Simpson v. Gunnell, Civ. No. B-82-136.

• Decision Date: 29 November 1982
• Docket Number: Civ. No. B-82-136.
• Citation: 567 F. Supp. 20
• Court: U.S. District Court — District of Connecticut
• Parties: George SIMPSON, Petitioner, v. Robert GUNNELL, et al., Respondents.

567 F. Supp. 20

George SIMPSON, Petitioner, v.Robert GUNNELL, et al., Respondents.

Civ. No. B-82-136.

United States District Court, D. Connecticut.

November 29, 1982.

COPYRIGHT MATERIAL OMITTED

David Cole, Intern, John L. Pottenger, Jr., Renee D. Chotiner, Stephen Wizner, P.J. Pittman, Jerome N. Frank Legal Services Organization, New Haven, Conn., for petitioner.

Barry K. Stevens, Asst. U.S. Atty., Alan H. Nevas, U.S. Atty., Bridgeport, Conn., for respondents.

DALY, Chief Judge.

RULING ON HABEAS CORPUS PETITION

This is the second time this petition for a writ of habeas corpus has come before this Court.Petitioner challenges the propriety of his offense severity rating and the Parole Commission's decision to set his presumptive parole date "above the guidelines."

The pertinent facts are as follows: On December 18, 1979, petitioner pleaded guilty to three counts of possession of a controlled substance with intent to distribute in violation of 21 U.S.C. § 841(a) and one count of unlawful possession of firearms.He received two ten-year sentences on two of the drug counts, a five-year sentence on the third drug count, and a one-year sentence on the gun count; all sentences were to run concurrently and were aggregated to a total term of 10 years.¹Petitioner concedes that all these charges arose from a single incident.(SeeMemorandum of Law in Support of Petition for Writ of Habeas Corpus, p. 3.)He began serving his sentences on February 14, 1980.

On February 19, 1981, the petitioner's initial parole hearing was held.Evidence before the hearing examiners included the presentence report and reports submitted by the U.S. Attorney's Office for the District of Columbia.The reports revealed that the charges followed the execution of a search warrant at Mr. Simpson's residence which resulted in the seizure of over $7,000.00, quantities of heroin, marijuana, cocaine, cutting materials, other controlled substances, four firearms, ammunition, and a quantity of other property, including 11 cameras, 10 items of stereo equipment, and 9 television sets.Separate charges against petitioner relating to these latter, allegedly stolen goods had been dismissed in the District of Columbia Superior Court for failure to prove the goods were, in fact, stolen.At the parole hearing, petitioner was questioned about the dismissed charges; he denied any knowledge that the goods were stolen.

The Hearing Examiners set petitioner's Offense Severity Rating at "Very High" and his Salient Factor Scoreat 7("Good"), and recommended a presumptive parole date of February 1, 1985(requiring petitioner to serve 60 months, 12 months longer than the time set forth in the Commission's guidelines for an individual with a "very high" offense severity rating and a salient factor score of 7).See28 C.F.R. § 2.20.The Regional Commissioner affirmed.On further appeal, the U.S. Parole Commission changed petitioner's Salient Factor Score to 8, but left unchanged the presumptive parole date.The Notice of Action indicated that the Offense Severity Rating ("Very High") had been assigned because of the total amount of seized drugs in addition to the possession of the firearms.The guidelines classify each of the offenses separately as "High" severity.The decision to go above the guidelines was based on 1) the on-going nature of petitioner's narcotics business; 2) the fact that petitioner's record included a 1977 drug-related conviction; and 3) the conclusion of the Parole Commission that petitioner had exchanged stolen goods for drugs.

On February 19, 1982, petitioner filed a petition for a writ of habeas corpus, asserting, inter alia, that the Commission had improperly set his Offense Severity Rating at "Very High" by incorrectly aggregating the amount of drugs involved.Without reaching petitioner's alternative grounds, the Court ordered a new parole hearing, concluding that the total quantity of drugs constituted only 12.9% of the minimum total amount for the "Very High" category, and, thus, to the extent the "Very High" rating was based on the cumulative amount of drugs in petitioner's possession, it was error.Simpson v. Gunnell,Civ. No. B-82-136, Apr. 8, 1982, modified, Apr. 29, 1982.

