Picrin-Peron v. Rison

• Decision Date: 18 April 1991
• Docket Number: P,PICRIN-PERO,No. 89-55781,89-55781
• Citation: 930 F.2d 773
• Parties: Lorenzo Albertoetitioner-Appellant, v. Richard H. RISON, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 773

930 F.2d 773

Lorenzo Alberto PICRIN-PERON, Petitioner-Appellant, v. Richard H. RISON, Warden, Respondent-Appellee.

No. 89-55781.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 2, 1990.

Decided April 18, 1991.

Charles D. Weisselberg, William J. Genego, and Dennis E. Curtis, and Leslie Davis and Maria Matan (law student interns), Post-Conviction Justice Project, University of Southern California Law Center, Los Angeles, Cal., for petitioner-appellant.

Wayne D. Collins, Leonard Miles, Clare O'Brien and Jennifer Bard, Shearman & Sterling, New York City, and Arthur C. Helton, New York City, for amicus curiae, Lawyers Committee for Human Rights.

Appeal from the United States District Court for the Central District of California.

Before BOOCHEVER, BEEZER and TROTT, Circuit Judges.

BEEZER, Circuit Judge:

Richard Rison, as warden of the Federal Correctional Institution at Terminal Island in San Pedro, California, asks us to dismiss this appeal from the denial of Picrin-Peron's petition for a writ of habeas corpus claiming that the case is moot. We dismiss.

I

Lorenzo Alberto Picrin-Peron is a native and citizen of Cuba. In 1979, he applied to the U.S. Interests Section of the Swiss Embassy in Cuba for permission to come to the United States. He was granted indefinite immigration parole and arrived in the United States on March 24, 1980. Picrin-Peron worked for a construction company and later became the owner of a service station.

Between 1982 and 1987, Picrin-Peron was convicted of numerous felonies, including entering a dwelling to commit larceny, battery on a police officer, and twice for possession of cocaine. Although he violated one parole agreement, he served his state imposed prison sentences and was released from state custody in August 1987.

After Picrin-Peron's first conviction, the district director of the Immigration and Naturalization Service (INS) in Boston decided, without any hearing, to revoke Picrin-Peron's parole. When Picrin-Peron completed his sentence in 1987, the INS took him into custody and placed him in the Federal Correctional Institute at Terminal Island, California.

On February 19, 1988, an immigration judge found Picrin-Peron excludable from the United States. The judge also denied his applications for political asylum and for withholding of deportation. An appeal of those decisions was pending before the BIA at all times relevant to this appeal.

Picrin-Peron requested that the district director release him on immigration parole. His request was denied in May 1988. In June 1988, Picrin-Peron was interviewed by officers of the Cuban Review Plan. The Cuban Review Plan is a special plan for reviewing the detention of excludable Cuban aliens who arrived in the United States between April 15 and October 20, 1980. See 8 C.F.R. Sec. 212.12 (1990). Although Picrin-Peron arrived before April 15, 1980, he was interviewed nevertheless. The Review Plan officers found that Picrin-Peron was not violent, was "not likely to return to a life of crime after being released," and was "genuinely sorry and remorseful for his criminal behavior." They recommended that Picrin-Peron be released.

In March 1989, the district director again denied Picrin-Peron's request for parole. The district director concluded that the impressions of the Review Plan officers were "not generally supported by the record," and that, because of disciplinary problems since the interview and his past criminal record, Picrin-Peron's release was "not in the best interests of the United States." Although Picrin-Peron contends that there were no discipline problems, the district director's decision was made without giving him an opportunity to present his position.

II

On November 19, 1987, Picrin-Peron filed the petition for writ of habeas corpus that is before us on this appeal. Magistrate Judge Volney V. Brown, Jr., recommended that the petition be dismissed on the ground that Picrin-Peron had not exhausted his administrative remedies before the BIA. The district judge modified the recommendation ¹ and entered judgment denying the petition without prejudice. Picrin-Peron appeals this judgment, arguing that the exhaustion requirement is unnecessary because of the constitutional nature of his claim, which is beyond the competence of the BIA, and because of the BIA's unreasonable delay in hearing his asylum appeal.

