Bowers v. Keller

• Decision Date: 26 August 2011
• Docket Number: No. 10–12170.,10–12170.
• Citation: Bowers v. Keller, 651 F.3d 1277, 23 Fla. L. Weekly Fed. C 315 (11th Cir. 2011)
• Parties: Veronza L. BOWERS, Jr., Petitioner–Appellant,v.Jeffrey KELLER, Warden, United States Parole Commission, Respondents–Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

651 F.3d 1277

23 Fla. L. Weekly Fed. C 315

Veronza L. BOWERS, Jr., Petitioner–Appellant,

v.Jeffrey KELLER, Warden, United States Parole Commission, Respondents–Appellees.

No. 10–12170.

United States Court of Appeals, Eleventh Circuit.

Aug. 26, 2011.

Charles Weisselberg, University of California, Sch. of Law, Berkeley, CA, A. Stephens Clay, IV, C. Allen Garrett, Jr., Kilpatrick, Townsend & Stockton, LLP, Atlanta, GA, Theodore D. Frank, Arnold & Porter, LLP, Washington, DC, Bryan Gaynor, Law Office of Bryan Gaynor, Arcata, CA, Thomas W. Stoever, Jr., Arnold & Porter, LLP, Denver, CO, for Petitioner–Appellant.Robert David Powell, Lawrence R. Sommerfeld, Sally Yates, U.S. Attys., Atlanta, GA, Respondent–Appellee.Appeal from the United States District Court for the Northern District of Georgia.Before HULL and BLACK, Circuit Judges, and HUCK,^*District Judge.PER CURIAM:

Veronza L. Bowers appeals the district court's denial of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241.Bowers is subject to the 1976 Parole Commission and Reorganization Act because he is incarcerated for an offense he committed prior to the effective date of the Federal Sentencing Guidelines—specifically, Bowers is serving a life sentence for the 1976 murder of a U.S. Park Ranger.The primary issue before us is whether the United States Parole Commission engaged in “unauthorized action” during Bowers' mandatory parole proceedings.Glumb v. Honsted,891 F.2d 872, 873(11th Cir.1990).We conclude that a United States Parole Commissioner engaged in such unlawful action, which impermissibly tainted the Parole Commission's June 14, 2005, decision reopening Bowers' mandatory parole proceedings.

I.STATUTORY BACKGROUND

As this case centers around the actions of the United States Parole Commission(Parole Commission), an initial understanding of the governing statutes and regulations is necessary to provide the proper context to Bowers' parole proceedings.

A.The Parole Act

In 1976, Congress passed the Parole Commission and Reorganization Act (Parole Act).Pub.L. No. 94–233, § 2,90 Stat. 219(1976)(formerly codified as18 U.S.C. §§ 4201–4218)(repealed 1984;see18 U.S.C. §§ 4201–4218 note concerning effective date of repeal).¹The purpose of the Parole Act was neither to “encourage or discourage the parole of any prisoner;” rather, the purpose was to “assure the public and imprisoned inmates that parole decisions are openly reached by a fair and reasonable process after due consideration has been given the salient information.”S.Rep. No. 94–648, at 20(1976)(Conf.Rep.).To achieve this purpose, the Parole Act made the Parole Commission“independent of the Department of Justice for decision-making purposes.”Id.;see also18 U.S.C. § 4202(establishing the Parole Commission“as an independent agency in the Department of Justice”).The Parole Act also established “clear standards as to the process and the safeguards incorporated into it to insure fair consideration of all relevant material, including that offered by the prisoner.”S.Rep. No. 94–648, at 21.

Under the Parole Act, an inmate serving a life sentence, like Bowers, is eligible for release on discretionary parole after serving ten years.See18 U.S.C. § 4205(a).If parole is not granted at this 10–year mark, the inmate is provided subsequent parole proceedings (Statutory Interim Hearings) every 24 months.See18 U.S.C. § 4208(h)(2);28 C.F.R. § 2.14(2005).²

B.The presumption of mandatory parole

If, after serving 30 years of a life sentence, the inmate has still not been released on parole, the Parole Act entitles an inmate to “mandatory parole”³ unless the Parole Commission makes specific findings to overcome the statutory presumption of release.18 U.S.C. § 4206(d).The “mandatory parole” provision “provides more liberal criteria for release on parole for prisoners with long sentences after they have completed two-thirds of any sentence or thirty years, whichever occurs first.”S.Rep. No. 94–648, at 27.Specifically, the Parole Act provides:

Any prisoner ... who is not earlier released ... shall be released on parole after having served two-thirds of each consecutive term or terms, or after having served thirty years of each consecutive term or terms of more than forty-five years including any life term, whichever is earlier: Provided, however, That the Commission shall not release such prisoner if it determines that he has seriously or frequently violated institution rules and regulations or that there is a reasonable probability that he will commit any Federal, State, or local crime.18 U.S.C. § 4206(d).Bowers' petition is based primarily on the Parole Commission's actions surrounding his mandatory parole proceedings.