On reconsideration of petitioner's case, the United States Parole Commission retained the same Offense Severity Rating, Salient Factor Score, and presumptive parole date (after 60 months).The Notice of Action stated:

"Your offense behavior has been rated as very high severity because you have committed multiple offenses, each of which alone, would be rated at high severity: (A) a drug offense during which the following drugs were seized: the equivalent of .13611 grams of 100% heroin, 312.247 grams of marijuana, 21 percodan pills, 23 valium pills, 3 ritalin tablets, and 1 methamphetamine tablet; (B) you illegally possessed multiple firearms.Your salient factor score (SFS 81) is 5....Your salient factor score and guideline range previously have been computed at 8 points and 36-48 months respectively.At the time of your original computation of your salient factor score, 8 points indicated that you are a "good" parole risk.The score of 8 points, indicating that you are a "good" parole risk, and guidelines of 36-48 months remain your official salient factor score and guideline range.After review of all relevant factors and information presented, a decision above the guidelines appears warranted because your offense behavior involved the following aggravating factors: You operated an on-going narcotics distribution business distributing both narcotics and cutting materials, which you resumed after your 1977 conviction for a similar offense.Further, you encouraged drug addicts to commit crimes so they would exchange stolen items for drugs.As required by law, you have also been scheduled for a statutory interim hearing during February, 1983.²

Simpson then renewed his petition for habeas corpus relief, asserting, first, that the Parole Commission may not consider the weapons offense in calculating his offense severity rating because the one year sentence for that conviction had expired by the time the Parole Commission computed his offense severity rating.He claims that the ex post facto clause of the United States Constitution prohibits the application of an amendment to the Parole Commission's guidelines which specifically authorizes consideration of such sentences.

Second, petitioner claims that the decision to go above the guidelines is improper because 1) the conclusion that the narcotics business was "on-going" in nature is at odds with standards in the Commission's Procedures Manual, 2) applicable statutes and regulations give Mr. Simpson a constitutionally protected liberty interest, the infringement of which is a denial of due process, 3) the Parole Commission failed to adhere to the required standard of proof— preponderance of the evidence—in concluding that petitioner had exchanged stolen goods for drugs and 4) the Parole Commission improperly considered the same factors twice: first, in applying the guidelines to petitioner and then, in going above them.The Court turns first to the issue of the offense severity rating.

I.The Propriety of the Offense Severity Rating

An amendment to the Parole Commission's guidelines, "General Note E", was adopted and became effective in 1980, after petitioner committed the offenses for which he was charged and after he was sentenced on those charges.General Note E provides as follows:

"In cases where multiple sentences have been imposed (whether consecutive or concurrent, and whether aggregated or not) an offense severity rating shall be established to reflect the overall severity of the underlying criminal behavior.This rating shall apply whether or not any of the component sentences has expired."

28 C.F.R. § 2.20.

Petitioner contends that General Note E represents a change in the law, as established by at least one District Court, specifically Judge Muir's decision in Silberberg v. U.S. Parole Commission,483 F.Supp. 1280(M.D.Pa.1980), and, consequently, he claims, the application of General Note E to his case would constitute an ex post facto violation.

The Court is of the view that Silberberg is clearly distinguishable from petitioner's case, and thus would not control here in any event.Further, the Court believes that the Silberberg holding and General Note E are not in conflict and that General Note E therefore does not represent a change in the law.Hence, petitioner's ex post facto claim must be rejected.

The facts in Silberberg are somewhat unique.In March, 1975, Silberberg received a one-year sentence for mail fraud, but failed to surrender to prison authorities on the appropriate date.He was apprehended in March of 1977, at which time he began serving his one-year sentence.While serving that sentence, he was tried and convicted on unrelated charges of conspiracy and interstate transportation of forged securities, for which he received a 15-month sentence to run consecutively to his one-year mail fraud sentence.In May of 1978, subsequent to the conspiracy and forgery convictions and sentencing, and after his mail fraud sentence had expired, he was sentenced to a four-year term on a charge of bail jumping, arising out of his failure to surrender to begin serving his mail fraud sentence.That sentence was to run concurrently with his 15-month sentence for conspiracy and forgery.Finally, in March of 1979, the Parole Commission held a parole hearing to determine Silberberg's presumptive parole date.By that time, of course, the mail fraud sentence had expired and he had, at most, three months left on his conspiracy and forgery sentence.Nonetheless, the Parole Commission, in determining Silberberg's offense severity rating, considered his prior mail fraud conviction and the conspiracy and forgery conviction.On this basis, the Parole Commission determined his offense severity...