HERU HEKSHUS ATUM-RA v. NEW JERSEY STATE PAROLE BOARD

NOT FOR PUBLICATION WITHOUT THE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.
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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
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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).




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      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.




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