365 F.Supp. 925 (D.Conn. 1973), Civ. B-853, Battle v. Norton

Docket Nº:Civ. B-853
Citation:365 F.Supp. 925
Party Name:Battle v. Norton
Case Date:October 23, 1973
Court:United States District Courts, 2nd Circuit, District of Connecticut

Page 925

365 F.Supp. 925 (D.Conn. 1973)



John J. NORTON, Warden, Federal Correctional Institution, Danbury, Connecticut, et al.

Civ. No. B-853.

United States District Court, D. Connecticut.

Oct. 23, 1973

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Dennis Curtis, New Haven, Conn., for petitioner.

Peter Mear, Asst. U. S. Atty., New Haven, Conn., for respondents.


NEWMAN, District Judge.

This case raises interesting and potentially troublesome issues concerning the decision-making process of the United States Board of Parole. Petitioner was sentenced on March 30, 1973, to serve eighteen months for the offense of failure to appear. 18 U.S.C. § 3150. Sentence was imposed pursuant to 18 U.S.C. § 4208(a)(2), which makes a prisoner eligible for parole "at such time as the board of parole may determine," rather than after serving one-third of the sentence, as required by 18 U.S.C. § 4202.

While incarcerated at the Federal Correctional Institution at Danbury, petitioner was considered for parole pursuant to the Experimental Parole Board Regionalization Project (hereafter "pilot project") adopted by the Board on October 19, 1972. Bureau of Prisons Operations Memorandum (B.P.O.M.) 40100.14. This pilot project was put into effect for an expected one-year period at five institutions in the Northeast, including the Federal Correctional Institution, Danbury. It introduced several innovative and generally constructive changes to parole procedures, including a requirement that the reasons for a parole decision be communicated to the inmate. Ibid.¶ 6. On July 27, 1973, petitioner was denied parole and continued to expiration. Under the caption "reasons" (plural original), he was told: "Your release at this time would depreciate the seriousness of the offense committed." According to petitioner's sentence computation record, his mandatory release date, after credit for pre-trial detention time and good time, is November 24, 1973, although petitioner alleges, and the Government's response apparently agrees, that his mandatory release date is October 26, 1973.

On August 14, 1973, petitioner filed this action against the warden at Danbury and the Board seeking a writ of habeas corpus or mandamus to secure his release and to require the Board to follow its statutory obligations. His essential complaint is that specification of the reason given for denial of parole demonstrates that the decision to deny parole was arbitrary and beyond the discretion committed to the Board by 18 U.S.C. § 4203.

The petition was originally dismissed on August 27, 1973, for failure to exhaust the administrative appeals procedure of the pilot project. See Lupo v. Attorney General, Civil No. B-820 (D.Conn. July 17, 1973). Unlike most review procedures, which specify maximum time periods for taking appeals, the review procedure of the pilot project specifies minimum time periods prior to which appeals may not be taken. Review of the initial decision made by two hearing examiners may not be sought from the Regional Board Member until thirty days after the examiners' decision, and the Regional Member's decision

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may not be appealed to a three-member panel of the Board until ninety days after its receipt. B.P.O.M. 40100.14, ¶ 6. These waiting periods, which must precede review and appeal, are surely not among the commendable features of the pilot project, and have been replaced effective October 1, 1973; 1 nevertheless in this District their observance has, as a general rule, been required. Though petitioner originally claimed his mandatory release date would arrive before he could pursue his administrative appeals, he was nevertheless required to exhaust because there had been no indication that the Board would apply these inexplicable waiting periods to him.

Petitioner then pursued the first level of review to the Regional Board Member. After receiving no response, he telephoned the Board and could receive no assurance that his request for review and appeal would be considered prior to his mandatory release date. In these circumstances administrative remedies were not realistically available. This Court therefore granted petitioner's motion for reconsideration on September 19, 1973, directed respondents to respond to the petition, and appointed counsel for petitioner. A hearing was held on September 28, 1973, at which oral argument but not evidence was presented. Respondents subsequently filed an affidavit of Maurice H. Sigler, Chairman of the Parole Board (set out in full as appx. 1, infra), and a report on the Board's decision-making policies and practices prepared by the Research Center of the National Council on Crime and Delinquency. Hoffman and Gottfredson, Paroling Policy Guidelines: A Matter of Equity, June, 1973 (hereafter "NCCD Report").

