Bailey v. Holley

• Decision Date: 19 February 1976
• Docket Number: No. 74--1808,74--1808
• Citation: 530 F.2d 169
• Parties: Darwin C. BAILEY, Petitioner-Appellant, v. Mason F. HOLLEY, Warden, United States Penitentiary, Terre Haute, Indiana, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 169

530 F.2d 169

Darwin C. BAILEY, Petitioner-Appellant, v. Mason F. HOLLEY, Warden, United States Penitentiary, Terre Haute, Indiana, et al., Respondents-Appellees.

No. 74--1808.

United States Court of Appeals Seventh Circuit.

Argued Oct. 29, 1975.

Decided Feb. 19, 1976.

Ellen K. Thomas, Bloomington, Ind., for petitioner-appellant.

Robert L. Keuch, S. Cass Weiland, Attys., Dept. of Justice, Washington, D.C., James B. Young, U.S. Atty., Indianapolis, Ind., for respondents-appellees.

Before HASTINGS, Senior Circuit Judge, and SPRECHER and BAUER, Circuit Judges.

HASTINGS, Senior Circuit Judge.

This is an appeal from an order of the district court dismissing the habeas corpus petition brought by petitioner challenging the procedures adopted by the United States Board of Parole in the consideration and denial of his 1973 application for parole.

I.

Darwin C. Bailey was convicted of armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d) and sentenced to twelve years imprisonment. The sentence was imposed under the provisions of 18 U.S.C. § 4208(a)(2) which enabled Bailey to become eligible for parole at any time without serving a mandatory minimum sentence. ¹ After an unsuccessful appeal, ² Bailey began serving his sentence on July 16, 1973, at the United States Penitentiary in Terre Haute, Indiana.

After arriving at Terre Haute, Bailey submitted a written application for parole. A hearing was held on his application in October 1973. In December 1973, the Board of Parole notified him that his parole application was denied and that his case was continued until December 1975, when a new hearing would be held. Bailey thereafter wrote the Board of Parole requesting a statement of reasons for the denial of his parole application and for the two year set-off. In a March 13, 1974, letter from Parole Executive Steve D. Johnston, Bailey was informed that 'the Board has not been supplying reasons and the Board members have not been recording the justification for their decision.' His request for reasons was therefore denied.

Bailey filed his pro se petition for habeas corpus on June 17, 1974, in the United States District Court for the Southern District of Indiana. The petition essentially relied on two general contentions: (1) that the Board's failure to provide a statement of reasons for denial of petitioner's application for parole and for the two year set-off violated procedural due process and further violated the Administrative Procedure Act, 5 U.S.C. § 555(e) as construed by our court in King v. United States, 7 Cir., 492 F.2d 1337 (1974); ³ and (2) that the Board's procedures together with the automatic two year set-off failed to provide the 'meaningful consideration' of his parole application that due process and the mandate of his Section 4208(a)(2) sentence required.

The district court granted respondents' motion to dismiss the petition for failure to state a claim. The district judge concluded that due process did not require a statement of reasons for parole denial. He further concluded that our March 13, 1974, decision in King would not be retroactively applied to require a statement of reasons for a 1973 parole denial. Finally, he found no infirmity in the two year set-off since petitioner would be provided a second parole consideration well within the first one-third of his twelve year sentence.

Petitioner Bailey appeals from the order of the district court dismissing his habeas petition. We granted him leave to proceed in forma pauperis and appointed counsel to brief and argue his case before our court. This responsibility was discharged with commendable professional skill.

Prior to oral argument, respondents moved to remand with instructions to vacate the judgment as moot. They attached to their motion the affidavit of Maurice H. Sigler, Chairman, United States Board of Parole, which stated that current Board procedures now provide, under certain circumstances, for a written statement of reasons for parole denial and that Bailey's records disclose sufficient information that the Board can now supply him with a statement of the reasons for his 1973 parole denial. Mr. Sigler attached to his affidavit a copy of a form sent to Petitioner Bailey on May 29, 1975, which contained a statement of reasons for denial of parole. ⁴ On July 16, 1975, we entered an order denying respondents' motion to remand for mootness. On oral argument and in their supplemental brief, respondents continued to urge reconsideration of our order denying their motion. We have concluded, however, that the substance of petitioner's dispute with the Board of Parole as set forth in his habeas petition is not rendered moot by the subsequent action of the Board in supplying the statement of reasons which he was originally denied. ⁵

