Artez v. Mulcrone, 81-2037

• Decision Date: 01 April 1982
• Docket Number: No. 81-2037,81-2037
• Citation: 673 F.2d 1169
• Parties: Danilo Zabala ARTEZ, Petitioner-Appellant, v. Richard T. MULCRONE, Commissioner, and U. S. Parole Commission, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1169

673 F.2d 1169

Danilo Zabala ARTEZ, Petitioner-Appellant, v. Richard T. MULCRONE, Commissioner, and U. S. Parole Commission, Respondent-Appellee.

No. 81-2037.

United States Court of Appeals Tenth Circuit.

April 1, 1982.

Danilo Zabala Artez, pro se.

Before BARRETT, McKAY and LOGAN, Circuit Judges.

PER CURIAM.

After examining the brief 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.

Danilo Zabala Artez appeals from a district court order dismissing his petition for writ of habeas corpus. In his petition Artez challenged the United States Parole Commission's denial of his application for parole. Specifically, he alleged that 18 U.S.C. § 4206(a) ¹ unconstitutionally grants judicial powers to the Parole Commission and violates the Ex Post Facto Clause. Additionally, he alleged that his parole category rating violated his equal protection guarantees. We find these arguments unpersuasive.

Artez's arguments that section 4206(a) is an unconstitutional delegation of judicial power and an ex post facto law are something like the following: The judiciary has the responsibility for sentencing those convicted of crimes. When the trial court imposes a sentence, it considers all known relevant factors and bases its sentence upon the supposition that the prisoner who behaves in prison will be released on parole after serving one-third of the sentence. In permitting the Parole Commission to deny release at the one-third mark on the basis of factors the district court previously considered in imposing sentence, section 4206(a) unlawfully delegates judicial power to the Parole Commission and permits it to increase punishment at a later date, in violation of the Ex Post Facto Clause.

Section 4206(a) does not unconstitutionally usurp the judicial function. In granting or denying parole, the Parole Commission does not modify a trial court's sentence, but merely determines whether the individual will serve the sentence inside or outside the prison walls. See Moore v. Nelson, 611 F.2d 434, 439 (2d Cir. 1979); Marrero v. Warden, 483 F.2d 656, 661 (3d Cir. 1973), rev'd on other grounds, 417 U.S. 653, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1974); Smaldone v. United States, 458 F.Supp. 1000, 1003 (D.Kan.1978). Even assuming the trial judge had an expectation with respect to the date at which the sentenced defendant would be released, short of the statutory term, it is not enforceable by the judge, much less the prisoner, as the United States Supreme Court made plain in a recent decision:

"(T)he judge has no enforceable expectations with respect to the actual release of a sentenced defendant short of his statutory term. The judge may well have expectations as to when release is likely. But the actual decision is not his to make, either at the time of sentencing or later if his expectations are not met. To require the Parole Commission to act in accordance with judicial expectations, and to use collateral attack as a mechanism for ensuring that these expectations are carried out, would substantially undermine the congressional decision to entrust release determinations to the Commission and not the courts."

United States v. Addonizio, 442 U.S. 178, 190, 99 S.Ct. 2235, 2243, 60 L.Ed.2d 805 (1979).

Artez's contention as to the Ex Post Facto Clause fails as well. That clause prohibits Congress and the states from enacting any law that "imposes a punishment for an act which is not punishable at the time it was committed; or imposes additional punishment to that then prescribed ...." Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325-26, 18 L.Ed. 356 (1867). In Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), the Supreme Court stated that two critical elements must be present for a criminal or penal law to be ex post facto: "(I)t must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it." Id. at 29, 101 S.Ct. at 964 (footnotes omitted). In the instant case, because Artez was convicted and sentenced almost three years after Congress en...