Edwards v. U.S.

• Decision Date: 13 March 1978
• Docket Number: No. 77-1531,77-1531
• Citation: 574 F.2d 937
• Parties: Homer Gene EDWARDS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 937

574 F.2d 937

Homer Gene EDWARDS, Appellant, v. UNITED STATES of America, Appellee.

No. 77-1531.

United States Court of Appeals,

Eighth Circuit.

Submitted March 7, 1978.

Decided March 13, 1978.

Homer Gene Edwards, pro se.

Ronald S. Reed, Jr., U. S. Atty. and Frederick O. Griffin, Jr., Asst. U. S. Atty., Kansas City, Mo., for appellee.

Before BRIGHT, STEPHENSON and HENLEY, Circuit Judges.

BRIGHT, Circuit Judge.

Homer Gene Edwards was convicted on May 18, 1973, for heroin distribution and sentenced to ten years' imprisonment. The district judge, in sentencing Edwards, employed 18 U.S.C. § 4208(a)(2) (1970), ¹ which specifies that "the prisoner may become eligible for parole at such time as the board of parole may determine." On April 15, 1977, Edwards filed the present action under 28 U.S.C. § 2255 (1970). He noted that he was still in custody, even though he had completed more than one-third of his sentence, and that the Parole Board ² had failed to give his application for parole meaningful consideration. Relying on our holding in Kortness v. United States, 514 F.2d 167 (8th Cir. 1975), Edwards claimed that the district judge had made a "critical error" in fixing his sentence and accordingly had the authority to modify the sentence under section 2255. The sentencing judge denied the petition without a hearing, and Edwards brought this appeal. We review his appeal against a backdrop of Parole Board procedures that have undergone substantial changes between the imposition of Edwards' sentence in 1973 and his lack of success in obtaining parole during the next three years. For reasons stated below, we vacate the judgment of the district court and remand the case for further consideration in light of our discussion.

I.

The indictment charged Edwards with two counts of knowingly and intentionally distributing heroin in violation of 21 U.S.C. § 841(a)(1) (1970). During the trial the district judge granted Edwards' motion for acquittal on count I, but the jury returned a guilty verdict on count II. The judge imposed a sentence of ten years' imprisonment under 18 U.S.C. § 4208(a)(2) (1970) on August 9, 1973, a sentence that provided for parole at such time as the Parole Board may determine. The sentence carried with it a statutorily-imposed special parole term of three years. ³ The conviction was upheld on appeal, and the Supreme Court denied certiorari.

Edwards received an initial, perfunctory hearing regarding eligibility for parole on November 13, 1973. At that hearing the Parole Board employed its new objective guidelines used in setting parole release dates. ⁴ The Board determined to maintain Edwards in custody, scheduled the next hearing for November 1976, and stated:

The offense is in the very high category, the salient factor score is only 7, necessitating the service of between 36-45 months. * * * It is felt that he should get the maximum continuance of 3 years, giving him 41 months in all at the time of the next hearing, or in the mid-area of the guidelines * * *. Your release at this time would depreciate the seriousness of the offense committed and is thus incompatible with the welfare of society. (Pet. Br. at 2 (emphasis in original).)

Edwards' petition alleges that the Board amended its prior order on March 4, 1975, and rescheduled the next parole hearing for September 1976. The hearing apparently was held in August 1976, however. At that time the Board denied parole and set the next parole hearing for August 1978, stating:

Your offense behavior has been rated as very high severity. You have a salient factor score of 7. You have been in custody a total of 39 months. Guidelines established by the Commission for adult cases which consider the above factors indicate a range of 36-45 months to be served before release for cases with good institutional program performance and adjustment. After review of all relevant factors and information presented, a decision above the guidelines at this consideration appears warranted because of your extensive prior record which demonstrates that there is not a reasonable probability that you would live and remain at liberty without violating the law. 18 U.S.C. 4208 prohibits a continuance in your case of more than 24 months without review. Your next review has been scheduled in accordance with this statute. (Pet. Br. at 2.)

The net result, as observed by the appellant in his pro se brief, is that:

(W)hen appellant receives his Statutory Review Hearing in August, 1978, he will have been in custody some 63-64 months, which, less statutory good time, and the maximum good time earned, will actually leave appellant only several months short of serving two-third point of his ten (10) year sentence, that was imposed under provisions of Section 4208(a)(2) prior to the publication of parole guidelines that was published for the first time on November 19, 1973. (Pet. Br. at 6 (emphasis in original).)

