capricious.(cid:13) Hunterston II, 140 F. Supp. 2d at 383.(cid:13) 12(cid:13) Additionally, federal court review in this case is strictly(cid:13) limited by AEDPA, as Hunterson filed his petition after its(cid:13) enactment. AEDPA provides:(cid:13) (d) An application for a writ of habeas corpus on behalf(cid:13) of a person in custody pursuant to the judgment of a(cid:13) State court shall not be granted with respect to any(cid:13) claim that was adjudicated on the merits in State court(cid:13) proceedings unless the adjudication of the claim-- (1)(cid:13) resulted in a decision that was contrary to, or involved(cid:13) an unreasonable application of, clearly established(cid:13) Federal law, as determined by the Supreme Court of(cid:13) the United States; or (2) resulted in a decision that was(cid:13) based on an unreasonable determination of the facts in(cid:13) light of the evidence presented in the State court(cid:13) proceeding.(cid:13) 28 U.S.C. S 2254(d)(1)-(2).9 Therefore, the considerations(cid:13) under AEDPA are divided into an examination of the legal(cid:13) analysis and a separate consideration of the factual(cid:13) determinations.(cid:13) In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme(cid:13) Court explained in detail the proper means by which a(cid:13) federal court is to undertake a review of the state court’s(cid:13) _________________________________________________________________(cid:13) 9. However, if an issue presented to the state court was not "adjudicated(cid:13) on the merits," we conduct a pre-AEDPA de novo review. Everett v.(cid:13) Beard, 290 F.3d 500, 507-08 (3d Cir. 2002). In this case, the District(cid:13) Court explicitly stated that its review was governed by AEDPA, and it(cid:13) never suggested that this argument was not adjudicated on the merits(cid:13) below. Hunterson argues on appeal, in the alternative, that his(cid:13) substantive due process claim was not adjudicated, as he "attempted to(cid:13) raise the issue of bias and conspiracy in the state proceedings but was(cid:13) not permitted to do so." We disagree. In this case, the same arguments(cid:13) regarding bias and illicit motives were presented to the Appellate(cid:13) Division as were made before the District Court. The Appellate Division(cid:13) considered the merits of Hunterson’s claims and did not fault the Parole(cid:13) Board’s refusal to hear evidence in this regard. The court measured(cid:13) them against a standard that was consistent with federal law and found(cid:13) that the allegations of bias would not have affected the outcome. See(cid:13) Marshall v. Hendricks, No. 00-9004, ___ F.3d ___, 2002 WL 31018600, at(cid:13) *69 n.18 (3d Cir. Sept. 11, 2002) (stating that, in Everett, the state court(cid:13) decision was not analyzed under the AEDPA standard of review because(cid:13) the court had applied the incorrect legal standard under federal law).(cid:13) 13(cid:13) legal analysis. First, the "contrary to" provision is only(cid:13) implicated if the state court "applies a rule that contradicts(cid:13) the governing law set forth" by the Supreme Court or if it(cid:13) arrives at a different result when confronted by"facts that(cid:13) are materially indistinguishable" from those previously(cid:13) before the Supreme Court. Id. at 405-06 (O’Connor, J.,(cid:13) concurring) (controlling opinion). Hunterson does not argue(cid:13) that the state court’s analysis was "contrary to" federal law,(cid:13) but instead claims that it was an unreasonable application(cid:13) of federal law. In Hameen v. State of Delaware , quoting(cid:13) Williams, we explained: "[U]nder the‘unreasonable(cid:13) application’ clause, ‘a federal habeas court may not issue(cid:13) the writ simply because that court concludes in its(cid:13) independent judgment that the relevant state-court(cid:13) decision applied clearly established federal law erroneously(cid:13) or incorrectly. Rather, that application must also be(cid:13) unreasonable.’ " 212 F.3d 226, 235 (3d Cir. 2000), cert.(cid:13) denied, 532 U.S. 924 (2001) (quoting Williams, 529 U.S. at(cid:13) 411).(cid:13) In contrast, the unreasonable determination of the facts(cid:13) standard is a somewhat less amorphous standard.