Bush v. Kerr, 82-C-444.

• Citation: 554 F. Supp. 726
• Decision Date: 16 December 1982
• Docket Number: No. 82-C-444.,82-C-444.
• Court: U.S. District Court — Western District of Wisconsin
• Parties: Clinton BUSH, Plaintiff v. Larry D. KERR, Warden, Defendant.

554 F. Supp. 726

Clinton BUSH, Plaintiff v. Larry D. KERR, Warden, Defendant.

No. 82-C-444.

United States District Court, W.D. Wisconsin.

December 16, 1982.

Clinton Bush, pro se.

John R. Byrnes, U.S. Atty., Madison, Wis., for defendant.

ORDER

SHABAZ, District Judge.

Petitioner, an inmate at the Federal Correctional Institution at Oxford, Wisconsin, has petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. He challenges the actions of the United States Parole Commission in setting his presumptive parole date on a number of grounds:

1. That the Commission abused its discretion in considering information which was not true or was unreliable;

2. That the Commission applied the parole guidelines promulgated in 1976 to his offenses which predated those guidelines in violation of the ex post facto prohibition in the Constitution; and

3. That petitioner's equally culpable co-defendant was paroled after serving 92 months of a 23-year sentence, while petitioner will be paroled after serving 144 months of a 24-year sentence,¹ thus violating the policy of comparatively equal sentences for equally culpable conduct.

Based on the materials submitted by the parties, the facts are as follows:

FACTS

Petitioner is incarcerated at the Federal Correctional Institution at Oxford, Wisconsin, which is in this judicial district. Respondent Larry Kerr is the Warden of this institution.

Petitioner was sentenced to 15 years imprisonment by the United States District Court, Northern District of Indiana, on August 6, 1974, after conviction of conspiracy to distribute narcotics.²

Petitioner was also sentenced to a 9-year term after conviction of assault of a federal officer, in the same Court on January 17, 1975, such sentence to be consecutive to the prior 15-year sentence.³

Petitioner received an initial parole determination hearing on October 22, 1980. The hearing panel considered materials from several sources, including a letter from one of the Assistant United States Attorneys who prosecuted petitioner, and a letter from the sentencing judge recommending no parole. The AUSA's letter described petitioner as a high ranking member of a drug distribution network. Petitioner allegedly was an "enforcer" in this organization, known as "The Family," and was responsible for extortion and a number of murders during the early 1970's when The Family and other groups and individuals were vying for control of drug distribution in the Gary, Indiana area. Petitioner denied any involvement in extortion or murder. Although the notes of the hearing panel indicate that he admitted involvement in drug distribution and knowledge of several shootouts with competing organizations, he denies personal involvement in any shootouts or murders.

Petitioner was assigned a salient factor score of 8 and an offense severity rating of "Greatest II." The Commission's guidelines, promulgated in 1976, assign a parole guideline of 64+ months to be served before parole.⁴ This guideline is open ended except, of course, for the sentence maximum. The panel recommended that the matter be referred to the regional commissioner for original jurisdiction and recommended a presumptive parole after 120 months, after considering 144 months to be proper but for the disparity with the presumptive parole date of a co-defendant.⁵ In this regard, the panel notes state:

(b) Other comments: Today's panel notes that the Assistant United States Attorney and Judge both recommend against early parole. This is based on the violence surrounding this particular crime. Today's panel also notes that a co-defendant who appears to be equally culpable, Mr. Hillsman, received a 23 year sentence and reportedly will receive a presumptive parole date at 92 months which is his eligibility date. Today's panel was considering approximately 144 months for this individual but based on the co-defendant disparity, we will recommend service of 120 months or approximately 10 years on this sentence. The panel believes Mr. Bush worked his way up in this network by taking part in extortion, several drug-related murders and robberies of drug pushers. He is viewed as a somewhat dangerous individual and had it not been for his co-defendant receiving a parole at eligibility the panel would have recommended a more severe amount of time to be served. The subject by his own admission was the Number Five man in this organization and, as such, was responsible for much of its operation.

