Christopher Furnari v. United States Parole Commission

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-2853
CHRISTOPHER FURNARI,
Appellant
v.
UNITED STATES PAROLE COMMISSION;
WARDEN FCI ALLENWOOD
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civ. No. 06-cv-00342)
Honorable Malcolm Muir, District Judge
Submitted under Third Circuit LAR 34.1(a)
June 10, 2008
BEFORE: AMBRO, CHAGARES, and
GREENBERG, Circuit Judges
(Filed: July 9, 2008)

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Flora Edwards
115 Broadway
New York, NY 10006-0000
Attorney for Appellants
Martin C. Carlson
Acting United States Attorney
Kate L. Mershimer
Assistant United States Attorney
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108-0000
Attorneys for Appellee
OPINION OF THE COURT
GREENBERG, Circuit Judge.
I. INTRODUCTION
On February 15, 2006, appellant Christopher Furnari
filed a habeas corpus petition pursuant to 28 U.S.C. § 2241 in
the District Court claiming that the United States Parole

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1Throughout the record the family name is spelled both as
Luchese and Lucchese.
3
Commission (“Parole Commission”) improperly had denied him
parole. Furnari is serving a pre-Sentencing Guidelines 100-year
sentence (five consecutive 20-year sentences) for RICO and
Hobbs Act convictions related to extortion and racketeering.
Since the start of his incarceration the Parole Commission has
granted Furnari five parole hearings but has not ordered him
paroled either at the time of its decision or on some future date.
Furnari claims that the Parole Commission has based its denial
of parole on an improper calculation of his offense severity
rating and has failed to consider mitigating factors in his favor.
On June 20, 2007, the District Court denied Furnari’s petition
and, on the next day, Furnari filed a timely notice of appeal to
this Court.
II. FACTS AND PROCEDURAL HISTORY
Obviously this case has a long history but we only need
recount that history from 1986, when a jury convicted Furnari
of racketeering, extortion, and racketeering conspiracy under
RICO and the Hobbs Act in the United States District Court for
the Southern District of New York. Furnari was consigliere, a
high ranking position, of the Lucchese1 crime family.
Furthermore, the Government suspected that he was a member
of “the commission,” the national ruling body of the mafia, also
known as La Cosa Nostra, of which the Lucchese crime family
was a part. See United States v. Salerno, 868 F.2d 524, 543 (2d
Cir. 1989). Furnari’s conviction stemmed from an extortion and
labor bribery operation that the commission, which controlled

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large concrete construction contracts in New York City, ran as
one of its nefarious activities. In the concrete scheme the
commission demanded and received 2% of the price of concrete
contracts worth more than two million dollars and, in exchange,
ensured “labor peace.” The commission forced the concrete
companies to make payments or risk retaliation by labor unrest
or physical harm. Id. at 529.
Furnari currently is serving his 100-year sentence at the
Federal Correctional Institution in Allenwood in the Middle
District of Pennsylvania. On direct appeal from his convictions
and sentences Furnari argued that his 100-year sentence was
disproportionate to the gravity of his crimes because he was not
a mafia boss or underboss. The United States Court of Appeals
for the Second Circuit upheld the sentence because Furnari’s
role as consigliere made him the equivalent of an underboss and
Furnari’s sentence was consistent with the sentences of six of
his seven co-defendants and thus was consistent with sentences
imposed on similarly situated prisoners. Id. at 543. Since his
conviction Furnari has filed four petitions for habeas corpus, the
denial of the fourth of which he challenges on this appeal.
Furnari’s current status is that the Parole Commission has
denied him parole pending a 2011 rehearing.
(a) 1996-2000: The First Parole Hearing, the First
Habeas Corpus Petition and First Interim Parole Hearing
Furnari’s first parole hearing was in December 1996. At
the hearing the Government produced evidence of Furnari’s
involvement in a number of murders and other violent acts. The
Parole Commission assigned Furnari an offense severity rating
of Category Eight, the most severe rating. See 28 C.F.R. § 2.20.
Category Eight offenders are not granted parole in the absence

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of compelling mitigating circumstances.
The Parole Commission recommended that Furnari
continue to serve his sentence until a 15-year reconsideration
hearing in December 2011. In its Notice of Action the Parole
Commission specified that Furnari’s involvement in the
Lucchese crime family and his participation in murders and
violence were the pertinent factors warranting consideration for
release after more than 148 months served. See 28 C.F.R. §
2.20 (“For decisions exceeding the lower limit of the applicable
guideline category by more than 48 months, the [Parole]
Commission will specify the pertinent case factors upon which
it relied in reaching its decision.”). Furnari’s applicable parole
guideline category as set forth in 28 C.F.R. § 2.20 was 100+
months predicated on his offender characteristics. Of course,
service of 148 months imprisonment merely made Furnari
eligible for parole rather than ensuring that he would be paroled.
On August 19, 1997, the National Appeals Board (“Board”), the
administrative appeals authority in the parole system, affirmed
the decision of the Parole Commission. In reaching its result the
Board relied in part on information that Anthony Casso, a
violent mafia member, had supplied. In justifying this reliance
the Board pointed out that there was corroboration for some of
Casso’s information.
In February 1998 Furnari petitioned for a writ of habeas
corpus in the District Court contending that his Category Eight
rating was erroneous. The court denied Furnari’s petition on
April 12, 1999, finding that there was a rational basis for the
Parole Commission’s decision assigning him that category.
Furnari then appealed to this Court.
While that appeal was pending, the Parole Commission

