Terrell v. U.S.

• Citation: 564 F.3d 442
• Decision Date: 26 March 2009
• Docket Number: No. 07-2546.,07-2546.
• Parties: Sammy Lee TERRELL, Petitioner-Appellee, v. UNITED STATES of America, Respondent-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

564 F.3d 442

Sammy Lee TERRELL, Petitioner-Appellee, v. UNITED STATES of America, Respondent-Appellant.

No. 07-2546.

United States Court of Appeals, Sixth Circuit.

Argued: January 16, 2009.

Decided and Filed: March 26, 2009.

ARGUED: Patricia G. Gaedeke, Assistant United States Attorney, Detroit, Michigan, for Appellant. James R. Gerometta, Federal Defender Office, Detroit, Michigan, for Appellee. ON BRIEF: Patricia G. Gaedeke, Assistant United States Attorney, Detroit, Michigan, for Appellant. James R. Gerometta, Federal Defender Office, Detroit, Michigan, for Appellee.

Before KENNEDY, COLE, and GILMAN, Circuit Judges.

OPINION

KENNEDY, Circuit Judge.

This case presents the federal courts of appeals with an issue of first impression. Can the United States Parole Commission ("Commission") use videoconferencing to conduct parole determination proceedings? Habeas petitioner Sammy Terrell challenged this practice as a violation of 18 U.S.C. § 4208(e) and his due process rights under the Fifth Amendment, and he prevailed in the district court on due process grounds. We conclude that the statute requires parole determination proceedings to be held in person, and so for the following reasons, affirm the judgment of the district court.

BACKGROUND

Sammy Terrell is a federal prisoner who was, at the time of his petition, serving his life sentence in Marquette, Michigan.¹ Terrell robbed eleven banks. In 1983, he pleaded guilty to three bank robberies and was incarcerated. From 1983 to 1991, while in prison, Terrell committed 20 misconducts, one of which was the murder of a fellow inmate in 1985. His conviction for first degree murder resulted in a life sentence. Since that time, Terrell has maintained clear conduct, received favorable performance evaluations for his job assignments, and written a book on resolving drug and gang violence.

In 1994, Terrell was given his initial parole determination proceeding.² The Commission continued him to a 15-year reconsideration hearing³ in June 2009. Interim parole hearings⁴—which did not change his 15-year reconsideration hearing date—took place in 1996, 1998, and 2003.⁵ He waived his interim hearing scheduled for September of 2000. Terrell was scheduled for an interim hearing by video conference on June 9, 2005. He requested a continuance, which the Commission granted.

Terrell and prisoner Richard Thompson⁶ filed petitions for writs of habeas corpus⁷ in the Eastern District of Michigan on June 14, 2005, asking the court to order in-person parole determination hearings. On February 3, 2006, a magistrate judge recommended that the court deny Terrell's petition. Terrell was given an interim hearing by video conference on May 11, 2006. On September 30, 2007, the district court rejected the recommendation of the magistrate judge and held that videoconferencing violated the prisoner's due process rights. The district court then ordered an in-person parole determination hearing for Terrell. The government moved for a stay to ensure appellate review, and the district court denied the motion. On September 15, 2008, this court granted a stay of the district court's order to give Terrell an in-person hearing to ensure appellate review of the matter.

ANALYSIS

The Parole Commission Reorganization Act of 1976, Pub.L. No. 94-233, 90 Stat. 219 (Mar. 15, 1976), enacted into law 18 U.S.C. §§ 4201-4218, which includes 18 U.S.C. § 4208(e) and the requirement that "[t]he prisoner shall be allowed to appear and testify on his own behalf at the parole determination hearing." The Sentencing Reform Act of 1984, Pub.L. No. 98-473, 98 Stat.1987 (Oct. 12, 1984), replaced parole with supervised release. However, prisoners who committed offenses prior to November 1, 1987 remained eligible for parole according to the pre-Sentencing Reform Act system. See Vershish v. U.S. Parole Comm'n, 405 F.3d 385, 388 n. 2 (6th Cir.2005). Congress has repeatedly passed legislation to keep the pre-Sentencing Reform Act parole system alive for those prisoners who committed crimes prior to November 1, 1987. The latest is the United States Parole Commission Extension Act of 2008, Pub.L. No. 110-312, 122 Stat. 3013 (Aug. 12, 2008), which extended the life of the parole system until November 1, 2011. In between 1976 and 1984, no amendments were made to the text of 18 U.S.C. § 4208 or any related statute in a way that might affect its meaning.

