Ewing v. Rodgers, Civ. A. No. 83-M-2311.

• Decision Date: 12 April 1984
• Docket Number: Civ. A. No. 83-M-2311.
• Citation: 582 F. Supp. 1513
• Parties: Kent Patrick EWING, Petitioner, v. George RODGERS, Warden, Federal Correctional Institution, Englewood, Colorado; Norman Carlson, Director, U.S. Bureau of Prisons; Victor M.S. Reyes, Commissioner, United States Parole Commission; William French Smith, Attorney General of the United States, Respondents.
• Court: U.S. District Court — District of Colorado

582 F. Supp. 1513

Kent Patrick EWING, Petitioner, v. George RODGERS, Warden, Federal Correctional Institution, Englewood, Colorado; Norman Carlson, Director, U.S. Bureau of Prisons; Victor M.S. Reyes, Commissioner, United States Parole Commission; William French Smith, Attorney General of the United States, Respondents.

Civ. A. No. 83-M-2311.

United States District Court, D. Colorado.

April 12, 1984.

Daniel J. Sears, Englewood, Colo., for petitioner.

Douglas Curless, Asst. U.S. Atty., Denver, Colo., for respondents.

MEMORANDUM OPINION AND ORDER

MATSCH, District Judge.

This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 by an inmate of the Federal Correctional Institution, Englewood, Colorado, claiming that he is being unlawfully detained because the United States Parole Commission has arbitrarily denied him conditional release. On February 22, 1982, Kent Patrick Ewing was committed to the custody of the Attorney General for treatment and supervision under the Federal Youth Corrections Act ("YCA"). The order of commitment was entered under 18 U.S.C. § 5010(b), which provides that the time of commitment is, "until discharged by the Parole Commission as provided in § 5017(c)," which, in turn, requires a conditional release under supervision on or before the expiration of four years from the date of conviction, and an unconditional discharge on or before six years from that date. After the conviction was affirmed on appeal and a petition for writ of certiorari to the United States Supreme Court was denied, the petitioner surrendered to begin service of his commitment on January 24, 1983. Mr. Ewing was placed at FCI, Englewood, where he was evaluated and a written classification study report was prepared under date of February 22, 1983.

In May, 1983, the petitioner met with hearing examiners from the Parole Commission and, by Notice of Action, dated June 9, 1983, Mr. Ewing was notified that his offense behavior was rated as "Category 6," and his salient factor score was 8. Accordingly, the petitioner was told that under youth case guidelines a range of 30-40 months was appropriate for his case; that a decision outside the guidelines was not found warranted and that he would be scheduled for a "Statutory Interim Hearing" during November, 1984. The notice then included the following language:

However, to comply with the provisions of Watts vs Hadden you will be paroled on the alternate release date noted above (or at any time thereafter) once you have satisfactorily completed your program plan.

The presumptive parole date was shown as May 20, 1986, and the alternate release date given was July 20, 1985.

On November 21, 1983, Warden Rodgers, of FCI, Englewood, wrote the following letter to the Western Region Commissioner:

Based on Mr. Ewing's successful participation in his Program Plan, I am certifying he has completed that portion of his Program Plan and Treatment Goals that can be completed at this institution. Completion of his total program includes a transitional period through a community treatment center. Therefore, we are recommending that he be released on an alternate parole date of May 1, 1984.

The Warden also enclosed copies of Mr. Ewing's program plan and progress report which included the statement that the staff believed Mr. Ewing can derive no further benefit from placement in a YCA facility.

To that letter, a case analyst from the Western Region of the Parole Commission wrote an acknowledgment, which included the following paragraph:

Although this case has been reviewed for consideration under the Superior Program Achievement provisions, it is determined that there will be no change in the previous alternate release date and thus Mr. Ewing should be placed on the interim hearing docket in November 1984 unless he waives. At the time of the interim hearing, the Commission will again consider the issue of Superior Program Achievement. Pursuant to 28 CFR 2.60, and based on the 30 months alternate date set, Mr. Ewing could be considered for a Superior Program Achievement Award of up to two (2) months. Whether or not such an award is made will be determined at that time.

The inmate followed the administrative appeals process, without success, and then filed this petition for a writ of habeas corpus.

The answer and return to this court's order to show cause simply stated that the Parole Commission was adhering to its decision under the guidelines and that the focus of the decision was based upon the risk which the petitioner poses to the public and the benefit he may obtain from further supervision. At an oral argument on the petition, this court commented on the apparent conflict between the Parole Commission and the Bureau of Prisons in this particular case with all of the respondents appearing by an Assistant United States Attorney for this district. The court suggested that the Assistant United States Attorney contact the general counsel for the Parole Commission to be certain of that agency's position, and the court granted 20 days for the submission of an additional response from the Commission.

On February 16, 1984, the respondents requested an extension of time upon the representation that the Parole Commission was in the process of reconsidering Mr. Ewing's case. The extension was granted and a more complete answer was filed on February 21, 1984. Included in that answer is a report to the court on the Parole Commission's reconsideration, wherein the Commission advises that it has reaffirmed its earlier parole decision that Mr. Ewing would be paroled on July 20, 1985, if he completed his program and on May 20, 1986, if he did not. The Commission further advised that since it has been informed by Warden Rodgers that the petitioner completed his program plan in November, 1983, Mr. Ewing "will be paroled on ...