Opinion
CASE NO. 01-3168-RDR.
January 28, 2002
REPORT AND RECOMMENDATION
The court has referred this matter to the undersigned United States Magistrate Judge for report and recommendation on a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. Petitioners, prisoners confined at USP-Leavenworth, Leavenworth, Kansas, proceed pro se.
Petitioners argue that § 235(b)(3) of the Sentencing Reform Act, as originally enacted, required the Commission to set a mandatory release date within the applicable parole guidelines for each petitioner no later than October 31, 1992. By amending the law thirty-six days later to clarify that parole was to be calculated according to 18 U.S.C. § 4206, petitioners argue: 1) Congress deprived them, without due process, of a vested liberty interest, 2) the amendment is an impermissible ex post facto law, and 3) the amendment is an impermissible bill of attainder. Petitioners also argue a conflict of interest between the financial and personal interests of the employees of the Commission and the interests of petitioners violates their due process rights.
PROCEDURAL HISTORY
Petitioner, Raymond Bledsoe, was convicted of killing a man because of his race and sentenced to life on May 4, 1983, in the United States District Court for the Western District of Missouri. At his initial parole hearing on May 5, 1993, Bledsoe's parole guidelines were calculated at 120-plus months, more than 48 months above the minimum guideline range. The United States Parole Commission (Commission) set Mr. Bledsoe's reconsideration hearing for May 2008. At his statutory interim hearing on September 7, 1999, petitioner's reconsideration hearing was moved up to May 2007 because of positive institutional adjustment.
Petitioner, Billy E. Dacus, was convicted of bank robbery in the United States District Court for the Northern District of Texas and on January 13, 1983, he was sentenced to 45 years. On February 14, 1994, Dacus' parole guidelines were determined to be 166-plus months, more than forty-eight months above the minimum guideline range. His reconsideration hearing was scheduled for October 2008. Advancement of the reconsideration hearing will be considered at petitioner's next statutory interim hearing if he has continued positive adjustment.
Petitioner, Marshall D. Williams, was convicted in the United States District Court for the Northern District of Texas on December 12, 1984, of malicious destruction of property by use of explosive bomb resulting in death, possession of an unregistered firearm, and unlawful construction of a firearm. Williams was sentenced to a term of 109 years. At Mr. Williams' initial parole hearing on October 17, 1994, his parole guidelines were calculated at 108-plus months, more than forty-eight months above the minimum guideline range. His reconsideration hearing was scheduled for October 2009. There has been no adjustment to this schedule since Williams' most recent statutory interim hearing on October 23, 2000.
Transferred from the United States District Court for the District of Columbia, this action was filed in this court on April 30, 2001 (Doc. 1). Respondent filed a pleading opposing the petition for writ of habeas corpus on August 27, 2001 (Doc. 45). Petitioners filed a traverse on September 24, 2001 (Doc. 46) and a supplement on October 10, 2001 (Doc. 47).
DISCUSSION
The Sentencing Reform Act of 1984 ("SRA") abolished the Parole Commission and repealed federal parole statutes. Pub.L. No. 98-473, Title II, ch. II, 98 Stat. 1987, 2017-2034 (codified as amended at 18 U.S.C. § 3551-3742 (1994)). In their place, the SRA set up a determinate sentencing scheme utilizing sentencing guidelines. Id. The SRA became effective on November 1, 1987. Lewis v. Martin, 880 F.2d 288, 290 (10th Cir. 1989).
In order to process prisoners convicted under the old parole system (including petitioners), the life of the Commission was originally extended to five years beyond the effective date of SRA. See 98 Stat. at 2027, 2032, § 218(a)(5), § 235(b)(1)(A). Congress has continued to extend the life of the Commission and it is now scheduled to expire on October 31, 2002. See Pub.L. No. 101-650, Title III, § 316, 104 Stat. 5089, 5115 (extension to ten years); Pub.L. No. 104-232, § 2(a), 110 Stat. 3055 (extension to fifteen years).
