35 F.3d 1494 (11th Cir. 1994), 91-8002, Sultenfuss v. Snow

Docket Nº:91-8002.
Citation:35 F.3d 1494
Party Name:Stephen SULTENFUSS, Plaintiff-Appellant, Charles McMulling, et al., Plaintiffs, v. Wayne SNOW, Jr., James T. Morris, Mobley Howell, Michael H. Wing, Bettye O. Hutchings, Michael J. Bowers, Defendants-Appellees.
Case Date:October 05, 1994
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1494

35 F.3d 1494 (11th Cir. 1994)

Stephen SULTENFUSS, Plaintiff-Appellant,

Charles McMulling, et al., Plaintiffs,

v.

Wayne SNOW, Jr., James T. Morris, Mobley Howell, Michael H.

Wing, Bettye O. Hutchings, Michael J. Bowers,

Defendants-Appellees.

No. 91-8002.

United States Court of Appeals, Eleventh Circuit

October 5, 1994

Page 1495

Stephen G. Sultenfuss, Anna Maria, FL, Jill A. Pryor, Bondurant Mixon & Elmore, Atlanta, GA, for appellant.

David A. Webster, Sumner & Hewes, Atlanta, GA, for amicus--ACLU of Ga.

Michael J. Bowers, Atty. Gen., Daryl Alan Robinson, Terry L. Long, Atlanta, GA, for appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before TJOFLAT, Chief Judge, KRAVITCH, HATCHETT, ANDERSON, COX, BIRCH, DUBINA, BLACK, CARNES and BARKETT, Circuit Judges, [*] and CLARK [**], Senior Circuit Judge.

BIRCH, Circuit Judge:

In this case, we must decide whether the current Georgia parole system, as embodied in the Georgia Constitution, the Georgia statutes, and the rules and guidelines promulgated pursuant to the statutes, creates a liberty interest in parole protected by the Due Process Clause of the Fourteenth Amendment. The district court found no protected liberty interest, and we affirm.

I. BACKGROUND

  1. The Georgia Parole Guidelines System

    The Georgia parole system is set out in the Georgia Constitution, several Georgia statutes,

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    and the rules and regulations promulgated by the state Board of Pardons and Paroles (the "Board") pursuant to those statutes. The Georgia Constitution vests the Board with the exclusive power to grant reprieves, pardons, and paroles. Ga. Const. art. IV, Sec. 2, p 2. In 1980, the Georgia legislature enacted a law requiring the Board to implement a parole guidelines system. That statute provides in pertinent part:

    The board shall adopt, implement, and maintain a parole guidelines system for determining parole action. The guidelines system shall be used in determining parole actions on all inmates, except those serving life sentences, who will become statutorily eligible for parole consideration. The system shall be consistent with the board's primary goal of protecting society and shall take into consideration the severity of the current offense, the inmate's prior criminal history, the inmate's conduct, and the social factors which the board has found to have value in predicting the probability of further criminal behavior and successful adjustment under parole supervision.

    O.C.G.A. Sec. 42-9-40(a). Section 42-9-40 is qualified, however, by section 42-9-42, which provides in relevant part:

    No inmate shall be placed on parole until and unless the board shall find that there is reasonable probability that, if he is so released, he will live and conduct himself as a respectable and law-abiding person and that his release will be compatible with his own welfare and the welfare of society. Furthermore, no person shall be released on pardon or placed on parole unless and until the board is satisfied that he will be suitably employed in self-sustaining employment or that he will not become a public charge.

    Id. Sec. 42-9-42(c).

    Pursuant to these provisions, the Board adopted and maintains the Georgia Parole Decision Guidelines System (the "Guidelines"). 1 That system is embodied in the rules and regulations passed by the Board pursuant to O.C.G.A. Sec. 42-9-40 and in accordance with the Georgia Administrative Procedure Act, O.C.G.A. Sec. 50-13-1 et seq. The stated purpose of the Guidelines is as follows: "In the parole decision process, the Board shall utilize a set of guidelines which consider both the severity of an individual's offense and the likelihood of the individual successfully completing a term of supervision on parole." Parole Decision Guidelines System p 8-1.01.

    Other rules and regulations of the Board also shed light on the purpose and function of the system. Chapter 475-3-.05, for instance, provides as follows:

    The Parole Decision Guidelines System is an aid to the Board in making more consistent, soundly based and explainable parole decisions and does not create a liberty interest. The Board specifically reserves the right to exercise its discretion under Georgia Law to disagree with the recommendation resulting from application of the

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    Parole Decision Guidelines and may make an independent decision to deny parole or establish a Tentative Parole Month at any time prior to sentence expiration.

