Paz v. Warden, Federal Correctional Institution, Englewood, Colo., 85-1919

• Decision Date: 11 March 1986
• Docket Number: No. 85-1919,85-1919
• Citation: 787 F.2d 469
• Parties: David A. PAZ, Petitioner-Appellee, v. WARDEN, FEDERAL CORRECTIONAL INSTITUTION, ENGLEWOOD, COLORADO; United States Parole Commission, Respondents-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 469

787 F.2d 469

David A. PAZ, Petitioner-Appellee, v. WARDEN, FEDERAL CORRECTIONAL INSTITUTION, ENGLEWOOD,

COLORADO; United States Parole Commission,

Respondents-Appellants.

No. 85-1919.

United States Court of Appeals,

Tenth Circuit.

March 11, 1986.

Toby Slawsky, Atty., Gen. Counsel's Office, U.S. Parole Com'n, Chevy Chase, Md. (Robert N. Miller, U.S. Atty. for the Dist. of Colo., and Douglas W. Curless, Asst. U.S. Atty., for the Dist. of Colo., with him on briefs), for respondents-appellants.

Vicki Mandell-King, Asst. Federal Public Defender (Michael G. Katz, Federal Public Defender, with her on brief), Denver, Colo., for petitioner-appellee.

Before McKAY, SETH and LOGAN, Circuit Judges.

McKAY, Circuit Judge.

The United States Parole Commission appeals from an Order entered by the United States District Court for the District of Colorado, granting David A. Paz's habeas corpus petition and ordering that he be immediately released on parole. The issue in this case is whether the Commission abused its discretion in determining that, because Mr. Paz would not admit that he had committed certain crimes, there was no basis for a finding that he was rehabilitated.

David A. Paz was convicted by a jury of impersonating a federal officer. He was sentenced under the Youth Corrections Act, 18 U.S.C. Sec. 5010(b), to an indeterminate sentence of 0-6 years. The evidence showed that Mr. Paz approached two women at a shopping mall and identified himself as an agent of the Immigration and Naturalization Service. After examining the women's immigration papers, he instructed one of the women to accompany him to "his office." He then drove her to a wooded area and allegedly raped her. Mr. Paz was never charged with the crime of rape, however, apparently because of the victim's delay in reporting the offense.

Mr. Paz entered the Federal Correctional Institute at Englewood, Colorado, on January 6, 1983. His offense severity was rated category 7, and his salient factor was rated 9. Under the YCA guidelines, the customary range of time to be served for such an offense is 40-64 months. 28 C.F.R. Sec. 2.20 (1984). A hearing panel recommended that Mr. Paz's presumptive parole date be set at May 7, 1986, after service of 40 months, and his alternate parole date be set at January 7, 1986, after service of 36 months, the latter date being contingent upon Mr. Paz successfully completing his program plan. However, the Commission later notified Mr. Paz that his presumptive parole date had been set at November 7, 1986, after service of 46 months, and his alternate parole date had been set at May 7, 1986, after service of 40 months.

In December 1983, the Warden at Englewood FCI notified the Commission that Mr. Paz had successfully completed the prescribed program plan and recommended that he be released on June 1, 1984. The Commission responded to the Warden's recommendation by stating in part:

Although this case was reviewed for consideration under the Superior Program Achievement provisions, it is determined that there will be no change in the previous alternate release date and thus Mr. Paz should be placed on the interim hearing docket in November 1984 unless he has no misconduct, and he waives [sic]. At that time, the Commission will again consider the issues of institutional performance and Superior Program Achievement.

Record, vol. 1, at 29. Mr. Paz filed a petition for writ of habeas corpus, contending that the Commission's decision not to alter his release date constituted an abuse of discretion. The district court ordered the Commission to notify the court within twenty days if and when it would afford Mr. Paz a release hearing to consider the Warden's certification of program completion. The Commission requested a stay of that Order pending our decision in Benedict v. Rogers, 748 F.2d 543 (10th Cir.1985) (on petition for rehearing). The district court granted a stay until December 31, 1984. As of January 25, 1985, the Commission had not notified the district court whether it would grant Mr. Paz a release hearing. As a result, the district court granted Mr. Paz's petition for writ of habeas corpus and ordered that he be immediately released on parole. Thereafter, the Commission moved the district court to amend its Order and allow the Commission to conduct a release hearing on January 29, 1985. The district court granted the Commission's motion, and, on January 29, 1985, the Commission conducted a release hearing to determine whether Mr. Paz was rehabilitated.

