Schiselman v. U.S. Parole Com'n, 87-1471

• Decision Date: 25 July 1988
• Docket Number: No. 87-1471,87-1471
• Citation: 858 F.2d 1232
• Parties: Michael J. SCHISELMAN, Petitioner-Appellant, v. UNITED STATES PAROLE COMMISSION, Carol Pavilak, Regional Commissioner, North Central Region, and Dudley Blevins, Warden, United States Penitentiary, Terre Haute, Indiana, Respondents- Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1232

858 F.2d 1232

Michael J. SCHISELMAN, Petitioner-Appellant, v. UNITED STATES PAROLE COMMISSION, Carol Pavilak, Regional

Commissioner, North Central Region, and Dudley

Blevins, Warden, United States

Penitentiary, Terre Haute,

Indiana,

Respondents-

Appellees.

No. 87-1471.

United States Court of Appeals, Seventh Circuit.

Submitted July 25, 1988. ^*

Decided Sept. 23, 1988.

Michael J. Schiselman, North Miami Beach, Fla., for petitioner-appellant.

John Daniel Tinder, U.S. Atty., Indianapolis, Ind., Gerald A. Coraz, Asst. U.S. Atty., for respondents-appellees.

Before CUMMINGS, WOOD, Jr. and CUDAHY, Circuit Judges. ^**

PER CURIAM.

Pro se petitioner-appellant Michael J. Schiselman filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. Sec. 2241, challenging procedures used by the United States Parole Commission in reopening his initial parole determination and conducting a special reconsideration hearing. On appeal from the dismissal of that petition, we reversed the judgment of the district court and remanded the case "with instructions to grant the petition unless the Parole Commission provides a new hearing ... within 60 days." Schiselman v. United States Parole Commission, No. 85-2594, slip op. at 8 (7th Cir. November 12, 1986) [805 F.2d 1038 (Table) ] (Schiselman I ).

The Parole Commission did conduct a new hearing within 60 days. Schiselman returned to the district court with a Motion to Grant Pending Petition, alleging that the Parole Commission had not followed either its own regulations or the mandate of this court in conducting the second special reconsideration hearing. The district court found that Schiselman had received the relief we ordered. In denying him leave to proceed in forma pauperis on appeal, the court stated that his other complaints with the conduct of the second hearing were not properly before it as he had not exhausted his administrative remedies. Schiselman timely filed his notice of appeal. The sole issue before this court is whether the Parole Commission conducted the second special reconsideration hearing in accordance with applicable regulations as ordered by this court. ¹

A. BACKGROUND

1. Parole Statute and Regulations

The Parole Commission uses guidelines promulgated under the authority of 18 U.S.C. Sec. 4203(a)(1) to determine how long a prisoner should be incarcerated. The guidelines are based on the characteristics of both the offense and the offender. See 28 C.F.R. Sec. 2.20; Solomon v. Elsea, 676 F.2d 282, 285 n. 4 (7th Cir.1982). Offenses receive a severity rating while an offender's parole prognosis is rated by his salient factor score. 28 C.F.R. Sec. 2.20(b), (d), and (e). The two ratings are used with a grid to give a suggested period of imprisonment, referred to as the guideline range. ² The Commission may set a presumptive release date either above or below the guideline range if the circumstances warrant it. 28 C.F.R. Sec. 2.20(c).

Section 2.28 may be used by the Commission to reevaluate a prisoner's parole determination. At the time of Schiselman's first reconsideration hearing, Sec. 2.28(f) provided:

Upon receipt of new and significant adverse information ... the Regional Commissioner may refer the case to the National Commissioners with his recommendation and vote to schedule the case for a special reconsideration hearing. Such referral by the Regional Commissioner shall automatically retard the prisoner's scheduled release date until a final decision is reached in the case.... [T]he hearing shall be conducted in accordance with the procedures [for an initial parole hearing]. The entry of a new order following such hearing shall void the previously established release date.

28 C.F.R. Sec. 2.28(f) (1984).

As we have previously noted,

[t]he choice of information that the Commission may consider is ... quite broad.... In relying on information that has not been proved in an adversary setting, the Commission runs the risk of relying on inaccurate information. Partly for this reason, prior to the parole hearing prisoners are to be given reasonable access to documents which will be used in making the parole determination. See 18 U.S.C. Sec. 4208(b)(2). ... [A]n inmate is to be given an opportunity to present and respond to evidence. See 18 U.S.C. Secs. 4207 and 4208(e).

Solomon, 676 F.2d at 288; see also 28 C.F.R. Sec. 2.19(c).

