Benny v. U.S. Parole Com'n.

• Decision Date: 02 July 2002
• Docket Number: No. 00-16867.,00-16867.
• Citation: 295 F.3d 977
• Parties: George I. BENNY, Petitioner-Appellant, v. UNITED STATES PAROLE COMMISSION, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

295 F.3d 977

George I. BENNY, Petitioner-Appellant, v. UNITED STATES PAROLE COMMISSION, Respondent-Appellee.

No. 00-16867.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 8, 2002.

Filed July 2, 2002.

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Sean M. SeLegue and Robert J. Breakstone, Rogers Joseph O'Donnell & Phillips, San Francisco, California, for the petitioner-appellant.

Alex G. Tse, Assistant United States Attorney, San Francisco, California, for the respondent-appellee.

Appeal from the United States District Court for the Northern District of California, Martin J. Jenkins, District Judge, Presiding. D.C. No. CV-99-03567-MJJ.

Before BEEZER, THOMAS and W. FLETCHER, Circuit Judges.

OPINION

BEEZER, Circuit Judge.

George I. Benny ("Benny") appeals the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2241 or, alternatively, a writ of mandamus under 28 U.S.C. § 1361. Benny seeks termination of parole supervision and asserts two due process claims arising from a parole revocation proceeding. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). We affirm in part, vacate the judgment and remand.

I

Benny was sentenced to 30 years imprisonment following a jury conviction of mail fraud and racketeering. See United States v. Benny, 786 F.2d 1410, 1413-14 (9th Cir.1986). He served the first 10 years of his sentence in prison. The United States Parole Commission ("Commission") released Benny on parole on December 16, 1993 to serve the remainder of his sentence. In addition to standard terms of parole, the Commission imposed special conditions regulating Benny's financial disclosures, eligibility for employment and involvement in real estate activities.

Benny was charged twice in 1995 with violating the terms of his parole. In January of that year, a probation officer reported that Benny failed to disclose personal income and loans he made to a nephew. Five months later the probation officer reported that Benny failed to disclose his involvement in a major traffic accident and mischaracterized the accident when questioned by the probation officer. The Commission did not revoke parole but formally reprimanded Benny in writing on each occasion.

In November 1998 the probation officer charged Benny with more parole violations. Benny reportedly was associating with a person engaged in criminal activity¹ and was involved in an unauthorized real estate transaction. This time, the Commission decided to initiate parole revocation proceedings against Benny. The Commission issued a parole violator warrant and took Benny into custody on November 18, 1998. Benny idled in custody for 31 days before, on December 21, 1998, a Commission case analyst conducted a preliminary interview and determined that there was probable cause to arrest Benny for the charged parole violations.

The Commission offered Benny an expedited parole revocation process whereby he would waive a formal revocation hearing and accept responsibility for the alleged parole violation behavior. In return, the Commission would release Benny to a second parole term after three months of incarceration, subject to the same special conditions imposed in the prior parole. Benny accepted the offer and, as agreed, was re-paroled on February 18, 1999 after serving three months incarceration.

Benny filed a petition for a writ of habeas corpus or, alternatively, a writ of mandamus seeking termination of parole supervision for lack of jurisdiction and asserting two due process claims relating to the parole revocation process. He alleged (1) that the Commission automatically lost jurisdiction over him when it failed to make an early termination decision pursuant to 18 U.S.C. § 4211(c)(1),² (2) that the Commission improperly arrested him and failed to conduct a timely probable cause determination, and (3) that the Commission improperly imposed new special conditions in the second parole release.

The district court treated Benny's petition as one for habeas relief, rejected all three claims on the merits and denied the petition.

II

We review de novo a district court's denial of a § 2241 habeas petition. Zitto v. Crabtree, 185 F.3d 930, 931 (9th Cir.1999) (per curiam). Our jurisdiction to review the Commission's decisions is limited. We determine whether the Commission exceeded its statutory authority or acted so arbitrarily as to violate due process. Wallace v. Christensen, 802 F.2d 1539, 1551-52 (9th Cir.1986) (en banc). Judgments "involving a broad range of factors" that the Commission takes into account in arriving at its decision are committed to the Commission's discretion and are unreviewable even for abuse of discretion. Id. at 1551.

III

The Parole Act provides:

[T]he jurisdiction of the Commission over the parolee shall terminate no later than the date of the expiration of the maximum term or terms for which he was sentenced, except that ... such jurisdiction shall terminate at an earlier date to the extent provided under ... section 4211....

