Supreme Court summarily reverses Ninth Circuit grant of parole. (590) In California, if the Board of Prison Terms denies parole, a defendant may seek judicial review in a state habeas petition. Under California law, state courts must uphold the Board’s parole denial if “some evidence” supports the Board’s conclusion that the defendant currently is dangerous. In federal habeas proceedings, the Ninth Circuit held that California’s “some evidence” rule was a “component” of a federally protected liberty interest in parole and that federal courts must determine whether a state court upholding a parole denial had made an unreasonable determination that there was “some evidence” that defendant posed a danger. In a per curiam opinion, the Supreme Court summarily reversed, finding that the federal courts did not have the authority to redress a violation of state law and that the Ninth Circuit had erred in finding that California’s “some evidence” rule was a substantive component of due process. The Court explained that “it is no federal concern . . . whether California’s ‘some evidence’ rule of judicial review (a procedure beyond what the Constitution requires) was correctly applied” and that the “some evidence” rule is not a “component” of a liberty interest protected by the Due Process Clause. Swarthout v. Cooke, 562 U.S. __, 131 S.Ct. 859 (2011).
Supreme Court allows retroactive application of state law increasing intervals between parole reviews. (590) In a 6-3 opinion written by Justice Kennedy, the Supreme Court held that retroactive application of the Georgia parole board’s amended rule increasing the interval for required reconsideration of parole from every three years to every eight years for inmates serving life sentences, did not necessarily violate the ex post facto clause. The majority noted that under California Dept. of Corrections v. Morales, 514 U.S. 499 (1995), the controlling inquiry is whether retroactive application creates “a sufficient risk of increasing the measure of punishment attached to the covered crimes.” Id. at 509. On the record in this case, the majority was unable to conclude that “the change in Georgia law lengthened respondents time of actual imprisonment.” Nevertheless, because the Court of Appeals erred in failing to consider the parole board’s internal policy statement and the prisoner claimed he had not been permitted sufficient discovery, the majority said the matter of adequate discovery could be considered on remand. Justice Scalia concurred in part, Justice Souter dissented, joined by Justices Stevens and Ginsburg. Garner v. Jones, 529 U.S. 244, 120 S.Ct. 1362 (2000).
Supreme Court says exclusionary rule does not apply to parole revocation hearings. (590) The Pennsylvania Supreme Court held that the federal exclusionary rule applied to the parolee’s revocation hearing because the officers who conducted the search were aware of his parole status. In a 5-4 opinion written by Justice Thomas, the Supreme Court reversed, holding that evidence obtained in violation of the Fourth Amendment is admissible at parole revocation hearings regardless of whether the officer performing the search knows that the subject of his search is a parolee. The majority noted that previous decisions have declined to extend the exclusionary rule to proceedings other than criminal trials. See U.S. v. Calandra, 414 U.S. 338, 343-346 (1974) (grand jury proceedings); U.S. v. Janis, 428 U.S. 433, 447 (1976) (civil tax proceedings); INS v. Lopez-Mendoza, 468 U.S. 1032, 1050 (1984) (civil deportation proceeding). The majority said that the court has “never suggested that the exclusionary rule must apply in every circumstance in which it might provide marginal deterrence.” Justices Souter, Ginsburg, Breyer and Stevens dissented. Pennsylvania Pennsylvania Board of Probation and Parole v. Scott, 524 U.S. 357, 118 S.Ct. 2014 (1998).