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granted Furnari a statutory Interim Parole Hearing in December
1998 pursuant to 18 U.S.C. § 4208(h) and 28 C.F.R. § 2.14.
During the hearing Furnari argued that Casso’s information was
unreliable and he presented an affidavit from an assistant United
States attorney supporting his contention. Nevertheless the
Parole Commission did not change the prior order requiring
Furnari to serve his sentence until a 15-year reconsideration
hearing in December 2011. The Board affirmed the order of the
Parole Commission on April 2, 1999, and issued a Notice of
Action on Appeal.
In our disposition of Furnari’s appeal from the denial of
his first habeas corpus petition we took judicial notice of
Furnari’s December 1998 interim hearing and the April 2, 1999
Notice of Action on Appeal. Furnari v. Warden, Allenwood
F.C.I., 218 F.3d 250, 255-56 (3d Cir. 2000). We found that the
Parole Commission and the Board erred because they did not
explain whether they had continued to deny Furnari parole based
on Casso’s information and, if so, why they did so. Id. at 257.
Consequently, we vacated the District Court’s order denying the
habeas corpus petition and remanded the case with the direction
that the District Court enter a conditional order granting the
petition and directing the Parole Commission to provide a new
statement of reasons for its decision or conduct a de novo
hearing on Furnari’s parole application. Id. at 258.
In response to the District Court’s order implementing
our mandate, the Parole Commission conducted a de novo
hearing in December 2000 and upheld Furnari’s Category Eight
rating as well as its decision to postpone a rehearing for more
than 148 months. Furnari appealed to the Board which on April
24, 2001, affirmed the order of the Parole Commission, stating

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that the Parole Commission had chosen to rely on Casso’s
information in part because information from other witnesses
corroborated it.
(b) 2002: The Second Habeas Corpus Petition
In April 2002, Furnari filed a second habeas corpus
petition in the District Court advancing four points: (1) the
Parole Commission following the December 2000 hearing failed
to provide adequate reasons for crediting Casso’s information;
(2) the Parole Commission violated the Ex Post Facto Clause of
the Constitution by applying an inapplicable version of the
Guidelines for Decisionmaking, 28 C.F.R. § 2.20, adopted after
he committed his offenses; (3) the evidence did not support the
Parole Commission’s decision; and (4) the Parole Commission’s
reliance on conduct other than that of the offenses of the
conviction violated its own rules as well as due process of law.
On July 18, 2002, the District Court granted the petition
on the ex post facto contention and ordered the Parole
Commission to reevaluate Furnari’s appeal in accordance with
the version of 28 C.F.R. § 2.20 in effect at the time that Furnari
committed the offenses for which he had been convicted. But
the court denied Furnari’s petition in all other respects, finding
that the Parole Commission had a rational basis to support its
conclusions and properly had considered Furnari’s conduct
outside of the scope of his conviction in deciding his offense
severity rating. Furnari did not appeal to this Court from that
decision.
In response to the District Court’s July 18, 2002 order,
the Parole Commission issued a Notice of Action on August 13,
2002, stating that it had reevaluated Furnari’s case considering

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the correct version of 28 C.F.R. § 2.20 but had decided not to
change its prior decision. The Board affirmed the Parole
Commission’s order on November 14, 2002.
(c) 2003-2004: The Third Habeas Petition
On November 13, 2003, Furnari filed a third petition for
habeas corpus in the District Court claiming that the Parole
Commission’s August 13, 2002 decision violated due process of
law inasmuch as the Parole Commission in making its decision
relied on conduct not related to his offenses and the decision
lacked a rational basis because the Parole Commission in
reaching its result relied on Casso’s information. In March 2004
the District Court denied the petition, noting that it had
addressed and rejected the same arguments in its order of July
18, 2002, partially denying the habeas corpus application that
Furnari then was advancing. App. at 186. The court also held
that there was a rational basis for the Parole Commission’s
decision. Id.
Furnari appealed to this Court but we affirmed the
District Court’s order because we concluded that the Parole
Commission could consider Furnari’s conduct unrelated to the
offenses for which he had been convicted in determining his
offense severity rating. Moreover, we determined that the
Parole Commission had a rational basis for awarding Furnari a
Category Eight rating. Furnari v. United States Parole Comm’n,
125 Fed. App’x 435, 437 (3d Cir. 2005).
(d) 2005: Statutory Interim Parole Hearing and the
Current Habeas Petition
On June 8, 2005, Furnari received another statutory
interim hearing pursuant to 18 U.S.C. § 4208(h) and 28 C.F.R.