At the hearing, little inquiry was made of Mr. Paz's activities while at Englewood. Instead, the hearing examiners spent most of the hearing attempting to elicit from Mr. Paz an admission that he had committed a rape while impersonating a federal officer. Dissatisfied with Mr. Paz's oft-repeated response that he had not committed a rape or impersonated an officer, the hearing examiners informed Mr. Paz that the Commission had determined by a preponderance of the evidence that he had committed a rape and challenged him to refute this finding. Mr. Paz told the panel that he was apparently a victim of mistaken identity and that he had never committed a rape or impersonated an officer.

A representative of the Bureau of Prisons attended the hearing and told the panel that Mr. Paz had successfully completed his program plan and all programs necessary for rehabilitation. Additionally, he informed the panel that the unit psychologist at Englewood found that Mr. Paz had developed insight into the inappropriateness of his behavior. The panel stated that, in view of Mr. Paz's claim that he never impersonated a federal officer or committed a rape, it doubted the unit psychologist's finding.

Immediately after the hearing, the facility director at the institution where Mr. Paz was confined spoke with the members of the panel. He informed the panel that Mr. Paz had explained to him after the hearing that the reason he continued to maintain his innocence was that he feared that he would be prosecuted for perjury if his statements at the hearing differed from his testimony at trial. The panel noted the facility director's statement in its written summary of the hearing, but gave short shrift to Mr. Paz's explanation and merely concluded that Mr. Paz was "evasive and unresponsive regarding his offense and there is no evidence to indicate that he has been rehabilitated." Record, vol. 1, at 145. The panel recommended that Mr. Paz's presumptive parole date of November 7, 1986, and his alternate parole date of May 7, 1986, remain in effect.

Thereafter, the Commission filed a "Report of Compliance" in the district court, stating:

The Commission found that although petitioner had maintained clear conduct, received excellent work reports in a vehicular components program and participated in group counseling and individual psychotherapy, his responses to questions by the examiners at his release hearing were evasive and indirect and indicated that he accepted no responsibility for the rape he committed. Petitioner's failure to understand and acknowledge the wrongfulness of his criminal acts evidenced to the Commission that his efforts at rehabilitation had not yet been successful.

Record, vol. 1, at 124. Mr. Paz filed an objection to the Commission's "Report of Compliance," challenging the Commission's determination that Mr. Paz was not rehabilitated. On March 27, 1985, the district court held a hearing and ordered the Commission to notify the court within fifteen days whether it would reopen Mr. Paz's hearing to consider specifically his explanation for maintaining his innocence at the release hearing. On April 15, 1985, the Commission submitted a "Supplemental Report of Compliance," informing the court that "[t]he duty to assess the evidence of petitioner's rehabilitation is the Commission's," record, vol. 1, at 156, and that Mr. Paz's case would not be reopened for a rehearing. On April 22, 1985, the district court ruled that the Commission's "Supplemental Report of Compliance" was a "specious endeavor to flaunt the mandate of this circuit and my order' " record, vol. 1, at 162, and ordered that Mr. Paz be immediately released on parole.

On appeal the Commission challenges the district court's authority to order the Commission to release Mr. Paz on parole. Further, the Commission maintains that its decision not to alter Mr. Paz's release date complied with the requirements of the YCA as interpreted by this court in Watts v. Hadden, 651 F.2d 1354 (10th Cir.1981), and Benedict v. Rodgers, 748 F.2d 543 (10th Cir.1984).

In Benedict v. Rodgers, supra, we determined that the Parole Commission had not complied with the requirements of the YCA by setting a presumptive release date and an alternative release date for youth offenders, the latter date contingent upon the offender's successful completion of his program...