Supreme Court says challenge to parole revocation was mooted by completion of sentence. (590) Petitioner challenged the revocation of his parole, but before his habeas petition was decided by the district court, he was re-released on parole and two months later, his term of imprisonment expired. The district court dismissed his petition as moot because he was no longer “in custody” within the meaning of 28 U.S.C. § 2254(a) The Eighth Circuit affirmed, 91 F.3d 1114 (8th Cir. 1996). In an opinion by Justice Scalia, the Supreme Court also affirmed, relying on Lane v. Williams, 455 U.S. 624, 632 (1982). After an interesting discussion of the “collateral consequences” exception to mootness, the court declined to presume that there were collateral consequences adequate to meet “case and controversy” requirements. Moreover, the court held that petitioner failed to demonstrate any actual collateral consequences, even though, by the time of the opinion, he was back in custody on a new conviction. The court thus disapproved the Second and Ninth Circuit’s rulings in U.S. v. Parker, 952 F.2d 31 (2d Cir. 1991) and Robbins v. Christianson, 904 F.2d 492 (9th Cir. 1990). Justices Souter, O’Connor, Ginsburg and Breyer concurred to emphasize that a prisoner who is no longer “in custody” may bring a § 1983 action to establish the unconstitutionality of a conviction despite Heck v. Humphrey, 114 S.Ct. 2364 (1994) even though he could not file a § 2255 motion. Justice Stevens dissented. Spencer v. Kemna, 523 U.S. 1, 118 S.Ct. 978 (1998).
Supreme Court requires procedural protections of parole for Oklahoma pre-parole program. (590) Oklahoma operated two programs under which inmates were conditionally released from prison before the expiration of their sentences. One was parole, and the other was the “Preparole Conditional Supervision Program.” The preparole program was intended to reduce overcrowding whenever the population of the prison system exceeded 95% of its capacity. Respondent was released from prison and served five months on pre-parole without incident, but when the governor denied parole, he was returned to prison. In a unanimous opinion written by Justice Thomas, the Supreme Court held that respondent was entitled to the procedural protections set forth in Morrissey v. Brewer, 408 U.S. 471 (1972) because Oklahoma’s pre-parole program was essentially the same as parole. Although the state argued that respondent knew that a denial of parole could result in reincarceration, the regulation requiring such notice was not promulgated until five months after respondent was returned to prison. Young v. Harper, 520 U.S. 143, 117 S.Ct. 1148 (1997).
Supreme Court dissenters would grant certiorari to resolve conflict over parole eligibility. (590) Prisoners sentenced prior to November 1, 1987 are subject to 18 U.S.C. 4205(a), which states that the maximum term of imprisonment before parole eligibility is (1) one-third of a sentence for a term of years, or (2) ten years of a life sentence and of a sentence of more than 30 years. Nevertheless, the Eleventh Circuit affirmed the district court’s minimum 20-year sentence, relying on section 4205(b)(1), which provides that a district court may “designate in the sentence of imprisonment imposed a minimum term at the expiration of which the prisoner shall become eligible for parole, which term may be less than but shall not be more than one-third of the maximum sentence imposed by the court.” The Fifth, Ninth, Eighth and Tenth Circuits agree that this section permits a minimum parole eligibility of more than 10 years. The First, Third, Sixth and Seventh circuits are to the contrary, and Justices White and O’Connor would have granted certiorari in this case to resolve the conflict. Costa v. U.S., 506 U.S. 929, 113 S.Ct. 360 (1992) (White and O’Connor, JJ., dissenting from denial of certiorari).
Supreme Court holds that statute mandating release on parole creates liberty interest protected by due process. (590) Montana amended its parole statute to state that the board shall release prisoners on parole “when in its opinion there is reasonable probability that the prisoner can be released without detriment to the prisoner or to the community.” In a 6-3 opinion written by Justice Brennan, the Supreme Court held that this created a presumption that parole release would be granted when the designated findings are made. Relying on Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 (1979), the court concluded that the statute creates a liberty interest protected by the Due Process clause of the Fourteenth Amendment. Justices O’Connor and Scalia and Chief Justice Rehnquist dissent. Board of Pardons v. Allen, 482 U.S. 369, 107 S.Ct. 2415 (1987).
