Hunterson v. DiSabato , 308 F.3d 236 ( 2002 )


Menu:
  •                                                                                                                            Opinions of the United
    2002 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    10-10-2002
    Hunterson v. DiSabato
    Precedential or Non-Precedential: Precedential
    Docket No. 01-1805
    Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002
    Recommended Citation
    "Hunterson v. DiSabato" (2002). 2002 Decisions. Paper 644.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2002/644
    This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
    University School of Law Digital Repository. It has been accepted for inclusion in 2002 Decisions by an authorized administrator of Villanova
    University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
    PRECEDENTIAL
    Filed October 10, 2002
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 01-1805
    NEIL HUNTERSON
    v.
    MARY KEATING DISABATO, Chairman, N.J. State Parole
    BD.; MICHAEL R. MCKEEN, Administrator, S.S.C.F.; THE
    ATTORNEY GENERAL OF THE STATE OF NEW JERSEY,
    PETER VERNIERO,
    Appellants
    On Appeal from the United States District Court
    for the District of New Jersey
    (D.C. Civil No. 98-cv-00482)
    District Judge: Honorable Joseph H. Rodriguez
    Argued January 7, 2002
    Before: MANSMANN,* RENDELL and FUENTES, Circuit   Judges
    Reargued May 2, 2002
    Before: RENDELL, FUENTES and COWEN, Circuit Ju dges
    (Filed October 10, 2002)
    _________________________________________________________________
    * Hon. Carol Los Mansmann, Judge of the United States Court of
    Appeals for the Third Circuit, died on March 9, 2002.
    James D. Harris, Esq. [ARGUED]
    Office of Attorney General of
    New Jersey
    Division of Law
    25 Market Street
    Trenton, NJ 08625
    Counsel for Appellants
    John S. Furlong, Esq. [ARGUED]
    Furlong & Krasny
    820 Bear Tavern Road
    Mountain View Office Park,
    Suite 304
    West Trenton, NJ 08626
    Counsel for Appellee
    OPINION OF THE COURT
    RENDELL, Circuit Judge.
    Neil Hunterson was convicted of first-degree murder and
    kidnaping in 1972. He was sentenced to two life terms of
    imprisonment. In July 1992, he was paroled. His parole
    was revoked on November 1, 1995,1 and a five-year future
    eligibility term ("FET") was imposed. Hunterson has been
    challenging the revocation of his parole and the imposition
    of the five-year FET ever since, claiming that it was not
    based on any "danger to society" he posed, but instead was
    a result of the New Jersey Parole Board’s animus toward
    him.
    After exhausting his appeals in the New Jersey court
    system, Hunterson filed a petition for a writ of habeas
    corpus in the United States District Court for the District of
    New Jersey. In his petition, Hunterson alleged a wide-range
    of constitutional violations, and a conspiracy to violate his
    rights, by a variety of state actors, including various
    individuals, the Parole Board, and the New Jersey Supreme
    Court.
    _________________________________________________________________
    1. He had been detained since June 15, 1995.
    2
    The District Court granted the petition, concluding that
    Hunterson’s substantive due process rights were violated.
    Hunterson v. DiSabato, 
    137 F. Supp. 2d 529
    (D.N.J. 2001)
    (Hunterson I). The Court thereafter issued a second opinion
    focusing only on the remedy. Hunterson v. DiSabato, 140 F.
    Supp. 2d 353 (D.N.J. 2001) (Hunterson II). In this later
    opinion, the Court addressed the alleged conspiracy against
    Hunterson, concluding that the circumstances of the case
    were so unusual that release was the only appropriate
    remedy. 
    Id. at 380,
    382. The District Court accordingly
    ordered his release on March 16, 2001.
    The government respondents, Mary Keating DiSabato,
    Chairperson, New Jersey State Parole Board ("Board" or
    "Parole Board"), and Michael R. McKeen, Administrator,
    Southern State Correctional Facility, now appeal. As we
    conclude that the District Court did not conduct its review
    of the Parole Board’s decision and the state appellate
    court’s affirmance of it in accordance with the constraints
    of the Antiterrorism and Effective Death Penalty Act
    ("AEDPA"), we will reverse and remand to the District Court
    to consider the remaining claims presented in Hunterson’s
    habeas petition.2
    I. FACTS
    This case comes to us with a complex procedural history
    presenting the matter in an unusual posture. Not only were
    there numerous appeals within the state system, and
    subsequent affirmances and reversals, but there were also
    two separate opinions issued by the District Court-- first
    granting the writ and thereafter ordering Hunterson’s
    release. In its two published opinions the District Court set
    forth the underlying proceedings in great detail and we will
    not restate them here. Instead, we will set forth only those
    facts necessary to our analysis.
    In 1972, Hunterson, then president of the Henchmen
    motorcycle gang, was convicted of the kidnaping and first-
    _________________________________________________________________
    2. As we discuss below, the reversal of the District Court’s release order
    will result in the immediate return of Hunterson to confinement.
    However, further proceedings regarding his additional claims, if still
    viable, should occur forthwith.
    3
    degree murder of a rival motorcycle gang member. He was
    sentenced to two life terms. After serving approximately
    twenty years of his sentence, he was paroled on July 29,
    1992. The current controversy involving the revocation of
    his parole had its origins on September 29, 1994, when
    Hunterson was arrested and charged with possession of
    marijuana and possession with intent to distribute
    approximately 50 grams of marijuana. The distribution
    charge was subsequently dropped, and Hunterson pled
    guilty to a disorderly persons offense for possession of less
    than fifty grams of marijuana.
