Shepard v. Taylor

• Decision Date: 27 May 1977
• Docket Number: D,Nos. 1210,1211,s. 1210
• Citation: 556 F.2d 648
• Parties: Lyman T. SHEPARD, Petitioner-Appellant, v. Larry TAYLOR, Warden, Metropolitan Correctional Center, and Maurice Sigler, Chairman, United States Parole Commission, Respondents-Appellees. ockets 77-2030, 77-2031.
• Court: U.S. Court of Appeals — Second Circuit

Page 648

556 F.2d 648

Lyman T. SHEPARD, Petitioner-Appellant, v. Larry TAYLOR, Warden, Metropolitan Correctional Center, and Maurice Sigler, Chairman, United States Parole Commission, Respondents-Appellees.

Nos. 1210, 1211, Dockets 77-2030, 77-2031.

United States Court of Appeals, Second Circuit.

Argued May 9, 1977.

Decided May 27, 1977.

Phylis Skloot Bamberger, New York City (William J. Gallagher, The Legal Aid Society, Federal Defender Services Unit, and Gordon J. Johnson, New York City, of counsel), for petitioner-appellant.

Carl T. Solberg, Asst. U.S. Atty., New York City (Robert B. Fiske, Jr., U.S. Atty., S. D. N. Y. of New York City, Samuel J. Wilson, Asst. U.S. Atty., and Annette Blum, Sp. Asst. U.S. Atty., New York City, of counsel), for respondents-appellees.

Before KAUFMAN, Chief Judge, CLARK, Associate Justice ^* and JAMESON, District Judge. ^**

IRVING R. KAUFMAN, Chief Judge:

Few of our society's problems have proved as insoluble as juvenile crime. Despite numerous proposals by reformers and social scientists to rid us of the effect of deviant behavior among the young, the nagging ailment persists. Varying perceptions of the cause of the affliction and the proper antidote have impelled successive generations of experts to favor with equal fervor either lenient or harsh handling of errant minors.

The instant controversy arises out of the recent tendency to reject the so-called "rehabilitative ideal" as a relic of an earlier, more optimistic, era and to return to traditional criteria of retribution and deterrence in punishing juvenile offenders. Our task is to determine whether the appellant, who was convicted and sentenced pursuant to the Federal Youth Corrections Act in 1972 to an indeterminate term of "treatment," can now be likened to a hardened, adult criminal for purposes of parole release. We believe that the constitutional proscription against ex post facto laws prohibits just this sort of midstream increase in punishment and, accordingly, reverse the judgment of the district court which dismissed the appellant's petition for a writ of habeas corpus.

FACTS

The appellant, Lyman Shepard, was sentenced on July 7, 1972 in the U.S. District Court for the Western District of Texas to an indeterminate term of imprisonment of up to six years, pursuant to the Federal Youth Corrections Act, 18 U.S.C. § 5010, for transporting a stolen car in interstate commerce, 18 U.S.C. § 2312. He was released on parole in Florida less than two years later. In October, 1974 Shepard violated the conditions of his parole by traveling to New York City, where he subsequently was apprehended while attempting to rob a restaurant. In the course of a struggle with two detectives, a gun that the appellant was carrying discharged. No one, fortunately, was injured. Shepard pleaded guilty to attempted robbery in the second degree and, on December 17, 1974 was sentenced to four years imprisonment by the Supreme Court of New York County. A federal detainer was lodged against Shepard three weeks later. ¹

While incarcerated at the Clinton Correctional Facility Shepard made extraordinary emotional and intellectual progress. He attended classes at a local college where he distinguished himself by maintaining a straight-A average and attaining to the Dean's Honor List. Fred Woodward, the Coordinator of the Inmate Higher Education Program at Clinton, lauded Shepard's "fabulous" academic record, his eagerness to learn and exceptional motivation. S. W. Haley, the appellant's correction counselor, noted Shepard's "excellent institutional adjustment," and stated that "Lyman has undergone significant personal growth while incarcerated and has learned to direct his energies toward viable self-improvement programs." Convinced of his ability to return to society as a useful citizen, the New York authorities released Shepard on parole on December 15, 1976, after he had served only one-half of his state sentence, to facilitate his registration for full-time matriculation at Clinton Community College. A local businessman, Peter Smith, assured the Board that he would provide the parolee with a job and suitable housing.

