Thompson v. Veach

• Decision Date: 07 September 2007
• Docket Number: No. 06-2141.,06-2141.
• Citation: 501 F.3d 832
• Parties: Joseph THOMPSON, Petitioner-Appellant, v. Rick V. VEACH, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

501 F.3d 832

Joseph THOMPSON, Petitioner-Appellant, v. Rick V. VEACH, Warden, Respondent-Appellee.

No. 06-2141.

United States Court of Appeals, Seventh Circuit.

Argued May 23, 2007.

Decided September 7, 2007.

Song K. Cheng, argued, Mayer, Brown, Rowe & Maw, Chicago, IL, for Petitioner-Appellant.

Thomas A. Keith, Office of the United States Attorney, Peoria, IL, Joseph H. Hartzler, argued, Office of the United States Attorney, Springfield, IL, for Respondent-Appellee.

Before EASTERBROOK, Chief Judge, and BAUER and MANION, Circuit Judges.

BAUER, Circuit Judge.

Joseph Thompson appeals the district court's decision denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. After Thompson threatened his co-workers while participating in a work release program, the United States Parole Commission ("USPC") rescinded Thompson's February 26, 2005 presumptive parole date and continued his case to June of 2008. Thompson argues that the USPC violated his rights in rescinding his parole by failing to provide him with a statement of reasons that satisfies the requirements of the Due Process Clause of the Fourteenth Amendment. Because we find that Thompson has no liberty interest in his parole, we affirm the denial of his petition.

I. Background

In 1999, Thompson was convicted in the District of Columbia of attempted possession with intent to distribute cocaine and sentenced to a term of three to nine years' imprisonment. The USPC provided Thompson with a parole hearing in 2002 and later granted him a presumptive parole date of February 20, 2004.¹ Prior to his parole date, Thompson was assigned to a halfway house. On January 31, 2004, Thompson left the halfway house and did not return for six days. As a result of this behavior, the USPC rescinded Thompson's February 20, 2004 parole date and re-set it to February 26, 2005.

On January 5, 2005, Thompson was transferred to Benton County Jail in Foley, Minnesota where he participated in a work release program as an employee for the Dombrovski Meats Company. Ten days prior to his scheduled parole, Thompson was fired from Dombrovski Meats. Thompson's work supervisor contacted Mary Herman, the work release program coordinator at the Benton County Jail, and told her that Thompson was fired for making inappropriate remarks and threatening statements to his female co-workers. Dombrovski Meats also sent Herman an incident report, which detailed Thompson's behavior. The report states that Thompson told two of his female co-workers that he "could have them" and that he "could take care of their boyfriend or husband." When the co-workers asked Thompson to explain these statements, he told them that he does none of the work himself, he "has connections", and "it will only take a phone call." The report further states that Thompson told another female co-worker, "You are at seven . . . . You have [until] ten." When asked to clarify his "seven-ten" comment, Thompson replied, "[A]t seven you get hurt real bad and at ten you get killed." Thompson's learning curve appears to be a flat line.

On February 23, 2005, the Federal Bureau of Prisons filed an incident report against Thompson, charging him with "threatening another with bodily harm" in violation of Bureau of Prisons ("B.O.P.") Code 203. At Thompson's hearing before the Center Disciplinary Committee ("CDC") the next day, Thompson denied making any threatening statements to his co-workers. The CDC found that Thompson had committed the acts as charged. A discipline hearing officer concurred with the CDC's findings and recommended that Thompson's parole be delayed by 30 days.

On February 25, 2005, the day before Thompson's presumptive parole date, the Federal Bureau of Prisons notified the USPC that Thompson had violated B.O.P. Code 203. The USPC delayed Thompson's February 26 parole date pursuant to 28 C.F.R. § 2.86 and scheduled a rescission hearing for June 29, 2005. At the rescission hearing, Thompson claimed that the problems at his workplace were due to ethnic differences between himself and his co-workers. The hearing examiner found Thompson's co-workers' statements to be more credible and convincing than Thompson's denial and found that Thompson had violated B.O.P. Code 203 by threatening another with bodily harm.