    Four additional facts are especially important since they
    were repeatedly relied upon in the course of the revocation
    proceedings, and have been consistently challenged by
    Hunterson as insignificant or improperly considered. On
    July 9, 1992, while still incarcerated and in New Jersey for
    a parole hearing, Hunterson allegedly threatened Ralph
    DeFabio, another former biker gang member, over the
    telephone. On August 5, 1992, less than a week after his
    release on parole, he again called DeFabio and made
    arguably threatening comments. This conversation was
    recorded by DeFabio.3 On April 21, 1995, Hunterson
    attended a fundraiser for a member of a motorcycle gang
    known as "the Egyptian." Finally, Hunterson admitted to
    his parole officer that he had been using marijuana. 4
    Central to Hunterson’s claims is his view that his
    romantic relationship with Deborah Hansen caused the
    Parole Board to be biased against him in the state
    revocation proceedings. When Hunterson and Hansen
    began dating, she was the Deputy Director of Interstate
    Parole Services for New Jersey. Hunterson claims that his
    _________________________________________________________________
    3. The transcribed conversation is included in the Board’s September 9,
    1998 decision. The verbal altercation appears to be about a car
    Hunterson believes DeFabio took from him, as well as DeFabio’s role in
    his being arrested for the murder twenty years earlier. At one point
    Hunterson says: "I’ll come to your house with your family, fuck you,
    your kids and your mother, punk."
    4. In her testimony, Elaine Torres, one of Hunterson’s parole officers,
    explained that Hunterson had admitted his marijuana use, and she had
    thought it was understandable given the stressors in his life, including
    his mother’s serious illness.
    4
    relationship with Hansen, who during this time became his
    fiancee, was the real motivation for the Parole Board’s
    actions. During their relationship, and around the time of
    Hunterson’s marijuana arrest, Ms. Hansen was a vocal
    critic of the Department of Corrections. Specifically, Ms.
    Hansen publicly criticized the department’s mishandling of
    interstate parole, illustrated by the murder committed by
    one interstate parolee, Robert "Mudman" Simon. After
    William Fauver, the Corrections Commissioner at the time,
    testified before a state senate subcommittee, Hunterson
    and Hansen held an impromptu news conference attacking
    the accuracy of his testimony.
    As a result of Hunterson’s marijuana arrest and urine
    tests showing signs of drug use (which were eventually
    deemed inadmissible because of problems with the chain of
    custody), parole revocation proceedings were undertaken.
    New Jersey law provides that "[a]ny parolee who has
    seriously or persistently violated the conditions of his
    parole, may have his parole revoked and may be returned
    to custody . . . ." N.J.S.A. 30:4-123.60. According to the
    New Jersey Supreme Court, the proper consideration in
    parole proceedings is whether the individual is likely to
    engage in further criminal activity. Trantino v. New Jersey
    State Parole Bd., 
    711 A.2d 260
    , 270 (N.J. 1998)[Trantino
    VI]. The New Jersey Administrative Code sets forth the
    factors to be considered at parole hearings. N.J.A.C.
    10A:71-3.11. First, it explains that "[p]arole decisions shall
    be based on the aggregate of all pertinent factors." N.J.A.C.
    10A:71-3.11(a). It provides a list of twenty-three factors that
    should be considered, including, the nature and pattern of
    previous convictions, adjustment to parole, facts and
    circumstances of the offense, aggravating and mitigating
    factors surrounding the offense, parole plans and the
    investigation thereof, and status of family or marital
    relationship. N.J.A.C. 10A:71-3.11(b). It also provides that
    the Board "may consider any other factors deemed
    relevant." N.J.A.C. 10A:71-3.11(b).
    After a series of hearings and apparent procedural errors
    by the Board (reversed by the New Jersey appellate courts),
    a two-member panel of the Board revoked Hunterson’s
    parole in November 1995, stating:
    5
    His behavior in [respect to his marijuana possession]
    projects a troubling immaturity of judgment, as well as
    an inability to abide by limitations imposed by
    administrative and statutory authority. When coupled
    with the threats to DeFabio, the admitted marijuana
    use and his presence at the April 1995 Pagan benefit,
    there begins to emerge the profile of an individual
    constitutionally incapable of adopting a manner of
    living which requires strict adherence to the rules of
    society.
    The panel then had the duty of setting a FET, providing the
    next date when he would be eligible for parole.
    Under New Jersey law, the presumptive future eligibility
    term for Hunterson’s parole was twelve months, subject to
    a three-month increase if the panel determined "the
    circumstances of the parole violation and the
    characteristics and past record of the parolee warrant such
    adjustment." N.J.A.C. 10A:71-7.17( b) and (c). However, the
    state administrative code provides that if the two-member
    panel found that this term was "clearly inappropriate . . .
    the two-member Board panel shall refer such case for a
    three-member Board panel review for the purpose of
    establishing a future parole eligibility date." N.J.A.C.