It appeared that only the federal detainer loomed as an obstacle to a bright and productive future for the appellant. The U.S. Parole Commission scheduled a revocation hearing for January 11, 1977. Shepard, quite properly, requested the federal authorities to subpoena his state institutional records and psychiatric reports as well as to require Mr. Haley to testify concerning the appellant's maturation while in state custody so that the Commission could fully consider, as did the New York authorities, his remarkable progress toward rehabilitation and the absence of any useful purpose in reincarcerating him. The Commission, however, denied this request, and stated that the material was not required in determining whether revocation of parole was appropriate.

At the federal parole hearing, Shepard related his version of the events that culminated in his New York conviction and, in the absence of detailed documentary or oral evidence, urged that his character had improved considerably while serving his state sentence at Clinton. The appellant assured the Commission that he was prepared to begin life anew and, under the supervision of the state authorities, would pursue his degree in marine biology. The hearing examiners nevertheless decided to revoke Shepard's parole.

The panel also determined, however, to reinstate Shepard's parole in two months (March 15), a date far below the minimum term of reincarceration suggested by the Parole Commission's recently promulgated "reparole guidelines," 28 C.F.R. § 2.21, 41 Fed. Reg. 37324-25 (Sept. 3, 1976). The examiners obviously were impressed with the appellant's "outstanding" record while in state confinement and his educational plans as well as the fact that if released he would be under dual federal and state supervision; indeed, his state parole period extended beyond the maximum expiration date of Shepard's federal sentence, April 9, 1978. Without condoning the acts that constituted a parole violation, the panel considered Shepard a contrite and reformed individual. It found, moreover, that he had no prior history of violence and that the discharge of the gun was accidental.

Since the hearing examiners recommended an additional term of incarceration below that indicated by the guidelines, their determination was reviewed by the Regional Commissioner. He affirmed the panel's decision to revoke parole but rejected reparole and set November, 1977 only four months before the appellant's mandatory Federal Youth Corrections Act release date for a routine parole hearing. The Regional Commissioner's decision stated that Shepard's parole supervision history was rated "negative" because of his poor response to federal parole supervision in Florida nearly three years earlier and his 1974 criminal conduct in New York, which the guidelines classified as of "greatest severity." A decision below the customary term set forth in the Commission's guidelines was warranted, however, because, it was observed, Shepard had been "continuously confined (in state prison) for 27 months with good adjustment." "Your reparole at this time," the order cryptically concluded, "would promote disrespect for the paroling process." Immediate review was sought from the National Appeals Board, which has yet to render a decision.

As far as we can discern the primary reason for Shepard's parole revocation was the severity of the state crime he committed more than two years earlier. The Government correctly contends that the hearing panel was compelled by its new reparole guidelines to afford substantial weight to the severity of the offense in determining whether to release Shepard. The hearing panel, in fact, noted that its guidelines deemed at least 48 additional months of incarceration appropriate for an individual who violated his parole by committing a crime in the course of which a firearm was discharged. That this was the "customary" range of extra imprisonment for persons with "good institutional adjustment and program progress," 28 C.F.R. § 2.19(b), 41 Fed. Reg. 32732 (Sept. 3, 1976), makes the panel's decision to mitigate the rigor of the guidelines and require only two additional months ² from Shepard, a crucial measure of the panel's view of his extraordinary progress in state prison.

While pressing his case before the Parole Commission Shepard had twice petitioned for habeas corpus in the Southern District. On January 27, 1977 Judge Tenney denied the appellant's first application, which challenged the propriety under Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), of the Commission's refusal to subpoena Shepard's state parole file and require the presence of correctional counselor Haley at the revocation hearing. The district court held that the complimentary statements in Haley's letter to the Commission, quoted above, assured Shepard a fair hearing and refused to find a due process violation in the Commission's failure to subpoena "duplicative" material. Judge Owen denied Shepard's second petition on February 25. By his ruling he upheld the propriety of applying the Commission's reparole guidelines to an individual originally sentenced under the Federal Youth Corrections Act. We consolidated the appeals taken by Shepard from these orders.

DISCUSSION

Neither we nor the parole board possess the omniscience to determine with certainty who will or will not prove to be a good parole risk. Nevertheless, the Supreme Court recently has affirmed that an individual's institutional record is one of the "most significant factors" in predicting his ability to assume his place in a free society. Moody v. Daggett, 429 U.S. 78, 88-90, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976). And Congress, in the original Federal Youth Corrections Act, made equally explicit the elements that could not be...