Scarpa v. US Board of Parole

• Decision Date: 28 June 1972
• Docket Number: No. 71-1602.,71-1602.
• Citation: 468 F.2d 31
• Parties: Robert J. SCARPA, Petitioner-Appellant, v. U. S. BOARD OF PAROLE, Walter Dunbar, Chairman, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

468 F.2d 31 (1972)

Robert J. SCARPA, Petitioner-Appellant, v. U. S. BOARD OF PAROLE, Walter Dunbar, Chairman, et al., Respondents-Appellees.

No. 71-1602.

United States Court of Appeals, Fifth Circuit.

May 12, 1972.

Rehearing Granted June 28, 1972.

Hughes Spalding Craft, Atlanta, Ga., for petitioner-appellant.

John W. Stokes, Jr., U. S. Atty., Richard H. Still, Jr., Asst. U. S. Atty., Atlanta, Ga., for respondents-appellees.

Before TUTTLE, GEWIN and GOLDBERG, Circuit Judges.

Rehearing En Banc Granted June 28, 1972.

ON PETITION FOR REHEARING

TUTTLE, Circuit Judge:

When this case was reached on the calendar for oral argument, a misunderstanding between appointed counsel and the appellant Scarpa caused the court to dismiss the appeal on the ground of mootness. Upon subsequent representations by the appellant, and with the cooperation of counsel, it has now been made to appear that the appellant did have a substantial issue to be presented to this court on appeal which was not mooted by any action that had occurred since his original filing of his complaint in the district court.¹

Because of the misunderstanding, and because the court considers that the contentions of the appellant are such as warrant a consideration of the appeal on its merits, we waive the time limitations for filing petition for rehearing, under the circumstances, and proceed to consider the appeal.

The court's order of December 7, 1971, 453 F.2d 891, is hereby set aside.

Essentially, the appellant is here complaining of the fact that, although he was sentenced upon his plea of guilty to one charge of forging a signature on a United States Bond, under the provisions of U.S.C.A. 18 § 4208(a)(2), he has not been afforded the rights which are implicit in the sentencing under this section of the Criminal Code.^1A

It is appellant's contention that this statute, which was passed in 1959, was remedial in nature, to the extent that it modified, in a manner favorable to persons sentenced under it, the provisions of U.S.C.A. 18 § 4202, which restricts the power of the Board of Parole to a release on parole only after serving one-third of the sentence of the court.

The specific complaint made by the appellant was sought to be made by the filing of a suit for declaratory judgment in the district court. It will be noted that he did not file a Petition for Habeas Corpus seeking release or contending that he was entitled to parole. He sought, rather, to assert that under the court's sentence, in keeping with the intent and purpose of the statute, he was entitled to be considered by the Board of Parole for parole eligibility and that, when so considered, the Board could not act in a manner that was completely lacking in basic concepts of due process. This, he alleged, the Board had done on the occasion of its first consideration of his request for his parole, and will continue to do whenever it may hereafter consider his case.

As we have stated, Scarpa recognizes that no one is automatically entitled to parole. He knows that the grant or denial of parole is "discretionary." The applicable statute provides that if there is a "reasonable probability that such prisoner will live and remain at liberty without violating the laws, and if in the opinion of the Board such release is not incompatible with the welfare of society, the Board may in its discretion authorize the release of such prisoner on parole." 18 U.S.C.A. § 4203.

What this complainant asks this court to do is to hold that the rubric "discretionary act" does not insulate the one exercising discretion from responding when it is charged that it has abused its discretion. He says that there is no greater immunization of the parole board's abuses of discretion, if they exist, than there is of a court's abuse of discretion. The reviewing of alleged abuses of the discretion of a trial court are a part of the regular grist to our mill as an appellate court.

We have before us purely a legal question, because, having alleged a state of facts which he relied on to entitle him to relief, he was met only with a motion to dismiss for failure to allege facts on which relief could be granted. The trial court granted the government's motion, but in doing so, undertook to make partial findings quite contrary to those alleged, but without any evidence or even denial entered by the government. Of course, such a motion, much like the general demurrer of bygone days, must rest on the proposition that if everything adequately pleaded as fact in the complaint is taken as true, no cause of action has been set out.

