Brach v. Nelson

• Decision Date: 31 January 1979
• Docket Number: Civ. No. B-78-365.
• Citation: 472 F. Supp. 569
• Parties: Simon BRACH, Petitioner, v. W. R. NELSON, Warden, FCI, Danbury, Connecticut, Respondent.
• Court: U.S. District Court — District of Connecticut

472 F. Supp. 569

Simon BRACH, Petitioner, v. W. R. NELSON, Warden, FCI, Danbury, Connecticut, Respondent.

Civ. No. B-78-365.

United States District Court, D. Connecticut.

Supplemental Memorandum of Decision January 31, 1979.

April 18, 1979.

Joseph W. Ryan, Jr., Mineola, N.Y., for petitioner.

Cheryl B. Wattley, Asst. U.S. Atty., New Haven, Conn., for respondent.

MEMORANDUM OF DECISION

DALY, District Judge.

Petitioner is presently incarcerated at the F.C.I., in Danbury, Connecticut as a result of a conviction on one count of theft from a foreign shipment in violation of 18 U.S.C. § 659. On December 19, 1975, petitioner was sentenced to a five-year regular adult term of imprisonment and he began service of this sentence on November 4, 1976. Petitioner's initial parole hearing was held on February 6, 1978. The Commission, by Notice of Action dated February 23, 1978, denied petitioner parole and continued him beyond the applicable guideline period until his mandatory release date with a statutory interim hearing during August of 1979.¹

After exhausting the Commission's administrative remedies, petitioner, with counsel, filed this action under 28 U.S.C. § 2241 seeking a new parole hearing on the grounds that the Commission improperly extended his parole date beyond the guideline period.² Specifically, petitioner attacks the reasons given in the Notice of Action for going above the guidelines as the very same reasons used by the Commission to determine the guideline period for his release. This Court is unable to address the merits of petitioner's claim since the Notice of Action, itself, is fatally defective.

II.

The Commission, seeking to quantify objectively the factors involved in the parole determination, has adopted pursuant to 18 U.S.C. § 4203(a) guidelines for the purpose of promoting "a more consistent exercise of discretion, and enabling fairer and more equitable decision making in granting parole." 28 C.F.R. § 2.20(a).³ Under the guidelines an evaluation sheet must be prepared in each case for computing a salient factor score. This score serves as an aid in determining the parole prognosis (potential risk of parole violation).⁴ 28 C.F.R. § 2.20(e). Pursuant to the guidelines, the Commission then applies this score to petitioner's severity offense rating to determine the customary parole release date.

In the ordinary case, where a decision is reached to apply the guideline period after a finding that no special aggravating or mitigating factors are present, a Notice of Action containing the offense severity rating, salient factor score, period of incarceration, and applicable guideline period followed by the conclusion that a decision outside the guidelines is not warranted would constitute an entirely sufficient notice. See Lupo v. Norton, 371 F.Supp. 156, 162 (D.Conn.1974).

Parole within these guidelines is not automatic, however, and the Commission may, upon a showing of good cause, go outside the guidelines. However, in these kinds of cases, the Commission is required to provide the prisoner "with particularity the reasons for its determination, including a summary of the information relied upon." Further, the prisoner "shall receive a specific explanation of the factors which caused the Commission to reach a determination outside the guidelines." Emphasis added 18 U.S.C. § 4206(c). Judge Newman in Randaccio v. Wilkinson, 415 F.Supp. 612 (D.Conn.1976), stated that the primary purpose of the requirement is to allow the prisoner and a reviewing court to "determine that the case received individualized consideration, and not simply a pro forma recitation of the pertinent regulation." Id. at 614. Inasmuch as the Commission in the present case went above the guideline period in denying petitioner parole, this Court now focuses on whether the Notice of Action⁵ sufficiently sets forth the reasons for the decision of the Commission to permit this Court to render an informed decision concerning petitioner's claim.