2nd Circuit says deportation does not automatically terminate a parole or special parole term. (590) In 1987, defendant was sentenced to 180 months’ imprisonment followed by a lifetime special parole term. After serving his term of imprisonment, defendant was deported. In 1997, he was arrested in New York and pled guilty to illegally reentering the U.S., in violation of 8 U.S.C. § 1326. The district court added two criminal history points under § 4A1.1(d), finding that defendant was serving a special parole term at the time of his offense. Defendant argued that his special parole term terminated upon his deportation. The Second Circuit disagreed, holding that deportation does not automatically terminate a parole or special parole term. Other circuits have concluded that a term of supervised release does not automatically terminate when an alien is deported. See U.S. v. Akinyemi, 108 F.3d 777 (7th Cir. 1997); U.S. v. Brown, 54 F.3d 234 (5th Cir. 1995). These holdings were based on language in 18 U.S.C. § 3583(d) that expressly permits, as a condition of supervised release, that defendant be deported. Although Congress did not expressly authorize courts to require an alien be deported as a condition of special parole, the version of 8 U.S.C. § 1252(h) in effect when defendant committed his offense and when he was deported expressly permits the deportation of aliens serving terms of “parole” – which includes both parole and special parole terms. Thus, parole and special parole terms survive deportation. U.S. v. Cuero Flores, 276 F.3d 113 (2d Cir. 2002).
4th Circuit holds that Sentencing Reform Act abolished parole for murderer’s life sentence. (590) Defendant received a sentence of life imprisonment without parole for first-degree murder, in violation of 18 U.S.C. section 1111. The 4th Circuit rejected defendant’s argument that the Sentencing Reform Act of 1984 did not abolish parole for a sentence of life imprisonment under section 1111. Prior to the Sentencing Reform Act, two sections, 18 U.S.C. section 4206(d) and 4205(a), provided the possibility of parole for those sentenced to life under section 1111. Those two sections were repealed by the Sentencing Reform Act. The fact that neither the Act nor its legislative history specifically expresses the intent to abolish parole for life sentences was irrelevant. U.S. v. Analla, 975 F.2d 119 (4th Cir. 1992).
5th Circuit holds that defendant could be on both parole and supervised release concurrently. (590) Section 1002 of the Anti-Drug Abuse Act of 1986 mandates supervised release for all individuals convicted of drug offenses after October 26, 1986. See 21 U.S.C. § 841(b)(1)(A). However, the “good conduct statutes,” 18 U.S.C. §§ 4161-4164, according to which the U.S. Parole Commission calculated pre-guideline offenders’ sentences, were not repealed until November 1, 1987. Therefore, for those individuals convicted of drug offenses that occurred during the year and four days between October 26, 1986 and November 1, 1987, the Fifth Circuit ruled the Parole Commission can calculate their sentences pursuant to the good conduct statute—thereby allowing them to be paroled—but the district court will also sentence them to supervised release in accordance with the ADAA. Thus, a defendant can be on both parole and supervised release concurrently. U.S. v. Lewis, 211 F.3d 932 (5th Cir. 2000).
5th Circuit holds it lacks jurisdiction to review Parole Commission’s refusal to depart for transferred prisoner. (590) Defendant was convicted of murder in Mexico and transferred to the U.S. The U.S. Parole Commission determined that the applicable guideline range was 168-210 months, and that a downward departure was unwarranted. The Commission set a release date of 180 months from the date of his arrest. The 5th Circuit held that it lacked authority to review the Parole Commission’s refusal to depart downward from the sentencing guidelines. Under 18 U.S.C. § 4106A(b)(1)(A), the Parole Commission must determine a release date and a period of supervised release as though defendant were convicted in district court of a similar offense. Section 4106A(b )(2)(B) directs an appellate court to dispose of the appeal in accordance with 18 U.S.C. § 3742. Since the release date was within defendant’s guideline range, the refusal to depart was not reviewable. Navarrete v. U.S. Parole Commission, 34 F.3d 316 (5th Cir. 1994).