What are the facts alleged by Scarpa in his complaint? For this inquiry, of course, we must look to his complaint as amended, and must ignore the elaborate allegations made by him in the "brief" filed by him pro se in this court.

Scarpa was sentenced on June 13, 1968, following a plea of guilty, to a term of imprisonment of eight years under the provisions of 18 U.S.C.A. § 4208(a)(2), and he was later incarcerated at the United States Penitentiary in Atlanta. Having made application for parole, the plaintiff appeared before the parole board commissioner on the 13th day of October, 1969. He then alleges the following facts relating to the nature of the proceedings that followed:

"It is a matter of record (See: Parole Boards minutes and records utilized for said hearing, a copy of which is not attached hereto because of plaintiff\'s inability to acquire possession of same due to parole board rules.) that the consideration afforded the plaintiff for possible release on parole was predicated solely upon plaintiff\'s past criminal record. (Emphasis in original).

"Plaintiff was told at said hearing that he (the Parole Commissioner) after having read plaintiffs criminal record, was of the opinion that plaintiff was not ready for parole status in view of his (plaintiffs) past criminal record.

"Thereafter plaintiff received further formal denial of parole with a set off date to June 1971 as plaintiffs next scheduled hearing for reconsideration only.

"Thereafter plaintiff re-petitioned the defendant parole board for re-consideration as to his possible release on parole, presenting therein the same reasons that presently are argued herein.

"Plaintiff was thereafter notified by Parole Executive James R. Pace, that plaintiff\'s application for re-consideration had been denied. Which therefore had concluded exhaustion of plaintiffs Administrative remedies."

After then outlining his contention that as a matter of law the defendants were mandated "to give plaintiff a fair, full and just hearing; and that they have violated rights to due process," Scarpa outlined what he called "the procedure adopted by the defendants of the United States Penitentiary, Atlanta, Georgia, pertaining to parole hearings on a prisoner committed under 18 U.S. C.A. § 4208(A)(2):"

"The inmate is informed by his caseworker that he (the inmate) will be appearing before the defendants shortly and can there appear in person or waive such hearing if he so desires. (Plaintiff in the instant case did not waive.) If the inmate is of the desire to meet the defendants, he is then sent a form and is told that it is necessary for him to fill out said form with the information therein requested. Amongst the demanded information therein requested is such questions as, Are you guilty of this crime. Explain your part in the commission of this crime? Why do you think you should be released on parole? Where will you live if paroled? With whom will you live? Where will you work if paroled? What type of work will you do if paroled? Then a list of all members of the inmates family who are interested in the inmates possible release on parole is required. Lastly the inmate is required to obtain a person other than a member of his immediate family to act in the capacity of a parole adviser to the inmate when released on parole.

"Thereafter the inmate is called before the board and asked by them the same questions as are set forth in the aforementioned forms and in the case of plaintiff, his name ending in a vowel and being of Italian descent two other questions familiar to all other inmates whose names end similarly, are asked: Are you an Italian? Do you belong to organized crime?

"The defendants herein have nothing before them at the time of said hearing other than (a) the standard F.B.I. Report utilized by the sentence court to impose sentence in the first instance, which is a criminal history report. (b) The pre-sentence investigation report utilized also by the court in imposing sentence which is also a criminal history report. (c) A record of the inmates arrest sheet, which was also utilized by the court in their imposition of sentence and which is very clearly a criminal history report. The only other informative report before the defendants is a record of any breach of the prison rules committed by the inmate while in prison, of which plaintiff has none."

The appellant further alleged that:

"Prior to meeting the defendants at said hearing plaintiff consulted with his caseworker, a Mr. Wolfe² on the possibility of being recommended and receiving parole. Plaintiff in turn was informed by said caseworker that there was no such possibility, that the purpose of plaintiff meeting the board was `only a get together meeting whereat the board would then set a date approximately two to three years away where at the later date they would decide the possible release date of the inmate on parole\'. Asked why this was so, the caseworker replied "The Board doesn\'t pay any mind to an "A" number as the Judges are giving out too many of them and they don\'t mean anything any more.\'

"Plaintiff then gave said caseworker the name and address of a person willing to employ plaintiff if paroled and the name and address of a `Parole Adviser\' as was required. The case-worker took said information saying, `that the board was not interested in that.\'

"Plaintiff claims that

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