In addition to the four elements normally included in the Notice of Action,⁶ the Commission, pursuant to the requirement, stated the reason for going beyond the guideline period: "A decision above the guidelines at this consideration appears warranted because you were on reparole at the time of the instant offense; have a history of similar offenses."⁷ Petitioner contends that these factors are the same as those that are considered in computing the salient factor score. Under the salient factor score, a numerical value is attached to the number of past offenses and the status of parole at the time of the instant offense.⁸

The government contends, however, that the Notice of Action sufficiently sets forth the factors which justify continuing petitioner beyond the guideline period and that the factors stated are distinguishable from those considered in computing the salient factor score.⁹ With respect to the first factor, the government argues that the salient factor score was based only upon whether petitioner's parole was revoked and the Commission's decision was based in part on the additional facts that petitioner was on state probation as well as parole at the time of the offense.

The government's own argument points up the deficiency in the Notice of Action. If the Commission indeed had considered the state probation violation as an additional reason for going above the guidelines, then it should set forth this reason in the Notice of Action pursuant to the guideline Notice requirement.¹⁰ Yet, the Notice of Action in this case made no mention of this factor.

With respect to the second factor, the government argues that because the Notice of Action not only stated a number of past offenses but also that they were similar, the reason given was distinguishable from the salient factor category which concerns only the number of offenses committed. Even assuming that the penalization of a prisoner for similarity of past offenses is permissible under the guidelines, semantic distinctions of this nature without further explanation are inconsistent with the requirement of providing a prisoner and the court with a clear understanding of the reasons for exceeding the guidelines. See Randaccio, supra.

Failure of the Commission to specify clearly the reasons for a parole decision, particularly in cases where the parole date exceeds that delineated under the guidelines, impedes the objectivity for which the guidelines were designed and interferes with the ability of reviewing courts to determine the propriety of the Commission's decision. The present case illustrates these adverse effects. Here, petitioner charges that he illegitimately was penalized twice for being on parole at the time of the offense and for having a history of prior offenses. Based upon the Notice of Action, alone, without the additional information provided to the Court at this juncture of the proceedings, petitioner apparently has a meritorious claim.¹¹ Had the Commission simply stated the fact of state probation and explained why the similarity of past offenses in this instance adversely affected petitioner's parole date, perhaps the inmate and his counsel would have understood the basis for the Commission's decision and not have pursued this action. And even if suit was filed in any event, this Court would have had an adequate basis to review the Commission's decision to determine whether impermissible doubling of factors had occurred.¹² As the Second Circuit stated, the failure to give sufficient reasons for parole decisions breeds inmate frustration and impedes the development of "a body of rules, principles and precedent . . . which would promote consistency," by the Commission. U. S. ex rel. Johnson v. Chairman, N. Y. State Bd. of Parole, 500 F.2d 925, 933 (2d Cir. 1974) vacated as moot sub nom Regan v. Johnson, 419 U.S. 1015, 95 S.Ct. 488, 42 L.Ed.2d 289 (1974).

For the reasons stated above, this Court finds that the Notice of Action given in the present case was inconsistent with the express mandate to the Commission to state with particularity the reasons for parole decisions above the guideline period. It is hereby ordered that the Commission afford petitioner Brach a proper Notice of Action within thirty days. As to this and other matters raised by petitioner with counsel in his habeas petition and the accompanying memorandum in support of that petition this Court retains jurisdiction.

It is so Ordered.

SUPPLEMENTAL MEMORANDUM OF DECISION

I.

Petitioner filed this habeas corpus action challenging the Parole Commission's decision to extend his parole date beyond the applicable guideline period.¹ He contended that the Commission acted improperly by considering the same factors both in computing the guideline period and in deciding to go above that period.² In its initial ruling on the petition, this Court was unable to render an informed decision since the Commission in the Notice of Action, dated February 23, 1978, had failed to state with particularity the reasons for it's decision. The Court ordered the Commission to furnish petitioner within thirty days a proper Notice. Brach v. Nelson, Civil No. B-78-365 (D.Conn. Feb. 1, 1979). The Commission on March 2 of this year sent to petitioner's counsel an amended Notice.³

Petitioner, with counsel, now renews his initial challenge. He maintains that the amended Notice merely elaborates on the reasons set forth in the original Notice and that the Commission's decision continues to rest upon petitioner's prior convictions and his parole and probation status—two factors covered by the salient factor score under Items A and E.⁴ Petitioner alternatively contends that regardless of whether the Commission impermissibly doubled factors, it failed to set forth good cause for the decision.

The Commission, however, maintains that Item A only designates points based on the number, not the nature, of past convictions and, therefore, the Commission can consider the...