Barr v. United States

• Decision Date: 08 March 1976
• Docket Number: No. C-75-1071-D.,C-75-1071-D.
• Parties: Jackie E. BARR, # XXXXX-XXX, Petitioner, v. UNITED STATES of America et al., Respondents.
• Court: U.S. District Court — Western District of Oklahoma

415 F. Supp. 990

Jackie E. BARR, # XXXXX-XXX, Petitioner, v. UNITED STATES of America et al., Respondents.

No. C-75-1071-D.

United States District Court, W. D. Oklahoma.

March 8, 1976.

COPYRIGHT MATERIAL OMITTED

Jackie E. Barr, pro se.

David L. Russell, U. S. Atty., by Drew Neville, Asst. U. S. Atty., Oklahoma City, Okl., for respondents.

ORDER

DAUGHERTY, Chief Judge.

This is a proceeding for Writ of Habeas Corpus by a federal prisoner at the Federal Reformatory, El Reno, Oklahoma, to which the respondents have filed a Motion to Dismiss. The petitioner claims that he is entitled to immediate release or other appropriate habeas relief because of errors in the determination of his parole eligibility and because the conditions of his confinement and lack of programs available to him defeat the purpose of the Youth Corrections Act.

Petitioner states that he was convicted after a jury trial of violation of § 841 of Title 21, United States Code (distribution of heroin), on August 16, 1973, and thereafter sentenced under the provisions of the Federal Youth Corrections Act, 18 United States Code § 5010(b). An unsuccessful appeal followed and petitioner surrendered for incarceration on October 15, 1974. On January 20, 1975, the petitioner appeared before the United States Board of Parole for parole consideration. On January 30, 1975, the Board continued further consideration of the petitioner in an institutional review hearing until March 1976. The reasons stated for the continuance were as follows:

"Your offense behavior has been rated as high severity. You have a Salient Factor score of eight. You have been in custody a total of three months. Guidelines established by the Board for youth cases which consider the above factors indicate a range of 16 to 20 months to be served before release for cases with good institutional performance and adjustment. After careful consideration of all relevant factors and information presented, it is found that a decision outside the guidelines at this consideration does not appear warranted."

Petitioner then sought review of the Board's decision at the regional level and the previous decision of the Board was affirmed on March 4, 1975. He also pursued a national appeal which again resulted in an affirmation of the original decision.

The petitioner asserts the Board considered a conviction for a traffic violation resulting only in a fine which was improper because he was not then represented by counsel. He relies upon Wren v. United States Board of Parole, 389 F.Supp. 938 (N.D.Ga.1975), which held that uncounseled constitutionally invalid prior convictions cannot be considered by the Parole Board in making parole determinations. This extension of United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972) is not applicable, however, in the situation here presented because petitioner's allegations do not establish that the prior conviction was constitutionally invalid. In Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), the Supreme Court held:

"That absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial." 407 U.S. at 37, 92 S.Ct. at 2012.

The Court specifically did not consider the requirements of the Sixth Amendment as regards to the right to counsel where loss of liberty is not involved and pointed out:

"The run of misdemeanors will not be affected by today's ruling." 407 U.S. at 40, 92 S.Ct. at 2014.

Since the petitioner was not deprived of his liberty, the challenged conviction is within the "run of misdemeanors" not affected by the Argersinger rule. As the conviction was not constitutionally infirm, it was not forbidden that the Parole Board consider it. In determining whether to grant a parole, it is perfectly proper to consider a prisoner's prior criminal record and such consideration does not amount to an imposition of additional punishment. Jones v. Salisbury, 422 F.2d 1326 (CA6 1970), cert. denied, 400 U.S. 836, 91 S.Ct. 73, 27 L.Ed.2d 69, reh. denied, 400 U.S. 931, 91 S.Ct. 190, 27 L.Ed.2d 192.

Petitioner also objects to the action of the Board in considering his marital difficulties, which allegedly resulted in him being deprived of a point on his Salient Factor score. Reasonably a prisoner's marital situation is a relevant factor in making parole decisions and the weight to be given such action is a matter within the discretion of the Parole Board. See Barradale v. United States Board of Paroles and Pardons, 362 F.Supp. 338, 341 n. 3 (M.D.Pa. 1973). See also Scarpa v. United States Board of Parole, 477 F.2d 278 (CA5 1973), reversed and remanded for consideration of question of mootness, 414 U.S. 809, 94 S.Ct. 79, 38 L.Ed.2d 44 (1974), conformed to 501 F.2d 992 (District Court directed to dismiss as moot).