2. Facts

a. First Reconsideration Hearing

When he filed his habeas petition, Schiselman was an inmate at the United States Penitentiary in Terre Haute, Indiana. He is now incarcerated at the Metropolitan Correctional Center in Miami, Florida. ³ Schiselman was convicted of various federal fraud crimes and was sentenced to serve 14 years. At his initial parole hearing, his presumptive parole date was set at May 12, 1988, after serving 64 months of his sentence. About a year later, the Parole Commission reopened his parole determination proceeding after receiving a letter from the United States Probation Office which reported, among other things, that Schiselman had attempted to escape from a state jail using a weapon during the time his federal charges were pending. Based on this information, the Parole Commission changed Schiselman's presumptive parole date to January 12, 1990, adding 20 months to his time to be served.

Throughout the special reconsideration hearing and the regional and national appeals, the Commission contended that the escape had been attempted on April 10, the apparent date on the copy of the jail incident report which the Commission had received. The National Commission affirmed, finding that the incident report "dated 4/10/80, indicates that you did attempt to escape while in the Floyd County Jail. You present no verification to refute the accuracy of the information on which your parole decision was based." Notice of Action (September 19, 1984). Just a few days before the National Commission affirmed the parole redetermination, the Commission learned that the escape had actually been attempted on April 19. The National Commission then simply substituted "4/19/80" for "4/10/80" in its order. We held that the Commission had to give Schiselman an opportunity to contest the charge based on the April 19 date, consistent with its own regulations, see 28 C.F.R. Sec. 2.55(f), ⁴ and ordered that his petition for a writ be granted unless he was given a new hearing. We also pointed out that the Commission had incorrectly applied its guidelines to the new information by treating the escape attempt as though it were a federal crime of which Schiselman had been convicted, rather than as information about his past history. See Schiselman I, unpub. order at 7-8. Pursuant to our mandate, the district court ordered that the writ be granted unless the Parole Commission conducted a new hearing within 60 days.

b. Second Reconsideration Hearing

A second special reconsideration hearing was conducted within 60 days. Schiselman testified that although he was not sure which county jail he was in on the date of the alleged escape attempt, he had not attempted to escape from any jail. He further testified that he believed that the report of an escape attempt had been fabricated and provided evidence that the jailer who had prepared the report was later fired and that no report of the attempted escape had been made to the District Attorney for the area, who would ordinarily receive such a report. Schiselman also called the hearing panel's attention to his excellent institutional record, including his participation in a drug program and his prison work as a clerk and an x-ray technician. He presented letters of commendation from a prison official at Terre Haute, a Terre Haute physician, and the unit manager of Terre Haute's Substance Abuse Program, as well as a letter from the federal judge who sentenced him recommending that he be paroled when he became eligible.

The hearing examiners first recalculated Schiselman's guideline range at 64-78 months, rather than the original range of 52-64 months. This recalculation, unchallenged on appeal, resulted from the hearing panel's discovery of an error made in counting Schiselman's prior convictions which changed his salient factor score from 6 to 5. Both examiners then concluded that a presumptive parole date exceeding the guideline range was warranted by Schiselman's attempted escape from a state jail using a weapon and his use of a weapon in committing the state offense of theft by deception, ⁵ but disagreed on how much, one suggesting 6 months, the other 12. The Regional Commission set Schiselman's presumptive parole date at July 12, 1990, for a total of 90 months, 12 months over the 78-month maximum indicated by the guidelines.

Thus, Schiselman's initial presumptive parole date of May 12, 1988, which had been changed after the first reconsideration hearing to January 12, 1990, was, reset to July 12, 1990, following the second court-ordered hearing. ⁶

B. ISSUES

Schiselman filed a Motion to Grant Pending Petition with the district court alleging several defects in the second special reconsideration hearing: 1) The hearing was conducted pursuant to 28 C.F.R. Sec. 2.28(a) rather than Sec. 2.28(f) as our order had directed. 2) The Commission erroneously relied on his alleged use of a firearm in committing a state theft offense in exceeding the guideline range. 3) The Commission added 6 months to his parole term as a penalty for his having successfully pursued his habeas relief. 4) The Commission failed to give meaningful consideration to the favorable information which he presented at his second reconsideration hearing. We address each of these issues in turn. ⁷

C. DISCUSSION

1. Standard of Review

We may not reverse the Parole Commission's decision unless, absent procedural or legal error, it is "arbitrary, irrational, unreasonable, irrelevant or capricious." H.R. Conf. Rep. 838, 94th Cong., 2d Sess. 27, reprinted in 1976 U.S.Code Cong. & Ad.News 335, 351, 359, ...