UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 96-2358
RAFAEL MORENO-MORALES,
Petitioner, Appellant,
v.
UNITED STATES PAROLE COMMISSION,
Respondent, Appellee.
ERRATA SHEET
ERRATA SHEET
The opinion of this court issued on January 20,
1998, is corrected as follows:
On the cover page, the name of the district court
judge whose decision we review is changed from "Fusto" to
"Fuste".
[ N O T F O R P U B L I C A T I O N ]
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
No. 96-2358
RAFAEL MORENO-MORALES,
Petitioner, Appellant,
v.
UNITED STATES PAROLE COMMISSION,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose A. Fuste, U.S. District Judge]
Before
Torruella, Chief Judge,
Campbell, Senior Circuit Judge,
and Lynch, Circuit Judge.
Irma R. Valldejuli for appellant.
Isabel Munoz Acosta, Assistant U.S. Attorney, with whom
Guillermo Gil, United States Attorney, was on brief for
appellee.
January 20, 1998
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Per Curiam. Rafael Moreno-Morales is serving a
thirty year sentence for convictions of obstructing justice,
giving false testimony, suborning perjury, and committing
perjury. After being denied parole, he sought a writ of
habeas corpus, arguing that the Parole Commission violated
its own rules and that its decision was arbitrary and
capricious. The district court denied relief. We affirm.
I
I
The infamous Cerro Maravilla incident underlying
the criminal conviction of Moreno-Morales, a police officer,
has been well described in other opinions. See, e.g., United
States v. Reveron Martinez, 836 F.2d 684 (1st Cir. 1988);
United States v. Moreno-Morales, 815 F.2d 725 (1st Cir.
1987); In re Grand Jury Investigations of the Cerro Maravilla
Events, 783 F.2d 20 (1st Cir. 1986). For present purposes,
we sketch the facts pertinent to the decision of the Parole
Commission.
On July 25, 1978, members of the "Movimiento
Revolucionario Armado," a radical Puerto Rican pro-
independence movement, attempted to destroy a television
tower at Cerro Maravilla. The members included Arnaldo Dar o
Rosado, Carlos Soto Arriv , and a third individual who was a
police informant. The Puerto Rico Police learned of this
planned sabotage through the informant and ambushed the
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group. Appellant Moreno-Morales was among the police
officers at the scene.
After a shoot-out, Dar o Rosado and Soto Arriv
surrendered and were taken into custody. In custody, while
handcuffed, Dar o Rosado and Soto Arriv were brutalized by
the police. One police officer killed Dar o Rosado with a
shotgun blast to the chest. A second police officer shot and
wounded Soto Arriv with a pistol. Moreno-Morales took the
pistol and shot Soto Arriv again, killing him.
The police concealed their deeds by rearranging the
scene to make it seem the two men had not been taken into
custody. They fabricated a story that Dar o Rosado and Soto
Arriv had been killed in a shoot-out while resisting arrest.
Moreno-Morales and the other officers told this story to
local district attorneys investigating the shootings. When
the victims' survivors brought a civil rights action against
the Commonwealth of Puerto Rico in federal court, the
officers told the same story in deposition testimony. They
also told this story to a federal grand jury investigating
the event.
In February 1984, after prolonged investigation, a
federal grand jury returned indictments against Moreno-
Morales and he was convicted after trial of obstructing
justice, giving false testimony, suborning perjury, and
committing perjury.
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In January 1985, Moreno-Morales was charged under
Puerto Rico law with murder for the deaths of Dar o Rosado
and Soto Arriv . Moreno-Morales was convicted of second-
degree murder as to the death of Soto Arriv and sentenced to
twenty-two to thirty years in jail. That sentence is
consecutive to his federal sentence.
II
II
Moreno-Morales was eligible for parole
consideration on March 27, 1995. Under 18 U.S.C. 4208(a),
an initial parole hearing is to be held, when feasible, not
later than thirty days prior to the parole eligibility date.