5th Circuit says that in calculating release date of prisoner sentenced in Mexico, Parole Commission must use Mexican sentence as guideline sentence and give credits earned on that sentence. (590) Defendant received a 90-month sentence in Mexico for a drug crime. He was transferred to the United States pursuant to a treaty, and the Parole Commission determined his probable release date. A Mexican report noted that by working 765 days, defendant had earned good time credit of 383 days. The Parole Commission determined that defendant should be released after serving 63 months, and received a 27-month supervised release period. The 5th Circuit held that in determining defendant’s release date, the Parole Commission must use the 90-month Mexican sentence as defendant’s guideline sentence, and then give credit for time served and good time credits earned on that sentence. Cannon v. U.S. Department of Justice, 961 F.2d 82 (5th Cir. 1992), clarified on denial of rehearing, 973 F.2d 1190 (5th Cir. 1992).
5th Circuit upholds Parole Commission’s application of sentencing guidelines to prisoner transferred from Mexico. (590) Under 18 U.S.C. sections 4106A(b)(1)(A) and (B) and 28 C.F.R. § 2.62(g), the Parole Commission should determine a release date for prisoners transferred from foreign countries by applying the U.S. sentencing guidelines as if the offender were convicted in a United States district court of the statutory offense most similar to the foreign conviction. Section 4106A(b)(2)(A) allows the transferred offender to appeal the Parole Commission’s determination to the court of appeals in which the offender is imprisoned. Here, the 5th Circuit found no error in the Parole commission’s application of the career offender guideline to this prisoner who was convicted in Mexico of the equivalent of possession of marijuana with intent to distribute. The court also rejected the prisoner’s constitutional challenges to the authority of the Parole Commission to set sentences. Hansen v. U.S. Parole Commission, 904 F.2d 306 (5th Cir. 1990).
8th Circuit finds that Sentencing Reform Act did not require parole to be granted. (590) Petitioner was sentenced in 1984 to 25 years in jail. He argued that the parole commission was required to release him because, as originally enacted, § 235(b) of the Sentencing Reform Act of 1984 required the Parole Commission to set parole dates for all eligible prisoners still in custody in 1989. The 8th Circuit rejected the argument, noting that under 18 U.S.C. § 4205(a), which was in force when petitioner was sentenced, federal prisoners were required to serve at least one third of their sentence before being eligible for parole. Moreover, Congress later amended § 235(b) to read in harmony with § 4205(a). Piekarski v. Bogan, 912 F.2d 224 (8th Cir. 1990).
9th Circuit says giving governor authority to review parole decision is not ex post facto violation. (590) In 1987, defendant was convicted of murder in California. In 1988, California voters amended the state constitution to allow the governor to review decisions of state parole board. In 2005, the state parole board found that defendant should be paroled, but the California governor reversed that decision. In a federal habeas petition, defendant argued that allowing the governor to review parole decisions violated the Ex Post Facto Clause as applied to him. The Ninth Circuit found no violation, and also rejected defendant’s argument that the United States Supreme Court requires as-applied ex post facto challenges to analyze the significance of the risk that a change in the law will result in increased punishment. Biggs v. California Department of Corrections and Rehabilitation. 717 F.3d 678 (9th Cir. 2013).
9th Circuit says California governor need not conduct hearing before denying parole. (590) Defendant was convicted of first-degree murder and sentenced to 27 years to life. Twenty-three years, later, the California Board of Prison Terms found defendant eligible for parole, but the governor reversed that decision based on the gravity of defendant’s offense and his violent criminal history. After filing unsuccessful state habeas petitions, defendant filed a federal habeas petition challenging the governor’s decision. The district court found that the governor’s decision was not supported by “some evidence” that defendant currently posed a danger to society and reversed the governor’s decision. The Ninth Circuit held that because defendant received all the procedural protections required by due process, he could not challenge the governor’s decision. The court rejected defendant’s argument that the governor must hold a second parole hearing before denying defendant’s request for parole. Styre v. Adams, 645 F.3d 1106 (9th Cir. 2011).
