586 F.2d 695 (9th Cir. 1978), 78-1859, Rifai v. United States Parole Commission

Docket Nº:78-1859.
Citation:586 F.2d 695
Party Name:Ahssem RIFAI, Petitioner-Appellant, v. UNITED STATES PAROLE COMMISSION and Warden, United States Penitentiary, McNeil Island, Washington, Respondents-Appellees.
Case Date:November 20, 1978
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 695

586 F.2d 695 (9th Cir. 1978)

Ahssem RIFAI, Petitioner-Appellant,

v.

UNITED STATES PAROLE COMMISSION and Warden, United States

Penitentiary, McNeil Island, Washington,

Respondents-Appellees.

No. 78-1859.

United States Court of Appeals, Ninth Circuit

November 20, 1978

Page 696

Stephen K. Strong (argued), of Bendich, Stobaugh & Strong, Seattle, Wash., for petitioner-appellant.

William H. Rubidge, Asst. U. S. Atty. (argued), Seattle, Wash., for respondents-appellees.

Appeal from the United States District Court for the Western District of Washington.

Before VAN DUSEN, [*] WRIGHT and GOODWIN, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

Rifai petitioned for a writ of habeas corpus challenging the denial of his release on parole by the United States Parole Commission (Commission). 1 He asserted that the Commission's use of new parole release guidelines and statutory standards in making his parole decision violated the prohibition of Ex post facto laws. The district court denied his petition and he raises the same issues on appeal. We affirm.

I.

FACTS

Rifai was convicted in 1972 for importing and possessing heroin and sentenced to ten years. He attempted to influence a witness in a motion for a new trial, and was convicted in 1974 for conspiracy to suborn perjury and obstruction of justice. For this second conviction, he was sentenced to two concurrent five-year terms to run consecutively to the ten-year sentence.

At the time Rifai was sentenced on both convictions, the Commission determined whether to release a prisoner on parole under the following statutory standards:

If it appears to the (Commission) . . . 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 (Commission) such release is not incompatible with the welfare of society, the (Commission) may in its

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discretion authorize the release of such prisoner on parole.

18 U.S.C. § 4203(a) (1970) (repealed 1976). Prior to 1973, although the Commission considered several other factors within this broad grant of discretion, it emphasized institutional performance as the primary criterion in determining parole release. The Commission does not dispute here that, with one exception, Rifai's institutional behavior was exemplary.

Pursuant to § 4203(a), however, the Commission adopted guidelines in 1973 which changed the emphasis on the criteria considered in determining parole release. Under the new guidelines which rank offenses according to their severity and recommend corresponding periods of incarceration, the Commission emphasizes offense severity.

In June 1976, Congress enacted the Parole Commission and Reorganization Act of 1976, Pub.L. No. 94-233, 90 Stat. 219 (codified at 18 U.S.C.A. § 4201, Et seq. (Supp.1978)) (Parole Commission Act), which, Inter alia, repealed § 4203(a) and rephrased the statutory standards for parole release determinations. Pursuant to 18 U.S.C.A. § 4206 (West Supp.1978), the new standards are:

If an eligible prisoner has substantially observed the rules of the institution . . . 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 . . . such prisoner shall be released.

The Act, in essence, adopted the approach of the Commission's 1973 guidelines in emphasizing offense severity, instead of institutional behavior, for parole release determinations. 2

The parole hearing in question here was held in December 1976. Rifai claims that the use of, first, the 1973 guidelines and, second, the 1976 statutory standards in his parole release determination violated the Ex post facto prohibition. He contends that, despite his exemplary institutional behavior that might have qualified him for parole prior to 1973, the Commission denied parole because it evaluated his opportunity for parole release under the new guidelines and statutory standards emphasizing offense severity.

II.

DISCUSSION

The Supreme Court early concluded that "every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed" constitutes an Ex post facto violation. Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798). 3 With this in mind, we analyze Rifai's Ex post facto claims.

  1. THE 1973 COMMISSION GUIDELINES.

    Rifai uses two arguments in contending that the guidelines are "laws" for

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    purposes of the Ex post facto prohibition. First, he asserts that because the guidelines are followed with regularity, 4 they have the force and effect of law. We reject this argument. Under this theory, any policy or practice followed with some frequency would constitute a "law" from which an agency could not vary.

    Second, he argues that this court's holding in Love v. Fitzharris, 460 F.2d 382 (9th Cir. 1972), Vacated as moot, 409 U.S. 1100, 93 S.Ct. 896, 34 L.Ed.2d 682 (1973), mandates that the guidelines be treated as law. In Love, a California agency interpreted the state's parole eligibility statutes and decided that, when consecutive sentences were imposed, California Penal Code § 3049 applied and a prisoner could be paroled after the expiration of one-third of his minimum sentence. The agency later reinterpreted the statutes and concluded that narcotics offenders would be eligible for parole only after serving two and one-half years on each consecutive sentence. We held that this change in the agency interpretation of parole eligibility statutes had the force and effect of law and violated the prohibition of Ex post facto laws.

    In Love we distinguished the case of In re Costello, 262 F.2d 214 (9th Cir. 1958). In Costello, the Adult Authority, after initially fixing defendant's term of imprisonment under the California indeterminate sentence...

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