Fisher v. United States

• Citation: 382 F. Supp. 241
• Decision Date: 20 September 1974
• Docket Number: Civ. No. B-74-342.
• Court: U.S. District Court — District of Connecticut
• Parties: Earl C. FISHER v. UNITED STATES of America et al.

382 F. Supp. 241

Earl C. FISHER v. UNITED STATES of America et al.

Civ. No. B-74-342.

United States District Court, D. Connecticut.

September 20, 1974.

Earl C. Fisher, pro se.

MEMORANDUM OF DECISION

NEWMAN, District Judge.

Petitioner, presently incarcerated at the Federal Correctional Institution, Danbury (hereafter "FCI, Danbury"), seeks habeas corpus relief from an adverse decision by the United States Board of Parole (hereafter "Board"). On May 17, 1973, he was sentenced to serve three years, with a three-year special parole term, for conspiring to distribute cocaine. 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1). Sentence was imposed pursuant to 18 U.S.C. § 4202, making him eligible for parole after serving one-third of his sentence.

After a parole hearing in March, 1974, petitioner was continued to expiration. He was informed:

1. Your release at this time would depreciate the seriousness of the offense committed and is thus incompatible with the welfare of society.

2. There does not appear to be a reasonable probability at this time that you would live and remain at liberty without violating the law because of your arrest record and the fact that you were on probation at the time the present offense was committed.

Petitioner claims that prior to his parole hearing, his caseworker told him that his appropriate guideline range on the Board's table for decision-making, 28 C.F.R. § 2.20, 39 Fed.Reg. 20031 (June 5, 1974), is 16-20 months.¹ Since his sentence computation record indicates that his mandatory release date is September 7, 1975, the Board's decision to continue petitioner to expiration will result in his incarceration for twenty-eight months, eight months longer than petitioner's alleged maximum guideline period.

In a standard form petition broadly attacking the Board's procedures for decision-making, petitioner contends that the decision to continue his incarceration beyond his alleged guideline period is unconstitutional and unlawful. Even if petitioner's appropriate parole guideline period, based upon the severity of his convicted offense and his offender characteristics, is 16-20 months, and not a longer period based upon a higher offense severity category and/or a lower salient factor score,² the Board's decision denying his release from imprisonment until he has served twenty-eight months of his three-year sentence is not unlawful.

In United States ex rel. Johnson v. Chairman of New York State Bd. of Parole, 500 F.2d 925 (2d Cir. 1974), the Court of Appeals ruled that "in light of Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) . . . some degree of due process attaches to parole release proceedings." Although the Johnson decision applied a standard of minimal due process to parole release hearings, it did not overrule the previous ruling in Menechino v. Oswald, 430 F.2d 403 (2d Cir. 1970), cert. denied, 400 U.S. 1023, 91 S.Ct. 588, 27 L.Ed.2d 635 (1971), that a prisoner receiving parole consideration is not entitled to the full panoply of due process rights. Instead, the holding was restricted to a determination that an inmate considered for parole is entitled to at least "one due process weapon" — a written statement of reasons "sufficient to enable a reviewing body to determine whether parole has been denied for an impermissible reason or for no reason at all." United States ex rel. Johnson v. Chairman of New York State Bd. of Parole, supra, 500 F.2d at 934.

The Court of Appeals refined its ruling as follows:

. . . Detailed findings of fact are not required, provided the Board's decision is based upon consideration of all relevant factors and it furnishes to the inmate both the grounds for the decision (e. g., that in its view the prisoner would, if released, probably engage in criminal activity) and the essential facts upon which the Board's inferences are based (e. g., the prisoner's long record, prior experience on parole, lack of a parole plan, lack of employment skills or of prospective employment and housing, and his drug addiction).

(Emphasis added). Id. at 934.

When measured by this standard, the reasons accompanying petitioner's denial of parole are adequate. In Battle v. Norton, 365 F.Supp. 925 (D.Conn.1973), this Court ruled the Board could lawfully use the single reason — depreciating the seriousness of the offense — as a shorthand way of informing a prisoner that he would not be released on parole because he had not been incarcerated for his appropriate guideline period. Since petitioner allegedly was continued beyond his applicable guideline period, the standard "depreciating the seriousness of the offense" reason would not be sufficient standing alone, Lupo v. Norton, 371 F.Supp. 156 (D.Conn.1974). However, this standard reason was accompanied by a more specific, meaningful reason disclosing the grounds of the denial of parole — if released, the petitioner would probably engage in criminal activity—and the essential facts on which this inference was based — petitioner's unsuccessful prior experience on probation. Consequently, the Board did accompany its decision with at least one reason enabling this reviewing Court to determine that it considered the relevant factors in petitioner's case and acted rationally when denying him parole.

The remaining substantial claim raised by petitioner presents the issue of whether he should have had access to adverse reports in his parole file and to the hearing examiners' reports and recommendations so he might have responded to any unfavorable information. Although this Court denied an identical claim in Godwin v. Norton, Civil No. B-910 (D.Conn. Nov. 1, 1973), recent decisions in United States ex rel. Johnson v. Chairman of New York Bd. of Parole, supra,³ and Childs v. United States Bd. of Parole, 371 F.Supp. 1246 (D.D.C. 1973), require reconsideration of whether the minimal due process standard...