    10A:71-7.17(p). The two-member panel concluded that the
    presumptive twelve-month term, or even the fifteen-month
    term, was inappropriate and therefore referred the case to
    a three-member panel. Based largely on the issues noted by
    the two-member panel, as well as the conviction underlying
    his parole and history of alcohol and drug use, the three-
    member panel concluded that "public safety requires that a
    substantial parole eligibility term be imposed" and
    established a five-year FET.5
    _________________________________________________________________
    5. As with other sentences, the FET period can be shortened by certain
    credits. For example, Hunterson actually received a hearing for parole on
    February 13, 1998, only 2-1/2 years into his five-year FET. However,
    Hunterson was denied parole, and on November 30, 1998, a three-
    member panel of the Parole Board determined that an eight-year FET
    was appropriate in his case because he had "never seriously addressed
    in counseling session issues such as why [he had] in the past reflected
    a need to associate with individuals involved in criminal activity and the
    6
    Throughout these proceedings, Hunterson has sought
    release -- initially appealing the various decisions of
    hearing officers and the New Jersey State Parole Board, and
    eventually filing a petition for a writ of habeas corpus in
    federal court.
    On appeal, the Superior Court of New Jersey Appellate
    Division ("Appellate Division"), the state court that hears
    direct appeals from the Parole Board, ruled repeatedly in
    Hunterson’s favor and reversed or vacated the Parole
    Board’s decisions based on various defects in the
    proceedings. First, on November 2, 1994, the Appellate
    Division reversed the original finding of probable cause for
    the parole violator warrant: "In view of the State’s
    representation that it cannot establish the chain of custody
    of the three urine tests, the finding of probable cause of
    October 21, 1994 is reversed." Second, on December 27,
    1994, the Appellate Division vacated the parole violator
    warrant for the drug charges: "The issuance of the parole
    warrant is summarily reversed. The warrant is vacated.
    Defendant may be released. The Board may continue
    statutorily authorized parole revocation proceedings." Third,
    on June 20, 1995, the Appellate Division vacated the parole
    violator warrant for lack of probable cause and ordered
    Hunterson released. In its strongest criticism of the Parole
    Board, the Appellate Division found the revocation
    procedure employed by the Board to be procedurally and
    substantively flawed:
    The procedures set forth in N.J.S.A. 30:4-123.60 and
    N.J.A.C. 10A:71-7.3 were not followed by the parole
    authorities in this case. As a result, a warrant was
    issued and Hunterson was returned to jail without the
    required findings that the charge against him is serious
    and that he poses a danger to the public safety.
    _________________________________________________________________
    causes of [his] substance abuse problem." This eight-year FET is not
    before us on appeal, nor was it before the District Court when it issued
    its original order granting the writ. During oral argument, Appellants’
    counsel indicated that if we were to reverse the District Court, it would
    not enforce the eight-year FET, and the Parole Board would immediately
    hold a new hearing and would exclude members previously involved in
    the case.
    7
    Hunterson is charged with a fourth-degree possessory
    drug offense. In light of the fact that he was arrested
    on this charge over nine months ago and the parole
    warrant did not issue until June 15, 1995, it is obvious
    that no emergency justifying departure from the
    mandatory statutory and regulatory procedures exists.
    The June 15 warrant is vacated. Hunterson is to be
    released immediately. Nothing in this order precludes
    the parole authorities from continuing parole
    revocation procedures against Hunterson in
    accordance with [the] law.
    The New Jersey Supreme Court stayed the release order.
    Fourth, on July 24, 1995, the Appellate Division ordered
    Hunterson released pending a final decision of the Parole
    Board. The New Jersey Supreme Court reversed the July
    1995 order that directed the immediate release of
    Hunterson and directed that parole revocation proceedings
    should be commenced immediately.
    The Appellate Division’s final decision in this case-- and
    the ruling that is urged by Hunterson to be flawed-- was
    its review on direct appeal of the imposition by the Parole
    Board of the five-year FET.6 The court affirmed the Parole
    Board’s decision. Hunterson’s brief alleged a wide range of
    violations of his rights, and generally argued that his parole
    had been revoked and a five-year FET imposed not because
    of his prior crimes and later conduct, but because of his
    relationship with Ms. Hansen. He claimed that the Board’s
    ruling was motivated by bias against him, and that its
    actions were arbitrary, capricious, retaliatory, and violative
    of fundamental fairness under, inter alia, the due process
    clause of the Fourteenth Amendment. The Appellate
    Division specifically recounted all of the arguments made
    by Hunterson in his original and amended briefs (sixteen in
    number), reviewed Hunterson’s post-release conduct, and
    determined that it would not disturb the Parole Board’s
    ruling:
    Thereafter, he returned to his errant ways through
    continued drug abuse; association with motorcycle
    _________________________________________________________________
    6. The New Jersey Supreme Court denied certification on January 15,
    1998.
    8
    gang members; and threats, ten years after the fact,
    against a person he apparently believed was
    responsible for connecting him to the original murder.
    This is a shocking turn of events and Hunterson’s
    insistence on characterizing the case as one involving
    conviction for a disorderly persons offense simply
    misconceives the nature and import of his problematic
    conduct. Standing alone, the disorderly persons offense
    (which does not qualify as criminal conduct) could
    have subjected Hunterson to a one year FET with a
    possible upgrade to 15 months at the hands of a two
    member panel. N.J.S.A. 30:123:64(b); N.J.A.C. 10A:71-
    7.16(b)(4). Referral to the three member panel was
    based on the two member panel’s conclusion that the
    guideline figure was clearly inappropriate. Given that
    immediately upon parole, Hunterson fell back into the
    type of conduct which led to his initial convictions for
    serious crimes, we cannot say that the parole
    revocation and the five year FET set by the three
    member panel and approved by the Board was
    arbitrary or lacked inherently credible supporting
    evidence.