Jurisdiction, which neither side has considered, is not entirely clear. Petitioner is essentially suing the Board to require it to conform its decision-making process to what he claims to be its statutory requirements. There is authority that such suits must be brought in the District of Columbia, the situs of the Board. Howell v. Hiatt, 199 F.2d 584, 585 (5th Cir. 1952); Langston v. Ciccone, 313 F.Supp. 56, 60 (W.D.Mo.1970); Head v. Kearney, 142 F.Supp. 569, 570 (E.D.Tex.1956). However, petitioner has also sued the warden, and one claim of relief seeks immediate release. That claim properly invokes the habeas corpus jurisdiction of this Court. 28 U.S.C. § 2241. Technically, a decision that petitioner is not entitled to release but entitled at most to a new parole hearing might be thought to exhaust this Court's habeas corpus jurisdiction and require petitioner's complaint about Board procedures to be filed in the District of Columbia. However, since such a course would in all likelihood only result in a transfer of the suit back to this district, see Scarpa v. U. S. Board of Parole, 477 F.2d 278, 280 n.5 (5th Cir. 1973), it seems preferable to exercise habeas corpus jurisdiction generously and consider the merits of petitioner's complaint about the Board's procedures. Even if a favorable parole decision can in no event be judicially required, Tarlton v. Clark, 441 F.2d 384 (5th Cir. 1971), a proposition accepted even by the dissenting opinion in Scarpa, supra, 477 F.2d at 286, it does not follow that a warden could not be ordered to release a prisoner held after parole had been denied in an unlawful manner. Presumably the Board would be given time to correct its error, if such were found, not unlike a state court's being permitted to retry a state prisoner unconstitutionally convicted. But the potential remedy of release directed against the warden in the event a

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procedurally unlawful denial of parole were not corrected is sufficient to justify § 2241 jurisdiction here. While earlier concepts of the scope of habeas corpus relief would not have permitted the writ to lie against a prison official where a parole decision was under challenge. Goldsmith v. Aderholt, 44 F.2d 166 (5th Cir.), cert. denied, 282 U.S. 901, 51 S.Ct. 215, 75 L.Ed. 794 (1930), jurisdiction under § 2241 in this case seems justified by more recent decisions. United States ex rel. Marrero v. Warden, Lewisburg Penitentiary, 483 F.2d 656, 659 (3d Cir. 1973) (habeas corpus jurisdiction upheld to review Parole Board's decision as to parole eligibility).

The issue on the merits is whether the Board has exceeded its statutory authority when it denies parole for the expressed reason that release would "depreciate the seriousness of the offense." 2 The pertinent statute provides:

If it appears to the Board of Parole from a report by the proper institutional officers or upon application by a prisoner eligible for release on parole, that there is a reasonable probability that such prisoner will live and remain at liberty without violating the laws, and if in the opinion of the Board such release is not incompatible with the welfare of society, the Board may in its discretion authorize the release of such prisoner on parole. ... 18 U.S.C. § 4203(a).

As a matter of parsing, it could be argued that the two criteria specified-the prisoner not committing crimes and his release being compatible with society's welfare-are not exclusive, since, even if it appears to the Board that these two criteria are met, the Board still has "discretion" whether to grant parole. However, the second criterion is so broad that there seems little point in infusing the word "discretion" with meaning beyond what can fairly be comprehended in the two specified criteria. See Scarpa v. U. S. Board of Parole, supra, 477 F.2d at 281; Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225 (1963).

Petitioner contends that seriousness of the offense is not within the Board's proper consideration of either criterion whether or not assessed along with other factors. The Government contends that this factor can properly be relied on without regard to other factors in determining that the prisoner's release is not compatible with the welfare of society.

A court considering these contentions must...

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