Opinion
99 Civ. 2417 (JGK)
September 5, 2000
OPINION AND ORDER
The petitioner, Cardova Lawary, has filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. The petitioner challenges the October 1998 decision of the United States Parole Commission ("the Commission") to extend his reparole date to March 23, 2000. He alleges that in calculating his reparole date, the Commission violated his rights under the Ex Post Facto Clause by using guidelines promulgated after his conviction. He also challenges the Commission's failure to apply good time credits he had previously earned on his sentence in setting his reparole date. For the reasons explained below, the petition is denied.
I.
The facts are not in dispute. On February 24, 1986, the petitioner was released on parole after serving about twelve years of a thirty-two year aggregate federal sentence. (See Decl. of Sharon Gervasoni dated Dec. 20, 1999 ("Gervasoni Decl.") Exs. 1, 5.) On September 24, 1987, the Commission revoked the petitioner's parole after having found that the petitioner committed theft, failed to report an arrest, failed to report to his probation officer and failed to file a monthly supervision report. (See id. Ex. 6.) On September 7, 1990, the petitioner was again released on parole. (See id. Ex. 13.) While on parole, the petitioner pleaded guilty to committing a robbery on or about March 23, 1991 and was sentenced in state court in Illinois to four and a half years imprisonment. (See id. Ex. 14.) After he served his state sentence and was released, the Commission held a parole revocation hearing on March 23, 1993, (see id. Ex. 16), and revoked the petitioner's parole on June 10, 1993. (See id. Ex. 17.) The petitioner's initial presumptive parole date was set at March 23, 1998, (see id. Ex. 17), but was extended to September 23, 1998 after the petitioner committed a number of institutional infractions in November, 1994. (See id. Ex. 18.)
Petitioner's aggregate sentence consists of three consecutive sentences. (See Gervasoni Decl. Exs. 1, 2.) On March 5, 1974, he was sentenced to a ten-year term of imprisonment by the United States District Court for the Eastern District of Illinois for assaulting a United States postal clerk. (See id.) On October 7, 1975 he was sentenced by the United States District Court for the Western District of Oklahoma to a two-year consecutive term for conveying a weapon while in federal custody. (See id.) On April 28, 1976, he was sentenced by the United States District Court for the Western District of Oklahoma to a twenty-year consecutive term for assaulting a fellow inmate with intent to murder. (See id.)
On October 6, 1998, the Commission extended the petitioner's reparole date to March 23, 2000 because the petitioner had committed a minor assault on a staff member in February, 1997. (See id. Ex. 20.) The petitioner appealed that decision and the National Appeals Board affirmed the Commission's decision on January 19, 1999. (See id. Ex. 21.) The petitioner then filed this petition for habeas corpus dated February 25, 1999. He was released on parole on March 23, 2000. (See Letter of Sarah S. Normand, dated July 2, 2000.)
II
The petitioner first challenges the Commission's application of the current Parole Guidelines ("the Guidelines") to determine his March 23, 2000 parole date. He argues that it was improper for the Commission to apply these Guidelines, which he claims are more stringent than the prior ones, because they were promulgated after his sentences were imposed in the mid 1970s.
The petitioner's claim is without merit. The only possible authority that the petitioner could invoke to support his argument is the constitutional prohibition against Ex Post Facto Laws. See U.S. Const. art. I, § 9, cl. 3 ("No Bill of Attainder or ex post facto Law shall be passed."). This Clause is aimed at laws that "retroactively alter the definition of crimes or increase the punishment for criminal acts."California Dep't of Corrections v. Morales, 514 U.S. 499, 504(1995) (quoting Collins v. Youngblood, 497 U.S. 37, 43(1990)). However, it is well established that the Guidelines are not "laws" subject to scrutiny under the Ex Post Facto Clause. DiNapoli v. Northeast Reg'l Parole Comm'n, 764 F.2d 143, 147 (2d Cir. 1985); accord Beltempo v. Hadden, 815 F.2d 873, 875 (2d Cir. 1987); Flowers v. Wincelowicz, No. 96 Civ. 3276, 2000 WL 254011, at *2 (S.D.N Y March 6, 2000); Brown v. U.S. Parole Comm'n, No. 99 Civ. 2856, 2000 WL 1129580, at *4 (S.D.N.Y. Aug. 8, 2000); Garcia v. U.S., No. 86 Civ. 6303, 1988 WL 85468 (S.D.N.Y. Aug. 10, 1988), at *1. The rationale for this conclusion is that the Guidelines allow the Commission a substantial amount of discretion in their application and only "clarify the exercise of administrative discretion without altering any existing considerations for parole release." Shepard v. Taylor, 556 F.2d 648, 654 (2d Cir. 1977); accord Priore v. Nelson, 626 F.2d 211, 217 (2d. Cir. 1980). Therefore, there is no merit to the petitioner's claim that the Commission violated his rights under the Ex Post Facto Clause.
III.
The petitioner's second claim is that the Commission improperly revoked good time credits he had earned on his sentence before he was paroled. He argues that the Commission's policy is contrary to Congressional intent that an inmate's sentences be reduced for good behavior.
The Commission's policy is lawful. According to the Commission's interpretation of the parole and good time statutes:
. . . the only function of good time credits is to determine the point in a prisoner's sentence when, in the absence of parole, the prisoner is to be conditionally released on supervision. . . . Once an offender is conditionally released from imprisonment, either by parole or mandatory release, the good time earned during that period of imprisonment is of no further effect either to shorten the period of supervision or to shorten the period of imprisonment which the offender may be required to serve for violation of parole or mandatory release.28 C.F.R. § 2.35(b); see also Paroling, Recomitting and Supervising Federal Prisoners, 50 Fed. Reg. 46282 (Nov. 7, 1985).
Because Congress has granted the Commission broad discretion to determine parole eligibility and to adopt regulations establishing guidelines for the exercise of the Commission's powers, courts should defer to the Commission's reasonable regulations. Compare Timpani v. Sizer, 732 F.2d 1043, 1047 (2d Cir. 1984). Every court of appeals that has examined 28 C.F.R. § 2.35(b) has concluded that it is a reasonable regulation that is consistent with Congressional intent. See Patterson v. Knowles, 162 F.3d 574, 576 (10th Cir. 1998); Booth v. U.S., 996 F.2d 1171, 1173 (11th Cir. 1993); Boniface v. Carlson, 881 F.2d 669, 671 (9th Cir. 1989); Ray v. Brewer, 808 F.2d 19, 21-22 (7th Cir. 1986);see also Miller v. Hadden, 811 F.2d 743, 746-47 (2d Cir. 1987) (reaffirming Commission's power to revoke good time credits). Therefore, the Commission's determination to revoke petitioner's prior good time credits when he was paroled was a lawful application of the Commission's reasonable regulation.
CONCLUSION
For the reasons explained above, the petitioner's petition for habeas corpus pursuant to 28 U.S.C. § 2241 is denied. The Court declines to issue a certificate of appealability pursuant to 28 U.S.C. § 2253 because the petitioner has not "made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The Clerk of the Court is directed to enter judgment dismissing the petition and closing this case.
SO ORDERED.