Smith v. Thompson, 91-1127
| Decision Date | 02 August 1991 |
| Docket Number | No. 91-1127,91-1127 |
| Citation | 937 F.2d 217 |
| Parties | Ricky Kevin SMITH, Petitioner-Appellant, v. Ron G. THOMPSON, Warden, Et Al., Respondents-Appellees. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Ricky Kevin Smith, pro se.
Matthew D. Orwig, Asst. U.S. Atty., Marvin Collins, U.S. Atty., Dallas, Tex., for respondents-appellees.
Appeal from the United States District Court for the Northern District of Texas.
Before CLARK, Chief Judge, HIGGINBOTHAM and BARKSDALE, Circuit Judges.
I.
Ricky Smith appeals the district court's dismissal of his 28 U.S.C. Sec. 2241 habeas corpus petition for failure to exhaust his administrative remedies. We affirm.
II.
On October 13, 1987, a federal grand jury returned a two-count indictment for forgery and obstructing the mail against Smith. Subsequently, on December 1, 1987, the government filed a one-count superseding information charging Smith with uttering and publishing as true a United States Treasury check for $406 bearing a falsely-made and forged endorsement, in violation of 18 U.S.C. Sec. 495. Pursuant to a plea agreement, Smith pleaded guilty to the superseding information in exchange for dismissal of the two-count indictment. The district court sentenced Smith to a ten-year term of imprisonment and a $50 assessment. Smith did not file a direct appeal. This court subsequently affirmed the district court's denial of a habeas corpus petition filed by Smith. United States v. Smith, 915 F.2d 959 (5th Cir.1990).
Smith was shortly scheduled for a parole hearing. Prior to his hearing, a pre-hearing assessment was prepared. Additional information concerning a previously dismissed murder charge was requested by the Parole Commission from the U.S. probation officer who had prepared Smith's presentence report. A sworn statement of the Waco, Texas police officer who interviewed Smith regarding the murder was delivered to the probation officer and was forwarded to the Commission on the same day. There is no indication that the police officer's statement was disclosed to Smith prior to this hearing. The reviewer assigned Smith a salient factor score (SFS) of seven and rated his offense behavior as a category eight in severity, because it involved forgery of a U.S. Treasury Check and the sexual assault of a child which resulted in her death. The applicable guideline range was determined to be 120+ months.
Smith's parole panel noted that Smith had readily admitted to his involvement in the forgery offense, but stated that the charge of sexual assault which resulted in the child's death had been dismissed, and he was not involved in this murder. The hearing panel modified Smith's offense behavior because the murder charge was not related to the current offense of forgery. His new offense behavior was category two with a SFS of seven, resulting in a guideline range of 0-10 months. However, the panel did consider the dismissed murder charge as an aggravating factor. Because of two previous charges of assault (of a ten year old girl) and murder (of another ten year old girl), the panel recommended that he continue to have a presumptive parole date after service of forty months. This date would place him thirty months above his guideline range.
After his hearing Smith filed a request for disclosure of the Waco police officer's statement. Smith appealed the Commission's decision to the Regional Commissioner, who found that, because of Smith's history of assaultive behavior, he was a threat to the community and should serve until expiration of the sentence imposed, which would be a total of eighty months. The National Commissioners concurred with the Regional Commissioner's decision. The Commissioners found that Smith presented a more serious risk than indicated by his SFS because of his history of assaultive behavior, specifically the murder of the 10-year-old female.
Smith appealed this decision to the National Appeals Board claiming that he was not given notice that the murder offense would be used at his hearing, and that the decision to exceed the guideline range by seventy months was flagrant, unwarranted, and unauthorized. On January 18, 1989, the National Appeals Board affirmed the previous decision. The Board found that a decision above the guidelines was warranted, and that the reasons given were in compliance with the Code of Federal Regulations.
On January 25, 1990, Smith filed the instant petition for habeas corpus. He asserts the Parole Commission's consideration of the dismissed murder charge was erroneous. On March 30, 1990, the Commission...
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