Picrin-Peron argues that the Attorney General had neither statutory nor inherent power to confine him indefinitely simply because Cuba would not agree to repatriate him. He also argues that revocation of his parole without a hearing violated his right to due process and that his detention is excessive in light of its purpose, constituting punishment without a hearing in violation of the Fifth and Sixth Amendments. He argues further that international law requires the length and conditions of his continued detention to be reasonable in light of the degree to which he poses a danger to society or is likely to attempt to evade deportation, and that the reasonableness of his detention must be periodically reevaluated through individualized procedures.

III

While Picrin-Peron's appeal was pending in this court, he was released from custody and reparoled into the United States. In moving papers, Warden Rison claims that Picrin-Peron's parole is valid "for one year, to be extended for another year absent his reinvolvement with the criminal justice system or the willingness of Cuba or a third country to accept him." A motions panel of this court denied dismissal of the appeal on claimed grounds of mootness.

We first consider whether a merits panel of this court can revisit the motion of Warden Rison to dismiss this appeal on the grounds of mootness. We conclude that we can. In United States v. Houser, 804 F.2d 565, 567-69 (9th Cir.1986), we concluded that

while a merits panel does not lightly overturn a decision made by a motions panel during the course of the same appeal, we do not apply the law of the case doctrine as strictly in that instance as we do when a second merits panel is asked to reconsider a decision reached by the first merits panel on an earlier appeal.

Id. at 568.

IV

Because Picrin-Peron does not contest his present freedom from confinement, we next address the question of mootness. If it appears that we are without power to grant the relief requested, then this case is moot. Robbins v. Christianson, 904 F.2d 492, 494 (9th Cir.1990) (citing Lane v. Williams, 455 U.S. 624, 632, 102 S.Ct. 1322, 1327, 71 L.Ed.2d 508 (1982)).

Here, Picrin-Peron's petition seeks only the issuance of a writ of habeas corpus. The federal writ of habeas corpus traces its origins deep into the history of the common law. See Preiser v. Rodriquez, 411 U.S. 475, 484-86, 93 S.Ct. 1827, 1833-34, 36 L.Ed.2d 439 (1973), overruled, Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); Fay v. Noia, 372 U.S. 391, 399-415, 83 S.Ct. 822, 827-36, 9 L.Ed.2d 837 (1963); Jones v. Cunningham, 371 U.S. 236, 238-39, 83 S.Ct. 373, 374-75, 9 L.Ed.2d 285 (1963). See also Rose v. Mitchell, 443 U.S. 545, 583-87, 99 S.Ct. 2993, 3014-16, 61 L.Ed.2d 739 (1979) (Powell, J., concurring); Schneckloth v. Bustamonte, 412 U.S. 218, 252-56, 93 S.Ct. 2041, 2060-63, 36 L.Ed.2d 854 (1973) (Powell, J., concurring). The writ is an integral part of our common-law heritage and enjoys explicit constitutional recognition. See Preiser, 411 U.S. at 485, 93 S.Ct. at 1833; U.S. Const. Art. I, Sec. 9, cl. 2. Congress granted the federal courts the jurisdiction to issue the writ in the Judiciary Act of 1789. Act of Sept. 24, 1789, c. 20, Sec. 14, 1 Stat. 73, 81-82. The statutory authority for the writ is now found at Section 2241 of Title 28 of the United States Code. See 28 U.S.C. Sec. 2241 (1988).

Historically, the function of the writ is to secure immediate release from illegal physical custody. Preiser, 411 U.S. at 484-85, 93 S.Ct. at 1833. The Supreme Court has held that "under the writ of habeas corpus we cannot do anything else than discharge the prisoner from the wrongful confinement." Ex parte Medley, 134 U.S. 160, 173, 10 S.Ct. 384, 388, 33 L.Ed. 835 (1890). The Court has also said that "[h]abeas lies to enforce the right of personal liberty; when that right is denied and a person confined, the federal court has the power to release...