The Parole Commission delayed the hearing beyond the thirty
days until it obtained additional information. By letter
dated March 8, 1995, the Parole Commission asked the Chief
Probation Officer for the District of Puerto Rico for an
explanation of Moreno-Morales's involvement in the Cerro
Maravilla killings. The letter explained that the Commission
needed "further information . . . to conduct the hearing in
conformity with the Commission procedures." The Chief
Probation Officer referred the matter to attorneys at the
Criminal Section of the Civil Rights Division of the United
States Department of Justice. On June 30, 1995, an attorney
from the Justice Department wrote a letter to the Parole
Commission explaining Moreno-Morales's role in the killings.
Moreno-Morales was not copied on the letter.
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The Parole Commission scheduled Moreno-Morales's
hearing for July 20, 1995. On July 17, 1995, the Commission
sent a copy of the Justice Department letter to the Bureau of
Prisons with instructions to disclose the letter to Moreno-
Morales but not to furnish a copy of it to him. The Bureau
of Prisons did this on July 18, 1995.
On July 20, the hearing occurred before one hearing
examiner, as permitted by Commission regulations. See 28
C.F.R. 2.13(a). At the hearing, Moreno-Morales admitted
shooting Soto Arriv , saying he did so when he "lost control"
after Soto Arriv shot at him. Moreno-Morales also argued
that some witnesses had been paid by the government to alter
their testimony. The hearing examiner instructed that a copy
of the Justice Department letter should be provided to
Moreno-Morales.
On August 9, 1995, the Commission issued its Notice
of Action denying parole. The Notice stated:
Your offense behavior has been rated as a
Category Eight severity because it
involved murder. Your salient factor
score (SFS-81) is 10. You have been in
federal confinement as a result of your
behavior for a total of 124 months.
Guidelines established by the Commission
indicate a range of 100+ months to be
served before release for cases with good
institutional adjustment and program
achievement. After review of all
relevant factors and information
presented a decision more than 48 months
above the minimum guidelines appears
warranted because your offense behavior
involved the following aggravating
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factors: An unarmed person detained by
police and handcuffed was shot and
killed.
Although the Notice was issued on August 9, 1995, the Bureau
of Prisons did not deliver the Notice to Moreno-Morales until
December 8, 1995.
On December 15, 1995, Moreno-Morales appealed the
decision to the National Appeals Board, arguing that the
Commission did not follow correct procedures in deciding his
case and that the Commission should have granted him
leniency. On March 13, 1996, the Board affirmed the hearing
examiner's decision. The Board rejected Moreno-Morales's
arguments:
You were not prejudiced by the fact that
your initial hearing was held four months
after your completion of your minimum
term. The Commission's current
regulations state that "an initial
hearing shall be conducted by a single
hearing examiner unless the Regional
Commissioner orders that the hearing be
conducted by a panel of two examiners."
28 C.F.R. 2.13(A). Therefore, there
was no error in the fact that only one
examiner conducted your hearing. Your
notice of action was issued on August 9,
1995, within 21 days after your July 20,
1995 hearing, as required by regulation.
The fact that the Bureau of Prisons may
not have immediately delivered the NOA to
you is not the fault of the Commission.
The Board also rejected Moreno-Morales's claim that the
Commission did not disclose the Justice Department letter
prior to the hearing by pointing out that, in fact, he had
been shown the letter. Finally, the Board rejected Moreno-
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Morales's claim that he should have been granted leniency
because a co-defendant had been granted leniency. The Board
stated there were significant mitigating factors in that
case, and leniency granted in one case does not require
leniency in another.
On May 16, 1996, Moreno-Morales filed a habeas
corpus petition, again arguing that the Parole Commission had
acted capriciously and that it had failed to follow its
internal regulations. The district court denied the petition
without a hearing. Moreno-Morales appeals.
III
III
While there is some debate among the courts of
appeal as to the scope and standard of review of different
types of Parole Commission decisions,1 for present purposes
we will assume this decision is reviewable and test it for
whether it is irrational, arbitrary or capricious. The
decision is plainly none of these things.
Under the Parole Commission's guidelines, parole
determinations are based upon two factors: offense category
1. For cases holding decisions of the Parole Commission are
not reviewable for abuse of discretion, see, e.g., Jones v.