    II. FEDERAL COURT PETITION
    Hunterson filed his writ of habeas corpus in the United
    States District Court for the District of New Jersey in
    February 1998. The pro se petition alleged a number of
    violations of his constitutional rights, and generally accused
    the Parole Board of being involved in a vast and complex
    conspiracy in an effort to return Hunterson to prison. Most
    of Hunterson’s petition is dedicated largely to recitations of
    facts and allegations of corruption, with little in the way of
    explication of the claims in legal terms. According to
    Hunterson, the Parole Board was motivated not by a
    concern that Hunterson posed a danger to society, but by
    its anger at Hunterson and his fiancee, Deborah Hansen,
    for exposing the improper activities of the New Jersey
    Department of Corrections and the Parole Board.
    Hunterson claims that the Parole Board’s actions violated
    his federal constitutional rights under the First, Fourth,
    Fifth, Sixth, Eighth, and Fourteenth Amendments. The
    petition does not make clear precisely how he believes that
    9
    each of these rights was violated. In several instances he
    simply says that the hearings were held without his being
    afforded constitutional protections, or he asserts in
    conclusory fashion that an individual’s action was
    "unconstitutional." Of course, as this is a pro se petition,
    we will construe it liberally. See, e.g., United States v.
    Garth, 
    188 F.3d 99
    , 108 (3d Cir. 1999) (providing that we
    use a "more forgiving lens . . . to construe pro se habeas
    petitions"). Among his more specific allegations, Hunterson
    claims:
    1) His First Amendment rights were violated because
    he was incarcerated as punishment for speaking
    out publicly against the Department of Corrections
    and Parole Board.
    2) The New Jersey Supreme Court violated his
    Fourteenth Amendment rights to due process and
    equal protection each time it reversed the Appellate
    Division.
    3) Referral to the three-member panel was based on
    an unconstitutional hearing.
    4) The five-year FET was excessive and violated the
    Eighth and Fourteenth Amendments.
    5) The Board’s subsequent confirmation of the five-
    year FET violated his Fourteenth Amendment
    rights and his Eighth Amendment protections
    against cruel and unusual punishment.
    6) His September 29, 1995 hearing was not
    conducted before an impartial hearing officer in
    violation of his due process and equal protection
    rights.
    He further claims his constitutional rights were specifically
    violated during the September 1995 hearing in five ways:
    1) reliance on a three-year-old threat;
    2) witness (DeFabio) was not produced, and therefore
    his procedural due process rights were violated;
    3) hearsay and vouching violated his due process and
    equal protection rights;
    10
    4) use of urine tests, ruled inadmissible by the
    Appellate Division, during questioning of witnesses,
    violated his Fifth, Sixth, and Fourteenth
    Amendment rights; and,
    5) the Special Prosecutor removed all mitigating files
    in an effort to prejudice the hearing’s outcome in
    violation of his Fourteenth Amendment rights.
    The District Court had jurisdiction pursuant to 28 U.S.C.
    S 1343. We have jurisdiction under 28 U.S.C.SS 1291 and
    2253. No certificate of appealability is required for the state
    to appeal the District Court’s order. Fed. R. App. P. 22(b)(3).
    And, "[b]ecause the District Court relied exclusively on the
    state court record and did not hold an evidentiary hearing,
    our review of its decision is plenary."7 Moore v. Morton, 
    255 F.3d 95
    , 103 (3d Cir. 2001).
    III. DISCUSSION
    The District Court acknowledged that its review was
    governed by the standards set forth in AEDPA. Hunterson 
    I, 137 F. Supp. 2d at 541
    . It concluded that Hunterson’s
    substantive due process rights had been violated because
    the "Appellate Division’s affirmance of the Board’s decision
    to impose a five-year FET was unreasonable," 
    id. at 546,
    and that "[t]he decision to impose the five year term was
    arbitrary and capricious, and a clear abuse of discretion."
    
    Id. at 545
    (emphasis added). The District Court also found
    that the state courts had made an unreasonable
    determination of facts because "petitioner’s substantive due
    process rights were violated because the Board’s decision
    was arbitrary and capricious and not a reasonable
    determination of the evidence presented at the revocation
    hearing." Hunterson 
    II, 140 F. Supp. 2d at 378
    . The District
    _________________________________________________________________
    7. In this case, the District Court held an evidentiary hearing, but only
    in connection with the remedy after it had ruled on the merits of the
    petition. Therefore, as that evidence was not used for the purpose of
    granting the petition, we will conduct our review as if the hearing had
    not been held. If the District Court had held an evidentiary hearing upon
    which its decision was based, we would still conduct a plenary review of
    the District Court’s legal conclusion but review its factual conclusions
    for clear error. Stevens v. Delaware Corr. Ctr. , 
    295 F.3d 361
    , 368 (3d Cir.
    2002).
    11
    Court did not detail precisely how it reached either of these
    conclusions, but it is clear that it believed the five-year FET
    was not justified and that the state court should have
    found that bias was at the heart of the Board’s ruling.8
    While one might second-guess the Parole Board’s
    decision, and state court’s approval of it, it is not the role
    of the federal courts to do so. Our review, and that of the
    District Court, is quite distinct from that of the state
    appellate courts. The Supreme Court has explained that
    because our review on habeas is collateral, and not
    supervisory, "not every trial error or infirmity which might
    call for application of supervisory powers correspondingly
    constitutes a ‘failure to observe that fundamental fairness
    essential to the very concept of justice.’ " Donnelly v.
