Harper v. Sanders, Civil Action No. 10-cv-01256-MSK
| Decision Date | 21 July 2011 |
| Docket Number | Civil Action No. 10-cv-01256-MSK |
| Parties | JAMES HARPER, Applicant, v. LINDA SANDERS, Warden, U.S.P. Lompoc, Respondent, |
| Court | U.S. District Court — District of Colorado |
ORDER DENYING APPLICATION FOR A WRIT OF HABEAS CORPUS
BROUGHT PURSUANT TO 28 U.S.C. § 2241
This matter comes before the Court pursuant to Mr. Harper's Amended Application for a Writ of Habeas Corpus under 28 U.S.C. § 2241 (the "Petition") (# 7). Respondent filed a Response (# 17). Petitioner filed a reply (# 21). Having considered the same, the Court
FINDS and CONCLUDES that:
I. Jurisdiction
The Court exercises subject matter jurisdiction pursuant to 28 U.S.C. §§ 2241 and 1331.
II. Background
Mr. Harper is incarcerated at USP-Lompoc, California. In April 1984, he entered a "Plea and Cooperation Agreement" with the United States, pursuant to which Petitioner pleaded guilty to conspiring with his wife and others to deliver to the Polish People's Republic and the Union of Soviet Socialist Republics materials relating to thenational defense of the United States, which were classified as "confidential" and "secret" (containing information about intercontinental ballistic missiles, and ballistic missile defense research and development programs of the United States). See Amended Application, Ex. H (Harper v. Crabtree, No. 95-1573 (D. Or. May 17, 1996), Findings and Recommendation of United States Magistrate Judge, at 3-4). Petitioner engaged in the espionage activities between 1979 and 1981. Id. In April 1984, Petitioner and the United States entered into. Id. at 4.
On January 4, 1994, the Parole Commission conducted Petitioner's initial hearing. Response, Ex. 3 (Initial Hearing Summary). The Commission rated Petitioner's offense behavior as Category Eight severity because the offense involved espionage and ordered petitioner's case continued to a fifteen-year reconsideration hearing in 2009. Id., Ex. 4 (March 2, 1994 Notice of Action). The Commission advised Petitioner that Id. The National Appeals Board (NAB) affirmed the Commission's decision, but modified the reasons for the decision. Response, Ex. 6 (Notice of Action on Appeal). The NAB concluded that, under the plea agreement, the Commission could not consider evidence of actual damage caused by Petitioner's conduct, but that it could consider "the potential for harm that [wa]s apparent to the offender at the time of the offense." Id.
The Commission conducted statutory interim hearings in 1999, 2002, 2004, and 2006 and ordered no change to the fifteen-year reconsideration date. Response, Ex. 7(Hearing Summaries); Ex. 8 (April 10, 1999 Notice of Action). Petitioner's fifteen-year reconsideration hearing was held on March 30, 2009. Id., Ex. 9 (Hearing Summary). The hearing examiner recommended a presumptive parole date. Id. The executive reviewer disagreed based upon the aggravating factors of Petitioner's crime and his institutional infraction that involved smuggling contraband into the prison. Id. In 2006, The executive reviewer and a third examiner concurred that Petitioner's case should be continued to expiration. Id. By Notice of Action, dated May 18, 2009, the Commission adopted the panel's recommendation. Response, Ex. 10 (Order); Ex. 11 (May 18, 2009 Notice of Action). The NAB affirmed the Commission's decision on appeal. Id., Ex. 12 (Notice of Action on Appeal).