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2According to his brief filed October 17, 2007, Furnari was 83
years old at that time.
9
§ 2.14. At the time of the hearing the Parole Commission was
scheduled to expire on October 31, 2005. During the hearing
Furnari argued that information from Alphonse D’Arco in the
form of trial testimony corroborating Casso’s information
factually was impossible and the Parole Commission should not
consider the testimony in reaching its decision. The Parole
Commission denied Furnari parole on July 8, 2005, and adhered
to the 2011 rehearing date. On September 29, 2005, Congress
extended the life of the Parole Commission for an additional
three years to October 31, 2008, its current expiration date.
Furnari appealed from the Parole Commission’s July 8,
2005 order to the Board making the following claims: (1) the
Commission exceeded its authority when it scheduled a
rehearing in 2011; (2) his Category Eight severity rating was
unjust because it was based on information from unreliable
witnesses and factually was incorrect; (3) there was significant
information that D’Arco was not credible; (4) the Parole
Commission did not properly consider additional information
regarding the credibility of the informants in the interim hearing;
(5) his 100-year sentence was grossly disproportionate to his
crimes and the Parole Commission should have considered this
circumstance to be a mitigating factor when determining his
parole eligibility; and (6) the Parole Commission should have
been more lenient to him on the grounds of compassion,
considering his age2 and excellent behavior rating. On
November 23, 2005, the Board rejected all of Furnari’s
arguments and thus upheld the Parole’s Commission’s order.
On February 14, 2006, Furnari filed the habeas corpus

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petition, an appeal from the denial of which now is before us,
pursuant to 28 U.S.C. § 2241 in the District Court challenging
the Parole Commission’s July 8, 2005 decision and the Board’s
November 23, 2005 decision affirming the July 8, 2005
decision. He raised the following four claims in the District
Court: (1) the Parole Commission violated 18 U.S.C. § 4206(c),
section 235(b)(3) of the Sentencing Reform Act, and its own
regulations, by scheduling a rehearing date past the date of its
statutory expiration; (2) the Parole Commission’s Category
Eight severity rating lacked a rational basis; (3) the Board
violated due process of law by failing to consider what Furnari
considers to be exculpatory evidence; and (4) the Parole
Commission should have considered his 100-year sentence to be
grossly disproportionate and thus should have treated its length
as a mitigating circumstance in its decision.
By order entered on June 20, 2007, the District Court
denied Furnari’s petition. Furnari then filed a timely notice of
appeal of the District Court’s June 20, 2007 order to this Court.
We now adjudicate that appeal.
III. JURISDICTION AND STANDARDS OF REVIEW
The District Court had jurisdiction over this matter
pursuant to 28 U.S.C. § 2241(a). We have jurisdiction pursuant
to 28 U.S.C. §§ 1291 and 2253.
On appeal in this habeas corpus proceeding, we exercise
plenary review of the District Court’s legal conclusions. See
Wilson v. United States Parole Comm’n, 193 F.3d 195, 197 (3d
Cir. 1999). Our role in reviewing decisions of a district court
in a proceeding arising from a Parole Commission and Board

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disposition on a petition for a writ of habeas corpus is more
limited insofar as the review includes a review of the Parole
Commission’s and Board’s action. We review the
administrative findings of fact to determine “whether there is a
rational basis in the record for the [Parole Commission’s]
conclusions embodied in its statement of reasons.” Gambino v.
Morris, 134 F.3d 156, 160 (3d Cir. 1998) (quoting Zannino v.
Arnold, 531 F.2d 687, 691 (3d Cir. 1976)); see also 28 C.F.R. §
2.18 (“The granting of parole to an eligible prisoner rests in the
discretion of the U.S. Parole Commission.”).
IV. DISCUSSION
A. Was the District Court correct in holding that the
Parole Commission did not violate the Sentencing
Reform Act, 18 U.S.C. § 235(b)(3), when it scheduled a
rehearing date past the statutory expiration date for the
Commission?
Furnari claims that the Parole Commission violated
section 235(b)(3) of the Sentencing Reform Act, referred to as
a “winding down” provision, which at the time of Furnari’s
sentencing provided:
The United States Parole Commission shall set a
release date, for an individual who will be in its
jurisdiction a day before the expiration of five
years after the effective date of this Act, that is
within the range that applies to the prisoner under
the applicable guideline. A release date set
pursuant to this paragraph shall be set early
enough to permit consideration of an appeal of the

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release date, in accordance with Parole
Commission procedures, before the expiration of
five years following the effective date of this Act.
Sentencing Reform Act of 1984, Pub. L. No. 98-473, §
235(b)(3), 98 Stat. 2032 (1984) (prior to 1987 amendment).
Even though Congress has repealed section 235(b)(3) the parties
briefed this case on the basis of their understanding, with which
we agree, that it continues to control this pre-Sentencing
Guidelines case, though they disagree about the section’s effect.
When Congress enacted section 235(b)(3) the Parole
Commission was scheduled to expire five years after the
effective date of the Sentencing Reform Act and thus it is clear
that Congress contemplated that the Parole Commission should
not expire without setting release dates for prisoners within its
jurisdiction. Though the phrase “early enough to permit
consideration of an appeal of the release date” obviously is not
precise, it is applied to require that between three to six months
before the date of its expiration, a date that has been extended
several times, the Parole Commission must set a release date
which, of course, could be scheduled for long in the future. See
28 C.F.R. § 2.64(b) (1996) (“The release dates required by
section 235(b)(3) need not be set any earlier than the time
required to allow an administrative appeal within the ten-year
period, i.e., three to six months before the end of that period.”);
Lightsey v. Kastner, 846 F.2d 329, 332 (5th Cir. 1988).
Currently the Parole Board is scheduled to expire on
October 31, 2008. See United States Parole Commission
Extension Authority Act of 2005, P.L. No. 109-76, 199 Stat.
2035, § 2 (Sept. 29, 2005). Accordingly, inasmuch as section
235(b)(3) still requires that the Parole Commission before its