United States Bureau of Prisons, 903 F.2d 1178, 1183 (8th
Cir. 1990); Wallace v. Christensen, 802 F.2d 1539, 1553 (9th
Cir. 1986) (en banc); Farkas v. United States, 744 F.2d 37,
38-39 (6th Cir. 1984); Garafola v. Wilkinson, 721 F.2d 420,
423-24 (3d Cir. 1983); Garcia v. Neagle, 660 F.2d 983, 988-89
(4th Cir. 1981). For cases holding decisions of Parole
Commission are subject to deferential review, see, e.g.,
Hanahan v. Luther, 693 F.2d 629, 632 (7th Cir. 1982); Simpson
v. Ortiz, 995 F.2d 606, 608 (5th Cir. 1993).
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and salient factor score. See 28 C.F.R. 2.20. The offense
category rates the severity of the inmate's offense. The
salient factor score rates the inmate's parole prognosis
based on such factors as criminal record and age. See id.
As to the second prong, the Commission assigned to Moreno-
Morales a salient factor score of ten, the most favorable
rating.
There are eight offense categories, and the parole
guidelines provide upper and lower confinement limits for
categories one through seven, from which the Commission may
depart for good cause. See 18 U.S.C. 4206(c). There is no
upper limit for category eight offenses because of the
"extreme variability of the cases within this category." 28
C.F.R. 2.20 n.1. If the Commission decides to exceed the
lower limit of category eight parole eligibility by more than
forty-eight months, it must "specify the pertinent case
factors upon which it relied in reaching its decision." Id.
The base offense category for perjury is three,
except when the perjury concerns a criminal offense, in which
case the offense category is two categories below the
underlying offense. Because Moreno-Morales committed perjury
while attempting to conceal a murder, an offense category
eight crime, his offense category would ordinarily be six.
See 28 C.F.R. 2.20 ch.6. The Parole Commission, however,
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elevated Moreno-Morales's offense category to eight because
of the fact he had committed murder. The Parole Commission
may take into account any substantial information available
to it when assessing the offense category, see 28 C.F.R.
2.19(c), and this decision was entirely rational in light of
the conviction, the Justice Department letter, and Moreno-
Morales's own admissions.
Under the guidelines, the Commission was obligated
to state the reasons for its decision to deny parole. See 28
C.F.R. 2.20 n.1. The Commission did this, stating the
decision was premised upon the aggravating factor that "an
unarmed person detained by police and handcuffed was shot and
killed." That is enough.
IV
IV
Moreno-Morales's arguments that the Commission
failed to follow its own rules are also without merit.
Moreno-Morales argues that the Parole Commission denied him
"reasonable access" to the Justice Department letter and a
meaningful opportunity to respond to it. Moreno-Morales saw
the letter two days before his hearing, a fact which he
admits, and he declined the hearing examiner's offer to
continue the hearing until a later date -- an offer made
specifically to give Moreno-Morales the opportunity to
consider his response. Moreno-Morales complains he could not
fully explain his version of events because his translator
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was not fluent in Spanish, but does not explain how he was
prejudiced on this account. See Sacasas v. Rison, 755 F.2d
1533, 1535 (11th Cir. 1985) (petitioner must demonstrate he
was prejudiced by Parole Commission's acts to be entitled to
habeas relief). In any event, the hearing examiner plainly
understood at least the gist of Moreno-Morales's assertions,
as he refers to them in his Initial Hearing Summary.
Moreno-Morales also argues that the Parole
Commission failed to state the reasons for its denial with
particularity as required by 18 U.S.C. 4206(b). This is
plainly incorrect, as the Notice of Action specifically
explained that parole was denied because "an armed person
detained by police and handcuffed was shot and killed."
We affirm the decision of the district court.2
2. At oral argument, the government informed us that the
Parole Commission conducted another hearing regarding Moreno-
Morales in October 1997 and has yet to render its decision.
Nothing in this decision should be construed to prevent the
Parole Commission from reaching its own decision in that
matter.
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