HERU HEKSHUS ATUM-RA VS. NEW JERSEY STATE PAROLE BOARD (NEW JERSEY STATE PAROLE BOARD) ( 2018 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
    internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-3797-16T2
    HERU HEKSHUS ATUM-RA,
    Appellant,
    v.
    NEW JERSEY STATE PAROLE
    BOARD,
    Respondent.
    ____________________________
    Submitted December 4, 2018 – Decided December 11, 2018
    Before Judges Fisher and Firko.
    On appeal from the New Jersey State Parole Board.
    Heru Hekshus Atum-Ra, appellant pro se.
    Gurbir S. Grewal, Attorney General, attorney for
    respondent (Melissa Dutton Schaffer, Assistant
    Attorney General, of counsel; Gregory R. Bueno,
    Deputy Attorney General, on the brief).
    PER CURIAM
    In 1982, petitioner – a prison inmate – pleaded guilty to the first-degree
    murders of his wife and mother-in-law. He was sentenced to life in prison with
    a twenty-five-year period of parole ineligibility on one of the murder
    convictions, as well as concurrent terms on the other convictions, which
    included second-degree burglary, second-degree possession of a firearm for an
    unlawful purpose, and third-degree unlawful possession of a firearm. He filed
    three post-conviction relief petitions, all of which were denied. We affirmed the
    last of these in State v. Atum-Ra, No. A-1639-10 (App. Div. June 7, 2012).
    In 2016, petitioner, after serving more than thirty-three years of his life
    sentence, became eligible for parole for the second time. The matter was
    referred to the two-member panel, which denied parole because of: the serious
    nature of the offenses; petitioner's extensive prior record; the repetitive nature
    of his offenses; the increasing seriousness of the offenses; the commission of
    multiple offenses underlying the prison term; prior probation opportunities had
    failed to deter petitioner's criminal behavior1; prior incarcerations had not
    deterred his criminal behavior; the commission of institutional infractions,
    which were numerous, persistent, and serious; and petitioner's insufficient
    problem resolution. As to this last point, the panel concluded that petitioner
    1
    Petitioner committed the multiple murders while on bail for another offense.
    A-3797-16T2
    2
    lacked insight into his criminal behavior, that he remained "unable to feel or
    express any emotion or remorse for his crimes and for the victims," and that he
    "continues to blame the victims, their family and their treatment towards him as
    the motivation for his actions." The panel determined that petitioner lacked an
    adequate parole plan and had scored "medium" on the risk assessment test. The
    panel also found mitigating factors: petitioner had completed prior releases on
    community supervision without violations; he had been infraction free since the
    panel interview on his previous parole request; he participated in programs
    specific to his behavior; petitioner participated in institutional programs that
    generated reports that reflected favorable institutional adjustment; he had a
    positive adjustment to the Therapeutic Community program; and he had
    achieved and maintained minimum custody status.
    The three-member panel subsequently reviewed the matter and imposed a
    120-month future eligibility term (FET), expressing its rationale in a thorough
    written decision. Petitioner administratively appealed. The full Parole Board
    issued a final agency decision denying parole and establishing a 120-month
    FET.
    Petitioner appeals, arguing:
    I. THE CHIEF EXECUTIVE OFFICER AND THE
    PAROLE     BOARD    IGNORED    CRUCIAL
    A-3797-16T2
    3
    DOCUMENTS RELATING TO PETITIONER'S
    REHABILITATION AND PAROLE FITNESS,
    THEREBY UNDERMINING PETITIONER BEING
    RELEASED ON PAROLE.     THEREFORE, THE
    BOARD[']S DECISION TO DENY PAROLE WAS
    NOT BASED ON A PREPONDERANCE OF THE
    EVIDENCE.
    II. IN THE PRESENT CASE THE PAROLE BOARD
    VIOLATED THEIR CODE OF PROFESSIONAL
    CONDUCT.
    III. THE NEW JERSEY PAROLE BOARD'S
    RELIANCE ON RETROACTIVELY APPLIED
    PAROLE GUIDELINES, RATHER THAN PAROLE
    GUIDELIES EXTANT AT THE TIME OF ATUM-
    RA'S CRIME AND CONVICTION, VIOLATES THE
    EX POST FACTO CLAUSE OF BOTH THE
    FEDERAL    AND   NEW    JERSEY    STATE
    CONSTITUTIONS.
    IV. THE NEW JERSEY STATE PAROLE BOARD
    VIOLATED ATUM-RA'S DUE PROCESS RIGHTS
    WHEN HE WAS DENIED PAROLE TWICE, DUE TO
    THE PAROLE BOARD'S RELIANCE ON THE
    RETROACTIVELY APPLIED AMENDMENTS TO
    THE 1979 PAROLE GUIDELINESS, RATHER THAN
    RELYING ON THE UNAMENDED 1979 PAROLE
    GUIDELINES EXTANT AT THE TIME OF
    PETITIONER'S CRIME AND CONVICTION.
    V. A THREE-MEMBER PANEL AND A FULL
    BOARD PANEL DEPRIVES A PRISONER OF DUE
    PROCESS THEREBY MAKING BOTH PANELS
    UNCONSTITUTIONAL.
    VI. THE    ISSUES    AND    INFORMATION
    CONTAINED IN EXHIBIT D (NEW JERSEY STATE
    A-3797-16T2
    4
    PAROLE BOARD AUGUST 29, 2016 NOTICE OF
    DECISION THREE MEMBER PANEL) IS
    PRECLUDED/BARRED BY LAW UNDER RES
    JUDICATA[,] AND THE SEVENTH AMENDMENT
    OF THE U.S. CONSTITUTION.
    We find insufficient merit in these arguments to warrant further discussion in a
    written opinion. R. 2:11-3(e)(1)(E). We add only the following few comments.
    Parole Board decisions are          highly "individualized discretionary
    appraisals," Trantino v. N.J. State Parole Bd., 
    166 N.J. 113
    , 173 (2001) (quoting
    Beckworth v. N.J. State Parole Bd., 
    62 N.J. 348
    , 359 (1973)). Such decisions
    are entitled to both a presumption of validity, In re Vey, 
    272 N.J. Super. 199
    ,
    205 (App. Div. 1993), aff'd, 
    135 N.J. 306
     (1994), and deference to the Parole
    Board's "expertise in the specialized area of parole supervision," J.I. v. N.J. State
    Parole Bd., 
    228 N.J. 204
    , 230 (2017).            We do not intervene in such
    determinations unless they are: arbitrary, capricious, or unreasonable; lack fair
    support in the evidence; or violate legislative policies. Trantino v. N.J. State
    Parole Bd., 
    154 N.J. 19
    , 24-25 (1998). And we will defer to the Parole Board's
    decision to impose a particular FET so long as it is not arbitrary and capricious
    or unsupported by substantial credible evidence. Hare v. N.J. State Parole Bd.,
    
    368 N.J. Super. 175
    , 179-80 (App. Div. 2004).
    A-3797-16T2
    5
    After close examination of the record in light of the arguments posed, we
    conclude that the Parole Board's determinations to deny parole and to impose a
    120-month FET were well-supported by the evidence and that the Parole Board's
    consideration of both old and new information did not violate ex post facto
    constitutional principles. See Trantino v. N.J. State Parole Bd., 
    331 N.J. Super. 377
    , 608-09 (App. Div. 2000).
    Affirmed.
    A-3797-16T2
    6
    

Document Info

Docket Number: A-3797-16T2

Filed Date: 12/11/2018

Precedential Status: Non-Precedential

Modified Date: 8/20/2019