MUGTADIR SHABAZZ v. NEW JERSEY STATE PAROLE BOARD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2168-10T4

MUGTADIR SHABAZZ,

Appellant,

v.

NEW JERSEY STATE PAROLE BOARD,

Respondent.

_______________________________________

October 18, 2012

Submitted October 31, 2011 - Decided

Before Judges A. A. Rodr guez and Ashrafi.

On appeal from the New Jersey State Parole Board.

Mugtadir Shabazz, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Jason S. Postelnik, Deputy Attorney General, on the brief).

PER CURIAM

Inmate Mugtadir Shabazz appeals from the November 17, 2010 final decision of the New Jersey State Parole Board denying him parole and fixing a twenty-four-month future eligibility term (FET) for parole. We affirm.

Shabazz was convicted of felony murder in 1975 under the name Clyde Cofield. As a seventeen-year-old, he participated in an armed robbery of a bar in Bound Brook, during which one of his accomplices shot and killed a patron. Shabazz was sentenced to life imprisonment. He has been paroled three times in 1992, 2000, and 2006 and he has been returned to prison each time for parole violations, including because he was convicted of committing other crimes after his first release on parole. After his last incarceration, he was denied parole in September 2008 and again by a two-member panel of the Parole Board in September 2010. He appealed the decision of the two-member panel to the full Parole Board, which issued a written decision on November 17, 2010, confirming denial of parole and the FET of twenty-four months.

Before us, Shabazz argues:

APPELLANT CLAIM[S] HE WAS DENIED A FAIR PAROLE HEARING DUE TO THE NEW JERSEY STATE PAROLE BOARD'S VIOLATION OF HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT WHICH BARS ARBITRARY CONCLUSIONARY DECISIONS THAT ARE NOT SUPPORTED BY A PREPONDERANCE OF THE EVIDENCE IN THE RECORD.

Our standard of review of administrative decisions of the Parole Board is limited to determining whether the Board abused its discretion. Trantino v. N.J. State Parole Bd. (Trantino V), 166 N.J. 113, 173 (2001). The Parole Board's decision involves "discretionary assessment[s] of a multiplicity of imponderables," Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 10, 99 S. Ct. 2100, 2105, 60 L. Ed. 2d 668, 677 (1979), and therefore the Board has "broad but not unlimited" authority to make decisions pertaining to parole, Trantino V, supra, 166 N.J. at 173. We must bear in mind that "Parole Board decisions are highly 'individualized discretionary appraisals.'" Ibid. (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 358-59 (1973)). Consequently, we may reverse the Parole Board's decision only if it is "arbitrary and capricious." Ibid. We do not disturb the Board's factual findings if they "could reasonably have been reached on sufficient credible evidence in the whole record." Id. at 172 (quoting Trantino v. N.J. State Parole Bd. (Trantino IV), 154 N.J. 19, 24 (1998)).

Applying that deferential standard of review, we find no basis to disturb the Board's decision in this case. Appellant's arguments do not warrant extensive discussion in a written opinion of this court. R. 2:11-3(e)(1)(D), -3(e)(2). The Board's decision to deny parole was not arbitrary and capricious and was supported by ample evidence, including the fact that appellant has not been compliant with the conditions of parole when he has previously been released from custody. Since his last incarceration in 2007, he has been found guilty of three institutional infractions. His answers to questions posed on behalf of the Parole Board displayed belligerence, lack of insight into his criminal behavior, and a tendency to blame others for his wrongdoing. The Board could reasonably conclude that he continued to present a risk of violation of law if released from custody.

We also reject appellant's arguments that his due process rights were violated at the parole hearing. He did not have a constitutionally protected right to be present at the review of his parole status by a hearing officer since it was not his first parole hearing. See Greenholtz, supra, 442 U.S. at 14-15, 99 S. Ct. at 2107-08, 60 L. Ed. 2d at 680. He was present at the hearing before the two-member panel and was given the opportunity to present his arguments in favor of parole. Nor did appellant have a right to review confidential psychological reports. N.J.A.C. 10A:71-2.2(a)(1). Finally, he was not entitled to a twelve-month FET because he was in custody on a charge of murder. N.J.A.C. 10A:71-3.21(a)(1).

We also note that appellant was granted a subsequent parole hearing in February 2012, during the time that this appeal has been pending. Although the Board again denied parole, his argument as to the length of the FET established in September 2010 is now moot.

The Parole Board's November 17, 2010 decision denying parole is supported by substantial evidence.

A