Williams v. U.S. Parole Com'n, 82-4062

Citation707 F.2d 1060
Decision Date08 June 1983
Docket NumberNo. 82-4062,82-4062
PartiesGary Robert WILLIAMS, Petitioner-Appellant, v. UNITED STATES PAROLE COMMISSION, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Geoffrey Hansen, Asst. Fed. Public Defender, San Francisco, Cal., for petitioner-appellant.

Kimberly A. Reiley, Asst. U.S. Atty., San Francisco, Cal., for respondent-appellee.

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

Before DUNIWAY, SKOPIL, and FLETCHER, Circuit Judges.

DUNIWAY, Circuit Judge:

Williams appeals from the denial of his petition for a writ of habeas corpus. He argues that the Parole Commission erred in reopening his presumptive parole date because there was no "new adverse information," and, in the alternative, that the Parole Commission acted arbitrarily and capriciously in setting his new presumptive parole date. We affirm.

I. The Facts.

Williams is a federal prisoner confined in a California state prison at San Quentin, to which he was transferred from the federal penitentiary in Atlanta, Georgia, because his life was believed to be in danger in that penitentiary. He is in a special protective custody unit at San Quentin. He is also serving a Texas sentence concurrently, for which a detainer is lodged against him.

In August 1977 Williams was involved in a prison killing at the federal penitentiary in Atlanta. Pursuant to a plea bargain, he testified at the trial of the principals, and pled guilty to one count charging him with being an accessory after the fact. On December 20, 1978, he was sentenced to a term of eight years, consecutive to the other sentence that he was serving.

The sentencing judge executed a standard parole comment form. The judge checked the box on the form indicating that "Parole should be granted at a time best determined by the Parole Board." He did not check the option stating "Unless there is an extraordinary change of character, parole, for the protection of the community, should be denied." On the portion of the form for a judge's comments, the judge stated: "This man cooperated and was a government witness; however, the court is of the opinion his cooperation was to save himself from a prosecution for murder. He was given consideration for this by being prosecuted for accessory rather than the crime of murder. The record is of [sic] such that the court is of the opinion that at the present time he would be a danger to society."

Following its standard practice, the Bureau of Prisons aggregated Williams' sentences to determine his parole eligibility. See 28 C.F.R. Secs. 2.2, 2.5; 18 U.S.C. Secs. 4161, 4205(a). Williams had been eligible for parole since 1973, but parole had not been granted. See 18 U.S.C. Sec. 4206(a); 28 C.F.R. Sec. 2.18. His sentences aggregate 39 years.

Williams' first parole hearing was held March 15, 1979. The hearing examiners had before them some sources of information regarding Williams' involvement in the Atlanta prison killing, including Williams' own report and a letter from the prosecutor in the prison killing case. It is not clear from the record whether the pre-sentence report relating to the Atlanta conviction was before the examiners, but it is clear that the judge's parole comment form was not before them. The examiners recommended that Williams' presumptive parole date be set for December 15, 1980, subject to the Texas detainer, and, if that were withdrawn, for January 15, 1981.

The prosecutor's letter stated that there was a plea bargain and that Williams had cooperated. It did not state that Williams pled guilty to avoid a charge of murder, although this might be inferred from the fact that there was a plea bargain.

We do not know what was in the pre-sentence report, because it is not in the record. We do know the conclusions reached by the hearing examiners at the March 15, 1979 hearing. We quote them rather fully because they contrast so sharply with the trial judge's view.

Noteworthy is that he [Williams] was taken out to court on 12-20-78 and cooperated with prosecution regarding a murder in Atlanta and he received a consecutive eight year sentence for assisting a person who committed murder. He was forced to witness this murder and to hide a homemade hatchet and knife for the man who committed it and also to get rid of the bloody clothing that the man wore. He did this under duress and threat of his life.... Subject, not by choice but by pressures placed upon him has become homosexual and has what was quoted as a "daddy" at Atlanta who forced him to hide a homemade hatchet and a homemade knife taht [sic] was [sic] used in a murder. This individual accepted a contract on another man for an unknown price said to be approximately $250.00 and forced subject to hide the weapons that were to be used. Subject states that he did this in fear of his life and that this man, "Leonard" was his daddy and had he not cooperated in hiding these items he would have been killed. Further he was forced to witness the killing and to hide Leonard's clothes after the killing had been perpetarted. [sic] ... Subject cooperated and said he would testify upon the stand. There is a letter from the U.S. Attorney attesting to subject's cooperation in Atlanta and the fact that the case probably could not have been made had subject not testified.

