Stone v. United States Board of Parole, Civ. No. 72-1279-K.

• Decision Date: 21 June 1973
• Docket Number: Civ. No. 72-1279-K.
• Parties: Chester Leroy STONE v. UNITED STATES BOARD OF PAROLE.
• Court: U.S. District Court — District of Maryland

360 F. Supp. 22

Chester Leroy STONE v. UNITED STATES BOARD OF PAROLE.

Civ. No. 72-1279-K.

United States District Court, D. Maryland.

June 21, 1973.

Chester Leroy Stone, pro se.

George Beall, U. S. Atty., Paul M. Rosenberg, Asst. U. S. Atty., Baltimore, Md., for respondent.

MEMORANDUM AND ORDER

FRANK A. KAUFMAN, District Judge.

Stone is currently confined at the United States Penitentiary, Lewisburg, Pennsylvania, pursuant to a sentence imposed by this Court after Stone's plea of guilty to the offense of possession of stolen mail, 18 U.S.C. § 1708.¹ Stone alleges that he received consideration for parole from Lewisburg on November 8, 1972, but that he was denied parole and given no reasons for that denial. Stone also has stated that he "has maintained a clear institutional record, and has been awarded Meritorious Good Time and Meritorious Pay for actions above and beyond that which is required and has never had good time withheld, and is in fact presently earning Meritorious Good Time and Incentive Pay. So that the Petitioner has legal right for Parole to be granted, but yet Respondents denied Petitioner's request for Parole." (Emphasis supplied by Stone.) Stone also contends that as a matter of constitutional due process he is entitled to have the Board of Parole state the reasons why parole was denied. The Parole Board has moved for dismissal or alternatively for summary judgment. Since the Board has filed an affidavit herein which provides certain uncontroverted factual background, this case will be treated in the context of the Board's summary judgment motion.

The record establishes that Stone was a resident of Maryland at the time he was sentenced by this Court. He remains a resident of Maryland, see Ott v. Ciccone, 326 F.Supp. 609, 613 n.3 (W.D.Mo.1970), even though presently incarcerated at Lewisburg, Pennsylvania. But he is held in custody in Pennsylvania by the Attorney General of the United States pursuant to this Court's order. He is not being held by an officer or agency of another jurisdiction in the sense that the State of Virginia was detaining the petitioner in Word v. North Carolina, 406 F.2d 352, 355 (4th Cir. 1969), for the State of North Carolina. Nor is Stone's custodian or any member of the Parole Board present in this federal district. Thus, the facts of this case differ from the facts in Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S.Ct. 1123, 1129, 35 L.Ed.2d 443 (1973). There therefore is considerable question whether this case, viewed as a habeas corpus petition, can be brought in this district. Nor would this seem a case in which 28 U.S.C. § 2255 is applicable in the absence of any attack upon Stone's sentence. See Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969). And while, if 28 U.S.C. § 1361 is applicable, venue is present under 28 U.S.C. § 1391(e) in the light of Stone's Maryland residency, jurisdiction over the persons of the members of the Parole Board may well be lacking, at least with regard to the totality of the relief Stone seemingly seeks. See Ott v. Ciccone, supra, 326 F. Supp. at 612-613. See also Langston v. Ciccone, 313 F.Supp. 56, 60 (W.D. Mo.1970), citing Rural Electrification Administration v. Northern States Power Co., 373 F.2d 686, 694 n. 14 (8th Cir.), cert. denied, 387 U.S. 945, 87 S.Ct. 2079, 18 L.Ed.2d 1332 (1967). On the other hand, it would seem that this Court does have jurisdiction to determine whether the Parole Board has a ministerial duty to inform a federal prisoner such as Stone of the reason for denial of parole. Ott v. Ciccone, supra; Langston v. Ciccone, supra. Within that narrow context, Stone cannot prevail on the merits. Nor can he prevail on the merits in connection with any of the issues he raises, assuming, without deciding, that this Court has jurisdiction to entertain the totality of Stone's quest for relief.

"The determination of eligibility for parole is within the sole discretion of the Board of Parole, and absent exceptional circumstances or the denial of a constitutional right, the exercise of that discretion is not reviewable by the Courts." Ott v. Ciccone, supra, 326 F. Supp. at 611, and cases cited thereat including Brest v. Ciccone, 371 F.2d 981 (8th Cir. 1971). See also Tarlton v. Clark, 441 F.2d 384 (5th Cir.), cert. denied, 403 U.S. 934, 91 S.Ct. 2263, 29 L. Ed.2d 713 (1971), and cases cited therein; and Buchanan v. Clark, 446 F.2d 1379 (5th Cir. 1971), in which case, citing Tarlton, the Fifth Circuit specifically denied habeas corpus relief to a federal prisoner who challenged the Parole Board's denial of parole in a proceeding in which the petitioner alleged (at 1379):

(1) he has served one-third of his three-year sentence, (2) he has obeyed the rules of the prison, and (3) there is a reasonable probability that he would not violate parole and would not be a detriment to society. * * *

In the course of granting a writ of mandamus vacating a federal district court's order authorizing a federal prisoner to take the depositions of the members of the Youth Division of the Parole Board, the Fourth Circuit recently wrote in United States Board of Parole v. Honorable Robert R. Merhige, Jr., et al., No. 72-2324 (4th Cir. Dec. 7, 1972):

* * * The unique and absolute discretion committed to the Board under 18 U.S.C. § 4203 and the necessity for the confidentiality of its records are so well recognized as to be almost axiomatic. See Tarlton v. Clark, 441 F. 2d 384 (5 Cir. 1971); Brest v. Ciccone, 371 F.2d 981 (8 Cir. 1967).

The Fourth Circuit's holding, however, was that one of the initial questions raised by the petitioning federal prisoner, which had provided in whole or in part the basis for the District Court's order, had become moot and that no evidentiary development was required in connection with any remaining question. In its discussion, the Fourth Circuit seemingly left open the question of whether a federal prisoner is entitled, under some...