(cid:13) Adhering to the words of the statute, federal court review(cid:13) considers only whether the state court adjudication(cid:13) "resulted in a decision that was based on an unreasonable(cid:13) determination of the facts in light of the evidence presented(cid:13) in the State court proceeding." 28 U.S.C. S 2254(d)(2). The(cid:13) statute directs the federal court to presume that all(cid:13) determinations of fact made by the state court are correct(cid:13) and requires that the petitioner present "clear and(cid:13) convincing evidence" to rebut this presumption. 28 U.S.C.(cid:13) S 2254(e)(1); see also Stevens v. Delaware Corr. Ctr., 295(cid:13) F.3d 361, 368 (3d Cir. 2002).(cid:13) It is clear that the Appellate Division considered all of(cid:13) Hunterson’s claims, most of which emphasized his view(cid:13) that the Parole Board was improperly motivated to prevent(cid:13) his early release. While his pro se submissions did not(cid:13) allege chapter and verse of the applicable constitutional(cid:13) principles, they clearly urged due process violations,(cid:13) substantive and procedural, focusing principally on(cid:13) "arbitrary" and retaliatory rulings by the Parole Board. And,(cid:13) the Appellate Division just as clearly considered these(cid:13) 14(cid:13) claims, concluding that the Parole Board’s determinations(cid:13) were well-founded and not arbitrary. While the Appellate(cid:13) Division’s ruling was somewhat conclusory and did not(cid:13) analyze Hunterson’s claims or relate them to specific(cid:13) Supreme Court precedent, it is, nonetheless, apparent that(cid:13) Hunterson’s claims were adjudicated on the merits. We(cid:13) have recently noted that such summary adjudications are(cid:13) to be subjected to the AEDPA standard of review under(cid:13) S 2254(d). Chadwick v. Janecka, 302 F.3d 107, 116 (3d Cir.(cid:13) 2002).(cid:13) However, reading the District Court opinion, we are(cid:13) compelled to conclude that it skewed the analysis under(cid:13) the AEDPA standard, and that its conclusion that the writ(cid:13) should be granted was based not on the analysis dictated(cid:13) under Williams, but, essentially, on its sincere(cid:13) disagreement with the ruling of the Parole Board. It is(cid:13) important to note at the outset that neither Hunterson nor(cid:13) the District Court focuses on any specific facts that(cid:13) demonstrate either that the FET was out of line with other(cid:13) FETs meted out to persons previously convicted of similar(cid:13) offenses, or that the Parole Board acted out of bias rather(cid:13) than based on evidence regarding Hunterson’s crime and(cid:13) problematic conduct. Nor can we find in the record a(cid:13) "smoking gun," let alone any probative facts that would(cid:13) warrant our grant of the writ under the applicable(cid:13) standard. In view of the state of the record, neither the(cid:13) District Court’s analysis, nor its ruling that Hunterson is(cid:13) entitled to release, can pass muster.(cid:13) 1. Unreasonable Application of the Law (cid:13) There is no question in this case that Hunterson’s(cid:13) possession of marijuana violated the terms of his parole(cid:13) and therefore provided a basis for revocation. Hunterson’s(cid:13) substantive due process argument accordingly challenges(cid:13) not the revocation itself, but, rather, the period of time(cid:13) Hunterson was to be incarcerated before being eligible for(cid:13) parole -- the FET. His argument, therefore, is that the(cid:13) imposition of the five-year FET violates substantive due(cid:13) process. But this type of constitutional challenge to a state(cid:13) court proceeding is not easily mounted. We have made(cid:13) clear that the federal courts, on habeas review, are not to(cid:13) "second-guess parole boards," and the requirements of(cid:13) 15(cid:13) substantive due process are met if there is some basis for(cid:13) the challenged decision." Coady v. Vaughn, 251 F.3d 480,(cid:13) 487 (3d Cir. 2001).(cid:13) At oral argument, Hunterson’s attorney conceded that,(cid:13) based on Hunterson’s conduct, imposition of the five-year(cid:13) term alone is not so great a departure that it would amount(cid:13) to a violation of his constitutional rights, but, rather, it is(cid:13) the presence of the alleged bias that raises it to that level.