Until 2004, the Commission conducted all parole determination hearings in person at the institutions where the prisoners were incarcerated. In early 2004, the Commission began a pilot project to conduct parole release hearings by video conference at a few institutions. The Commission published notice of the project in the Federal Register under the title, "Paroling, Recommitting, and Supervising Federal Prisoners: Prisoners Serving Sentences Under the United States and District of Columbia Codes," 69 Fed.Reg. 5,273 (Feb. 4, 2004). The Commission also promulgated rules allowing for videoconferencing, 28 C.F.R. § 2.25, and eliminated the "in person" requirement for hearings by amending 28 C.F.R. § 2.72(a). The proffered reason was to "reduce travel costs and conserve the time of its hearing examiners" without diminishing "the prisoner's ability to effectively participate in the hearing." 69 Fed.Reg. 5,273.

In April of 2005, the Commission announced that the pilot program was a success. Paroling, Recommitting, and Supervising Federal Prisoners: Prisoners Serving Sentences Under the United States and District of Columbia Codes, 70 Fed.Reg. 19,262 (April 13, 2005). The Commission concluded that "the prisoner's ability to effectively participate in the hearing ha[d] not been diminished by" videoconferencing. Id. "Video and audio transmissions [were] clear and the hearings [were] seldom interrupted by technical difficulties." Id. The Commission then extended the use of videoconferencing to parole revocation hearings and amended 28 C.F.R. § 2.25 accordingly. Id. The question before this court is the validity of using videoconferencing in parole determination hearings in light of the statutory requirement of 18 U.S.C. § 4208(e) and Fifth Amendment due process.

I. Jurisdiction

Before we address the habeas petition on its merits, we must first conclude that we have jurisdiction to entertain the petition. Neither of the parties addressed the jurisdiction of the court, presumably because they both sought to have the substantive issue decided. The district court did not address jurisdiction. However, we have an obligation to raise issues of jurisdiction sua sponte. Cf. Smith v. Ohio Dep't of Rehab. and Corr., 463 F.3d 426, 430 n. 2 (6th Cir.2006).

Terrell commenced his claim by petitioning the district court to enter an order, pursuant to 28 U.S.C. § 2241, to require the Commission to give him a live in-person parole hearing. Terrell contends that the Commission violated statutory law and his constitutional right to due process when it denied his request for an in-person hearing. He does not contend that remedying the Commission's procedural violation will necessarily entitle him to an earlier release from custody. Release on parole is discretionary. In 1977, in Wright v. U.S. Bd. of Parole, 557 F.2d 74 (6th Cir.1977), we held that a federal prisoner could challenge the process used to make his denial of parole determination as part of a § 2241 habeas petition. Id. at 76; see also Kellogg v. Shoemaker, 46 F.3d 503, 507 n. 3 (6th Cir.1995) (noting that, in the future, any remedy "a member of the class has for the unconstitutional application of the old parole procedures must ... be obtained through habeas corpus"). The petitioner argued that the proceeding denying release on parole was flawed in its use of guidelines and the lack of a sufficient explanation. Id. He requested a new hearing, or in the alternative, release on parole. Id. We held that such a challenge was cognizable under § 2241 as a challenge to the execution of his sentence. Id. at 77. Thus, our holding in Wright indicates that Terrell can proceed under § 2241.

Before and since that time, the Supreme Court has made a number of decisions regarding the relationship between habeas and § 1983, starting in 1973 with Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), and continuing with Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997), and Wilkinson v. Dotson, 544 U.S. 74, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005), aff'g, 329 F.3d 463 (6th Cir.2003) (en banc). The Court in Preiser, Heck, and Balisok held that a challenge, respectively, of a prisoner's underlying conviction or sentence, that necessarily demonstrated the invalidity of the confinement's legality, or that would result in the restoration of good-time credits which necessarily shortens the duration of confinement, can only be brought under habeas. Dotson, 544 U.S. at 78-81, 125 S.Ct. 1242. In Wolff and Dotson, the Court held that challenges by state prisoners to procedures that would only lead to new proceedings, discretionary and not necessarily spelling immediate release or a shorter duration of confinement, may be brought under § 1983. Dotson, 544 U.S. at 81-82, 125 S.Ct. 1242.

A question that arises from this line of cases is whether habeas and § 1983 (or the equivalent for a federal prisoner) are mutually exclusive actions. The circuits appear to be in conflict on this question. In Wright, we held that the claim before us could be brought as a § 2241 habeas action. In Dotson, the Supreme Court held that a claim, a constitutional challenge to parole procedures`that would at most order a new discretionary hearing, akin to the claim before us, was properly brought under § 1983. If the Preiser line of cases, decided since Wright, also indicated that the actions are mutually...