Nunley v. US Board of Paroles

• Decision Date: 04 April 1977
• Docket Number: No. CIV-77-0084-D.,CIV-77-0084-D.
• Citation: 439 F. Supp. 887
• Parties: Paul H. NUNLEY, # XXXXX-XXX, Petitioner, v. U. S. BOARD OF PAROLES and Irl Day, Warden, Respondents.
• Court: U.S. District Court — Western District of Oklahoma

439 F. Supp. 887

Paul H. NUNLEY, # XXXXX-XXX, Petitioner, v. U. S. BOARD OF PAROLES and Irl Day, Warden, Respondents.

No. CIV-77-0084-D.

United States District Court, W. D. Oklahoma.

April 4, 1977.

Paul H. Nunley, pro se.

David L. Russell, U. S. Atty. by William S. Price, Asst. U. S. Atty., Oklahoma City, Okl., for respondents.

ORDER

DAUGHERTY, Chief Judge.

This is a proceeding for writ of habeas corpus by a federal prisoner at the Federal Correctional Institution, El Reno, Oklahoma, who claims that he is entitled to his immediate release or a new parole hearing because of constitutional errors in the denial of a parole.

The following facts are not in dispute: In 1959 upon his guilty pleas to five counts of narcotics violations this court imposed sentences aggregating 30 years imprisonment. After successful post conviction proceedings resulting in these sentences being vacated, petitioner was resentenced on March 7, 1968, upon his guilty plea to a single count, to 18 years imprisonment. The other counts of the indictment were dismissed. The petitioner was released on January 2, 1970, from the United States Penitentiary at Leavenworth, Kansas, to paroled supervision in the Western District of Oklahoma. While on parole he committed the crimes of Assault and Battery With a Dangerous Weapon; Assault and Battery With a Deadly Weapon With Intent to Kill; and Carrying a Concealed Weapon After Former Conviction of a Felony, and was duly charged with these offenses in the District Court of Oklahoma County. On February 9, 1971, the petitioner appeared before the court with his attorney and plead guilty to each of the three charges and received concurrent sentences of eight and one-half years imprisonment. The United States Board of Parole issued a Warrant for his arrest for these parole violations on February 18, 1971, and the Warrant was lodged as a Detainer at the Oklahoma State Penitentiary. The petitioner was subsequently released from state custody on March 25, 1975, and he was immediately taken into custody by federal authorities. A parole revocation hearing was afforded to the petitioner on June 11, 1975 at the United States Penitentiary at Leavenworth, Kansas. By Notice of Action dated June 23, 1975 the petitioner was advised that his parole was revoked and that his case was continued for further consideration in April, 1976. The reason for a denial of parole at that time was stated to be:

"Your release at this time would depreciate the seriousness of your mandatory release violation and promote disrespect for the mandatory release process. There does not appear to be a reasonable probability at this time that you would conform to the conditions of mandatory release, due to the fact that you did have in your possession a pistol and did not have permission to have same. There does not appear to be a reasonable probability at this time that you would live at liberty without violating the law because you were convicted of three very serious charges while under mandatory release supervision."

There was no appeal from this decision.

In April, 1976, the petitioner met again with parole examiners at the United States Penitentiary at Leavenworth, Kansas, and thereafter on April 20, 1976, was notified in writing that his case was continued for institutional review hearing in April 1979 with the following reasons given for the continuance:

"You have a history of assaultive behavior which demonstrates potential for future assaultive behavior. There is not a reasonable probability at this time that you would live at liberty without violating the law.

Board policy prohibits a continuance of more than thirty-six months without review. Your continuance has been limited by this policy."

The petitioner's Regional Appeal was then denied on May 11, 1976, and on June 23, 1976, the National Appellate Board likewise affirmed the previous decision.

