Brown v. Lundgren, No. 75--3184

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore BELL, GODBOLD and RONEY; BELL; GODBOLD
Citation528 F.2d 1050
PartiesSidney F. BROWN, Jr., Petitioner-Appellant, v. David C. LUNDGREN, Warden, Federal Correctional Institution, Respondent-Appellee.
Docket NumberNo. 75--3184
Decision Date18 March 1976

Page 1050

528 F.2d 1050
Sidney F. BROWN, Jr., Petitioner-Appellant,
v.
David C. LUNDGREN, Warden, Federal Correctional Institution,
Respondent-Appellee.
No. 75--3184.
United States Court of Appeals,
Fifth Circuit.
March 18, 1976.

Page 1051

Donald R. Scoggins, Dallas, Tex., for petitioner-appellant.

Page 1052

William O. Wuester, Asst. U.S. Atty., Ft. Worth, Tex., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before BELL, GODBOLD and RONEY, Circuit Judges. *

BELL, Circuit Judge:

This case involves the extent to which a federal court may judicially review the parole release process of the United States Board of Parole, on the basis of a petition for writ of habeas corpus against the warden who has custody of the prisoner seeking such relief. Appellant Sidney F. Brown, Jr., challenges a decision of the Parole Board that effectively denies him eligibility for parole until his mandatory release date. The Parole Board was not named as a respondent. We find only a narrow jurisdictional base for such a petition, and affirm the order of the district court denying relief because Brown has not alleged facts that place him on that base.

Appellant Brown was first considered for parole in February, 1975, after being confined in the federal system since July 6, 1973. The local parole board denied him parole on the basis of its guidelines for the release of adult offenders set forth at 28 C.F.R. § 2.20 (1975). These guidelines establish ranges of confinement within which the board will consider an offender as eligible for parole. The particular range is determined by a combination of two factors--(1) offense characteristics: severity of offense behavior, and (2) offender characteristics: parole prognosis (salient factor score).

The salient factor score is mechanically determined on the basis of nine factors, such as prior convictions and incarcerations, prior drug involvement, family situation, job expectations and the like. Brown was given a salient factor score of seven, which he does not challenge.

The degree of offense severity ranges from 'low' to 'greatest' in seven steps. The guidelines give a number of examples of offenses that fall within each degree. Brown challenges the determination of the parole board that his degree of offense severity was 'very high,' as opposed to 'high,' in that he was only convicted of selling amphetamines, or 'soft' drugs, an offense listed within the 'high' category. The parole board responds that the guidelines give the board discretion to place an offender in a severity degree one step lower or higher than the degree his offense is listed within, on the basis of mitigating or aggravating circumstances, which it asserts are present here. Brown argues that this was arbitrary and capricious, in that the factors relied on as aggravating circumstances have already been considered in setting the salient factor score, and were implicitly considered by the district court in setting sentence.

Before considering the merits of Brown's contentions, we must first ascertain upon what jurisdictional base we stand in looking at his claim. Brown petitioned the district court for a writ of habeas corpus on the basis of 28 U.S.C.A. § 2241(c), and argues before this court that the decision of the parole board is reviewable under the provisions of the Administrative Procedure Act as well. In order for the writ of habeas corpus to extend to a federal prisoner, that prisoner must be in custody in violation of the Constitution or laws of the United States. 28 U.S.C.A. § 2241(c)(3). Because Brown has sued only the warden and not the board, our first task must be to determine whether Brown has alleged either a federal constitutional or federal statutory wrong by the parole board sufficient to make his custody by the warden unlawful under the terms of the habeas corpus statute.

At the constitutional level, there is a clear distinction between the loss of a statutory privilege once obtained and the denial of that same privilege, never

Page 1053

given. While the threatened loss of a privilege may be 'grievous' and therefore require some degree of procedural due process protection, see, e.g., Morrissey v. Brewer, 1972, 408 U.S. 471, 482, 92 S.Ct. 2593, 33 L.Ed.2d 484, the denial of that privilege may only be subject to the procedural demands of the particular enabling statute. Thus, while parole revocation and prison discipline are clearly within the ambit of the Due Process Clause of the Fifth and Fourteenth Amendments, the mere expectation of parole release while still in otherwise lawful custody is not so vested as to result in a 'grievous loss' if denied by the parole board. We thus disagree with the characterization by the Court of Appeals for the District of Columbia of the denial of parole as a deprivation of 'the valuable features of conditional liberty' equivalent to the loss involved in parole revocation that mandates due process protection. Childs v. United States Board of Parole, 1974, 167 U.S.App.D.C. 268, 511 F.2d 1270, 1278.