Williams sent a pro se request for a reduction of sentence to the sentencing judge, in which he mentioned his presumptive parole date. The judge denied Williams' request and directed Atlanta United States Probation Officer Salter to write to the Parole Commission to express the judge's dissatisfaction. Salter wrote the letter on April 26, 1979. With it, he sent a copy of the parole comment and a copy of the presentence report. In the letter, Salter said:

Let me point out to you that Williams pled guilty to a lesser offense to save himself from prosecution for murder.

* * *

* * *

I urge you to review the presentence report which I prepared for our Court. Again, this was sent to the Bureau of Prisons but I am attaching a copy for your use. The pattern of violent, anti-social behavior is clear. I do not see how this man can be considered ready to live a law abiding life in society after being involved in such a violent offense. I will point out to you that at the age of 31 Williams has been involved in numerous burglaries, armed robberies, kidnappings, escapes, conveyance of contraband materials in prison, threats on correctional workers and now murder.

After receipt of Salter's letter by the Commission, a case analyst for the Commission summarized the case for Commissioner Kaslow, and stated:

I spoke with Jim Kelly [one of the hearing examiners] on 5-4-79, asking for his recollection of some of the thinking that went into their recommendation in this case. To the best that he could remember, Mr. Kelly indicated that some of the persuasive points in this case were that Mr. Williams' role appeared to be that of one who disposed of the clothes, rather than took any active [sic] in the murder, and that he was in great fear of his life and felt that he had little recourse but to assist his homosexual lover, the assailant, in his activity.

* * *

* * *

Unfortunately, the only information we have regarding the circumstances of the offense appears to be information which was provided by Williams. It is noted that Williams came forward and admitted his part in the killing; there is nothing to indicate whether his coming forward was the factor which led to the prosecution in this case. (emphasis added).

The case was reopened on May 23, 1979. The next day, Probation Officer Salter wrote another letter to the Commission, stating more fully his reasons for suggesting a later parole date. Here is part of what the letter says.

The United States government in the past few years has had a great deal of difficulty in convicting anyone of murder in the U.S. Penitentiary in Atlanta. When John Charles Widener was murdered, it appeared there were two people involved. There were two weapons, a knife and a hatchet used in the extremely brutal murder of Widener. Investigation quickly indicated the two persons involved were Gary Robert Williams and Richard Ardon Leonard Butch. Within days of the murder, it became evident both men were facing murder charges, and there was substantial evidence which would prove the two had committed the murder of Widener. As this evidence began to come forward, so did Gary Robert Williams. Williams agreed to testify for the government in this case. The government felt that although Williams was very much involved in the murder, it was Leonard who had taken out the contract to commit the killing, who had planned the killing, who had obtained the weapons for the killing and who had been the major personality leading up to the killing of Widener. The government felt a great need to convict the parties responsible for committing this murder. Therefore, the government agreed it would charge Williams with accessory after the fact rather than murder due to the above circumstances I have named. During the trial, the defense's allegations were that Leonard had not committed the murder, but rather Williams had. During the trial, at least one witness testified that they [sic] had seen both Leonard and Williams assaulting Widener. Here again, I will point out there were two weapons, both a hatchet and a knife, used in the killing. Most significant however, is that once the trial had been completed and Leonard had been sentenced, he confessed to the United States Marshal that the crime had taken place just as the government had contended, except that Williams had also gotten in a few blows. He claimed Williams had used a hatchet, but was not doing a good job so he (Leonard) had taken the hatchet away to complete the job. Evidence presented at the trial, as well as Williams' own...

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