The Parole Act grants the Parole Commission the power, “pursuant to the procedures set out in this chapter,” to “grant or deny an application or recommendation to parole any eligible prisoner.”18 U.S.C. § 4203(b)(1).The Parole Commissioners do not conduct the initial parole hearings, including the initial mandatory parole hearing.Rather, the Parole Commissioners delegated this function to Hearing Examiners or a panel of Hearing Examiners pursuant to § 4203(c) of the Parole Act. 28 C.F.R. § 2.23(a).Typically, a single Hearing Examiner conducts the hearing and makes a recommendation, which is then reviewed by a second examiner, and a third, if necessary.See28 C.F.R. §§ 2.13,2.23.The concurrence of two Hearing Examiners is required to obtain a panel recommendation.28 C.F.R. § 2.23.After the concurrence of two examiners, the Hearing Panel's recommendation goes to a single Regional Commissioner for review.See28 C.F.R. §§ 2.23,2.24.

When presented with the recommendation of the Hearing Panel, the Regional Commissioner has three options.Under the first option, which is utilized in most cases, the Regional Commissioner concurs with the Hearing Panel, and the recommendation then becomes an effective Parole Commission decision.See28 C.F.R. §§ 2.23(d),2.24(a).The prisoner or Attorney General may, within 30 days, appeal this “decision of a [R]egional [C]ommissioner” to the Parole Commission's appellate body, the National Appeals Board.See18 U.S.C. § 4215;28 C.F.R. § 2.26(a), (f).⁴A second option permits the Regional Commissioner to “[r]emand the case for a rehearing, with the notice of action specifying the purpose of the rehearing.”28 C.F.R. § 2.24(b)(2).In Bowers' case, the third option was implemented, which allows the Regional Commissioner to designate certain cases for the original jurisdiction of the Parole Commission.28 C.F.R. § 2.24(b)(1).

C.The original jurisdiction of the Parole Commission

The Parole Commission has denominated several categories of cases as appropriate for original jurisdiction, including “prisoners serving life sentences,” like Bowers.See28 C.F.R. § 2.17.⁵In this option, the Regional Commissioner sets the case for original jurisdiction pursuant to § 2.17, votes on the case, and refers the case to another Parole Commissioner for further review.See28 C.F.R. §§ 2.24(b)(1),2.17(a).The Parole Commission's original jurisdiction decision “shall be made on the basis of a majority vote of Commissioners holding office at the time of the decision.”28 C.F.R. § 2.17(a).A prisoner may appeal the original jurisdiction decision, but it “shall be submitted as a petition for reconsideration under § 2.27.”28 C.F.R. § 2.26(a)(1).“The previous decision made under § 2.17 may be modified or reversed only by a majority vote of the Commissioners holding office at the time of the review of the petition.”28 C.F.R. § 2.27(a).

During Bowers' parole proceedings, the Parole Commission also utilized a regulation permitting the reopening of a case.Section 2.28 sets forth six situations in which the Parole Commission can reopen a case; only the sixth situation, the “receipt of new and significant adverse information,” is relevant here.28 C.F.R. § 2.28.Upon the “receipt of new and significant adverse information,”§ 2.28(f) permits a Parole Commissioner to “refer the case to the National Commissioners with his recommendation and vote to schedule the case for a special reconsideration hearing.”28 C.F.R. § 2.28(f).This referral “automatically retard[s] the prisoner's scheduled release date,” and the special reconsideration hearing may be scheduled upon the concurrence of two Parole Commissioners.Id.

D.The Parole Commissioners

An understanding of the Parole Commission itself, and how it has evolved, is also helpful to understanding Bowers' parole proceedings.The Parole Act originally provided for a nine-member Parole Commission: a Chairman, three National Commissioners to serve on the National Appeals Board, and five Regional Commissioners to make first-level parole decisions.See18 U.S.C. §§ 4202,4204(a)(5).Following passage of the Sentencing Reform Act of 1984, Pub.L. No. 98–473, ch.2, 98 Stat.1987(1984)(codified as amended at 18 U.S.C. § 3551 et seq.,28 U.S.C. § 991 et seq.),⁶ the Parole Commission began a phase-out process and was set for abolishment in 1992.The life of the Parole Commission has been extended multiple times, in 1990, 1996, 2002, 2005, and 2008.⁷

Beginning in 1998, the Attorney General reported to Congress annually whether “the continuation of the Commission is the most effective and cost-efficient manner for carrying out the Commission's functions.”Pub.L. No. 104–232, § 3,110 Stat. 3055, 3056(1996).The Attorney General has reported each year that “it is more cost effective for the Parole Commission to continue as a separate agency.”SeeHistory of the Federal Parole System, p. 2, found at www. usdoj. gov/ uspc/ history. htm (last visited Aug. 1, 2011).Most recently, the life of the Parole Commission was extended from November 1, 2008, to November 1, 2011.Pub.L. 110–312, § 2,122 Stat. 3013(2008).

Although the number of Parole Commissioners has declined...