In any context where it is asserted that constitutional due process is required, the basic, threshold question is whether there is a 'grievous loss' of either a liberty or property interest. If there is no such loss, then the second question of whether the particular challenged procedure comports with fundamental fairness is never reached. In short, we find that the denial of parole as distinguished from the revocation of parole as in Morrissey, supra, is not a 'grievous loss', and we therefore do not consider whether the procedures of the parole board deny constitutional due process. 1

In a federal custody situation, however, the absence of a constitutional claim does not necessarily vitiate the right of the prisoner to review by habeas corpus of the denial of his parole by the...

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81 practice notes
  • Vincenzo v. Warden, No. 9593
    • United States
    • Appellate Court of Connecticut
    • November 12, 1991
    ...that if the parole board is subject to the A.P.A., then its procedures must comport with those required by the act. Brown v. Lundgren, 528 F.2d 1050, 1053 (5th Cir.), cert. denied, 429 U.S. 917, 97 S.Ct. 308, 50 L.Ed.2d 283 (1976). The Fifth Circuit held, however, that "a prisoner chal......
  • Wallace v. Christensen, No. 85-5560
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 23, 1986
    ...Guidelines is subject to review); Dye v. United States Parole Commission, 558 F.2d 1376, 1378 (10th Cir.1977) (same); Brown v. Lundgren, 528 F.2d 1050, 1054-55 (5th Cir.) (same), cert. denied, 429 U.S. 917, 97 S.Ct. 308, 50 L.Ed.2d 283 (1976). We must still determine whether and to what ext......
  • Payton v. U.S., No. 79-2052
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 2, 1981
    ...completely different from that presented under the FTCA. See Shahid v. Crawford, 599 F.2d 666, 668-70 (5th Cir. 1979); Brown v. Lundgren, 528 F.2d 1050, 1055 (5th Cir.), cert. denied, 429 U.S. 917, 97 S.Ct. 308, 50 L.Ed.2d 283 (1976); Pate v. Ala. Bd. of Pardons and Paroles, 409 F.Supp. 478......
  • Inmates of Nebraska Penal and Correctional Complex v. Greenholtz, No. 77-1889
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 9, 1978
    ...1332, 2 L.Ed.2d 1460 (1958) (right to a tax exemption). Bradford v. Weinstein, supra, 519 F.2d at 732 n. 3. But see Brown v. Lundgren, 528 F.2d 1050, 1052-53 (5th Cir.), cert. denied, 429 U.S. 917, 97 S.Ct. 308, 50 L.Ed.2d 283 (1976). While the parole applicant's status is not changed by de......
  • Request a trial to view additional results
81 cases
  • Vincenzo v. Warden, No. 9593
    • United States
    • Appellate Court of Connecticut
    • November 12, 1991
    ...that if the parole board is subject to the A.P.A., then its procedures must comport with those required by the act. Brown v. Lundgren, 528 F.2d 1050, 1053 (5th Cir.), cert. denied, 429 U.S. 917, 97 S.Ct. 308, 50 L.Ed.2d 283 (1976). The Fifth Circuit held, however, that "a prisoner challengi......
  • Wallace v. Christensen, No. 85-5560
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 23, 1986
    ...Guidelines is subject to review); Dye v. United States Parole Commission, 558 F.2d 1376, 1378 (10th Cir.1977) (same); Brown v. Lundgren, 528 F.2d 1050, 1054-55 (5th Cir.) (same), cert. denied, 429 U.S. 917, 97 S.Ct. 308, 50 L.Ed.2d 283 (1976). We must still determine whether and to what ext......
  • Payton v. U.S., No. 79-2052
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 2, 1981
    ...completely different from that presented under the FTCA. See Shahid v. Crawford, 599 F.2d 666, 668-70 (5th Cir. 1979); Brown v. Lundgren, 528 F.2d 1050, 1055 (5th Cir.), cert. denied, 429 U.S. 917, 97 S.Ct. 308, 50 L.Ed.2d 283 (1976); Pate v. Ala. Bd. of Pardons and Paroles, 409 F.Supp. 478......
  • Inmates of Nebraska Penal and Correctional Complex v. Greenholtz, No. 77-1889
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 9, 1978
    ...1332, 2 L.Ed.2d 1460 (1958) (right to a tax exemption). Bradford v. Weinstein, supra, 519 F.2d at 732 n. 3. But see Brown v. Lundgren, 528 F.2d 1050, 1052-53 (5th Cir.), cert. denied, 429 U.S. 917, 97 S.Ct. 308, 50 L.Ed.2d 283 (1976). While the parole applicant's status is not changed by de......
  • Request a trial to view additional results

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