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expiration set dates for release early enough for appeals for
prisoners still within its jurisdiction one day before its
expiration, as of now no later than three to six months prior to
October 31, 2008, it should set release dates for prisoners who
will be within its jurisdiction one day before that date. See
United States ex rel. D’Agostino v. Keohane, 877 F.2d 1167,
1172 (3d Cir. 1989). Nevertheless the Parole Commission does
not have to act before the expiration of the three- to six-month
period, and if it does choose to act before or during the three- to
six-month period it is free later to set release dates beyond
October 31, 2008. See id.
Here, on July 8, 2005, the Parole Commission denied
Furnari parole and adhered to the rehearing date it had set for
2011 and thus it cannot be said that it set a release date in the
three- to six-month period before October 31, 2005, when, prior
to its latest extension, it was scheduled to expire. Though the
Parole Commission’s failure to set a release date might have
been problematical, Congress eliminated, or at least postponed,
the problem when on September 29, 2005, it extended the life of
the Parole Commission to October 31, 2008, when it now will
expire unless, as the Government contemplates will happen,
Congress extends its life.
In its order of June 20, 2007, now on appeal before us in
these habeas corpus proceedings challenging the Parole
Commission’s July 8, 2005 decision and the Board’s decision of
November 23, 2005, affirming the Parole Commission’s
decision, the District Court rejected Furnari’s claim that the
Parole Commission was in violation of section 235(b)(3), by
reason of having failed to set a release date, as the court noted
that “[the statute] will require the Parole Commission, prior to

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The Government contends that the Parole Commission
lawfully may comply with section 235(b)(3) by denying parole.
But inasmuch as the Parole Commission has not merely denied
Furnari parole but, instead, has set a hearing date for 2011, we
see no need to consider whether we agree with the Government.
On the other hand, we do not see how the Parole Commission
can comply with section 235(b)(3), which requires it to set a
“release date” early enough to permit the prisoner to appeal
from that release date to the Board before the Parole
Commission expires, simply by setting a hearing date for some
future date during the three-to six-month period before its
expiration.
14
its expiration, to set a definite release date . . . but that statute
does not require that the Parole Commission set such a date
now.” App. at 35. The District Court was correct because the
Parole Commission took its July 8, 2005 action setting the
rehearing date but not a release date before the end of three- to
six-month period prior to the expiration of the Commission then
scheduled for October 31, 2005, and before the now extended
date of October 31, 2008. Thus, we see no basis to reverse the
order of the District Court of June 20, 1997, on the theory that
the Parole Commission did not timely perform its duties and
accordingly to the extent that Furnari challenges the timeliness
of the Parole Commission’s decision we will affirm the June 20,
2007 order.
In affirming we are doing so without precluding Furnari
from filing a new habeas corpus action at the end of the three-
to six-month period prior to October 31, 2008, if the Parole
Commission by that time has not set a release date for him.3 In

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4 We think that it is appropriate that we consider Furnari’s
remaining points inasmuch as the time when he may raise the
points in a new petition for habeas corpus may be only a few
weeks in the future. Functionally, therefore, insofar as this case
implicates the Parole Commission’s failure to act we are in a
situation very little different from that in which we remand a
case for a new trial and in our disposition consider issues likely
to be raised again on remand though we need not do so. See,
e.g., Diehl v. Blaw-Knox, 360 F.3d 426, 433 n.5 (3d Cir. 2004).
Moreover, Furnari’s arguments, if accepted, may provide a basis
for habeas corpus relief that is independent of his argument that
the Parole Commission should have set a release date by now.
15
this regard we reiterate that the Parole Commission currently is
scheduled to expire on October 31, 2008, and, though the
Government believes that Congress will extend its life, we make
our determination on the basis of what the law now is rather
than what it may become. Of course, we express no opinion on
what disposition the District Court should make in a new habeas
corpus action if Furnari brings it, particularly inasmuch as
Congress may extend the life of the Parole Commission again
even after the three- to six-month period expires or might
transfer its functions to another authority.
B. Does Furnari’s repeated litigation of the Parole
Commission’s denial of parole based on his offense
severity rating constitute an abuse of writ?4
Furnari also claimed in his petition in the District Court
that the Parole Commission erroneously considered unreliable

