Turner v. Henman, 86-2923
| Decision Date | 14 September 1987 |
| Docket Number | No. 86-2923,86-2923 |
| Citation | 829 F.2d 612 |
| Parties | Leroy TURNER, Petitioner-Appellant, v. Gary L. HENMAN, Warden, United States Penitentiary, Marion, Illinois, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Howard B. Eisenberg, Carbondale, Ill., for petitioner-appellant.
Frederick J. Hess, U.S. Atty., East St. Louis, Ill., for respondent-appellee.
Before CUMMINGS, COFFEY and MANION, Circuit Judges.
Petitioner-Appellant, Leroy Turner, appeals the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. Sec. 2241. We affirm.
Leroy Turner is an inmate at the United States Penitentiary in Marion, Illinois. Turner was originally sentenced to a fifteen year aggregate prison sentence on October 1, 1976, after pleading guilty to conspiracy and bank larceny in the United States District Court for the Eastern District of New York. He was sentenced to an additional three years in prison on December 13, 1979, after being convicted in the United States District Court for the District of Kansas of conveying a weapon in the United States Penitentiary at Leavenworth, Kansas.
On April 6, 1978, Turner received his initial parole hearing on his conspiracy and bank larceny conviction. Under the guidelines then in effect, Turner's offense was rated "Greatest I severity" with a sentence range of 85-110 months. He received his next hearing on April 17, 1980, after his conviction in the District of Kansas. At this hearing his rating was increased to the more serious "Greatest II severity" and his guideline sentence range was recomputed to be a minimum 100 month period with no maximum limit.
The July, 1980 Notice of Action sent to Turner after the April, 1980 hearing does not clearly state why his severity rating was increased. The reasons stated in the Notice of Action for the "Greatest II" rating appear to be the same reasons given after the 1978 hearing when Turner received his "Greatest I" rating. The Notice of Action does note that Turner was cited for various weapons offenses while in prison but does not mention that he was convicted of a weapons offense. It also does not state that the decision to increase Turner's rating took the weapons citations into account.
In any event, in October, 1980 the Commission reopened Turner's case for an initial hearing specifically dealing with the new conviction in the District of Kansas. The Commission made no change in Turner's sentence range or severity rating.
Turner next went before the Commission in June, 1983. After this hearing the Commission recalculated petitioner's sentence range under the parole guidelines it adopted in 1983. Under the 1983 guidelines Turner was given a "Category Seven" rating with a guideline sentence range of 100-148 months. Although robbery is listed as a "Category Five" offense, the Commission increased his severity rating because he was involved in two robberies, possessed a sawed-off shotgun during the robberies, fired shots during one of the robberies, and introduced a weapon into a United States penitentiary. The guidelines specifically provide that severity ratings may be increased for aggravating circumstances and for multiple offenses. See 28 C.F.R. Sec. 2.20 (1986). Due to Turner's poor prison disciplinary record over and above his previous convictions, the Commission decided that Turner should be confined until the expiration of his sentence--a total of 144 months.
Turner appealed the Commission's 1983 decision to the National Appeals Board. The Appeals Board separated the conspiracy and bank larceny convictions from the weapon conveyance conviction and calculated separate sentence ranges for each. The Appeals Board rated the offense behavior for the conspiracy and bank larceny convictions as a "Category Seven" offense with a guideline sentence range of 100-148 months. In arriving at the "Category Seven" rating, the Appeals Board relied upon the same factors that the Commission had previously relied on with the exception of Turner's weapon conveyance offense. The Board rated the weapons conveyance conviction as a "Category Three" offense and added 24-32 months onto Turner's guideline range. Taken together with a 0-34 month guideline range for seventeen infraction Turner committed while in prison, see 28 C.F.R. Sec. 2.36 (1986), Turner ended up with a total guideline sentence range of 124-214 months.
After the Appeals Board decision, Turner filed a petition for habeas corpus under 28 U.S.C. Sec. 2241. Turner made three challenges to the sentence range he received. First, he claimed that there was no factual basis for the Commission's recomputation of his offense severity range. Second, he claimed that the increase in his sentencing range violated the constitutional proscription against ex post facto laws. But see Inglese v. United States Parole Commission, 768 F.2d 932, 935-39 (7th Cir.1985) (). Third, he claimed that, in determining his sentence range, the Commission failed to follow its rules and regulations.
The parties consented to have a magistrate hear the petition under 28 U.S.C. Sec. 636(c)(1). The magistrate entered judgment in favor of the government on all Turner's claims and he now appeals.
On appeal Turner only pursues the claim that he is entitled to relief under 28 U.S.C Sec. 2241 because the Commission failed to follow its own rules and regulations when it computed his sentence range. Turner claims that he was entitled to relief because the Commission's July, 1980 decision increased his offense severity rating for his 1976 conviction without having "new adverse information" as required by 28 C.F.R. Sec. 2.28(f) (1986) ("Sec. 2.28(f)"). Even if there was new information (either the 1979 weapon conveyance conviction or "new" information concerning the 1976 bank larceny conviction), Turner argues, the Commission's actions were improper because the Commission did not comply with the procedures for reopening a case under Sec. 2.28(f). Although he apparently concedes that the Commission could have increased his sentence range after reopening his case in October, 1980, Turner emphasizes that it did not take any action at that time. He does not believe that the October, 1980 decision could be viewed as a ratification of the earlier decision to increase his sentence range.
Turner also claims that in 1983 the Appeals Board violated Sec. 2.28(f) when it considered his 1979 conviction. This violated Sec. 2.28(f), Turner contends, because: (1) the Commission had already reopened the case in October, 1980 to consider the 1979 weapon conveyance conviction and chose not to do anything; (2) in 1983, the 1979 conviction was no longer "new information"; and (3) the Commission did not follow the...
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