(cid:13) The relevant level of arbitrariness required in order to find(cid:13) a substantive due process violation involves not merely(cid:13) action that is unreasonable, but, rather, something more(cid:13) egregious, which we have termed at times "conscience(cid:13) shocking" or "deliberately indifferent." 10(cid:13) We agree that the mere length of the FET is not so(cid:13) egregious, since, after all, Hunterson is a convicted(cid:13) kidnaper and murderer who was sentenced to two life(cid:13) _________________________________________________________________(cid:13) 10. At times our court has confronted the applicable standard with some(cid:13) level of uncertainty regarding its precise formulation. See, e.g., Ziccardi(cid:13) v. City of Philadelphia, 288 F.3d 57, 64 (3d Cir. 2002) (noting that the(cid:13) issue of the "intent needed to support a substantive due process claim(cid:13) is a question that has long troubled our court."). The issue has arisen(cid:13) most often in connection with civil suits underS 1983, and we therefore(cid:13) face a somewhat different application here. We do not and need not hold(cid:13) precisely which terminology is most apt, however, as we find in any(cid:13) event that the District Court applied a less egregious standard than is(cid:13) required for a substantive due process violation. We do note that we(cid:13) have frequently employed the "shocks the conscience" standard when(cid:13) considering a claim that an executive action amounted to a substantive(cid:13) due process violation. See, e.g., Gottlieb v. Laurel Highlands Sch. Dist.,(cid:13) 272 F.3d 168 (3d Cir. 2001) (assistant principal shoved student); Eddy(cid:13) v. Virgin Islands Water and Power Auth., 256 F.3d 204 (3d Cir. 2001)(cid:13) (employee required to replace switch on high voltage power line); Miller(cid:13) v. City of Philadelphia, 174 F.3d 368 (3d Cir. 1999) (children removed(cid:13) from mother’s custody in ex parte hearing). See also Hawkins v.(cid:13) Freedman, 195 F.3d 732, 738 (4th Cir. 1999) (applying the "shocks the(cid:13) conscience" standard in a parole revocation setting and concluding that(cid:13) there was not a substantive due process violation). We need not(cid:13) definitely determine in this matter the precise standard which is needed(cid:13) to prove a substantive due process violation by state officials engaged in(cid:13) a non-physical confrontation. This is because any such standard would(cid:13) require the finding of a level of intent that we find is significantly absent(cid:13) in this case.(cid:13) 16(cid:13) terms, violated his parole by possessing marijuana, and(cid:13) failed to steer clear of trouble, as reflected in his phone(cid:13) calls to DeFabio and his ongoing use of marijuana.(cid:13) Although Hunterson does not rely on the length of the(cid:13) FET alone, he essentially argues that the extent of the(cid:13) departure from the presumptive term was so great that we(cid:13) must infer that the Parole Board was motivated by animus(cid:13) rather than the nature of his previous crime and his(cid:13) behavior while on parole. The District Court’s opinion(cid:13) seems to adopt this same approach. However, a feeling that(cid:13) the FET was too long and was not fair does not amount to(cid:13) a substantive due process violation. We are concerned that,(cid:13) as we noted above, neither Hunterson nor the District(cid:13) Court points to specific record facts of bias or Parole Board(cid:13) misconduct; instead, both rely on timing, speculative(cid:13) theories, and inferences they have drawn from a variety of(cid:13) facts that could just as easily be dismissed as innocent. For(cid:13) example: there are no facts that would render the alleged(cid:13) "suspicious timing" illicit rather than coincidental; the(cid:13) questions posed by a panel of the Parole Board about Ms.(cid:13) Hansen seemed to be a legitimate line of inquiry into the(cid:13) stability of a parole applicant’s home life; and the parole(cid:13) officer’s belief that Hunterson’s ongoing use of marijuana(cid:13) was acceptable does not necessarily make it so.