Allen v. Hadden

• Decision Date: 06 April 1982
• Docket Number: 81-K-2020.,Civ. A. No. 81-K-1863
• Citation: 536 F. Supp. 586
• Parties: John Brett ALLEN, Petitioner, v. John T. HADDEN and U.S. Parole Commission, Respondents. Leon ROBINSON, Petitioner, v. John T. HADDEN and U.S. Parole Commission, Respondents.
• Court: U.S. District Court — District of Colorado

536 F. Supp. 586

John Brett ALLEN, Petitioner, v. John T. HADDEN and U.S. Parole Commission, Respondents.

Leon ROBINSON, Petitioner, v. John T. HADDEN and U.S. Parole Commission, Respondents.

Civ. A. Nos. 81-K-1863, 81-K-2020.

United States District Court, D. Colorado.

April 6, 1982.

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Vicki Mandell-King, Asst. Federal Public Defender, Denver, Colo., for Robinson in No. 81-K-2020.

Scott H. Robinson, Gerash & Robinson, Denver, Colo., for Allen, in No. 81-K-1863.

Charles Torres, Asst. U. S. Atty., Denver, Colo., for respondents in No. 81-K-2020.

Phil Miller, Asst. U. S. Atty., Denver, Colo., for respondents in No. 81-K-1863.

MEMORANDUM OPINION AND ORDER

KANE, District Judge.

The petitioners in these two cases each filed petitions for writs of habeas corpus under 28 U.S.C. § 2241. They challenge the defendants' decisions denying them parole. Pursuant to Local Rule 17(f), I referred each case to Magistrate Donald E. Abram, who held hearings and made recommendations. I then held a hearing in each case to hear the petitioner's objections to the magistrate's recommendation. Because the two cases involve many of the same issues, I will consider both in this opinion.

I. BACKGROUND

In Greenholz v. Inmates of the Nebraska Penal and Correction Complex, 442 U.S. 1, 9-11, 99 S.Ct. 2100, 2104-2105, 60 L.Ed.2d 668 (1979), the U. S. Supreme Court considered a state parole system. The court noted that a parole-release decision "depends on an amalgam of elements, some of which are factual but many of which are purely subjective appraisals by the Board members ..." Id. at 10, 99 S.Ct. at 2105. The court also noted that many of the liberty interests at stake in a parole-revocation decision are not present in a parole-release decision, and apparently concluded that there is no due-process guarantees regarding parole release, unless such a right is guaranteed by the state.

In United States v. Addonizio, 442 U.S. 178, 190, 99 S.Ct. 2235, 2243, 60 L.Ed.2d 805 (1979), the court considered a parole decision regarding a federal prisoner, and held a sentencing judge "has no enforceable expectations with respect to the actual release of a sentenced defendant short of his statutory term." The actual decision, the court concluded, is up to the Parole Commission.

In spite of this lack of constitutional guarantees, the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), directs reviewing courts to set aside federal agency actions that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." The Tenth Circuit has stated that this is the standard that courts should apply when reviewing actions of the U.S. Parole Commission. United States v. Talk, 597 F.2d 249, 251 (10th Cir. 1979); Dye v. U.S. Parole Commission, 558 F.2d 1376, 1378 (10th Cir. 1977). In Rumfelt v. United States, No. 76-1708 (10th Cir. Dec. 17, 1976) (not for routine publication), Slip Op. 3, the court stated:

the district court's inquiry is whether the reasons given for the Board's action are adequate and whether the information relied on by the Board was sufficient to provide a factual basis for these reasons.

18 U.S.C. § 4205(b) provides sentencing judges with an alternative. Under (1) the judge may specify a minimum term, which must be less than one-third of the maximum allowable sentence, after which the defendant shall be eligible for parole. Under (2) the judge specifies a maximum term, allowing the parole commission to determine the parole date, which under section 4205(a) is normally after at least one-third of the sentence.

18 U.S.C. § 4203(b) grants the Parole Commission broad powers to grant and delineate parole conditions. Section 4203(a)(1) directs the commission to promulgate rules establishing guidelines for carrying out its parole decisions.

18 U.S.C. § 4206(a) provides that if release would not depreciate the seriousness of the offense or jeopardize the public welfare, then, pursuant to the guidelines, the commission may release a prisoner on parole. Section 4206(c) provides that the commission may grant or deny parole outside of the guidelines if it determines that there is good cause for doing so. If it does so, however, then it must give the prisoner written notice of its reasons. See generally Fronczak v. Warden, El Reno Reformatory, 553 F.2d 1219, 1220-21 (10th Cir. 1977) (partially overruled on other grounds, Watts v. Hadden, 651 F.2d 1354, 1382-83 (10th Cir. 1981)).