    DeChristoforo, 
    416 U.S. 637
    , 642 (1974) (citation omitted).
    _________________________________________________________________
    8. The District Court reasoned as follows at various junctures in its two
    opinions: "From the time of Petitioner’s initial arrest on September 29,
    1994 for what ultimately turned out to be a disorderly persons
    marijuana possession, it is evident that the parole authorities have put
    forth a great deal of effort to see him imprisoned for a substantial and
    disproportionate period of time." Hunterson I , 137 F. Supp. 2d at 546-47.
    "The Petitioner’s final accelerated parole revocation hearing (filed on an
    accelerated basis even though it was not conducted until September 29,
    1995, exactly one year after his initial arrest) was similarly injected with
    the bias." 
    Id. at 547.
    "Petitioner presented a considerable amount of
    evidence that tended to show that the parole authorities were
    impermissibly motivated by many external factors. Their motivations,
    however, are not important to the analysis, which focuses on their
    conduct." 
    Id. at 547
    n.25. In concluding its second opinion, which
    focused on the remedy, the Court explained:
    The Court is aware that the Appellate Division did not have the
    benefit of the recent discovery when it affirmed the Board’s decision.
    Nevertheless, the reasons advanced by the Board for its decision to
    impose a five-year FET fail because they are not in keeping with
    current New Jersey law; the severity of the violations does not
    warrant an FET above the presumptive term. Thus, even on the
    record available at the time of this Court’s original Order, the
    Appellate Division’s affirmance of the Board’s actions was
    unreasonable because the Board’s decision to impose such a harsh
    term in this case was arbitrary and capricious.
    Hunterston 
    II, 140 F. Supp. 2d at 383
    .
    12
    Additionally, federal court review in this case is strictly
    limited by AEDPA, as Hunterson filed his petition after its
    enactment. AEDPA provides:
    (d) An application for a writ of habeas corpus on behalf
    of a person in custody pursuant to the judgment of a
    State court shall not be granted with respect to any
    claim that was adjudicated on the merits in State court
    proceedings unless the adjudication of the claim-- (1)
    resulted in a decision that was contrary to, or involved
    an unreasonable application of, clearly established
    Federal law, as determined by the Supreme Court of
    the United States; or (2) resulted in a decision that was
    based on an unreasonable determination of the facts in
    light of the evidence presented in the State court
    proceeding.
    28 U.S.C. S 2254(d)(1)-(2).9 Therefore, the considerations
    under AEDPA are divided into an examination of the legal
    analysis and a separate consideration of the factual
    determinations.
    In Williams v. Taylor, 
    529 U.S. 362
    (2000), the Supreme
    Court explained in detail the proper means by which a
    federal court is to undertake a review of the state court’s
    _________________________________________________________________
    9. However, if an issue presented to the state court was not "adjudicated
    on the merits," we conduct a pre-AEDPA de novo review. Everett v.
    Beard, 
    290 F.3d 500
    , 507-08 (3d Cir. 2002). In this case, the District
    Court explicitly stated that its review was governed by AEDPA, and it
    never suggested that this argument was not adjudicated on the merits
    below. Hunterson argues on appeal, in the alternative, that his
    substantive due process claim was not adjudicated, as he "attempted to
    raise the issue of bias and conspiracy in the state proceedings but was
    not permitted to do so." We disagree. In this case, the same arguments
    regarding bias and illicit motives were presented to the Appellate
    Division as were made before the District Court. The Appellate Division
    considered the merits of Hunterson’s claims and did not fault the Parole
    Board’s refusal to hear evidence in this regard. The court measured
    them against a standard that was consistent with federal law and found
    that the allegations of bias would not have affected the outcome. See
    Marshall v. Hendricks, No. 00-9004, ___ F.3d ___, 
    2002 WL 31018600
    , at
    *69 n.18 (3d Cir. Sept. 11, 2002) (stating that, in Everett, the state court
    decision was not analyzed under the AEDPA standard of review because
    the court had applied the incorrect legal standard under federal law).
    13
    legal analysis. First, the "contrary to" provision is only
    implicated if the state court "applies a rule that contradicts
    the governing law set forth" by the Supreme Court or if it
    arrives at a different result when confronted by"facts that
    are materially indistinguishable" from those previously
    before the Supreme Court. 
    Id. at 405-06
    (O’Connor, J.,
    concurring) (controlling opinion). Hunterson does not argue
    that the state court’s analysis was "contrary to" federal law,
    but instead claims that it was an unreasonable application
    of federal law. In Hameen v. State of Delaware , quoting
    Williams, we explained: "[U]nder the‘unreasonable
    application’ clause, ‘a federal habeas court may not issue
    the writ simply because that court concludes in its
    independent judgment that the relevant state-court
    decision applied clearly established federal law erroneously
    or incorrectly. Rather, that application must also be
    unreasonable.’ " 
    212 F.3d 226
    , 235 (3d Cir. 2000), cert.
    denied, 
    532 U.S. 924
    (2001) (quoting 
    Williams, 529 U.S. at 411
    ).
    In contrast, the unreasonable determination of the facts
    standard is a somewhat less amorphous standard.
    Adhering to the words of the statute, federal court review
    considers only whether the state court adjudication
    "resulted in a decision that was based on an unreasonable
    determination of the facts in light of the evidence presented
    in the State court proceeding." 28 U.S.C. S 2254(d)(2). The
    statute directs the federal court to presume that all
    determinations of fact made by the state court are correct
    and requires that the petitioner present "clear and
    convincing evidence" to rebut this presumption. 28 U.S.C.