The petitioner further claims that he was denied due process because he was not permitted to review the Board's file and to cross-examine witnesses against him. There is no right to inspect the files of the Board. Ott v. Ciccone, 326 F.Supp. 609 (W.D.Mo.1970). Nor does a prisoner have a constitutional right to cross-examine members of the Board or persons who may have provided information to the Board. Tarlton v. Clark, 441 F.2d 384 (CA5 1971), cert. denied, 403 U.S. 934, 91 S.Ct. 2263, 29 L.Ed.2d 713. A prisoner may be entitled to a "modicum of due process" in a hearing to consider his release on parole. Mower v. Britton, 504 F.2d 396 (CA10 1974). Such due process, however, does not embrace the full panoply of rights due a parolee in a parole revocation hearing and:

". . . he is not entitled to an opportunity to present witnesses and documentary evidence in support of his release on parole. Nor is an inmate entitled to confront and cross-examine persons who have provided the Board with adverse information, or to interrogate the Board members. A prisoner does not have a constitutional right to examine his record or Parole Board files, and he is not entitled to rebut information in possession of the Board which militates against his parole. The foregoing rights are the kind usually associated with an adversary-type hearing or adjudicatory proceedings in which vital issues of fact are to be decided which affect important rights of the litigants. The Board does not function as an adversary of the prisoner, and it has an interest in releasing those who qualify for parole. Menechino v. Oswald, 2 Cir. 1970, 430 F.2d 403, 407-408, cert. denied, 1971, 400 U.S. 1023, 91 S.Ct. 588, 27 L.Ed.2d 635; Scarpa v. United States Board of Parole, supra. The above procedural due process rights would convert the inmate's interview before the Parole Board into an adversary hearing, thereby unnecessarily hindering and burdening the parole decision-making process." Wiley v. United States Board of Parole, 380 F.Supp. 1194, 1200 (M.D. Pa.1974).

Petitioner also contends that he was not given sufficient reasons for the denial of his parole. It is now settled that a prisoner is entitled to a "brief statement" of the reasons for the action of the Board. Mower v. Britton, supra. With an offense severity rating of "high" and a salient factor score for offender characteristics of 8, the appropriate "Guidelines for Decision-making" applicable to youths indicate 16 to 24 months should be served before release. 20 C.F.R. § 2.20. The petitioner was informed of this and it was pointed out that he had only been in custody three months. On appeal it was determined that the reasons given justified the decision and the petitioner was so notified.

The statement adequately advised the petitioner of the basis for the Board's action. There was not in petitioner's case the reliance upon the "boiler plate reason" that his release would depreciate the seriousness of the offense and thus be incompatible with the welfare of society condemned in Lupo v. Norton, 371 F.Supp. 156 (D.Conn. 1974); Soloway v. Weger, 389 F.Supp. 409 (M.D.Pa.1974); Billiteri v. United States Board of Parole, 385 F.Supp. 1217 (W.D.N. Y.1974); Craft v. Attorney General of United States, 379 F.Supp. 538 (M.D.Pa.1974); Candarini v. Attorney General of United States, 369 F.Supp. 1132 (E.D.N.Y.1974). Here the principal reliance by the Board upon the guidelines is manifest and the petitioner well knows the basis for the Board's action. The Administrative Procedure Act would seem to require no more. It mandates the statement of reasons. It does not necessitate that the prisoner agree or be satisfied with the reasons given. As pointed out in Mower v. Britton, supra, the courts do not purport to control discretion.

In the special situation of the youth offender, one court has imposed a further requirement that the reasons must relate to the adjustment and rehabilitation efforts made within the institution. Snyder v. United States Board of Parole, 383 F.Supp. 1153 (D.Colo.1974). Although finding the use of guidelines properly within the discretion afforded to the Board it would in effect require the Board to justify any decision to follow the guidelines in the cases of a youthful offender. Board policy now requires additional reasons be given when the decision is made outside the range indicated by the guidelines. 28 C.F.R. § 2.13(c). The result reached by the court seems unwarranted. If the adoption of the guidelines was not an arbitrary act, as recognized by the court, it seems inconsistent to demand that an explanation be given for their application in a particular case. Individualized treatment and consideration does not preclude an identical statement of reasons for all persons for whom, after such individualized consideration, treatment in accordance with the guidelines is best indicated. To require more specific reasons from the Board when the obvious and true reason is the reliance on the guidelines, realistically is to infringe upon the discretion of the ...