Frustrated in his attempts to obtain parole, Edwards brought the present action under 28 U.S.C. § 2255 (1970), ⁵ seeking a modification of his sentence. The judge who had sentenced him in 1973 denied his petition without a hearing, ⁶ and wrote:

Accepting the facts as recited by the Petitioner in the body of his motion, I find that Mr. Edwards was accorded a preliminary hearing concerning his eligibility for parole within a short time after his arrival at his place of confinement; that his case was continued until November, 1976; that in March of 1975, the Board of Parole amended its prior order and moved up the Institution Review hearing to August or September of 1976; and that such hearing was actually held in August, 1976, following which the Board of Parole denied parole in this case and continued the matter for statutory review in August, 1978. Specific, articulated reasons were stated by the Board of Parole in denying parole in this case. The decision was affirmed by the Regional and National Boards.

As is patently clear from the facts above recited, the Petitioner was accorded a hearing on his application for parole at or before the one-third point of his sentence. Having been afforded that hearing, and the Board having stated cogent reasons for denying parole in his case, the Petitioner is now hard put to claim that he was not granted "meaningful consideration" for parole.

Accordingly, I hold that, since the Petitioner in this case has been timely accorded "meaningful consideration" of his application for parole, my expectations concerning the § 4208(a)(2) sentence imposed have not been thwarted.

Edwards then brought this pro se appeal, contending that our prior decision in Kortness v. United States, 514 F.2d 167 (8th Cir. 1975), entitled him to relief.

II.

The decision as to when an offender should be released from prison is shared by all three branches of the federal government: (1) the legislative branch prescribes the range of sentencing possibilities; (2) the judicial branch determines whether to incarcerate and then sentences within the range of possibilities provided by Congress; and (3) the executive branch, through the Parole Board, determines how much of the sentence must actually be served in prison.

In exercising their authority, the federal trial courts may rely on three different statutory provisions, each with different implications for parole. The first is 18 U.S.C. § 4205(a) (1976). Under this provision the judge fixes a definite sentence and the prisoner is eligible for release on parole, if his term is one year or greater, "after serving one-third of such term or terms or after serving ten years of a life sentence or of a sentence of over thirty years * * *." The second possibility is 18 U.S.C. § 4205(b)(1) (1976). Under this second provision, the sentencing judge prescribes a minimum term of greater than one year, "at the expiration of which the prisoner shall become eligible for parole, which term may be less than but shall not be more than one-third of the maximum sentence imposed by the court * * *." Finally, as in this case, the judge may simply fix the maximum term of imprisonment and provide for parole release at such time "as the Commission may determine." 18 U.S.C. § 4205(b)(2) (1975). In sum, the sentencing judge has

three options of (1) a straight sentence, with parole eligibility after service of one-third of the sentence (§ 4205(a)); (2) an indeterminate sentence with minimum and maximum confinement periods specified (§ 4205(b)(1)); and (3) an indeterminate sentence with no minimum and only a maximum specified (§ 4205(b) (2)). (Garafola v. Benson, 505 F.2d 1212, 1216-17 (7th Cir. 1974) (citations altered to account for congressional revisions).)

The third provision, 18 U.S.C. § 4205(b)(2), enables the sentencing judge to grant the Parole Board discretion to release the prisoner on parole before one-third of the sentence has been served if the Parole Board deems early release appropriate. See Garafola v. Benson, supra, 505 F.2d at 1216. The provision also serves to eliminate some of the disparities arising in sentencing because it vests almost complete discretion in a central body, the Parole Board. See Brief for Amicus Curiae United States Board of Parole at 15, Kortness v. United States, 514 F.2d 167 (8th Cir. 1975).

A judge sentencing under section 4205(b)(2) does not sentence in a vacuum. Typically, he has reviewed carefully a large quantity of information about the offender and his offense contained in the presentence report and supporting documents. Based on this information the judge has made a determination that the offender, assuming proper behavior while in prison, would benefit from early release. For this reason, he has sentenced under section 4205(b)(2), because it allows the Parole Board to release the offender even before the offender has served one-third of his sentence.

Thus, although section 4205(b)(2) purports to give the Parole Board unfettered discretion in releasing a prisoner on parole, it...