The matter was referred to the regional commissioner for original jurisdiction consideration who, in turn, referred the matter for original jurisdiction to the National Commission, and reiterated the panel's recommendation of presumptive parole after 120 months. The memorandum from the regional commissioner to the National Commission stated:

A PSI, dated July 29, 1974, says, with respect to Bush, "The defendant, codefendants and others unknown to the Grand Jury would form and continue to operate an organization known as `The Family.' The purpose of `The Family' organization was to engage in the distribution of heroin and cocaine, controlled substances, and control the traffic in heroin and cocaine in and around the city of Gary, Indiana." In the October 2 1980 letter from AUSA Hanning, we are informed, "Approximately 35 federal cases were prosecuted against approximately 50 defendants who were members and associates of The Family organization." Hanning describes Clinton Bush as "a high ranking member of the inner circle of The Family headed by Garland Jeffers ... In late 1971 and early 1972, Garland Jeffers, in concert with Clinton Bush and others, organized and became operational kingpin of the structured and ongoing narcotics distribution network in the Gary, Indiana area."

After discussing some other details of this organization, the memorandum continues, quoting from AUSA Hanning's letter:

"Beginning in late 1972 and continuing until early 1972, The Family organization became involved in a drug war with a smaller organization in the Gary area. Estimates of 60 to 140 deaths during that period of time have been attributed to that drug war." According to Hanning, Clinton Bush was an enforcer for The Family, staging and conducting robberies and collecting extortion money at Jeffers' direction. Hanning writes, "We had evidence and information that Bush was responsible for several deaths during the drug war. However, no homicide prosecution ever resulted; we did not use that evidence in the narcotics conspiracy case because of the possible claim of undue prejudice both to Bush and his codefendants."

The National Commission decided that petitioner should be continued to presumptive parole after service of 144 months. By Notice of Action dated January 9, 1981, petitioner was informed as to the reasons for parole denial:

Your offense behavior has been rated as Greatest II severity because you had a managerial interest in a multikilo heroin and drug trafficking operation and shot at a Federal Agent. You have a salient factor score of 8 ... You have been in custody a total of 79 months. Guidelines established by the Commission for adult cases which consider the above factors indicate a minimum of 64 plus months to be served before release for cases with good institutional program performance and adjustment. After review of all relevant factors and information presented, it is found that your release at this time would depreciate the seriousness of your offense behavior. Commission guidelines for Greatest II severity cases do not specify a maximum limit. Therefore, the decision in your case is based in part upon offense behaviors and time ranges specified in the Greatest I severity category.

The notes of the meeting of the National Commissioners in this matter indicate that the codefendant disparity was noted but that an earlier date should not be considered because of "accountability on this most serious offense." Also noted was the fact that "bystander killed as result of shooting," apparently in reference to the conviction for assault on a federal officer.

Petitioner appealed this decision. The decision was affirmed except that the presumptive parole date was corrected to May 20, 1986, to reflect 144 months confinement.

Petitioner's codefendant in the assault on a federal officer charge, James Hillsman, was, in fact, paroled after 92 months, in April, 1982. Hillsman also received a 9-year sentence in the assault case consecutive to a 14-year sentence in a separate narcotics conspiracy trial arising out of the same narcotics distribution network. The Parole Commission Hearing Summary prepared in Mr. Hillsman's case is devoid of the kind of detail set forth in that of petitioner's. The panel noted specifically that "the Presentence Report in that case the drug conspiracy conviction is not very satisfactory." AUSA Hanning apparently did not file a recommendation, and there is no indication that the judge did so. After considering a number of factors, including impressive institutional adjustment, the panel stated that "there is no justification for a decision above the indicated 92 months that subject must serve before parole eligibility."

Petitioner's institutional adjustment is presumably exemplary except for a number of disciplinary problems early in his confinement.

MEMORANDUM

At the outset, this Court notes that Congress has given the Parole Commission broad discretion in granting or denying parole, and that the relief this Court could grant is limited to ordering a new parole hearing for petitioner. Billiteri v. U.S. Board of Parole, 541 F.2d 938 (2nd Cir. 1976). Thus, relief can be granted petitioner only if the Commission has abused its discretion. Solomon v. Elsea, 676 F.2d 282 (7th Cir.1982) ("The inquiry is only whether there is a rational basis in the record for the Commission's conclusions embodied in its statement of reasons.").

For the reasons which will be more fully set forth in the...