The petitioner alleges that the panel in 1975 verbally assured him that he would be paroled at his next review. No statement was made in the Summary by the examiners that they felt the petitioner should be paroled at his next hearing scheduled for April, 1976. Assuming, however, the truth of petitioner's allegations they do not entitle him to relief. The informal encouragement which he claims he received could not have the stature of a formal parole grant. Yet in McIntosh v. Woodward, 514 F.2d 95 (CA5 1975) the petitioner had been notified on July 26, 1974, that he would be paroled with a release date fixed for August 29, 1974. Apparently as a result of protests the Board later reconsidered and after hearing rescinded the earlier order. The court refused to disturb the action of the Parole Board and held that the petitioner was not entitled to the due process parole revocation procedures. In Sexton v. Wise, 494 F.2d 1176 (CA5 1974) the petitioner had been given a future parole date which was later summarily rescinded and the court held that there was no denial of due process. In McGee v. Aaron, 523 F.2d 825 (CA7 1975), the court found no basis for relief where the petitioner had received a tentative parole date from the hearing examiners and the National Appellate Board for adequate reasons reversed that decision and denied parole with continuance to expiration. The court rejected the suggestion that the denial of a parole under the circumstances constituted cruel and unusual punishment.

Whether, and to what extent, if any, procedural due process applies to parole release hearings has not yet been finally resolved. A conflict has developed among the circuits. See Scott v. Kentucky Board of Parole, No. 74-1899 (unpublished Order January 15, 1975) in which the Sixth Circuit held that the requirements of due process are not applicable to parole release hearings, vacated and remanded to consider mootness 429 U.S. 60, 97 S.Ct. 342, 50 L.Ed.2d 218 (1976); Brown v. Lundgren, 528 F.2d 1050 (CA5 1976) (due process does not apply); United States ex rel. Richerson v. Wolff, 525 F.2d 797 (CA7 1975) (due process applies to the extent that a written statement of reasons must be given for denial of parole), cert. denied, 425 U.S. 914, 96 S.Ct. 1511, 47 L.Ed.2d 764 (1976); Bradford v. Weinstein, 519 F.2d 728 (CA4 1974) (due process applies), vacated as moot 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975); Childs v. United States Board of Parole, 167 U.S.App.D.C. 268, 511 F.2d 1270 (1974) (due process applies to the extent that reasons must be given); Johnson v. Chairman, New York State Board of Parole, 500 F.2d 925 (CA2 1974) (due process applies to the extent that reasons must be given), vacated as moot sub nom. Regan v. Johnson, 419 U.S. 1015, 95 S.Ct. 488, 42 L.Ed.2d 289 (1974); Scarpa v. United States Board of Parole, 477 F.2d 278 (CA5 1973) (due process does not apply), vacated and remanded to consider mootness, 414 U.S. 809, 94 S.Ct. 79, 38 L.Ed.2d 44 (1973), dismissed as moot 501 F.2d 992; Menechino v. Oswald, 430 F.2d 403 (CA2 1970) (due process does not apply to parole hearing; questioned in Johnson, supra), cert. denied, 400 U.S. 1023, 91 S.Ct. 588, 27 L.Ed.2d 635 (1971); Burton v. Ciccone, 484 F.2d 1322 (CA8 1973) (parole board must follow its own rules, but implicitly holding that due process does not apply).

Our circuit has indicated that a prisoner may be entitled to a "modicum of due process" in a hearing to consider his release on parole and that in any event under the Administrative Procedure Act he is entitled to a "brief statement" of the reasons for the actions of the Board. Mower v. Britton, 504 F.2d 396 (CA10 1974).

The petitioner here labels the statement provided by the Board for its action in April, 1976, as a "boiler plate reason" which is inadequate to meet either statutory or constitutional standards. A "boiler plate reason" is a standard generalized statement unsupported by any specific underlying facts related to the particular individual. In the parole context the courts have characterized as a "boiler plate reason" a statement by the Parole Board to a prisoner that his release would depreciate the seriousness of the offense and thus be incompatible with the welfare of society. Lupo v. Norton, 371 F.Supp. 156 (D.Conn. 1974); Soloway v. Weger, 389 F.Supp. 409 (N.D.Pa.1974); Billiteri v. U. S. Board of Parole, 385 F.Supp. 1217 (W.D.N.Y.1974); Craft v. Attorney General of the United States, 379 F.Supp. 538 (M.D.Pa.1974); Canderini v. Attorney General of the United States, 369 F.Supp. 1132 (E.D.N.Y.1974). This is not petitioner's case. It is obvious from the statement by the Board that the basis for its action is the petitioner's prior criminal record. There can be no doubt that it was so understood by the petitioner as in this proceeding he also is contending that it constituted "double...