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5Of course, the Parole Commission ultimately adhered to the
Category Eight rating.
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testimony when it determined that his offense severity rating
was Category Eight. The Government answers that by asserting
this claim Furnari is abusing the writ of habeas corpus.
Furnari has raised the claim of an erroneous offense
severity rating in all four of his habeas corpus petitions. The
District Court denied his first petition in April 1999 but we
vacated that order after we took notice of the Board’s failure to
specify the pertinent case factors on which it relied in reaching
its decision. Furnari, 218 F.3d at 256.5 The District Court
rejected the erroneous offense severity claim in Furnari’s second
habeas petition in its July 18, 2002 order, a decision that Furnari
did not appeal to this Court. In March 2004 the District Court
denied Furnari’s third habeas corpus petition seeking relief in
part on the basis of an erroneous offense severity rating. In that
decision the District Court noted that it had addressed the same
issue in its July 18, 2002 order. As we have indicated, we
affirmed the District Court’s March 2004 order. Furnari, 125
Fed. App’x at 437. When the District Court denied this claim
and all other claims in Furnari’s fourth habeas petition in its
June 20, 2007 order, it stated that he previously had raised the
issue and that we had upheld the District Court’s rejections of it.
When a prisoner files multiple petitions for habeas corpus
relief, the abuse of the writ doctrine as set forth in 28 U.S.C. §
2244(a) may bar his claims:
No circuit or district judge shall be required to
entertain an application for a writ of habeas

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corpus to inquire into the detention of a person
pursuant to a judgment of a court of the United
States if it appears that the legality of such
detention has been determined by a judge or court
of the United States on a prior application for a
writ of habeas corpus, except as provided in
section 2255.
The Supreme Court has determined that “nothing in [28 U.S.C.]
§ 2255 requires that a sentencing court grant a hearing on a
successive motion alleging a ground for relief already fully
considered on a prior motion and decided against the prisoner.”
Sanders v. United States, 373 U.S. 1, 9, 83 S.Ct. 1068, 1074
(1963).
The Court in Sanders explained that a court may grant
controlling weight to a denial of a prior application for habeas
corpus when three criteria are met: (1) the same ground
presented in the successive application was determined
adversely to the applicant on the previous application; (2) the
previous determination was made on the merits; and (3) “the
ends of justice” would not be served by reaching the merits of
the subsequent application. Id. at 11, 83 S.Ct. at 1075.
In a case in which a successive petition includes a claim
for relief already fully considered and rejected, if the
Government opposes the petition on an abuse of the writ basis
it has the burden to plead abuse of the writ and must make the
claim with clarity and particularity in its answer to the petition.
Id. at 10-11, 83 S.Ct. at 1074-75. But once the Government has
made a claim of abuse of the writ, the burden shifts to the
petitioner to show that “the ends of justice” would be served by
the court entertaining his petition, a showing that the petitioner

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satisfies by supplementing his claim by making a “colorable
showing of factual innocence.” Kuhlmann v. Wilson, 477 U.S.
436, 454, 106 S.Ct. 2616, 2627 (1986).
Here the Government argues that Furnari has abused the
writ by again asserting his severity rating claim and it has
identified the relevant history of Furnari’s petitions to support
this contention. Specifically, the Government cites the District
Court’s July 18, 2002 order issued in response to Furnari’s
second habeas petition in which the District Court reviewed the
Parole Commission’s explanation of its credibility assessment
of the Government informants and found that the Parole
Commission had a rational basis for its acceptance of and
reliance on the information received at the parole hearing.
Accordingly, the District Court already had considered fully and
rejected the severity rating claim on the merits before Furnari
presented the same claim in his current application. Thus, we
may give controlling weight to the denial of Furnari’s prior
habeas corpus petition with respect to the severity rating claim
so long as giving it that weight would not offend “the ends of
justice.”
As we stated above, to meet the requirements for an ends
of justice claim, Furnari must supplement his claim with a
“colorable showing of factual innocence.” Kuhlmann, 477 U.S.
at 454, 106 S.Ct. at 2627. But instead of claiming that he is
innocent of the offenses for which he was convicted as
Kuhlmann requires, Furnari claims that he is innocent of
uncharged murders and violent conduct that the Parole
Commission considered when it made its determination of his
offense severity rating. He argues that we can consider this
claim when determining whether he has made a colorable

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showing of factual innocence and points to two Supreme Court
cases for support of his argument: Murray v. Carrier, 477 U.S.
478, 106 S.Ct. 2639 (1986), in which the Court indicated that in
extraordinary cases, where a constitutional violation probably
has resulted in the conviction of an individual who is actually
innocent, a district court may grant the writ; and Schlup v. Delo,
513 U.S. 298, 115 S.Ct. 851 (1995), in which the Court stated
that in order to establish a probability of innocence a petitioner
must show that it is more likely than not that no reasonable juror
would have convicted him in light of new evidence not
presented at the trial.
But these cases are not helpful to Furnari because they
address situations in which prisoners may be innocent of the
offenses for which they were convicted and imprisoned. Furnari
does not supplement his claim with a colorable showing of
factual innocence of the offenses for which he was convicted
and, in fact, in these proceedings does not challenge his
convictions on any basis. Indeed, no one can describe better
than Furnari himself the wrong focus of his “colorable showing
of factual innocence” claim than he does in his brief in which he
explains that he “finds himself in the unique position of having
to prove himself innocent of conduct for which he never has
been charged in order to contest what appears to be an
irrebutable presumption against his parole.” Appellant’s br. at
41-42.
But even if he could make a showing of actual innocence
with respect to uncharged conduct he would not demonstrate
that an “ends of justice” circumvention of the abuse of the writ
bar would be appropriate because he would not make a
colorable showing of actual innocence of the offenses for which

