Briney v. UNITED STATES PAROLE COM'N, 77-91-Orl-Civ-R.
| Decision Date | 19 July 1977 |
| Docket Number | No. 77-91-Orl-Civ-R.,77-91-Orl-Civ-R. |
| Parties | Gary Edward BRINEY, Petitioner, v. UNITED STATES PAROLE COMMISSION, Respondent. |
| Court | U.S. District Court — Middle District of Florida |
Gary Edward Briney, pro se.
A. Thomas Mihok, Asst. U. S. Attorney, Orlando, Fla., for respondent.
The petition for writ of habeas corpus filed herein came on for hearing on 15 July 1977.
The record in this case reveals that the petitioner pled guilty to one count of distributing heroin in violation of 21 U.S.C. § 841(a)(1). This court found the petitioner to be a young adult offender and sentenced him to the custody of the Attorney General for treatment and supervision pursuant to the provisions of 18 U.S.C. § 5010(b). See United States v. Briney, Case No. 76-15-Orl-Cr-R. This sentence was imposed on 29 March 1976.
On 5 April 1976, the petitioner was incarcerated. On 9 June 1976, he went before the respondent Parole Commission which subsequently denied his request for parole and advised him that his next regular review hearing would occur in December 1977. Petitioner exhausted administrative remedies then available to him and filed the instant petition.
At the evidentiary hearing on the petition, the petitioner was present and testified that in his opinion he has made an excellent institutional adjustment and should be released before December 1977 which is the date to which he was set off. He also testified that he has a physical problem with his eyes which will require surgery for correction.
Appearing for the United States Parole Commission, Barbara Meierhoefer corroborated Mr. Briney's testimony to the effect that his institutional adjustment was good. She also testified that under guidelines applied by the Parole Commission to Mr. Briney's case, he could be released between twenty to twenty-seven months. (Under regular adult guidelines petitioner could be released after twenty-six to thirty-six months). His next review will take place in December 1977, twenty months after his incarceration commenced. Her testimony established that releases outside the guidelines are normally based on some unusual circumstance such as the prisoner's health, an unusual situation with the prisoner's family, or impending commitments under other sentences. To the extent applicable, these factors were taken into consideration at the initial Parole Commission hearing and rejected as a basis for treating Mr. Briney outside the guidelines.
Mrs. Meierhoefer also testified that Mr. Briney's salient factor score was ten out of a possible eleven points which indicates that he is a good parole risk. She testified that his offense severity was rated as very high. Based on these factors the Parole Commission made its decision to set petitioner off for twenty months. She further testified that under Regulation 2.28 promulgated by the Parole Commission, if Mr. Briney feels that his eye condition is deteriorating, he may advise the Regional Commissioner of this factor and obtain further consideration of the possibility of treating him outside the parole guidelines.
Petitioner argues that the Commission's use of guidelines as a means for determining release time convert an otherwise lawful sentence into one which is unlawful. Basically, therefore, the issue presented here is whether or not the Parole Commission may use its guidelines for determining the release of persons committed under the Youth Corrections Act. These guidelines are published in 28 C.F.R. § 2.20 et sequi.
The Fifth Circuit has repeatedly upheld the authority of the Parole Commission to promulgate, follow or depart from guidelines in cases involving adult offenders. See Payne v. United States, 539 F.2d 443 (5th Cir. 1976); Bistram v. U. S. Parole Bd., 535 F.2d 329 (5th Cir. 1976); Brown v. Lundgren, 528 F.2d 1050 (5th Cir. 1976).
There is nothing in the Youth Corrections Act or in Chapter 311 of Title 18, United States Code, dealing with the Parole Commission which suggests that the Parole Commission may not adopt and use guidelines for determining the release time of persons committed as youthful offenders or young adult offenders under the provisions of Chapter 402 of Title 18, United States...
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