Garza v. Warden Allenwood USP

• Decision Date: 14 October 2022
• Docket Number: 19-2111
• Parties: ALBERT GARZA, Appellant v. WARDEN ALLENWOOD USP
• Court: U.S. Court of Appeals — Third Circuit

ALBERT GARZA, Appellant
v.
WARDEN ALLENWOOD USP

No. 19-2111

United States Court of Appeals, Third Circuit

October 14, 2022

NOT PRECEDENTIAL

Argued on May 26, 2022

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civ. No. 3-15-cv-02482) District Judge: Honorable Matthew W. Brann

Thomas S. Jones

David I. Kelch

Carrie R. Garrison [ARGUED]

Porter Wright Morris & Arthur LLP

Counsel for Appellant

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D. Brian Simpson [ARGUED]

Office of United States Attorney

Middle District of Pennsylvania

Counsel for Appellee

Before: KRAUSE and PHIPPS, Circuit Judges, and STEARNS, ^[*] District Judge.

OPINION ^[†]

PHIPPS, Circuit Judge.

In appealing the denial of his § 2241 habeas petition, an inmate serving a federal life sentence claims that the United States Parole Commission unconstitutionally denied him parole in 2013 and 2015. He argues that a layer of administrative review for parole determinations, added to the federal parole regime in the 1970s, after he committed his initial offenses, violates the Ex Post Facto Clause. The inmate also contends that the decisions denying him parole violate the Due Process Clause because they relied on disciplinary sanctions expunged from his prison file.

Both of those claims fail. As applied to the inmate, the additional layer of administrative review is not an ex post facto law because it played no role in the denial of his parole, and regardless, it did not create a significant risk that he would be imprisoned for a longer period. Also, the parole determinations did not rely on expunged records. Thus, as elaborated below, in reviewing the District Court's legal conclusions de novo and its factual findings for clear error, see Mickens-Thomas v. Vaughn, 321 F.3d 374, 376 n.2 (3d Cir. 2003), the judgment of the District Court will be affirmed.

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Background

The morning of May 1, 1973, Albert Garza approached the Border City Bank in El Paso, Texas, with the intent to rob it. As Garza entered, he shot the bank president, who was fleeing the scene and who later died from the gunshot wounds. While driving away from the bank, Garza was intercepted by police, who after a shootout, apprehended him. A federal grand jury indicted Garza on several counts, and he pled guilty to two of those. The District Court for the Western District of Texas sentenced Garza to life in prison for one count and a twenty-five-year consecutive sentence for the other. Garza later pursued collateral review, see 28 U.S.C. § 2255, and the Fifth Circuit upheld the life sentence but vacated the additional twenty-five-year sentence. See Garza v. United States, 498 F.2d 1066, 1068 (5th Cir. 1974).

At the time of Garza's 1973 offense, federal law permitted the possibility of parole for prisoners serving life sentences after fifteen years of incarceration. See 18 U.S.C. § 4202 (1970). By statute, the United States Parole Board had discretion to grant parole to eligible prisoners after finding that two conditions were satisfied: (i) to a "reasonable probability," the prisoner would not violate the law after release; and (ii) the release of the prisoner would not be "incompatible with the welfare of society." Id. § 4203(a). Before making a parole determination, the Board would receive a report and a recommendation from an "examiner designated by the Board." 28 C.F.R. § 2.15 (1973).

In 1976, Congress significantly revised the parole regime for federal inmates. See Parole Commission and Reorganization Act, Pub. L. No. 94-233, 90 Stat. 219 (1976) (originally codified at 18 U.S.C. §§ 4201-18 (1976)). Some of the changes were structural. Congress created a new administrative agency within the Department of Justice, the United States Parole Commission, to make parole determinations. See 18 U.S.C. § 4202 (1976). By regulation, the Commission established a parole review

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system in which hearing examiners would make parole recommendations. See Paroling, Recommitting and Supervising Federal Prisoners, 42 Fed.Reg. 39,808, 39,815 (Aug. 5, 1977) (promulgating 28 C.F.R. § 2.23(b) (1977)). Under that system, two hearing examiners typically composed a parole review panel. See 28 C.F.R. § 2.23(b) (1977). If the panel members disagreed about a parole recommendation, then a third hearing examiner, known as the Regional Administrative Hearing Examiner, would cast the deciding vote. See id. But once two panel members agreed, either initially or with the involvement of a third hearing examiner, then without further action, that recommendation would become a determination by the Commission. See id. §§ 2.23(d), 2.24(a) (providing that a panel recommendation becomes a final determination unless the Regional Commissioner reviews it and refers the matter to the Commission). Also, the Commission could make parole determinations by exercising "original jurisdiction" over parole petitions at any point during the parole review process. Id. § 2.17; see also Paroling, Recommitting, and Supervising Federal Prisoners, 45 Fed.Reg. 33,604, 33,604 (May 20, 1980). Before 2021, as a matter of practice, the Commission exercised original jurisdiction over "high profile or complex cases." Paroling, Recommitting, and Supervising Federal Prisoners: Prisoners Serving Sentences Under the United States and District of Columbia Codes, 86 Fed.Reg. 56,645, 56,645 (Oct. 12, 2021).