    S 2254(e)(1); see also Stevens v. Delaware Corr. Ctr., 
    295 F.3d 361
    , 368 (3d Cir. 2002).
    It is clear that the Appellate Division considered all of
    Hunterson’s claims, most of which emphasized his view
    that the Parole Board was improperly motivated to prevent
    his early release. While his pro se submissions did not
    allege chapter and verse of the applicable constitutional
    principles, they clearly urged due process violations,
    substantive and procedural, focusing principally on
    "arbitrary" and retaliatory rulings by the Parole Board. And,
    the Appellate Division just as clearly considered these
    14
    claims, concluding that the Parole Board’s determinations
    were well-founded and not arbitrary. While the Appellate
    Division’s ruling was somewhat conclusory and did not
    analyze Hunterson’s claims or relate them to specific
    Supreme Court precedent, it is, nonetheless, apparent that
    Hunterson’s claims were adjudicated on the merits. We
    have recently noted that such summary adjudications are
    to be subjected to the AEDPA standard of review under
    S 2254(d). Chadwick v. Janecka, 
    302 F.3d 107
    , 116 (3d Cir.
    2002).
    However, reading the District Court opinion, we are
    compelled to conclude that it skewed the analysis under
    the AEDPA standard, and that its conclusion that the writ
    should be granted was based not on the analysis dictated
    under Williams, but, essentially, on its sincere
    disagreement with the ruling of the Parole Board. It is
    important to note at the outset that neither Hunterson nor
    the District Court focuses on any specific facts that
    demonstrate either that the FET was out of line with other
    FETs meted out to persons previously convicted of similar
    offenses, or that the Parole Board acted out of bias rather
    than based on evidence regarding Hunterson’s crime and
    problematic conduct. Nor can we find in the record a
    "smoking gun," let alone any probative facts that would
    warrant our grant of the writ under the applicable
    standard. In view of the state of the record, neither the
    District Court’s analysis, nor its ruling that Hunterson is
    entitled to release, can pass muster.
    1. Unreasonable Application of the Law
    There is no question in this case that Hunterson’s
    possession of marijuana violated the terms of his parole
    and therefore provided a basis for revocation. Hunterson’s
    substantive due process argument accordingly challenges
    not the revocation itself, but, rather, the period of time
    Hunterson was to be incarcerated before being eligible for
    parole -- the FET. His argument, therefore, is that the
    imposition of the five-year FET violates substantive due
    process. But this type of constitutional challenge to a state
    court proceeding is not easily mounted. We have made
    clear that the federal courts, on habeas review, are not to
    "second-guess parole boards," and the requirements of
    15
    substantive due process are met if there is some basis for
    the challenged decision." Coady v. Vaughn, 
    251 F.3d 480
    ,
    487 (3d Cir. 2001).
    At oral argument, Hunterson’s attorney conceded that,
    based on Hunterson’s conduct, imposition of the five-year
    term alone is not so great a departure that it would amount
    to a violation of his constitutional rights, but, rather, it is
    the presence of the alleged bias that raises it to that level.
    The relevant level of arbitrariness required in order to find
    a substantive due process violation involves not merely
    action that is unreasonable, but, rather, something more
    egregious, which we have termed at times "conscience
    shocking" or "deliberately indifferent." 10
    We agree that the mere length of the FET is not so
    egregious, since, after all, Hunterson is a convicted
    kidnaper and murderer who was sentenced to two life
    _________________________________________________________________
    10. At times our court has confronted the applicable standard with some
    level of uncertainty regarding its precise formulation. See, e.g., Ziccardi
    v. City of Philadelphia, 
    288 F.3d 57
    , 64 (3d Cir. 2002) (noting that the
    issue of the "intent needed to support a substantive due process claim
    is a question that has long troubled our court."). The issue has arisen
    most often in connection with civil suits underS 1983, and we therefore
    face a somewhat different application here. We do not and need not hold
    precisely which terminology is most apt, however, as we find in any
    event that the District Court applied a less egregious standard than is
    required for a substantive due process violation. We do note that we
    have frequently employed the "shocks the conscience" standard when
    considering a claim that an executive action amounted to a substantive
    due process violation. See, e.g., Gottlieb v. Laurel Highlands Sch. Dist.,
    
    272 F.3d 168
    (3d Cir. 2001) (assistant principal shoved student); Eddy
    v. Virgin Islands Water and Power Auth., 
    256 F.3d 204
    (3d Cir. 2001)
    (employee required to replace switch on high voltage power line); Miller
    v. City of Philadelphia, 
    174 F.3d 368
    (3d Cir. 1999) (children removed
    from mother’s custody in ex parte hearing). See also Hawkins v.
    Freedman, 
    195 F.3d 732
    , 738 (4th Cir. 1999) (applying the "shocks the
    conscience" standard in a parole revocation setting and concluding that
    there was not a substantive due process violation). We need not
    definitely determine in this matter the precise standard which is needed
    to prove a substantive due process violation by state officials engaged in
    a non-physical confrontation. This is because any such standard would
    require the finding of a level of intent that we find is significantly absent
    in this case.
    16
    terms, violated his parole by possessing marijuana, and
    failed to steer clear of trouble, as reflected in his phone
    calls to DeFabio and his ongoing use of marijuana.