Petitioner raises the following claims in his amended § 2241 Application: (1) the Commission failed to adhere to its own regulations by: (a) ignoring information favorable to Petitioner (the plea and cooperation agreement); (b) relying on the reasons of the concurring panel provided after the hearing, without affording notice to Petitioner; and, (c) in issuing a deficient Notice of Action form; (2), (3) the Commission relied upon information from the post sentence report to deny parole, in violation of the immunity provisions of Petitioner's plea and cooperation agreement; (4) the Commission has failed to award Petitioner any credit or consideration for his cooperation with the Government, violation of paragraph 5 of the plea and cooperation agreement; (5) the Commission's decision to continue Petitioner to the expiration of his sentence based on the aggravated nature of his offense behavior is not supported by specific facts; (6) the Commission relied on a false factual predicate in determining that the nature of his offense was aggravated and engaged in double counting; (7) the Commission failed to"lawfully" determine the seriousness of his offense because the Commission based its determination on the potential for harm that was apparent to Petitioner at the time of the offense and not the estimated actual damage; and, the only evidence of actual or potential damage caused by his offense is immunized information; (8) the Commission should have applied the U.S. Sentencing Guidelines in determining Petitioner's parole eligibility; (9) the Commission deprived Petitioner of due process of law when it issued a decision that was inconsistent with decisions in other parole cases for espionage offenses committed in similar circumstances, contrary to the legislative intent of 18 U.S.C. § 4206(a); (10) the Commission violated the Ex Post Facto Clause because the law in effect at the time of Petitioner's conviction and sentence authorized a maximum reconsideration date of ten years, not fifteen years; (11) the Commission applied the wrong offense severity rating to his institutional infraction of exchanging money for contraband; and (12) the Commission's May 18, 2009 decision to continue Petitioner to expiration of his sentence is arbitrary and capricious because he committed only one institutional infraction during twenty-five years of imprisonment.
III. Analysis
An action brought by a federal prisoner pursuant to 28 U.S.C. § 2241 is one that challenges the execution of a sentence. See Davis v. Roberts, 425 F.3d 830, 833 (10th Cir. 2005). In this type of action, a district court is only authorized to issue the writ of habeas corpus when the petitioner is "in custody in violation of the Constitution or laws or treaties of the United States." See § 2241(c)(3). To prevail on a § 2241 petition, a prisoner must demonstrate that in the execution of his sentence he has been denied afederal constitutional or statutory right. Mr. Harper claims that his rights have been violated by the Parole Commission's decision to deny parole and continue him to the expiration of his sentence.
The federal habeas court's review of a parole decision is limited.
The Commission's decision will stand unless it is arbitrary and capricious. It is not the function of courts to review the Board's discretion in denying parole or to repass on the credibility of reports received by the Board in making its determination. A reviewing court must make some inquiry into the factual basis for the Commission's decision. But the inquiry is not whether the Commission's decision is supported by the preponderance of the evidence, or even by substantial evidence; the inquiry is only whether there is a rational basis in the record for the Commission's conclusions embodied in its statement of reasons.
Peltier v. Booker, 348 F.3d 888, 892-93 (10th Cir. 2003) (citations and internal punctuation omitted); see also Kell v. United States Parole Comm'n, 26 F.3d 1016, 1019 (10th Cir. 1994) () (internal quotation marks omitted). Respondents concede that Mr. Harper has exhausted his administrative remedies. See Respondent's Preliminary Response (#12).
In considering Petitioner's filings, the Court is mindful of his pro se status, and accordingly, reads his pleadings liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, such liberal construction is intended merely to overlook technical formatting errors and other defects in his use of legal terminology and proper English. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Pro se status does not relieve Petitioner of the duty to comply with the various rules and procedures governing litigants and counsel or the requirements of the substantive law, and in these regards, the Courtwill treat Petitioner according to the same standard as counsel licensed to practice law before the bar of this Court. See McNeil v. U.S., 508 U.S. 106, 113 (1993); Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994).
Respondents argue that the Petition must be dismissed because this Court lacks personal jurisdiction over the Petitioner's custodian, the warden of the United States Penitentiary (USP) in Lompoc, California.
At the time Petitioner filed his original Application, he was incarcerated at USP-Florence, Colorado. "It is well established that jurisdiction attaches on the initial filing for habeas corpus relief, and it is not destroyed by a transfer of the petitioner and the accompanying custodial change." Santillanes v. U.S. Parole Comm'n, 754 F.2d 887, 888 (10th Cir. 1985). The Court has already ruled that Petitioner's transfer to USP-Lompoc, California did not defeat jurisdiction in the District of Colorado. See August 5, 2010 Order (# 6).
Respondent's reliance on the Tenth Circuit's unpublished decision in Griggs v. United States, 79 F. App'x 359 (10th Cir. 2003) is misplaced. In Griggs, the Circuit Court noted the jurisdictional rule articulated in Santillanes, but found that it was inapplicable to Mr. Griggs because his action in the Oklahoma district court was closed two years before he was...
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