Cruz v. Clark, Civ. A. No. 87-0872-AM.

• Citation: 684 F. Supp. 1335
• Decision Date: 27 May 1988
• Docket Number: Civ. A. No. 87-0872-AM.
• Parties: Hipolito CRUZ, Petitioner, v. J.J. CLARK, Warden, et al., Respondents.
• Court: U.S. District Court — Eastern District of Virginia

684 F. Supp. 1335

Hipolito CRUZ, Petitioner, v. J.J. CLARK, Warden, et al., Respondents.

Civ. A. No. 87-0872-AM.

United States District Court, E.D. Virginia, Alexandria Division.

May 27, 1988.

Hipolito Cruz, pro se.

Paula P. Newett, Asst. U.S. Atty., Alexandria, Va., for respondents.

MEMORANDUM OPINION

CACHERIS, District Judge.

The issue in this case is whether the application of parole guidelines adopted after an offense has been committed denies a federal prisoner the protection of the ex post facto clause, U.S. Const. art. 1, § 9, cl. 3. The respondents filed an opposition to petitioner's application for a writ of habeas corpus seeking dismissal of the petition on the grounds that petitioner's failure to exhaust his administrative remedies requires dismissal or, in the alternative, that the parole guidelines do not have the force and effect of law and are therefore not subject to the ex post facto prohibition. For the reasons set forth below, the court finds that the United States Parole Guidelines are not subject to the prohibition against ex post facto laws and retroactive application of guidelines adopted after an offense is committed is constitutional.

I. Background.

Petitioner Hipolito Cruz brings suit under 28 U.S.C. § 2241 seeking a writ of habeas corpus on the grounds that by applying parole guidelines adopted subsequent to the commission of the offenses for which he was convicted and sentenced, the prohibition against ex post facto laws has been violated. Petitioner asserts that under the parole guidelines in effect at the time he committed the offenses, his presumptive parole date would have required him to serve less time than he is required to serve by application of the parole guidelines adopted after the crimes were committed.

On October 5, 1983, petitioner pled guilty to one count of conspiracy to possess with intent to distribute in excess of 1000 pounds of marijuana. Petitioner was sentenced to serve a ten year term of incarceration on February 24, 1984 by the United States District Court for the Southern District of Florida. On January 18, 1984, petitioner pled guilty to an additional count of conspiracy to import in excess of 1000 pounds of marijuana. On March 8, 1984, petitioner was sentenced to a term of incarceration of five years to run concurrently with the ten year sentence previously imposed. Finally, on June 21, 1984, petitioner was sentenced on a guilty plea entered on October 5, 1983 to one count of conspiracy to import a minimum of 150 kilograms of cocaine. The ten year sentence of incarceration imposed for this conviction was ordered to run concurrently with the two terms imposed previously.

For the three separate convictions, petitioner is sentenced to serve a total federal sentence of 10 years, 3 months, 28 days. He has been in continuous custody in relation to these offenses since March 30, 1983. The last date on which any act was committed in furtherance of any of the three conspiracies is July 8, 1982. During the time these offenses were committed, the 1980 severity ratings and guidelines of the United States Parole Commission were in effect. These guidelines were subsequently revised in 1984.

On April 10, 1985, the petitioner was provided his initial parole hearing. The Parole Commission examiner panel assessed petitioner's case under the parole guidelines in effect at the time of the hearing, the 1984 guidelines. Based on these provisions, the panel determined petitioner's offense behavior to be graded category 8. Combined with his salient factor score of 8, petitioner's parole guideline range required him to serve 100 or more months of incarceration before parole. Cruz was notified that he could expect to serve no more than 84 months prior to mandatory release on his federal sentence. The examiner panel recommended that Cruz be denied parole. Upon review by the regional office, the Regional Commissioner adopted the recommendation of the examiner panel. Petitioner subsequently filed an administrative appeal to the National Appeals Board. The decision was affirmed.

On May 8, 1987, petitioner was afforded a statutory interim hearing¹ to determine whether any developments occurred since the initial hearing to justify a change in his presumptive parole date. The examiner panel recommended that no change be made from the prior decision to deny parole. The regional commissioner again adopted the recommendation and ordered petitioner to serve his sentence without parole to the expiration of his term. Petitioner was advised of his right to file an administrative appeal; a right he did not invoke. The respondents now seek dismissal of this petition on the grounds that petitioner's failure to appeal this last Parole Commission decision precludes his ability to seek review in this court. Alternatively, the respondents assert that the parole guidelines are not subject to ex post facto analysis and that therefore retroactive application of the revised guidelines does not violate petitioner's constitutional rights.