When the SRA was originally enacted, § 235(b)(3) instructed the Commission to set a release date for prisoners before the expiration of the Commission (originally set for November 1, 1992) and "within the range that applies to the prisoner under the applicable parole guideline." Pub.L. No. 98-473, § 235(b)(3), 98 Stat. 2032 (1984). Just thirty-six days after the SRA became effective, § 235(b)(3) was amended to clarify that release dates were to be set under 18 U.S.C. § 4206, the parole statute in effect when petitioners were convicted and sentenced. See SRA, Pub.L. 100-182, § 2(b)(2), 101 Stat. 1266 (1987) (1987 amendment). Section 4206 "permits release dates [to be set] outside the guideline range." Lewis, 880 F.2d at 290.
Petitioners' argument that the original act created a vested right to a release date within the parole guidelines, protected by due process, is without merit. In Lewis, 880 F.2d at 290, the Tenth Circuit determined that the original act did not give prisoners sentenced prior to the effective date of the SRA a right to be released within the guideline range. When all three of the petitioners were sentenced, 18 U.S.C. § 4206 allowed for release dates outside the guideline range if good cause was shown. The SRA did not change this because Congress intended preexisting law to apply to those prisoners sentenced under the old parole system. See Romano v. Luther, 816 F.2d 832, 838 (5th Cir. 1987), citing Senate Report at 188-89, reprinted in 1984 U.S. Code Cong. Admin. News 3182, 3371-72 ("preexisting law will apply as to all substantive matters including the imposable sentence" and "the parole and good time statutes will remain in effect as to any prisoner sentenced before the sentencing guidelines").
Petitioners also argue that the application of the amended SRA is a violation of the ex post facto clause. In the context of sentencing, the ex post facto clause is violated when a law imposes a greater punishment than the punishment in existence when the offense was committed. United States v. Gerber, 24 F.3d 93, 96 (10th Cir. 1994). Both the amended SRA and 18 U.S.C. § 4206, the law in effect when petitioners were convicted and sentenced, allow for release dates beyond the guideline range. Because there is no increase in punishment to petitioners, there is no ex post facto violation. Lightsey v. Kastner, 846 F.2d 329, 334 (5th Cir. 1988).
Section 4206 became effective in 1976. Petitioner Bledsoe committed his crime in 1980 and petitioner Dacus committed his crime between 1981 and 1982. Although it is not clear from the record exactly when petitioner Williams committed his crime, he was convicted in 1984. This court will assume that he committed his crime sometime between 1976 and 1984.
Petitioners also argue amended § 253(b)(3) is an unconstitutional bill of attainder. A bill of attainder is a law which "legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial." Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 468 (1977). The amended SRA does not single out any identifiable group of individuals and, as discussed earlier, it does not inflict any additional punishment upon petitioners. U.S. v. Dorlouis, 107 F.3d 248, 257 (4th Cir. 1997). Therefore, it is not a bill of attainder. Id.
Petitioners' final argument is that their due process rights have been violated because there is a conflict of interest between the interests of Commission employees and the interests of potential parolees. Petitioners assert that members of the Commission have intentionally built up a pool of unreleased prisoners in order to ensure their continued employment and delay the statutory abolishment of the Commission. Although prisoners are entitled to impartial decision makers, White v. Indiana Parole Bd., 266 F.3d 759, 767 (7th Cir. 2001), petitioners' assertions of systemwide bias must fail because the alleged biasing influences are "too remote and insubstantial to violate due process", Fero v. Kerby, 39 F.3d 1462, 1478 (10th Cir. 1994).
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus be dismissed and all requested relief be denied.
Any party objecting to the recommended disposition may serve and file with the clerk of the district court written objections within 10 days of service of this Report and Recommendation. Any objection filed must specify the parts of the Report and Recommendation to which objections are made, and set forth the basis for such objections. See Fed.R.Civ.P. 72. Failure to file timely objections waives appellate review of both factual and legal questions. Thomas v. Arn, 474 U.S. 140 (1985); Soliz v. Chater, 82 F.3d 373, 375 (10th Cir. 1996).
Any objections should be presented in a pleading entitled "Objections to Report and Recommendation" and filed with the clerk.
A copy of this Report and Recommendation shall be mailed to petitioner and counsel of record.
The filing of this Report and Recommendation terminates the referral of this case to the undersigned.