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he was convicted. Moreover, even if he could satisfy the “ends
of justice” standard by making a showing different from a
“colorable showing of factual innocence” of the offenses of
conviction, we see nothing in the record to justify a conclusion
that Furnari has made that showing by demonstrating that the
Parole Commission wrongfully considered the uncharged
conduct in calculating his category Eight severity rating.
Accordingly, he has not shown that “the ends of justice” would
be served by reaching the merits of his severity rating claim.
Furnari also asks that we consider his latest challenge to
the truth of the information corroborating Casso’s information
as new evidence. But neither the information nor the claim is
new. We previously have considered and rejected Furnari’s
contention that there was no rational basis for the Parole
Commission’s justification for his Category Eight rating. See
Furnari, 125 Fed. App’x at 437 (confirming the existence of a
rational basis for the Parole Commission’s conclusions). Thus,
by advancing the litigation on the severity rating issue Furnari
is abusing the writ and, accordingly, we will affirm the District
Court’s denial of habeas relief on this claim.
C. Did the Parole Commission properly consider
exculpatory evidence in its decision to continue to deny
Furnari parole?
Furnari claims that the Parole Commission’s findings
regarding the credibility of the information from various
informants are arbitrary, capricious, and without a rational basis.
We already have held that the Parole Commission had a rational
basis for its factual findings with respect to Furnari’s alleged
involvement in uncharged murders. Furnari, 125 Fed. App’x at
437. Nevertheless we will consider this contention inasmuch as

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21
the Government does not contend that Furnari is abusing the
writ by advancing the claim.
Congress has given the Parole Commission great
discretion concerning matters of parole. See 18 U.S.C. § 4203.
In addition, applicable regulations permit the Parole
Commission to use all relevant, available information in making
parole determinations. Thus, 28 C.F.R. § 2.19(c) provides that:
The Commission may take into account any
substantial information available to it in
establishing the prisoner’s offense severity rating,
salient factor score, and any aggravating or
mitigating circumstances, provided the prisoner is
apprised of the information and afforded an
opportunity to respond. If the prisoner disputes
the accuracy of the information presented, the
Commission shall resolve such dispute by the
preponderance of the evidence standard; that is,
the commission shall rely upon such information
only to the extent that it represents the
explanation of the facts that best accords with
reason and probability.
18 U.S.C. § 4206(c) permits the Parole Commission to
grant or deny release on parole notwithstanding the guidelines
of that section so long as it has good cause for doing so and it
furnishes the prisoner with written notice stating with
particularity the reasons for its determination. “Good cause”
requires substantial reasons for the Parole Commission’s action
and includes only grounds which are “not arbitrary, irrational,
unreasonable, irrelevant or capricious.” Harris v. Martin, 792
F.2d 52, 55 (3d Cir. 1986). “Good cause” may include

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22
considerations of factors such as whether “the prisoner was
involved in an offense with an unusual degree of sophistication
or planning or has a lengthy prior record, or was part of a large
scale conspiracy or continuing criminal enterprise.” Romano v.
Baer, 805 F.2d 268, 270 (7th Cir. 1986) (quotation marks and
citation omitted). Although the Parole Commission’s decisions
must have a factual basis, judicial review is limited to whether
there is “some evidence” in the record to support its decision.
Maddox v. United States Parole Comm’n, 821 F.2d 997, 999
(5th Cir. 1987).
When there is conflicting information available to the
Parole Commission, it must resolve disputes about the
information by “a preponderance of the evidence.” Gambino v.
Morris, 134 F.3d at 168. See Campbell v. United States Parole
Comm’n, 704 F.2d 106, 114 (3d Cir. 1983). Clearly we cannot
overturn the Parole Commission’s credibility determination if
there is a basis for its decision. See Hackett v. United States
Parole Comm’n, 851 F.2d 127, 131 (6th Cir. 1987). Moreover,
the Parole Commission is entrusted with the power to determine
the weight to be accorded mitigating factors.
Furnari asserts that the Parole Commission improperly
discredited an affidavit of George Zappola and an autobiography
of Salvatore Gravano that support his position minimizing his
role in violent mafia criminal activity while assigning too much
credit to adverse information from Thomas Carew in its
November 23, 2005 Notice of Action on Appeal. In that notice,
the Board explained its decision regarding its assessment of the
credibility of conflicting information in the record:
The Board rejects your claim and finds that the
affidavit does not prove that you had nothing to