II. Exhaustion of Administrative Remedies.

Challenges to Parole Commission decisions must be brought under 28 U.S.C. § 2241 in the district court with jurisdiction over the prisoner or his custodian. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed. 2d 443 (1973); Andrino v. United States Bd. of Parole, 550 F.2d 519 (9th Cir.1977). The petition indicates that Cruz is incarcerated at the Federal Correctional Institution located at Petersburg, Virginia. For federal habeas corpus purposes, Cruz's custodian is the Warden of that institution. See Billiteri v. United States Bd. of Parole, 541 F.2d 938, 948 (2nd Cir.1976). As Petersburg, Virginia lies within the Eastern District of Virginia, petitioner's application for a writ of habeas corpus is properly before the court.

Judicial review of a claim challenging a Parole Commission decision is available under 28 U.S.C. § 2241 after exhaustion of administrative remedies. Chua Han Mow v. United States, 730 F.2d 1308, 1313 (9th Cir.1984), cert. denied, 470 U.S. 1031, 105 S.Ct. 1403, 84 L.Ed.2d 790 (1985). The Parole Commission has established an administrative remedy procedure through which an inmate can seek formal review of any decision to grant, rescind, deny or revoke parole. See 28 C.F.R. § 2.26 (1987). Requiring inmates to use this administrative remedy aids judicial review in several ways. First, requiring exhaustion allows for the development of a complete factual record; second, exhaustion permits the administrative agency an opportunity to correct errors occurring in the course of its own proceedings; and finally, requiring inmates to seek relief through the administrative remedy procedure conserves the court's time by foreclosing the possibility that the relief applied for may be granted at the administrative level. Chua Han Mow, 730 F.2d at 1313 (citing Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir.1983) (per curiam)). Allowing the Parole Commission the first opportunity to address petitioner's challenge to the application of the parole guidelines is a prerequisite to bringing an action in this court under § 2241. See United States v. Legrano, 659 F.2d 17, 18 (4th Cir.1981).

Contrary to respondents' assertions, petitioner has exhausted his administrative remedies with respect to the claim that the ex post facto clause prohibits application of the revised guidelines to his case. Petitioner filed an administrative appeal to the National Appeals Board following the initial decision of the regional commissioner to deny parole. The National Appeals Board affirmed the commissioner's decision based on "the commission's position that the ex post facto clause of the Constitution does not apply to paroling policy guidelines." (Respondents' Exhibit D). As this decision is the exact issue raised in this petition, the court believes petitioner has satisfied the requirement that he first exhaust his administrative remedies. His failure to later appeal the decision rendered at his statutory interim hearing does not present a bar to this case as the Commission had already been presented with the ex post facto claim.² Granting judgment to the respondents on the grounds that petitioner's failure to reassert his claim after each parole hearing would result in a triumph of form over substance. The exhaustion requirement clearly does not call for such a result.³

III. The Ex Post Facto Guarantee.

Cruz claims that the use of parole guidelines promulgated after the commission of his crimes to determine his parole eligibility violates the constitutional prohibition against ex post facto laws. Article I of the United States Constitution provides that congress shall not pass any "ex post facto Law." See art. I, § 9, cl. 3; art. I, § 10, cl. 1. For a law to be ex post facto, it must possess three characteristics: it must be a criminal or penal measure, retrospective in application and disadvantageous to the offender because it may impose greater punishment. Dufresne v. Baer, 744 F.2d 1543, 1546 (11th Cir.1984), cert. denied, 474 U.S. 817, 106 S.Ct. 61, 88 L.Ed.2d 49 (1985) (citing Weaver v. Graham, 450 U.S. 24, 28-29, 101 S.Ct. 960, 963-964, 67 L.Ed.2d 17 (1981) and Dobbert v. Florida, 432 U.S. 282, 292-93, 97 S.Ct. 2290, 2297-98, 53 L.Ed.2d 344 (1977)). Even if applied retrospectively, a law which does not add to the quantum of punishment because it is merely procedural in nature does not violate the ex post facto clause. Weaver v. Graham, 450 U.S. at 29 n. 12, 101 S.Ct. at 964 n. 12. The Supreme Court has noted from the outset "that central to the ex post facto prohibition is a concern for `the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.'" Miller v. Florida, ___ U.S. ___, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351 (1987) (citing Weaver v. Graham, 450 U.S. at 30, 101 S.Ct. at 965).

Cruz...