The hearing examiner then calculated the amount of time that Thompson's parole should be extended pursuant to the rescission guidelines. The USPC has formulated guidelines, codified at 28 C.F.R. § 2.80, to facilitate parole decisions for D.C. Code offenders. Under the guidelines, the examiner must determine the severity of the prisoner's offense and the prisoner's Salient Factor Score ("SFS"), which is a predictor of a prisoner's likely success on parole. Thompson's hearing examiner determined that his behavior constituted new criminal conduct committed in the community. The examiner rated the behavior as Category One offense the lowest (most severe) of the eight categories of offense severity — because it involved threatening bodily harm. The examiner calculated Thompson's SFS to be 3, indicating that Thompson's likelihood of success on parole was "poor." Based on these determinations, the examiner found Thompson's parole guidelines range to be 12 to 16 months and recommended a 16-month postponement of Thompson's parole. A second examiner subsequently reviewed the case and found that Thompson's SFS was 1 and not 3.² Because this revision did not change the classification of Thompson's likelihood of success on parole to a level other than "poor," the second examiner agreed with the first examiner's parole recommendation.

Following the hearing examiners' review, four USPC commissioners reviewed Thompson's case. One commissioner agreed with the rescission hearing examiners' recommendations. However, three Commissioners rejected the examiners' proposed 16-month sanction and recommended that the USPC continue Thompson's parole consideration to a rehearing on June 30, 2008 (36 months from Thompson's June 29, 2005 rescission hearing). Under the Code of Federal Regulations, the USPC "shall render a decision granting or denying parole, and shall provide the prisoner with a notice of action that includes an explanation of the reasons for the decision." See 28 C.F.R. § 2.74. On December 1, 2005, the USPC did just that. It denied Thompson parole and ordered a rehearing regarding Thompson's parole in June of 2008. In its notice to Thompson, the USPC specified the following reasons for its decision:

You committed behavior that constitutes new criminal conduct in the community while on work release from a community corrections center, which is rated as Category One severity because it involved threatening bodily harm.

After consideration of all relevant factors and information presented, a decision above the guidelines is warranted because you are a more serious risk and poorer risk than indicated by your Salient Factor Score in that you have 12 convictions in 15 years, not including your juvenile record. You have previously failed in probation and failed on parole. Now while in a halfway house, you threatened female co-workers.

On September 12, 2005, Thompson filed a petition for writ of habeas corpus in district court, challenging the USPC's decision to rescind his parole date. The district court denied the petition, finding that (1) the USPC did not abuse its discretion by rescinding Thompson's February 26, 2005 presumptive parole date because Thompson was not paroled at the time of the rescission hearing; (2) the CDC's finding that Thompson violated B.O.P. Code 203 did not violate his due process rights; (3) the USPC did not violate Thompson's due process rights by relying on the CDC's findings of fact; and (4) the USPC did not abuse its discretion "by deciding to rescind Thompson's parole by 16 months."³ Thompson then filed this timely appeal.

II. Analysis

On appeal, Thompson argues that the USPC violated his due process rights by failing to provide him with a statement of reasons for denying his parole that either satisfies the requirements of the Due Process Clause or is statutorily sufficient. Thompson contends that the statement of reasons is insufficient because it fails to specify which local, state, or federal criminal offense that he had committed. Our authority to review USPC parole decisions is limited to determining whether the decision constitutes an abuse of discretion. Solomon v. Elsea, 676 F.2d 282, 290 (7th Cir.1982). A court of review need only determine whether there is a rational basis in the record for the Commission's conclusions embodied in its statement of reasons. Id. (Citations omitted).

In order for due process protections to apply, there must be a protectible liberty or property interest. Id. at 284 (citing Averhart v. Tutsie, 618 F.2d 479, 480 (7th Cir.1980)). "There is no constitutional or inherent right for a convicted person to be conditionally released before expiration of a valid sentence." Greenholtz v. Inmates of Neb. Penal & Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). A valid conviction constitutionally extinguishes the prisoner's right to liberty for the duration of his sentence. Id. (citing Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976)). However, a state may create a protected liberty interest in parole by enacting provisions governing parole that give a prisoner a reasonable expectation that he will be released if certain criteria are met. See Heidelberg v. Illinois Prisoner Review Bd., 163 F.3d 1025, 1026 (7th Cir.1998) (citing Greenholtz, 442 U.S. at 12, 99 S.Ct. 2100; Board of Pardons v. Allen, 482 U.S. 369, 376, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987)).

In Greenholtz, the United States Supreme Court reviewed Nebraska's state parole statute to determine whether it created a protectible liberty interest in parole. Nebraska's parole statute provides...