    Ga.R. ch. 475-3-.05. Moreover, Annexure 2, an essential component of the Guidelines, contains similar language:

    Parole Decision Guidelines help the Board make a more consistent, soundly based, prompt, and explainable parole decision. Guidelines help the Board decide on a Tentative Parole Month for the inmate or decide that the inmate will complete his sentence without parole. When making decisions, the Board may depart from the Guidelines recommendation and make an independent decision using the full discretion given it under Georgia Law. The length of the prison sentence imposed by the court will be considered in establishing a Tentative Parole Month.

    Parole Decision Guidelines System, Annexure 2. 2 These provisions set forth the fundamental purpose and function of the Guidelines.

    The Guidelines establish a step-by-step procedure for the Board to follow in making parole determinations for eligible inmates. First, the Board assigns the inmate a Crime Severity Level. According to the Guidelines, "[t]he Board deems the nature of the offense to be the most important element in the parole decision. Consequently, the guidelines are to be structured around a Crime Severity Index ranking crimes by increasing degree of seriousness." Parole Decision Guidelines System p 8-1.01. Using a table ranking various crimes in terms of severity, the Board assigns each eligible inmate a Crime Severity Level of I to VII.

    Next, the Board assigns the inmate a Parole Success Likelihood Score. "The second component of the Parole Decision Guidelines System combines eight social and criminal history factors found to relate to the likelihood of one's success on parole, which are labeled 'Parole Success Factors.' " Id. p 8-17.01. Rating the inmate on each of these eight factors, the Board arrives at a Parole Success Likelihood Score ranging form 0 to 20 for each inmate.

    The Board then uses the Parole Decision Grid to formulate the months-to-serve recommendation. The Parole Decision Grid combines the inmate's Crime Severity Level with the Parole Success Likelihood Score to arrive at a months-to-serve recommendation. Adding the months-to-serve recommendation to the date of the controlling sentence provides the inmate's Tentative Parole Month. "The Tentative Parole Month, during which the offender may expect to be released, absent new information or other cause to cancel the Board's tentative release decision, shall be calculated by adding the recommended months-to-serve to the compute-from date of the controlling sentence." Id. p 8-27.01.

    A central point of contention between the parties is whether the Tentative Parole Month is a final, binding determination. The appellant argues that the Tentative Parole Month may be changed only for "new information or other cause," id., as specified in the Guidelines. The Board, on the other hand, maintains that it has the authority to exercise discretion in departing from the grid recommendation. As noted earlier, several of the rules and regulations expressly provide for departure. 3 Annexure 2, which contains the Parole Decision Grid, states that "the Board may depart from the Guidelines recommendation and make an independent decision using the full discretion given it under Georgia Law." Id., Annexure 2. 4 The

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    Board thus maintains that, in arriving at the Tentative Parole Month, it considers the individual circumstances in each inmate's case, as well as the recommendation of the Parole Decision Grid.

  2. Application of the Guidelines to Sultenfuss

    The appellant, Stephen Sultenfuss, was convicted of two separate drug charges involving possession of cocaine. He received two concurrent sentences, the longest of which was fifteen years set to run from August 24, 1986, and set to expire on August 23, 2001. 5

    In order to determine Sultenfuss' Tentative Parole Month, the Board used the Guidelines. Based on his two convictions, Sultenfuss' Crime Severity Level was II. The Board then analyzed the Parole Success Factors and gave Sultenfuss a Parole Success Likelihood Score of 11. Based on these two scores, the Parole Decision Grid resulted in a recommended incarceration period of ten months before parole. Nevertheless, the Board departed from the grid recommendation. Finding that the Crime Severity Level and Parole Success Factors did not adequately reflect the true nature of Sultenfuss' case, 6 the Board recommended a term of 61 months, yielding a Tentative Parole Month of January 1992. 7

    On July 15, 1988, Sultenfuss and several other inmates filed a pro se complaint under 42 U.S.C. Sec. 1983 in the United States District Court for the Northern District of Georgia. Claiming that the Board had violated their rights to due process and equal protection by departing from the grid recommendation in setting release dates, the inmates sought declaratory and injunctive relief as well as compensatory damages. Relying on Slocum v. Georgia State Bd. of Pardons & Paroles, 678 F.2d 940 (11th Cir.) (finding no liberty interest in Georgia parole system prior to 1980 changes), cert. denied, 459 U.S. 1043, 103 S.Ct. 462, 74 L.Ed.2d 612 (1982), the district court sua sponte dismissed the complaint as frivolous under 28 U.S.C. Sec. 1915(d).

    Sultenfuss was the only inmate to appeal...

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