Hodges v. O'BRIEN, 83-3352.

• Decision Date: 31 May 1984
• Docket Number: No. 83-3352.,83-3352.
• Citation: 589 F. Supp. 1225
• Parties: LaVonnie HODGES, Petitioner, v. Jerry O'BRIEN, Warden, U.S.P., Leavenworth, et al., Respondents.
• Court: U.S. District Court — District of Kansas

589 F. Supp. 1225

LaVonnie HODGES, Petitioner, v. Jerry O'BRIEN, Warden, U.S.P., Leavenworth, et al., Respondents.

No. 83-3352.

United States District Court, D. Kansas.

May 31, 1984.

COPYRIGHT MATERIAL OMITTED

LaVonnie Hodges, petitioner, pro se.

Alleen Castellani, Asst. U.S. Atty., Topeka, Kan., for respondent.

MEMORANDUM AND ORDER

ROGERS, District Judge.

LaVonnie Hodges, having paid the requisite fee, filed this petition for writ of habeas corpus with the Clerk of the Court pursuant to 28 U.S.C. § 2241. A rule to show cause issued, respondent filed an answer and return and petitioner has filed his traverse. Having considered all materials filed, the Court makes the following findings and Order.

The facts pertinent to this action are found to be as follows.

1. LaVonnie Hodges was convicted in the United States District Court for the Middle District of Alabama on January 16, 1979, of conspiracy to distribute thirty pounds of marijuana. He was sentenced to ten years imprisonment and a two-year special parole term.

2. On April 29, 1982, Hodges appeared before the United States Parole Commission hearing examiners. He was denied parole and ordered to serve his sentence until his statutory release date, which is presently in August, 1984.

3. Hodges' salient factor score was calculated as one. In 1982, the Parole Commission's guidelines cited possession with intent to distribute on the small scale of ten to forty-nine pounds of marijuana as an example of an offense of "low moderate" severity. The amount of time to be served suggested for an offender in this offense severity category with a salient factor score of one was sixteen to twenty-two months.

4. However, the Commission rated petitioner's offense as Greatest II severity, five categories above low-moderate, because a co-conspirator was shot and killed during the course of the criminal transaction. This rating placed petitioner in the guideline range of one-hundred plus months to be served before parole. The Commission's statement of reasons dated May 21, 1982, set forth the following explanation:

Your offense behavior has been rated as Greatest II Severity because it involved a marijuana transaction that resulted in the wrongful death of a human being. You have a salient factor score of 1. You have been in custody a total of 42 months. Guidelines established by the Commission for adult cases which consider the above factors indicate a range of 100 + months to be served before release for cases with good institutional program performance and adjustment. After review of all relevant factors and information presented, a decision outside the guidelines at this consideration is not found warranted.

5. The Parole Commission relied on information in Mr. Hodges' presentence investigation report for its findings.

6. The criminal behavior transpired in an abandoned amusement park in Dothan, Alabama on the night of September 29, 1978. Larry Pittman, the shooting victim, was involved in the buying and selling of marijuana and headed the conspiracy. John Mills and Ronnie Smith were enlisted by Pittman to meet and purchase marijuana from Bobby Gillis and Gregory Thomas that night in the park. However, Pittman had premeditated a scheme to defraud the sellers perhaps either with a deceptive roll of money or by scaring them into driving off and abandoning their marijuana. Mills and Smith met with Gillis and Thomas in the amusement park drive. Pittman accompanied by Hodges parked elsewhere and walked through woods to where the other men were negotiating. Thomas, Smith and Gillis were seated in an automobile driven by Thomas, and Mills was in the driver's seat of another automobile. The cars were positioned so that the drivers' windows were aligned. As Pittman arrived upon the scene a dispute erupted among the participants. Pittman struck Gillis on the head and a shotgun blast rang out followed by several shots from a gun. Both cars fled the scene with the body of Larry Pittman remaining. The cause of Pittman's death was identified as a bullet wound to the head "most probably" fired in a "Smith and Wesson" or Llama revolver. Similar bullet fragments were found in the interior right front door on the passenger's side of the auto driven by Thomas. Thomas was shot in the lower back apparently with the same type of bullet which had killed Pittman. Several weapons are mentioned as being present at the scene: a shotgun carried by Pittman, a pistol placed in the glovebox of one auto by Pittman and a revolver and/or a rifle carried by Hodges.

