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Green v. Sherrod

March 2, 2010


The opinion of the court was delivered by: Herndon, Chief Judge


I. Introduction

Before the Court is a Report and Recommendations ("R&R") (Doc. 32), issued pursuant to 28 U.S.C. § 636(b)(1)(B) by Magistrate Judge Proud, which recommends dismissing petitioner Nathaniel Green's ("Green" or "Petitioner") Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (Doc. 2). Specifically, the R & R recommends a denial of the habeas petition, concluding that the United States Parole Commission's (the "Parole Commission" or "Commission") decision to decline a hearing examiner's recommendation of parole was not arbitrary and capricious. That view is shared by respondents W.A. Sherrod (the current Warden at FCI-Greenville) and the U.S. Parole Commission (collectively, "Respondents") (Doc. 16).

The R&R was sent to the Parties, with a notice informing them of their right to appeal by way of filing objections by January 28, 2010. In accordance with the notice, Petitioner filed timely objections to the R&R (Doc. 35).*fn1 Because timely objections have been filed, this Court must undertake de novo review of the objected-to portions of the R&R. 28 U.S.C. § 636(b)(1)(B); FED. R. CIV. P. 72(b); Southern District of Illinois Local Rule 73.1(b); Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). The Court may "accept, reject, or modify the recommended decision." Willis v. Caterpillar Inc., 199 F.3d 902, 904 (7th Cir. 1999). In making this determination, the Court must look at all the evidence contained in the record and give fresh consideration to those issues for which specific objection has been made. Id. However, the Court need not conduct a de novo review of the findings of the R&R for which no objections have been made. Thomas v. Arn, 474 U.S. 140, 149-52 (1985). Instead, the Court can simply adopt these findings. For the reasons discussed herein, the Court adopts the findings and recommendations of the R & R.

II. Background

On June 26, 1981, Petitioner was sentenced to 100 years' imprisonment after being found guilty in federal court of kidnaping for the purpose of committing murder of 17-year-old Rhonda Michelle Gillihan, in violation of 18 U.S.C. § 1201(a)(1). He is currently serving his sentence at the Federal Correctional Institution in Greenville, Illinois ("FCI Greenville"). Petitioner both filed a direct appeal as well as a petition for collateral relief; both were denied (Doc. 2, p. 2).

On December 13, 1990, Petitioner had his initial hearing in front of hearing examiners for the U.S. Parole Commission (the "Commission"). Due to his severe nature of the offense of kidnaping with murder of the victim, Petitioner received a Severity Category Eight rating -- the highest rating. He also qualified for a Salient Factor score of 4.*fn2 Commission guidelines for the above factors placed him in a range of 150 months or greater to be served before probation. At the time of his 1990 hearing, Petitioner had been in custody for 118 months. However, the Commission also noted that Petitioner's new criminal conduct occurring since incarceration*fn3 increased his aggregate Factor range to 162 months or greater to be served before reconsideration for parole. Lastly, the Commission found a further 48 months over the minimum guideline range was warranted due to the fact that Petitioner "committed an unprovoked murder of a victim. The victim was stabbed approximately 15 times and her head was beaten. Other abrasions were found on the victim's nude body, including indications of [Petitioner's] heel mark on her side" (Doc. 2, Ex. A, p. 1). Ultimately, the Commission denied him parole, but allowed for a reconsideration hearing in fifteen years (Id. at pp. 1-9). Pursuant to statutory requirements, Petitioner continued to receive interim parole hearings.

On January 24, 2006, Petitioner had his fifteen-year reconsideration parole hearing. Since his initial 1990 hearing, despite the statutory interim hearings, there had been no adjustments made to that decision -- Petitioner remained in a Severity Category Eight "because the offense behavior actually involved murder, even though the conviction was kidnaping," with a Salient Factor Score of 4 (Doc. 2, Ex. B, p. 1). The hearing examiner conducted a de novo review of Petitioner's institutional record, taking into account his following accomplishments and noting that he qualified for superior program achievement ("SPA"):*fn4

* a long, outstanding work record in UNICOR

* completion of his Associates Science Degree

* taking additional college courses so that he is within 20 credit hours of obtaining a Bachelor's Degree

* completion of additional programs in Business Law, Criminal Personality, Substance Abuse Counseling and Real Estate

* volunteering to work in Suicide Watch program and the Religious program

* receipt of a letter of commendation from the Bureau of Prisons Staff for his reaction to a fire in UNICOR in May 1991, where Petitioner was given credit for preventing a considerable loss of property and possibly life

* receipt of a letter of commendation from the Warden at FCI Pekin in 1995 for his work with the Islamic ...

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