9th Circuit says federal habeas court may not review parole determination of future dangerousness. (590) Defendant was convicted of second-degree murder in California state court and sentenced to a term of 15 years to life in prison. He became eligible for parole after serving 15 years. In 2002, at his seventh parole hearing, the Board of Prison Terms granted defendant parole, but the governor reversed the decision. In 2003, the Board again granted defendant parole, but the governor again reversed the decision. Defendant challenged the governor’s decision in state court, but the state courts found some evidence that defendant was unsuitable for parole. Defendant sought a petition for habeas corpus in federal court claiming that the governor’s decision denied him due process because there was no evidence that he would be a threat to public safety. The district court granted the petition, but the Ninth Circuit reversed, holding that under Swarthout v. Cooke, 131 S.Ct. 859 (2011), a federal habeas court may not review a state court’s decision that some evidence shows that a defendant will pose a danger to the community if released. Pearson v. Muntz, 639 F.3d 1185 (9th Cir. 2011).
9th Circuit reverses California governor’s rejection of parole. (590) In 1983, defendant murdered a man by hitting the victim in the head with a brick two or three times. Defendant stole the victim’s money to buy drugs. He was convicted of murder and sentenced to 15 years to life. While in prison, defendant finished school and learned a trade. In 2004, the California Board of Prison Terms recommended that defendant be paroled. The Governor of California reversed that decision, finding “some evidence” that defendant posed a risk of future dangerousness if released. The Ninth Circuit held that the Governor’s decision represented an unreasonable application of the “some evidence” standard and that defendant should be released on parole. McCullough v. Kane, 630 F.3d 766 (9th Cir. 2010).
9th Circuit says changes in California parole hearing scheduling do not violate Ex Post Facto Clause. (590) When California Board of Parole Hearings denies parole to a prison inmate, state law requires the Board to set the next parole hearing. In 2008, California changed the law governing the scheduling of the next parole hearing of an inmate who was denied parole. The 2008 law changed the minimum interval between the denial of parole to the inmate’s next hearing from one to three years; the 2008 law changed the maximum interval from five to 15 years; and the law set the default interval at 15 years. Before 2008, the interval was one year unless the Board found it was unreasonable to expect the inmate would become suitable for parole within one year. After 2008, the interval is 15 years unless the Board finds by clear and convincing evidence that the inmate will be suitable for parole in 10 years. If the Board finds by clear and convincing evidence that the inmate will be suitable for parole in seven years, the Board has discretion to set a three-, five-, or seven-year interval. California prisoners sued to invalidate the 2008 changes under the Ex Post Facto Clause. The Ninth Circuit held that the 2008 law did not violate the Ex Post Facto Clause because it did not create a significant risk of prolonging any inmate’s sentence. Gilman v. Schwarzenegger, 638 F.3d 1101 (9th Cir. 2011).
9th Circuit says parole board’s error in denying parole requires reconsideration, not release. (590) In 1979, defendant was convicted in state court of kidnapping. In 2004, the state parole board denied him parole for the thirteenth time. The board found that defendant’s offense was committed in a cruel and calculated manner, that he had a criminal history and had exhibited continued negative behavior in prison, that a psychological evaluation showed that defendant posed a high risk of future violence, and that defendant had not developed the skills to deal with stress. Defendant challenged the denial of parole in a habeas petition, and the district court found that the State had not advanced “some evidence” that defendant’s release would endanger public safety and ordered his release. Based on a recent decision from the California Supreme Court, Judges Clifton, Bybee, and Ikuta (per curiam) held that a California state prisoner who shows that the parole board failed to properly apply the “some evidence “ standard is not entitled to release on parole but instead is entitled only to have the parole board consider his parole under a proper standard. Haggard v. Curry, 631 F.3d 931 (9th Cir. 2010).
9th Circuit finds denial of parole did not violate due process. (590) Defendant was paroled from a Nevada state sentence of five years to life. In 2002, defendant violated the conditions of parole, and the parole board revoked his parole and ordered him reincarcerated. The board stated that it would next consider defendant for parole in three years. In 2005, the parole board denied defendant parole. Relying on state law, defendant argued that in 2002, the board determined that he should serve only three more years, not that it would consider his parole in three more years. The Ninth Circuit held that defendant could not obtain habeas relief based on a violation of state law and that defendant had no liberty interest in parole and could not show that the parole board’s action violated the Due Process Clause. Moor v. Palmer, 603 F.3d 658 (9th Cir. 2010).