The Parole Commission has adopted 28 C.F.R. § 2.20 (1980) as its guidelines for determining when parole should normally be granted. This regulation establishes a grid. One coordinate of the grid, the "salient factor score," attempts to evaluate a prisoner's potential risk of violating parole.¹ The other coordinate is a determination of the severity of the offense.² After determining each of these coordinates, the Parole Commission applies the grid to determine the normal amount of time that a prisoner should be confined before being released on parole.

Although the grid furnishes guidelines, the regulations state that decisions outside of the guidelines may be rendered. 28 C.F.R. § 2.20(c). This will be appropriate if there are "especially mitigating or aggravating circumstances in a particular case." Id. § 2.20(d). The Tenth Circuit has stated that the parole commission must give a more detailed explanation for its decision when it is outside of the guidelines. Fronczak v. Warden, 553 F.2d at 1221.

18 U.S.C. § 4207 lists the types of information that the Parole Commission may consider in making its decision. This information includes reports and recommendations made by the prison staff, the prisoner's prior criminal record, presentence investigation reports, recommendations of the sentencing judge, examination reports and any other available relevant information. However, by its own regulations, the parole commission does not consider evidence of charges upon which the prisoner was found not guilty, unless there is new evidence that was not introduced at trial. 28 C.F.R. § 2.19(c). The regulations also provide that the commission may rely on disputed information only if it first determines that the information is supported by a preponderance of the evidence. Id. Other than these limits, the regulations allow the commission to consider "any substantial information available to it" in applying the grid to determine a prisoner's parole date. See generally Watts v. Hadden, 469 F.Supp. 223, 227-29 (D.Colo.1979).

The Tenth Circuit has upheld the parole commission's use of this broad information base. In Trammel v. United States, No. 77-1400 (10th Cir. Nov. 1, 1977) (not for routine publication), the court stated:

Just as a sentencing court may take into consideration a pre-sentence report which incorporates information of a hearsay nature, the Parole Board may take into consideration information which is not necessarily inclusive of trial and conviction.

Slip Op. at 1 (citations omitted). In Dye v. U.S. Parole Commission, 558 F.2d 1376, 1379 (10th Cir. 1977), the court elaborated:

the Commission is entitled to take into account factors which could not for constitutional reasons, be considered by a court of law.

(citing Mack v. McCune, 551 F.2d 251 (10th Cir. 1977)). In determining a parole date, the commission may consider evidence of an offense for which the prisoner's conviction was overturned, so long as the reversal was not based on a finding of innocence. Schuemann v. Colorado State Board of Adult Parole, 624 F.2d 172, 174 (10th Cir. 1980) (citing Dye v. United States Parole Commission, 558 F.2d 1376, 1379 (10th Cir. 1977)). Likewise, the commission may consider allegations of criminal activity for which the prisoner has not even been charged. Rumfelt v. United States, No. 76-1708 (10th Cir. Dec. 17, 1976) (not for routine publication), Slip Op. at 4.

II. SPECIFIC ISSUES IN THESE CASES

A. Consideration of Dismissed Counts of the Indictment

In keeping with the rule that the parole commission may utilize a broad information base in making its parole determination, most courts have upheld the commission's consideration of offenses charged in counts of the indictment that are later dismissed. See, e.g., Billiteri v. U. S. Board of Parole, 541 F.2d 938, 944 (2d Cir. 1976); Narvaiz v. Day, 444 F.Supp. 36, 37-38 (W.D.Okla. 1977); McArthur v. U. S. Board of Parole, 434 F.Supp. 163, 166-67 (S.D.Ind.1976), aff'd. mem., 559 F.2d 1226 (7th Cir. 1977); Manos v. U. S. Board of Parole, 399 F.Supp. 1103, 1105 (M.D.Pa.1975); Lupo v. Norton, 371 F.Supp. 156, 161-62 (D.Conn.1974).

A few courts, however, have objected to this practice because it allows what is often the most important determination, the defendant's actual period of incarceration, to be determined by the parole commission, rather than at a trial where all of the defendant's constitutional safeguards are present. For example, in Pernetti v. United States, 21 Crim.L.Rep. 2033 (D.N.J. Mar. 3, 1977), appeal dismissed as moot, 605 F.2d 1196 (3d Cir. 1979), the court held that the parole commission's consideration of offenses alleged in dismissed counts of the indictment denied the defendant due process.

The court stated:

The major premise underlying this Court's opinion is the firmly established judicial maxim that a person is innocent until proven guilty.

. . . . .

Based on the foregoing reasoning, then, it can be readily concluded that a plea of not guilty to, or a dismissal of, a count or counts of an indictment would have the opposite effect of a plea of guilty; there would be no waiver of a trial wherein the allegations would have to be proven beyond a reasonable doubt. It logically follows that if, as a result of a dismissal, the defendant is not subject to a judgment of conviction or an imposition of sentence because none of the allegations has been proven or admitted to, the parole board should not be allowed to base any

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