    Although Hunterson does not rely on the length of the
    FET alone, he essentially argues that the extent of the
    departure from the presumptive term was so great that we
    must infer that the Parole Board was motivated by animus
    rather than the nature of his previous crime and his
    behavior while on parole. The District Court’s opinion
    seems to adopt this same approach. However, a feeling that
    the FET was too long and was not fair does not amount to
    a substantive due process violation. We are concerned that,
    as we noted above, neither Hunterson nor the District
    Court points to specific record facts of bias or Parole Board
    misconduct; instead, both rely on timing, speculative
    theories, and inferences they have drawn from a variety of
    facts that could just as easily be dismissed as innocent. For
    example: there are no facts that would render the alleged
    "suspicious timing" illicit rather than coincidental; the
    questions posed by a panel of the Parole Board about Ms.
    Hansen seemed to be a legitimate line of inquiry into the
    stability of a parole applicant’s home life; and the parole
    officer’s belief that Hunterson’s ongoing use of marijuana
    was acceptable does not necessarily make it so.
    Hunterson relies to a great extent on the fact that the
    Parole Board was chastised repeatedly by the New Jersey
    courts for errors in its proceedings. In response to this,
    however, we note that while Hunterson was vindicated
    repeatedly, obtaining relief several times on direct appeal in
    the New Jersey state courts, the very same court that
    recognized the errors in the earlier proceedings later
    rejected Hunterson’s claims that the FET was imposed in
    violation of his rights.
    The proper question that must be asked and answered by
    the District Court is whether the New Jersey court’s
    adjudication involved an unreasonable application of
    Supreme Court precedent. The substantive component of
    due process recognized by the Fifth Amendment and made
    applicable to the states by the Fourteenth Amendment
    could, indeed, be implicated in a case such as this. In
    Foucha v. Louisiana, 
    504 U.S. 71
    (1992), the Supreme
    17
    Court reiterated: "the Due Process Clause contains a
    substantive component that bars certain arbitrary,
    wrongful government actions regardless of the fairness of
    the procedures used to implement them." 
    Id. at 80
    (internal
    quotation omitted). However, the Court has made equally
    clear that when an executive action is at issue, only the
    most egregious conduct will be considered arbitrary in the
    constitutional sense. In County of Sacramento , the Court
    said that "conduct intended to injure in some way
    unjustifiable by any government interest is the sort of
    action most likely to rise to the conscience-shocking level."
    
    Id. at 848.
    Thus, the "arbitrary and capricious" standard employed
    here by the District Court does not comport with Supreme
    Court precedent which, under AEDPA, provides our
    analytic compass. We submit that the imposition of the
    five-year FET alone is not egregious enough to shock the
    conscience or constitute arbitrariness bordering on
    deliberate indifference to Hunterson’s rights. The issue,
    then, is whether the record before the District Court when
    it granted the petition was sufficient to establish, first, the
    ulterior improper motives that Hunterson alleges, and then,
    that the Appellate Division’s failure to find the Parole
    Board’s actions sufficiently arbitrary in a constitutional
    sense constituted an unreasonable application of United
    States Supreme Court precedent. We are compelled to
    conclude that neither the record, nor the state court’s
    ruling, can serve Hunterson’s purpose. We note that the
    District Court stated that Hunterson had submitted
    "volumes" of exhibits. Hunterson 
    I, 137 F. Supp. 2d at 532
    n.2. Yet, neither the District Court nor Hunterson has
    referenced specific evidence that establishes animus or bias
    connected to the Parole Board hearing whereby the
    proceeding could be said to shock the conscience. Nor can
    we find in the record an appropriate factual basis for the
    District Court’s conclusion. A string of facts with inferences
    that might be drawn from existing facts does not suffice on
    habeas review under AEDPA.
    The District Court’s analysis also seemed to rely on
    inaccurate characterizations of certain aspects of the New
    Jersey State proceedings. The Board did not, as the District
    18
    Court suggests, claim that marijuana causes violent
    behavior, but instead expressed the Board’s arguably valid
    concern that Hunterson was returning to his previous law-
    breaking lifestyle. The Court characterized the Board’s
    decisions: "[T]he premise of both the Board’s decision and
    the appellate court’s affirmance is that Petitioner’s
    possession of marijuana evidenced a return to his law-
    breaking days because he previously committed murder for
    which he was incarcerated while under the influence of
    alcohol and marijuana." 
    Id. at 545
    -46. In actuality, the
    Board specifically referenced the crime for which he was
    sentenced to two life terms, his prior convictions, his
    history of substance abuse, his arrest for drug possession,
    the threatening phone calls to Ralph DeFabio, and his
    presence at a fundraiser for a motorcycle gang member.
    Nor did the District Court examine the directives of
    Supreme Court precedent or measure the state court
    proceedings against specific principles developed in the
    case law. Instead, it measured the Parole Board’s actions
    against a standard of reasonableness.
    While it is clear that the District Court believed the five-
    year FET was not called for in light of the facts of this case,
    that is beyond the proper scope of federal court review.
    When considering a writ of habeas corpus, it is only for the
    District Court to consider whether clearly established
    Supreme Court precedent was applied unreasonably . We
    conclude that the determination of the New Jersey Supreme
    Court did not involve an unreasonable application of
    Supreme Court precedent, given the facts before it.
