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Notaro v. Luther

decided*fn*: April 15, 1986.

JOHN NOTARO, APPELLANT,
v.
DENNIS LUTHER, WARDEN, FCI-DANBURY, AND UNITED STATES PAROLE COMMISSION, APPELLEES



Denial of petition for writ of habeas corpus or mandamus affirmed because Parole Commission's new and unpublished "training aid" was exempt from publication requirement under 5 U.S.C. § 553(b)(A) and its use to determine nonperipherality was not an abuse of discretion and because government submission of presentence report to court below was not improper.

Before: LUMBARD, OAKES, and NEWMAN, Circuit Judges.

Per Curiam:

John Notaro appeals from a judgment of the United States District Court for the District of Connecticut, Ellen Bree Burns, judge, denying his petition for a writ of habeas corpus or a writ of mandamus. We affirm.

Notaro, currently a prisoner at the Federal Correctional Institution at Danbury, Connecticut, was convicted in the United States District Court for the Eastern District of New York of an offense involving the attempted importation of heroin. After Notaro's initial parole hearing, the Parole Commission determined that his incarceration should last until the expiration of his sentence. Seeking to overturn this decision, Notaro subsequently exhausted his administrative remedies, and then filed the petition denied below. Neither of the claims that he advances on this appeal has merit.

First, Notaro maintains that the Parole Commission acted improperly in applying a new and unpublished "training aid" to his parole request and thus determining that his role in the drug scheme was nonperipheral. This claim fails since the Commission's decision regarding Notaro's parole application did not involve an abuse of discretion. See Iuteri v. Nardoza, 732 F.2d 32, 37 (2d Cir. 1984). There was no requirement that the training aid be published since it was not a rule of substantive impact requiring publication under 5 U.S.C. § 552(a)(1)(D). As a careful reading of the training aid shows, it did not establish a presumption of nonperipherality. Moreover, as the district court found, the approach set out in the training aid accords with the Commission's regulations and past practices. The training aid thus falls under 5 U.S.C. § 553(b)(A), which exempts from publication interpretive rules, general statements of policy, and rules of agency procedure and practice. Moreover, the evidence that Notaro's role was nonperipheral was, independent of any guidance provided by the training aid, sufficient to support the Commission's finding. The critical facts here are the events surrounding the importation -- such as Notaro's trip to Italy, breaking with his past practice of having the urns shipped directly to the United States-- and his special position as an importer of these coffee urns.

Notaro also claims that the Government acted improperly in submitting his presentence report to the court below. That submission was improper. While, as the cases Notaro cites show, there are reasons to place limits on the dissemination of the presentence report, those reasons are inapplicable to the realm of judicial review of parole commission actions. Examination of the report may be necessary for the court to exercise its proper role of judicial review.

For the reasons stated above, the decision of the district court denying Notaro's petition for a writ of habeas corpus ...


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