7. The State of Alabama originally indicted John Mills, a co-conspirator, for the first-degree murder of Larry Pittman, but these charges were dropped. The State then indicted Hodges for the murder, but the indictment was dismissed on December 9, 1981, for lack of speedy trial. Petitioner alleges, and it may be accepted as true, that the prosecution was not pursued due to a lack of sufficient evidence to convict Hodges of murder. No one has been tried for the murder of Pittman.

8. Mills, Smith, Thomas and Gillis who were convicted co-conspirators as a result of this incident received prison sentences ranging from four to six years and have all been released.

9. Before the Commission and this Court Hodges not only denies any involvement in Pittman's death, but additionally claims that he was never involved in any criminal dealings with Pittman and that he knew nothing of the drug transaction. Of course, petitioner has been convicted, after trial, of the latter involvement and it is evident from the sentencing disparity and the presentence investigation report that he was the second most significant member of the conspiracy.

10. It appears that administrative remedies have been exhausted on petitioner's claims.

As grounds for this action, petitioner contends (1) that the Commission's notice of action does not reflect its real reasons for rating his offense severity as Greatest II, (2) that this violates due process notice requirements, (3) that the Commission has not demonstrated "good cause" under 18 U.S.C. § 4206(c) for this rating; (4) that the Commission is impermissibly holding him responsible for offense behavior that is not attributable either to him alone or the conspiracy in violation of 28 C.F.R. 2.19(c) and (5) that the Commission has failed to comply with the preponderance of the evidence standard set forth in 2.19(c). The Court considers each of these claims in turn.

Petitioner asserts that the Commission's "real reason" for the Greatest II offense severity rating was not the consequent killing as stated in its notice of action, but instead was the erroneous belief that Hodges was the most culpable of the co-defendants. In support of this assertion, petitioner reasons that if the Commission actually relied on the bare fact of Pittman's death as the basis for its decision, petitioner's co-conspirators should have been denied release on the same basis. As further support, petitioner offers "the findings of the National Appeals Board Analyst" prepared in consideration of Hodges' national appeal which he alleges reflect the Commission's actual beliefs:

Non-disclosable information in the P S I, page (sic) 2 through 8, contains a preponderance of the evidence that subject's incident offense involved a gunfight in which 1 man was killed and another wounded. It appears subject was responsible for the shots which resulted in 1 killing and 1 wounding. The Greatest II rating is justified.

The short answer to this claim is that the Commission denied parole, not because petitioner participated in or had actual knowledge of the killing, but because of the undisputed fact that a killing resulted from the offense behavior. It was the fact of the killing which the Commission particularized in its notice of action. See, Campbell v. United States Parole Commission, 704 F.2d 106, 110-111 (3d Cir.1983). The Commission's stated reasons are by definition the factors which the Commission considered most significant. Bush v. Kerr, 554 F.Supp. 726 (W.D.Wisc.1982). As long as the most significant reasons are sufficient to justify the action taken by the Commission and have a factual basis in the record, this Court will not attempt to second guess the Commission as to possible other "real" reasons. Reasons finally relied upon by the Commission are not unreal or inadequate simply because a staff analyst unofficially verbalized another possible reason, see, Bush v. Kerr, supra at 731. The suggestion during deliberations of even an improper basis for a decision would not impugn a final decision based on an independently justifiable basis, id.

Here, petitioner demonstrates nothing more than that one or two of the Commission's staff exhorted a different reason from that stated in the final notice of action for denying parole. The proposed reason suggested by the National Appeals Board analyst's findings was not relied upon in the final notice. In fact, the "National Appeals Board Findings and Conclusions," evidently recorded after the Commissioners had considered the analyst's evaluation, express the opposite view that there was no evidence that Hodges killed Pittman, but that he should be held accountable because of his role in the criminal transaction from which the death resulted. However, the Court is not disposed to conclusively harmonize these two sets of comments. Surely, a federal district court is not obliged to search through unofficial memoranda preceding the final notice of action and try to reconcile all preliminary comments with the final notice in order to arrive at the Commission's "real" reasons. Instead, the Commission is required by 18 U.S.C. § 4206 to state its reasons for parole denial in its notice of action, and once it has done so this Court not only may but should regard the officially stated reasons as "real" and as the most significant, see, Bush v. Kerr, supra.

It is only the facts which constitute the most...