The 1976 legislation also modified the prior system of discretionary parole to create an additional, separate system of mandatory parole. See 18 U.S.C. § 4206(d) (1976). Under that system, the Commission would identify a presumptive mandatory release date for parole for a prisoner. See id. (setting the presumptive parole date as the date that a prisoner has served "two-thirds of each consecutive term" or "thirty years of

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each consecutive term . . . including any life term"). But even with a presumptive mandatory release date, parole was not automatic; it was subject to a proviso:

[T]he Commission shall not release such prisoner if it determines that he has seriously or frequently violated institution rules and regulations or that there is a reasonable probability that he will commit any Federal, State, or local crime.

Id.

In 1979, after these changes to the parole regime, Garza and another inmate escaped from the United States Penitentiary in Marion, Illinois. After a three-day search, law enforcement discovered them hiding in a nearby church basement. That prompted a shootout resulting in Garza's apprehension, as well as state and federal criminal charges and convictions. In Illinois state court, Garza was convicted for attempted murder and sentenced to twenty-five years' imprisonment, to run consecutively to his federal sentence. At the federal level, Garza pled guilty to escape, in violation of 18 U.S.C. § 751(a), and unlawful use of a deadly weapon, in violation of 18 U.S.C. §§ 111 and 2. The District Court for the Southern District of Illinois sentenced Garza to a fifteen-year sentence, to run consecutively to his initial federal sentence. By statute, Garza's additional fifteen-year federal sentence extended his presumptive mandatory parole date by ten years - from May 2, 2003, to May 2, 2013. See 18 U.S.C. § 4206(d) (1976).

Garza spent the next few months in the hospital, recovering from wounds he sustained during the shootout. During that time, the Marion Penitentiary Institution Discipline Committee held a disciplinary hearing in his absence. The Committee found that Garza had violated the penitentiary's internal rule against escape and imposed sanctions, including increased custody, disciplinary segregation, and a recommended reassignment to the dangerous inmate unit.

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Garza successfully challenged those prison sanctions through a habeas corpus petition in the Southern District of Illinois.^[1] A Magistrate Judge concluded that the Committee deprived Garza of due process by holding the hearing in his absence. As a remedy, the Magistrate Judge ordered that all references to the Committee's disciplinary actions be removed from Garza's prison record.

Approximately twenty years later, in 1998, Garza had his first parole hearing.^[2]The assigned hearing examiner recommended continuing the matter for a fifteen-year reconsideration hearing. He also recommended that the Commission exercise original jurisdiction over Garza's case. The Commission then heard the matter, denied parole, and scheduled Garza for a reconsideration hearing fifteen years later in February 2013.^[3]The Commission later advanced Garza's fifteen-year reconsideration hearing one year, such that it occurred in February 2012.

By that time, the Commission had further refined the hearing process. Under these reforms, a panel recommendation still required the concurrence of two hearing examiners, but the two hearing examiners no longer had to sit together as a two-person panel. See Paroling, Recommitting, and Supervising Federal Prisoners: Parole Hearings Conducted by Single Hearing Examiners, 59 Fed.Reg. 45,624, 45,624 (Sept. 2, 1994). Also, the concurrence of two hearing examiners could no longer become a final decision due to Commission inaction; the Commission had to approve the recommended

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disposition for it to become final. See Paroling, Recommitting, and Supervising Federal Prisoners, 45 Fed.Reg. 84,052, 84,052 (Dec. 22, 1980). Relatedly, an Executive Hearing Examiner, who was a re-titled Regional Administrative Hearing Examiner, could also serve as one of the two hearing examiners needed for a panel concurrence. See Paroling, Recommitting, and Supervising Federal Prisoners: Hearing Examiner Review Function, 60 Fed.Reg. 51,348, 51,349 (Oct. 2, 1995) (re-titling and clarifying the role of Executive Hearing Examiner); 59 Fed.Reg. at 45,625 (permitting Executive Hearing Examiner to serve as one of the two hearing examiners).

At his fifteen-year reconsideration hearing,...