(cid:13) Hunterson relies to a great extent on the fact that the(cid:13) Parole Board was chastised repeatedly by the New Jersey(cid:13) courts for errors in its proceedings. In response to this,(cid:13) however, we note that while Hunterson was vindicated(cid:13) repeatedly, obtaining relief several times on direct appeal in(cid:13) the New Jersey state courts, the very same court that(cid:13) recognized the errors in the earlier proceedings later(cid:13) rejected Hunterson’s claims that the FET was imposed in(cid:13) violation of his rights.(cid:13) The proper question that must be asked and answered by(cid:13) the District Court is whether the New Jersey court’s(cid:13) adjudication involved an unreasonable application of(cid:13) Supreme Court precedent. The substantive component of(cid:13) due process recognized by the Fifth Amendment and made(cid:13) applicable to the states by the Fourteenth Amendment(cid:13) could, indeed, be implicated in a case such as this. In(cid:13) Foucha v. Louisiana, 504 U.S. 71 (1992), the Supreme(cid:13) 17(cid:13) Court reiterated: "the Due Process Clause contains a(cid:13) substantive component that bars certain arbitrary,(cid:13) wrongful government actions regardless of the fairness of(cid:13) the procedures used to implement them." Id. at 80 (internal(cid:13) quotation omitted). However, the Court has made equally(cid:13) clear that when an executive action is at issue, only the(cid:13) most egregious conduct will be considered arbitrary in the(cid:13) constitutional sense. In County of Sacramento , the Court(cid:13) said that "conduct intended to injure in some way(cid:13) unjustifiable by any government interest is the sort of(cid:13) action most likely to rise to the conscience-shocking level."(cid:13) Id. at 848.(cid:13) Thus, the "arbitrary and capricious" standard employed(cid:13) here by the District Court does not comport with Supreme(cid:13) Court precedent which, under AEDPA, provides our(cid:13) analytic compass. We submit that the imposition of the(cid:13) five-year FET alone is not egregious enough to shock the(cid:13) conscience or constitute arbitrariness bordering on(cid:13) deliberate indifference to Hunterson’s rights. The issue,(cid:13) then, is whether the record before the District Court when(cid:13) it granted the petition was sufficient to establish, first, the(cid:13) ulterior improper motives that Hunterson alleges, and then,(cid:13) that the Appellate Division’s failure to find the Parole(cid:13) Board’s actions sufficiently arbitrary in a constitutional(cid:13) sense constituted an unreasonable application of United(cid:13) States Supreme Court precedent. We are compelled to(cid:13) conclude that neither the record, nor the state court’s(cid:13) ruling, can serve Hunterson’s purpose. We note that the(cid:13) District Court stated that Hunterson had submitted(cid:13) "volumes" of exhibits. Hunterson I, 137 F. Supp. 2d at 532(cid:13) n.2. Yet, neither the District Court nor Hunterson has(cid:13) referenced specific evidence that establishes animus or bias(cid:13) connected to the Parole Board hearing whereby the(cid:13) proceeding could be said to shock the conscience. Nor can(cid:13) we find in the record an appropriate factual basis for the(cid:13) District Court’s conclusion. A string of facts with inferences(cid:13) that might be drawn from existing facts does not suffice on(cid:13) habeas review under AEDPA.(cid:13) The District Court’s analysis also seemed to rely on(cid:13) inaccurate characterizations of certain aspects of the New(cid:13) Jersey State proceedings. The Board did not, as the District(cid:13) 18(cid:13) Court suggests, claim that marijuana causes violent(cid:13) behavior, but instead expressed the Board’s arguably valid(cid:13) concern that Hunterson was returning to his previous law-(cid:13) breaking lifestyle. The Court characterized the Board’s(cid:13) decisions: "[T]he premise of both the Board’s decision and(cid:13) the appellate court’s affirmance is that Petitioner’s(cid:13) possession of marijuana evidenced a return to his law-(cid:13) breaking days because he previously committed murder for(cid:13) which he was incarcerated while under the influence of(cid:13) alcohol and marijuana." Id. at 545-46. In actuality, the(cid:13) Board specifically referenced the crime for which he was(cid:13) sentenced to two life terms, his prior convictions, his(cid:13) history of substance abuse, his arrest for drug possession,(cid:13) the threatening phone calls to Ralph DeFabio, and his(cid:13) presence at a fundraiser for a motorcycle gang member.