    2. Unreasonable Determination of the Facts
    During oral argument and in his brief, Hunterson
    devoted considerable attention to the argument that the
    Appellate Division unreasonably determined the facts. In
    Hunterson II, the District Court said that the Appellate
    Division made an "unreasonable interpretation of the 
    facts." 140 F. Supp. 2d at 375
    . However, as the Court correctly
    states later in its opinion,11 the proper standard is the state
    _________________________________________________________________
    11. In Hunterson II, the Court claimed that in its earlier opinion it
    "concluded that petitioner’s substantive due process rights were violated
    because the Board’s decision was arbitrary and capricious and not a
    reasonable determination of the evidence presented at the revocation
    hearing." 
    Id. at 378.
    19
    court’s determination, not interpretation, of the facts, see 
    id. at 378,
    and this distinction is telling here, as Hunterson
    seems to be challenging the state court’s view or
    interpretation of facts, and not its determination.12 As with
    the application of the law standard, the District Court
    needs to consider whether the Appellate Division
    unreasonably determined the facts, not whether it would
    have necessarily reached the same conclusion or
    characterized the facts the same way.
    The Appellate Division presented the following summaries
    of the facts in this case:
    - "[T]he bulk of the evidence including testimony as to
    Hunterson’s arrest on the drug charge; his
    admission to his parole officer of his return to drug
    use; his admission to Trooper Pender that he was
    heading to a motorcycle rally to support ‘Egyptian’
    whose parole had been violated; and the tape of his
    threats to DiFabio, along with evidence surrounding
    his original conviction and his prior record . . . ."
    - After his release on parole "he returned to his errant
    ways through continued drug abuse; association
    with motorcycle gang members; and threats, ten
    years after the fact, against a person he apparently
    believed was responsible for connecting him to the
    original murder."
    - "[I]mmediately upon parole, Hunterson fell back into
    the type of conduct which led to his initial
    convictions for serious crime."
    Hunterson’s brief, however, does not challenge these
    _________________________________________________________________
    12. Appellee argues that the use of "interpretation" instead of
    "determination" is a "distinction without a difference." However, we must
    disagree, as the two words have distinct meanings and therefore would
    provide different standards. To interpret means"1. To explain to oneself
    the meaning of[;] [or] 2. To expound the significance of." Webster’s II New
    Riverside University Dictionary 638 (1988). To determine, on the other
    hand, is defined as: "1.a. to arrive or settle . . . authoritatively or
    conclusively[;] 1.b. To end or decide by final, esp. judicial action[;] [or] 2.
    To establish or ascertain definitely, as after consideration, investigation,
    or calculation." 
    Id. at 369.
    20
    "determinations" by the Appellate Division, but instead
    challenges the manner in which the Parole Board describes
    or characterizes the facts in its federal appellate brief. It
    could be said that the Parole Board’s brief sets forth the
    facts in a manner that makes the case against Mr.
    Hunterson stronger, but that is certainly not surprising or
    unusual, given its vantage point. But, we are reviewing the
    state court’s determination of the facts. While Hunterson
    admits his marijuana use, he challenges the
    characterizations of the other "facts." He claims that
    attending the rally for Egyptian was not "associating with
    motorcycle gang members," and contends that his heated
    exchange with Mr. DeFabio was just "tough talk" and not a
    threat. Hunterson, however, is challenging the court’s view
    of the gravity of what he did, not its determination of what
    occurred. It is not the role of the federal court in habeas
    review to second-guess how the state courts viewed the
    record facts, but, rather, it can only grant relief if the state
    court’s determination of the facts -- presumably given
    disputed or incomplete facts -- was unreasonable.
    Additionally, Hunterson’s argument consists more of an
    attack on certain conclusions that flowed from basic facts,
    i.e. that these facts showed that Hunterson had not altered
    his behavior or adjusted to his parole and was a danger to
    society. But whether he posed a danger is still a factual,
    rather than a legal, determination. It is a factual
    assessment drawn from basic facts. And, under AEDPA, as
    noted above, such factual determinations made by the state
    authorities are presumed correct.
    The District Court clearly drew inferences from the facts
    that the Appellate Division did not. However, if permissible
    inferences could be drawn either way, the state court
    decision must stand, as its determination of the facts would
    not be unreasonable. And we so conclude.
    The issue which formed the basis of the District Court’s
    ruling was but one of several constitutional challenges
    raised by Hunterson. Based on the perceived violation of
    substantive due process, the District Court not only
    nullified the imposition of the five-year FET, but also
    released Hunterson. Our reversal of the District Court
    impacts the ruling and result, as we conclude that
    21
    Hunterson’s release was not warranted on substantive due
    process grounds. While the issue of the five-year FET alone
    has been rendered moot by the passage of time, the issue
    of Hunterson’s release has not. Our ruling means that the
    revocation of Hunterson’s parole will be reinstated, and he
    should again be placed in custody pending the outcome of
    further proceedings. We do not decide whether the
    remaining constitutional challenges might be such as to
    require release. Nor do we address the impact of further
    proceedings assured by the state regarding the eight-year
    FET imposed after the District Court’s rulings, as we
    referenced at footnote 5 above, or the impact of later events.13
    In light of the foregoing, we will REVERSE and REMAND to
    the District Court for further proceedings consistent with
    this opinion.
    A True Copy:
    Teste:
    Clerk of the United States Court of Appeals
    for the Third Circuit
    ________________________________________________________________
    13. We note that, recently, the State of New Jersey submitted a letter to
    the panel regarding recent events involving appellee. This letter was not
    a part of the record before the District Court, and, therefore, is not a
    part of the record before us. We have not given it any consideration.
    22