Schuemann v. Colorado State Bd. of Adult Parole, 79-1483

• Decision Date: 30 June 1980
• Docket Number: No. 79-1483,79-1483
• Parties: Ronald Leroy SCHUEMANN, Petitioner-Appellant, v. COLORADO STATE BOARD OF ADULT PAROLE; J. D. MacFarlane, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 172

624 F.2d 172

Ronald Leroy SCHUEMANN, Petitioner-Appellant, v. COLORADO STATE BOARD OF ADULT PAROLE; J. D. MacFarlane Respondent-Appellee.

No. 79-1483.

United States Court of Appeals Tenth Circuit.

Submitted June 20, 1980.

Decided June 30, 1980.

Before BARRETT, McKAY and LOGAN, Circuit Judges.

McKAY, Circuit Judge.

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Cir.R. 10(e). The cause is therefore ordered submitted without oral argument.

This is an appeal from a judgment denying Schuemann's petition for a writ of habeas corpus. Schuemann is currently confined in the Colorado State Penitentiary. He was denied parole by the Colorado State Board of Adult Parole (Board) in October 1978. Schuemann did not seek review of the Board's action at the state level, but instead filed this petition for a writ of habeas corpus in federal district court. The petition alleges denial of due process in that:

1. The Board has not established or followed any meaningful criteria for granting parole;

2. The Board's stated reasons for denial of parole are unconstitutionally vague, inadequate and not supported by the record;

3. The Board considered information and allegations stemming from an invalid conviction;

4. Schuemann was denied access to his parole file;

5. The tape recorded record of the hearing is incomplete because the tape was changed without stopping the proceedings;

6. There is no avenue of appeal from the Board's decision; and

7. Schuemann was denied protection from double jeopardy because the Board's decision frustrated the sentencing court's intent.

The district court concluded on the merits that Schuemann was not entitled to relief. We are in general accord with the opinion of the district court. We agree, first, that there are no state remedies available to Schuemann which would require dismissal under the exhaustion requirement of 28 U.S.C. § 2254(b). See Shea v. Heggie, 624 F.2d 175, (10th Cir. 1980). We also agree that state parole board procedures and decisions are subject to federal judicial review. ¹ As explained by the district court: "While it is not the function of a federal court to superintend the administration of a state parole system, and while the parole board must have a broad measure of discretion, its actions are still subject to established standards of review." Record, vol. 1, at 66.

Thus, we may review this decision of the parole board to determine if it was arbitrary, capricious or an abuse of discretion. See Dye v. United States Parole Commission, 558 F.2d 1376, 1378 (10th Cir. 1977).

Schuemann first charges the Board with failing to establish and follow meaningful criteria for granting parole. This argument clearly lacks merit. The notification form provided by the Board to parole applicants indicates the factors it considers:

1. Nature of crime(s) committed

2. Psychological reports

3. Pre-sentence reports

4. Post-conviction behavior

5. Sentence(s)

6. Amount of time already served

7. Risk (potential danger posed by inmate to self and others)

8. Efforts for self-improvement

9. Parole Plan (resources available to inmate upon release)

10. Results of previous rehabilitation/reintergrative (sic ) efforts

11. Not available for interview

12. Other

Record, vol. 1, at 20. These factors may properly be considered in parole determinations. Cf. Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 16-18, 99 S.Ct. 2100, 2108-2109, 60 L.Ed.2d 668 (1979); Shirley v. Chestnut, 603 F.2d 805, 807 (10th Cir. 1979). The statute does not require more specific criteria; ² indeed parole determinations inherently do not lend themselves to concrete and identifiable standards. The Supreme Court has advised:

The parole release decision . . . is . . . subtle and depends on an amalgam of elements, some of which are factual but many of which are purely subjective appraisals by the Board members based upon their experience with the difficult and sensitive task of evaluating the advisability of parole release. . . .

. . . No ideal, error-free way to make parole release decisions has been developed; the whole question has been and will continue to be the subject of experimentation involving analysis of psychological factors combined with fact evaluation guided by the practical experience of the actual parole decisionmakers in predicting future behavior. Our system of federalism encourages this state experimentation.

Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. at 9-10, 13, 99 S.Ct. at 2105.

Our discussion of Schuemann's first contention applies as well to his claim that the reasons given by the Board were vague, inadequate and not supported by the record. It would be discordant to require unduly specific and detailed reasons from a Board vested with a subjective, predictive, and experimental function. It is evident from the notice form sent Schuemann that the Board was concerned about the short time Schuemann had served for a serious offense. This is a sufficient and proper reason. Cf. Loch v. Keohane, No. 79-1206 (10th Cir. Nov. 27, 1979).

Schuemann next alleges that the Board improperly considered information relating to his overturned conviction for first degree murder and conspiracy to commit murder. In making predictive appraisals, parole boards should have available to them a wide panoply of information concerning the parole applicant. See Billiteri v. United States Board of Parole, 541 F.2d 938, 944-45 (2d Cir. 1976). In a federal parole setting, this court has approved parole board consideration of an overturned conviction as long as the reversal was not based on a finding of innocence. Dye v. United States Parole Commission, 558 F.2d 1376, 1379 (10th Cir. 1977). As the district court's opinion correctly indicates, the Colorado Supreme Court's reversal of Schuemann's original conviction was not based on a finding of his innocence, but on a trial court error in excluding a witness. See People v. Schuemann, 190 Colo. 474, 548 P.2d 911 (1976).

Schuemann next challenges the lack of certain procedural protections, including access to parole files and appeal of right. A similar challenge was denied in Shirley v. Chestnut, 603 F.2d 805 (10th Cir. 1979), where this court held that access to parole files and other procedural rights are not constitutionally required under a parole statute which does not create a liberty interest. Like the Oklahoma statute considered in Shirley, the Colorado parole statute gives the Board broad discretion and does not require the granting of parole upon a showing of any particular facts. See Colo.Rev.Stat. § 17-2-201(3)(b) (1978). Cf. Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. at 11-12, 99 S.Ct. at 2106. Even if we were persuaded that some due process standards should apply under the Colorado system, ³ we...