(cid:13) Nor did the District Court examine the directives of(cid:13) Supreme Court precedent or measure the state court(cid:13) proceedings against specific principles developed in the(cid:13) case law. Instead, it measured the Parole Board’s actions(cid:13) against a standard of reasonableness.(cid:13) While it is clear that the District Court believed the five-(cid:13) year FET was not called for in light of the facts of this case,(cid:13) that is beyond the proper scope of federal court review.(cid:13) When considering a writ of habeas corpus, it is only for the(cid:13) District Court to consider whether clearly established(cid:13) Supreme Court precedent was applied unreasonably . We(cid:13) conclude that the determination of the New Jersey Supreme(cid:13) Court did not involve an unreasonable application of(cid:13) Supreme Court precedent, given the facts before it.(cid:13) 2. Unreasonable Determination of the Facts(cid:13) During oral argument and in his brief, Hunterson(cid:13) devoted considerable attention to the argument that the(cid:13) Appellate Division unreasonably determined the facts. In(cid:13) Hunterson II, the District Court said that the Appellate(cid:13) Division made an "unreasonable interpretation of the facts."(cid:13) 140 F. Supp. 2d at 375. However, as the Court correctly(cid:13) states later in its opinion,11 the proper standard is the state(cid:13) _________________________________________________________________(cid:13) 11. In Hunterson II, the Court claimed that in its earlier opinion it(cid:13) "concluded that petitioner’s substantive due process rights were violated(cid:13) because the Board’s decision was arbitrary and capricious and not a(cid:13) reasonable determination of the evidence presented at the revocation(cid:13) hearing." Id. at 378.(cid:13) 19(cid:13) court’s determination, not interpretation, of the facts, see id.(cid:13) at 378, and this distinction is telling here, as Hunterson(cid:13) seems to be challenging the state court’s view or(cid:13) interpretation of facts, and not its determination.12 As with(cid:13) the application of the law standard, the District Court(cid:13) needs to consider whether the Appellate Division(cid:13) unreasonably determined the facts, not whether it would(cid:13) have necessarily reached the same conclusion or(cid:13) characterized the facts the same way.(cid:13) The Appellate Division presented the following summaries(cid:13) of the facts in this case:(cid:13) - "[T]he bulk of the evidence including testimony as to(cid:13) Hunterson’s arrest on the drug charge; his(cid:13) admission to his parole officer of his return to drug(cid:13) use; his admission to Trooper Pender that he was(cid:13) heading to a motorcycle rally to support ‘Egyptian’(cid:13) whose parole had been violated; and the tape of his(cid:13) threats to DiFabio, along with evidence surrounding(cid:13) his original conviction and his prior record . . . ."(cid:13) - After his release on parole "he returned to his errant(cid:13) ways through continued drug abuse; association(cid:13) with motorcycle gang members; and threats, ten(cid:13) years after the fact, against a person he apparently(cid:13) believed was responsible for connecting him to the(cid:13) original murder."(cid:13) - "[I]mmediately upon parole, Hunterson fell back into(cid:13) the type of conduct which led to his initial(cid:13) convictions for serious crime."(cid:13) Hunterson’s brief, however, does not challenge these(cid:13) _________________________________________________________________(cid:13) 12. Appellee argues that the use of "interpretation" instead of(cid:13) "determination" is a "distinction without a difference." However, we must(cid:13) disagree, as the two words have distinct meanings and therefore would(cid:13) provide different standards. To interpret means"1. To explain to oneself(cid:13) the meaning of[;] [or] 2. To expound the significance of." Webster’s II New(cid:13) Riverside University Dictionary 638 (1988). To determine, on the other(cid:13) hand, is defined as: "1.a. to arrive or settle . . . authoritatively or(cid:13) conclusively[;] 1.b. To end or decide by final, esp. judicial action[;] [or] 2.