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do with the murder of Richard Taglianetti. The
Board finds Zappola’s affidavit not to be credible
because it was submitted so late, five years after
you made this argument at your initial hearing in
2000, and because it is not corroborated, whereas
the reason for Taglianetti’s murder on which the
Commission relied was corroborated by several
individuals. Further, Zappola affirms in his
affidavit that ‘Taglianetti was killed only because
of what he did to my wife’ (Exhibit X), but that
assertion is contradicted by evidence in your
Exhibits V and W. The Board finds more
credible the contradictory evidence contained in
the exhibits. First, according to the testimony of
an FBI agent set forth in Exhibit V, Taglianetti’s
argument with his sister-in-law was not the sole
or even the most important reason for his murder,
but was simply the event that caused the Lucchese
Family to more vigorously pursue the still
existing contract that you put out on him in 1983
when you were the Lucchese consigliere.
[Testimony from FBI Agent Byrne omitted.]
Second, as shown in Exhibit W, when Zappola
pleaded guilty to Taglianetti’s murder, he never
mentioned avenging his wife’s honor or her being
‘slapped around’ by Taglianetti as a reason for the
murder. He affirmed that the murder was to
advance his position in the racketeering
enterprise. Zappola testified at the plea hearing
that he conspired with others to murder
Taglianetti ‘for the purpose of maintaining and

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24
increasing my position in an association in fact
enterprise, consisting of myself and others, which
enterprise engaged in racketeering activity.’
App. at 121. It is clear from the above that the Board considered
the evidence concerning Furnari’s uncharged conduct and found
that the information Furnari claims exculpates him from
criminal conduct attributed to him is less credible than that
which implicates him in mafia related murders and beatings. Id.
Furnari attempts to analogize his case to Gambino in
which we found that the Parole Commission’s denial of parole
was “arbitrary and capricious” and thus remanded the case for
reconsideration. 134 F.2d at 165. But this case is
distinguishable from Gambino because we based our
conclusions there in part on the fact that the Parole Commission
relied on information from unnamed sources, a procedure that
deprived the prisoner of the opportunity to rebut the
information. Thus, in Gambino the Parole Commission
proceedings denied the prisoner due process of law. Id. at 163.
Moreover, in Gambino the Parole Commission relied on facts
previously found to be erroneous without information to suggest
otherwise. Id. at 162. In Furnari’s case, however, there is
considerable information supplying good cause for the Parole
Commission’s decision.
Furnari is disappointed by the limited weight and
credibility that the Parole Commission and the Board afforded
the Zappola affidavit, but it is apparent it had a factual basis for
its determination. The reports from the Board are thorough and
reasonable. Furthermore, the Parole Commission considered
Furnari’s information and articulated a rational basis for
rejecting its credibility, a determination solely within its

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6We note that the abuse of writ doctrine also might apply to
this claim. Under McClesky v. Zant failure to raise a claim that
could have been raised in an earlier habeas corpus petition can
be grounds for dismissal of a later petition as an abuse of the
writ unless the prisoner can meet the burden of showing cause
and prejudice with respect to the omission. 499 U.S. 467, 492-
93, 111 S.Ct. 1454, 1469-70 (1991). Here Furnari did not raise
his proportionality claim in his previous petitions, but we
nevertheless will consider it now because the Government did
not plead abuse of the writ as an answer to this claim.
25
discretion. Accordingly, the District Court properly denied
Furnari’s exculpatory evidence claim of the habeas petition.
D. Did the Parole Commission properly consider
sentence proportionality as a mitigating factor in its
decision to deny parole?
Furnari claims that the Parole Commission should have
taken into account the lack of proportionality of his sentence
when on July 8, 2005, it adhered to its prior determination to
postpone any parole decision until a rehearing in 2011.6 It is
unclear, however, whether he is challenging his sentence ab
initio as the sentencing court imposed it or is challenging it on
the basis of the Parole Commission’s allegedly erroneous
exercise of its discretion in weighing the length of his sentence
as a possible mitigating factor warranting release on parole.
Therefore we will consider the sentencing point as if Furnari
presented both ways.
If Furnari is challenging his sentence ab initio, he brought
his action in the wrong district because a defendant may

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7 Furthermore, according to Furnari’s brief, he has filed a
motion in the Southern District of New York seeking “to vacate
the judgment imposing the 100 year sentence on the grounds
that the sentence was based on false information.” Appellant’s
br. at 5. We do not know if the court has ruled on that motion.
26
collaterally attack his conviction and sentence only in a
proceeding before the sentencing court pursuant to 28 U.S.C. §
2255. See United States v. Frady, 456 U.S. 152, 165, 102 S.Ct.
1584, 1593 (1982); United States v. Addonizio, 442 U.S. 178,
179, 99 S.Ct. 2235, 2237 (1979); see also Knight v. United
States, 37 F.3d 769, 772 (1st Cir. 1994). In this regard 28
U.S.C. § 2255 provides:
A prisoner in custody under sentence of a court
established by Act of Congress claiming the right
to be released upon the ground that the sentence
was imposed in violation of the Constitution or
laws of the United States . . . may move the court
which imposed the sentence to vacate, set aside or
correct the sentence.
Accordingly, if Furnari wished to attack his sentence ab initio,
he was required to do so in a section 2255 petition in the
Southern District of New York where he was convicted as
neither the Parole Commission nor the District Court in the
Middle District of Pennsylvania could address a challenge to his
sentence as imposed on the basis that it was disproportionate as
compared to that of other defendants. Moreover, Furnari did
challenge the proportionality of his sentence on direct appeal but
the United States Court of Appeals for the Second Circuit found
Furnari’s sentence to be proportional. Salerno, 868 F.2d at 543.7

