Guerra v. Meese, No. 85-5912

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: Before WALD and STARR, Circuit Judges, and McGOWAN; PER CURIAM
• Citation: 252 U.S.App.D.C. 1,786 F.2d 414
• Decision Date: 21 March 1986
• Docket Number: No. 85-5912
• Parties: Steven GUERRA, et al. v. Edwin MEESE, III, et al., Appellants.

Page 414

786 F.2d 414 252 U.S.App.D.C. 1 Steven GUERRA, et al.
v.
Edwin MEESE, III, et al., Appellants. No. 85-5912. United States Court of Appeals,
District of Columbia Circuit. Argued Dec. 9, 1985.
Decided March 7, 1986.
As Amended March 18 and March 21, 1986.

Michael L. Martinez, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., Royce C. Lamberth, R. Craig Lawrence, and Michael J. Ryan, Asst. U.S. Attys., Washington, D.C., were on brief, for appellants.

Michael E. Deutsch, Chicago, Ill., with whom Sarah E. Burns, Washington, D.C., was on brief for appellees.

Before WALD and STARR, Circuit Judges, and McGOWAN, Senior Circuit Judge.

Opinion Per Curiam.

PER CURIAM:

Appellees are seven federal prisoners who were convicted on charges of criminal contempt in the Federal District Court for the Eastern District of New York. They are currently serving sentences ranging from eighteen months to three years in various federal penal institutions around the country. Appellees' convictions grew

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out of their refusal to testify before a grand jury investigating the activities of a Puerto Rican independence group.

Appellees brought habeas corpus petitions under 28 U.S.C. Sec. 2241 (1982) in the District Court for the District of Columbia seeking release because of allegedly illegal actions of the United States Parole Commission. Appellees also sought mandamus relief, asking the District Court to order the Commission to reevaluate their cases. The District Court granted the appellees' request for bail pending resolution of the merits of the dispute. The government appealed the bail order. Because the District Court has no jurisdiction to entertain the appellees' habeas corpus petitions, we reverse.

I. BACKGROUND

The Parole Commission generally follows a set of guidelines in determining prisoners' presumptive parole eligibility dates. See 28 C.F.R. Sec. 2.20 (1985). The guidelines rate the severity of crimes from severity level one, for minor crimes, to severity level eight for very serious crimes. The guidelines also provide for a "salient factor score," which predicts the potential risk of parole violation by each prisoner. The guidelines do not explicitly treat the crime of criminal contempt, but the Commission has likened it to the crime of accessory after the fact. Notes and Procedures to 618(a), United States Parole Commission, Rules and Procedures Manual (1984) (providing for analogy to accessory after the fact). In this case, the Commission also determined that the crime that appellants were accessories to was the most serious crime investigated by the grand jury--murder. The Parole Commission thus classified the appellees' crimes as severity level six, among the most serious offenses. This classification obviated any possibility of parole.

The District Court, however, found that by analogizing contempt to accessory after the fact, the Commission had acted arbitrarily and capriciously. Moreover, the court ruled that the Commission had invalidly promulgated this provision. Guerra v. Meese, 614 F.Supp. 1430, 1434-1437 (D.D.C. July 31, 1985), Joint Appendix ("J.A.") at 44-50. The court therefore ordered a new parole hearing for the prisoners. The Commission reheard the cases, but decided to venture outside its guidelines. See 18 U.S.C. Sec. 4206(c) (1982) (allowing decisions outside the guidelines for good cause). The Commission once again set a presumptive parole eligibility date that would not allow the appellees to be paroled at all.

The appellees then challenged the decision of the Parole Commission to ignore its guidelines. Moreover, pending a decision on the merits of their challenge to the Parole Commission's actions, the appellees asked to be released from their respective correctional facilities. The District Court found that the appellees had demonstrated a likelihood of success on the merits and that the appellees presented little risk of flight. The appellees were thus released on bail pending a decision on the legality of the Commission's actions. Guerra v. Meese, No. 85-1510 (D.D.C. Sept. 3, 1985), J.A. at 88. In this appeal, the government challenges only the District Court's bail decision. Pending argument on the merits of the bail decision, this court granted a stay. Guerra v. Meese, No. 85-5912 (D.C.Cir. Sept. 23, 1985). Appellees thus remain incarcerated.

II. HABEAS CORPUS JURISDICTION

A district court may not entertain a habeas corpus action unless it has personal jurisdiction over the custodian of the prisoner. Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 495, 93 S.Ct. 1123, 1129, 35 L.Ed.2d 443 (1973); Schlanger v. Seamans, 401 U.S. 487, 491, 91 S.Ct. 995, 998, 28 L.Ed.2d 251 (1971). In this case, the District Court construed the prisoners' complaint as either an application for a writ of habeas corpus or an application for a writ of mandamus. Guerra v. Meese, No. 85-1510, slip op. at 1 (D.D.C. June 13, 1985), J.A. at 30. The District Court reasoned that "even if [the prisoners] were required to bring their action under the habeas corpus

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statutes, it is not an inflexible determination that they must bring their action in the district of confinement. See Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973)." Id. at 3 n. 3, J.A. at 32, n. 3. While we agree that the habeas determination is not inflexible, we reject appellees' argument that, in this case, the Parole Commission can be properly characterized as their custodian.

It is clear that the Parole Commission is responsible for the appellees' continued detention. Were the Commission to decide to change the prisoners' parole eligibility dates today, they might be freed. But this power does not make the Commission the prisoners' custodian in the sense of the habeas corpus statute. Appellees argue that because the Commission has the power to release them, the Commission is their custodian. But their argument extends to any person or entity possessing some sort of power to release them. Under appellees' theory, the Attorney General of the United States could be considered the custodian of every prisoner in federal custody because he supervises the Federal Bureau of Prisons. See 18 U.S.C. Sec. 4041 (1982). We have specifically rejected this interpretation. Sanders v. Bennett, 148 F.2d 19, 20 (D.C.Cir.1945). ¹ Appellees' argument would even extend to the President of the United States, who has the power to pardon. U.S. Const. art. II, Sec. 2. The same argument, as applied to sentencing judges (who have the power to reduce the sentence) has been squarely rejected. Christian v. Garrett, 432 F.Supp. 240, 241 (E.D.Tenn.1976); Spencer v. Cundiff, 413 F.Supp. 1246, 1247 (W.D.Va.1976), rev'd on other grounds, 573 F.2d 1306 (4th Cir.1978).

In 28 U.S.C. Sec. 2243 (1982), Congress required the federal...