(cid:13) To establish or ascertain definitely, as after consideration, investigation,(cid:13) or calculation." Id. at 369.(cid:13) 20(cid:13) "determinations" by the Appellate Division, but instead(cid:13) challenges the manner in which the Parole Board describes(cid:13) or characterizes the facts in its federal appellate brief. It(cid:13) could be said that the Parole Board’s brief sets forth the(cid:13) facts in a manner that makes the case against Mr.(cid:13) Hunterson stronger, but that is certainly not surprising or(cid:13) unusual, given its vantage point. But, we are reviewing the(cid:13) state court’s determination of the facts. While Hunterson(cid:13) admits his marijuana use, he challenges the(cid:13) characterizations of the other "facts." He claims that(cid:13) attending the rally for Egyptian was not "associating with(cid:13) motorcycle gang members," and contends that his heated(cid:13) exchange with Mr. DeFabio was just "tough talk" and not a(cid:13) threat. Hunterson, however, is challenging the court’s view(cid:13) of the gravity of what he did, not its determination of what(cid:13) occurred. It is not the role of the federal court in habeas(cid:13) review to second-guess how the state courts viewed the(cid:13) record facts, but, rather, it can only grant relief if the state(cid:13) court’s determination of the facts -- presumably given(cid:13) disputed or incomplete facts -- was unreasonable.(cid:13) Additionally, Hunterson’s argument consists more of an(cid:13) attack on certain conclusions that flowed from basic facts,(cid:13) i.e. that these facts showed that Hunterson had not altered(cid:13) his behavior or adjusted to his parole and was a danger to(cid:13) society. But whether he posed a danger is still a factual,(cid:13) rather than a legal, determination. It is a factual(cid:13) assessment drawn from basic facts. And, under AEDPA, as(cid:13) noted above, such factual determinations made by the state(cid:13) authorities are presumed correct.(cid:13) The District Court clearly drew inferences from the facts(cid:13) that the Appellate Division did not. However, if permissible(cid:13) inferences could be drawn either way, the state court(cid:13) decision must stand, as its determination of the facts would(cid:13) not be unreasonable. And we so conclude.(cid:13) The issue which formed the basis of the District Court’s(cid:13) ruling was but one of several constitutional challenges(cid:13) raised by Hunterson. Based on the perceived violation of(cid:13) substantive due process, the District Court not only(cid:13) nullified the imposition of the five-year FET, but also(cid:13) released Hunterson. Our reversal of the District Court(cid:13) impacts the ruling and result, as we conclude that(cid:13) 21(cid:13) Hunterson’s release was not warranted on substantive due(cid:13) process grounds. While the issue of the five-year FET alone(cid:13) has been rendered moot by the passage of time, the issue(cid:13) of Hunterson’s release has not. Our ruling means that the(cid:13) revocation of Hunterson’s parole will be reinstated, and he(cid:13) should again be placed in custody pending the outcome of(cid:13) further proceedings. We do not decide whether the(cid:13) remaining constitutional challenges might be such as to(cid:13) require release. Nor do we address the impact of further(cid:13) proceedings assured by the state regarding the eight-year(cid:13) FET imposed after the District Court’s rulings, as we(cid:13) referenced at footnote 5 above, or the impact of later events.13(cid:13) In light of the foregoing, we will REVERSE and REMAND to(cid:13) the District Court for further proceedings consistent with(cid:13) this opinion.(cid:13) A True Copy:(cid:13) Teste:(cid:13) Clerk of the United States Court of Appeals(cid:13) for the Third Circuit(cid:13) ________________________________________________________________(cid:13) 13. We note that, recently, the State of New Jersey submitted a letter to(cid:13) the panel regarding recent events involving appellee. This letter was not(cid:13) a part of the record before the District Court, and, therefore, is not a(cid:13) part of the record before us. We have not given it any consideration.(cid:13) 22