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If, on the other hand, Furnari is challenging the Parole
Commission’s refusal to find the length of his sentence a
mitigating factor warranting a grant of parole, in a jurisdictional
sense he brought his claim correctly as he is confined in the
Middle District of Pennsylvania and we may consider it on the
merits inasmuch as 28 U.S.C. § 2241 allows habeas corpus
petitions to be brought attacking the Parole Commission’s
exercise of discretion in making parole decisions in the district
in which the petitioner is confined. See United States v.
Eakman, 378 F.3d 294, 297 (3d Cir. 2004); Coady v. Vaughn,
251 F.3d 480, 485 (3d Cir. 2001); United States v. Kennedy,
851 F.2d 689, 690-91 (3d Cir. 1988).
Parole determination criteria focus on the nature and
circumstances of the offense and the history and characteristics
of the offender as well as the consequences of releasing the
prisoner back into the public:
If an eligible prisoner has substantially observed
the rules of the institution or institutions to which
he has been confined, and if the Commission,
upon consideration of the nature and
circumstances of the offense and the history and
characteristics of the prisoner, determines: (1) that
release would not depreciate the seriousness of his
offense or promote disrespect for the law; and (2)
that release would not jeopardize the public
welfare; subject to the provisions of subsections
(b) and (c) of this section, and pursuant to
guidelines promulgated by the Commission
pursuant to section 4203(a)(1), such prisoner shall
be released.

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18 U.S.C. § 4206(a)(1)-(2). Section 4206(a) does not, however,
mention the length of the sentence as imposed as a factor for the
Parole Commission to consider in granting parole and thus
Congress did not intend it to be a body with authority to review
an initial sentencing determination of a sentencing court.
On the other hand, the Parole Commission has the
complete authority to assign the weight to any mitigating factors
in determining whether to grant parole. See Campbell, 704 F.2d
at 113. We have held that “the statute instructs the Commission
to use its own judgment in factoring sentencing length because
sentencing and parole are separate, although related, processes.”
Geraghty v. United States Parole Comm’n, 719 F.2d 1199, 1208
(3d Cir. 1983). Accordingly, when considering mitigating
factors in its determination of when to set a release date or
rehearing date, the Parole Commission can consider the length
of a prisoner’s sentence as compared to those of similarly
situated prisoners. Id. But in Farkas v. United States, 744 F.2d
37, 40 (6th Cir. 1984), the court held that the Parole
Commission had no obligation to consider the petitioner’s
sentence length in making its parole decision.
In addressing the proportionality issue, the Board stated:
You compare your sentence to sentences imposed
on other defendants in other cases, but not to your
own co-defendants. The Board refers you to the
Second Circuit’s decision, United States v.
Salerno, 868 F.2d 524, 542-543 (2d Cir. 1989),
where the court affirmed your 100-year sentence
and the 100-year sentences imposed on all but one
of your co-defendants. The Second Circuit found
that your 100-year sentence was constitutional

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29
and it rejected your argument that your sentence
was disproportionate to your crime, pointing out
that you were a consigliere of the Luchese Family
and ‘had been involved in many of the recorded
meetings where intimate knowledge of the
Commission’s violent business was evident.’ 868
F.2d at 543. The Board agrees with the
Commission’s conclusion on page 4 of the
hearing summary that your sentence was not
disproportionate to your crime and it declines to
change the Commission’s decision for you.
App. at 122. Though they were not subject to a statutory
obligation to do so, the Parole Commission and the Board
considered the length of Furnari’s sentence and found that it was
not an appropriate mitigating circumstance warranting the grant
of parole. We cannot possibly reject their conclusions in this
respect because the mafia, an organization of which Furnari was
a part and in whose activities he participated, as the record in
this case demonstrates, intolerably set itself up as a sort of
shadow government, complete with an established structure,
exercising taxing, regulatory, and adjudicative authority over its
members and victims. Indeed, even Furnari’s brief, which quite
naturally attempts to minimize his mafia activities, paints what
to us is a disturbing picture of the conduct for which he was
convicted. There can be no doubt but that the Government must
suppress the mafia and clearly the imposition of substantial
criminal sentences on persons engaging in mafia criminal
activity is one way to do so. Inasmuch as the Parole
Commission has full discretion to determine the weight of
mitigating factors in considering whether to grant parole, the
District Court correctly held that the Parole Commission

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properly considered the length of Furnari’s sentence when
making its parole determination.
V. CONCLUSION
In view of the aforesaid, we will affirm the District
Court’s June 20, 2007 order.

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