18 U.S.C. § 4210(b)(1) (1984). Section 4211(c)(1) states:

Five years after each parolee's release on parole, the Commission shall terminate supervision over such parolee unless it is determined, after a hearing..., that such supervision should not be terminated because there is a likelihood that the parolee will engage in conduct violating any criminal law.

18 U.S.C. § 4211(c)(1) (1984).

Benny argues that the plain language in § 4211(c)(1) requires automatic termination of the Commission's jurisdiction over a parolee if five years on parole release elapse without an early termination decision by the Commission. Benny was released on parole on December 16, 1993. Five years passed with no early termination decision by the Commission. Benny contends that the Commission lost jurisdiction over him on December 16, 1998.

We considered and rejected the same argument in Tatum v. Christensen, 786 F.2d 959, 963 (9th Cir.1986), overruled on other grounds by Wallace v. Christensen, 802 F.2d 1539, 1554 & n. 10 (9th Cir.1986) (en banc). Tatum adopts the reasoning provided by the Seventh Circuit in United States ex rel. Pullia v. Luther, 635 F.2d 612 (7th Cir.1980). The parolee-petitioners in Tatum and Luther, like Benny, argued that parole supervision automatically terminates when the Commission fails to make an early release determination five years after parole release. See Tatum, 786 F.2d at 963; Luther, 635 F.2d at 612. They too relied on the plain language of § 4211(c)(1).

The Seventh Circuit holds that the lapse of five years without an early termination hearing does not automatically terminate the Commission's jurisdiction. Id. at 616-17.³ The court reasons that "the meaning of section 4211(c)(1) cannot be resolved solely on the basis of grammatical analysis and that the statute's ambiguity makes it necessary and appropriate to look to the legislative history of the Parole Act for clarification." Id. at 616. Statements by the Parole Act's House and Senate sponsors indicate that delay in making an early termination decision does not terminate the Commission's jurisdiction. Id. According to the legislative history, the remedy for a delay is a writ of mandamus to compel an early termination hearing. Id. at 616-17.

In Tatum we agree with the reasoning in Luther and hold that § 4211(c)(1) "gives a parolee a right to a Parole Extension Hearing, not a right to automatic termination or release." Tatum, 786 F.2d at 963; see also Robbins v. Thomas, 592 F.2d 546, 549 n. 7 (9th Cir.1979) ("As a remedy for the violation of [§ 4211(c)(1)] procedural rights, [the petitioner] was not entitled to release from parole, but only to a properly considered decision by the Commission.").⁴

We are bound by decisions of prior panels unless an en banc decision, Supreme Court decision or subsequent legislation undermines those decisions. United States v. Washington, 872 F.2d 874, 880 (9th Cir.1989). Benny argues that § 4211(c)(1) should be interpreted by its plain text rather than, as in Tatum and Luther, by reference to legislative history. Benny additionally contends that Board of Pardons v. Allen, 482 U.S. 369, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987), decided after Tatum, supports the claim that § 4211(c)(1) dictates termination of supervision after five years of parole release unless the Commission affirmatively decides to continue supervision. Neither argument persuades us to abandon Tatum.

A.

Benny argues that automatic termination of parole supervision is clearly contemplated by the plain language of § 4211(c)(1). He asserts that the rules of statutory interpretation require adherence to the plain meaning of a statute when the statutory language is clear. According to Benny, Tatum improperly relies on the Parole Act's legislative history.

We cannot disturb Tatum absent some relevant change in the law. Benny argues that there has been such a change in the rules of statutory interpretation. He asserts that since Tatum "courts have grown increasingly reluctant to rely on so-called legislative history to interpret statutes, focusing instead on the statutory text itself." Benny correctly recites a basic rule of statutory interpretation, but the rule was applied no differently in Tatum's time than today. Compare United States v. Daas, 198 F.3d 1167, 1174 (9th Cir.1999), cert denied, 531 U.S. 999, 121 S.Ct. 498, 148 L.Ed.2d 468 (2000) ("The first step in ascertaining congressional intent is to look to the plain language of the statute.... If the statute is ambiguous — and only then — courts may look to its legislative history for evidence of congressional intent.") (citations omitted) with Church of Scientology of Cal. v. United States Dep't of Justice, 612 F.2d 417, 421 (9th Cir.1979) ("The plain meaning rule ... stands for the notion that if the language of a statute is clear and there is no ambiguity, then there is no need to `interpret' the language by...