We now reach the merits of petitioner's appeal. Petitioner bases his claim for relief on (1) the Administrative Procedure Act § 555(e) as construed by our court in King v. United States, supra; (2) the due process clause, which, since oral argument in this case, we have held to be applicable to parole release proceedings in United States ex rel. Richerson v. Wolff, 7 Cir., 525 F.2d 797 (1975); and (3) the requirements of his Section 4208(a)(2) sentence. In view of these claims, we first consider whether to apply our decisions in King and Richerson retroactively and finally consider whether the alleged deficiencies in petitioner's 1973 parole consideration violate the mandate of his (a)(2) sentence.

II

Petitioner principally relies on our decision in King v. United States, supra, where we held that Section 555(e) of the Administrative Procedure Act requires the United States Board of Parole to supply a statement of reasons for denial of a federal prisoner's written application for parole. However, because that decision was announced in March 1974, and the Board denied petitioner's parole in December 1973, the district court concluded that the requirements announced in King would not be retroactively applied. We agree.

The Supreme Court recognized in Linkletter v. Walker, 381 U.S. 618, 629, 85 S.Ct. 1731, 1738, 14 L.Ed.2d 601 (1964), that 'we are neither required to apply, nor prohibited from applying, a decision retrospectively.' Since Linkletter, the Court has declined to afford full retroactive effect to numerous decisions announcing significant constitutionally mandated procedural rules in criminal prosecutions. ⁶ In only two situations has the Court felt required to afford full retroactivity: (1) where the new rule remedies a significant defect in the factfinding process at trial, ⁷ and (2) where the conduct being penalized is conduct found under the new rule to be constitutionally immune from punishment. ⁸ In all other circumstances, the Court weighed competing considerations in deciding whether to limit a new standard's retroactive effect. The relevant criteria which must be considered according to the Court's decision in Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199 (1967), are '(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.'

While the standards for determining questions of retroactivity have been developed in the context of adjudication of constitutional questions, a decision based on statutory interpretation may be similarly limited. The Court in Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969), declined to apply retroactively its decision in McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), which had held that a defendant is entitled to plead anew if the district court accepts his guilty plea without complying with the procedures in Rule 11, Federal Rules of Criminal Procedure, 18 U.S.C. The Court in Halliday stated:

In McCarthy we took care to note that our holding was based solely upon the application of Rule 11 and not upon constitutional grounds. Nevertheless, it is appropriate to analyze the question of that decision's retroactivity in terms of the same criteria we have employed to determine whether constitutionally grounded decisions that depart from precedent should be applied retroactively. 394 U.S. at 832, 89 S.Ct. at 1499.

Lower courts have denied retroactive application to the Supreme Court's decision in Dorszynski v. United States, 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974), which construed the Federal Youth Corrections Act, 18 U.S.C. § 5010(d) as requiring the district court to make an express finding of no benefit before sentencing youth offenders under adult statutes. Owens v. United States, M.D.Pa., 383 F.Supp. 780, 785--7 (1974), aff'd, 3 Cir., 515 F.2d 507 (1975); Jackson v. United States, 10 Cir., 510 F.2d 1335 (1975).

We have declined to apply retroactively our own prior decision holding that a Special Agent's Report was a 'statement' within the meaning of the Jencks Act, 18 U.S.C. § 3500(e), and therefore producible at defendant's request in a criminal prosecution for tax evasion. Krilich v. United States, 7 Cir., 502 F.2d 680, 683 (1974), cert. denied, 420 U.S. 992, 95 S.Ct. 1429, 43 L.Ed.2d 673 (1975). In that case we followed the analysis developed in Stovall v. Denno, supra, and other decisions of constitutional law to determine whether our new construction of the statute should be retroactively applied.

In view of this authority, we reject petitioner's contention that the Stovall criteria for deciding questions of retroactivity are not applicable to decisions based on statutory construction. The decisions of the Supreme Court and of this court on which petitioner relies do not require a contrary conclusion. ⁹ Those cases simply stand for the basic principle that the Supreme Court has the final word on the meaning of federal statutes. In each case a court...