9th Circuit says applying post-offense parole process did not violate Ex Post Facto Clause. (590) In 1994, defendant was convicted in Nevada of using a minor in the production of pornography. In 1997, the Nevada legislature provided that a person convicted of that offense could not be paroled unless he was evaluated by a psychological review panel. In 1999, the Nevada parole board applied the psychological review requirement to defendant and granted him parole. In 2002, defendant’s parole was revoked. In 2005, the parole board again applied the psychological review requirement to defendant and denied him parole. The Nevada state courts held that applying the 1997 version of the statute to defendant did not violate the Ex Post Facto Clause. In federal habeas proceedings, the Ninth Circuit held that the Nevada courts had not unreasonably determined that no ex post facto violation occurred. Moor v. Palmer, 603 F.3d 658 (9th Cir. 2010).
9th Circuit holds that revocation of parole is not a punishment under the Double Jeopardy Clause. (590) In 2002, while on parole on a Nevada state conviction, defendant violated the conditions of his parole. The Nevada parole board found him guilty of parole violations and revoked his parole. In 2005, the board denied him parole and told him that he would be considered for parole in three years. In a federal habeas petition, defendant argued that he was punished twice for the same parole violation – in 2002 when his parole was revoked and again in 2005 when he was denied parole. The Ninth Circuit held that the revocation of defendant’s parole was not a punishment that triggered the Double Jeopardy Clause; instead, it was simply the continuation of the punishment imposed for the original offense. Moor v. Palmer, 603 F.3d 658 (9th Cir. 2010).
9th Circuit, en banc, to rehear decision holding that California governor’s reversal of parole grant denied due process. (590) In 1980, defendant was convicted of second-degree murder and sentenced to 15 years to life. In 2002 and 2003, the California parole authorities granted defendant release on parole. On both occasions, the governor of California reversed the parole decision, citing the circumstances and gravity of defendant’s crime, defendant’s refusal to accept responsibility for the crime, his use of drugs and alcohol, his involvement in a motorcycle gang at the time of the murder, and other factors. The Ninth Circuit held that the governor denied defendant due process by reversing the parole determination because there was no evidence that defendant posed an unreasonable danger to public safety if released. On May 16, 2008, the court granted rehearing en banc to reconsider this decision. Hayward v. Marshall, __ F.3d __ (9th Cir. May 16, 2008) No. 06-55392 (granting rehearing).
9th Circuit says warrant to arrest parole violator need not be supported by oath or affirmation. (590) In U.S. v. Vargas-Amaya, 389 F.3d 901 (9th Cir. 2004), the court interpreted the term “warrant” in 18 U.S.C. § 3583(i), to require that a warrant to arrest a person on a supervised release violation be supported by oath or affirmation. Defendants sentenced for offenses occurring prior to November 1, 1987, are subject to parole, not supervised release, and 18 U.S.C. § 4213, gives the Parole Commission authority to issue a “warrant” to arrest a parolee who violates the terms of his parole. The Ninth Circuit held that neither § 4213 nor the Fourth Amendment required a warrant issued under § 4213 to be supported by oath or affirmation. Sherman v. U.S. Parole Commission, 502 F.3d 869 (9th Cir. 2007).
9th Circuit holds that California governor’s reversal of parole grant denied due process. (590) In 1980, defendant was convicted of second-degree murder and sentenced to 15 years to life. In 2002 and 2003, the California parole authorities granted defendant release on parole. On both occasions, the governor of California reversed the parole decision, citing the circumstances and gravity of defendant’s crime, defendant’s refusal to accept responsibility for the crime, his use of drugs and alcohol, his involvement in a motorcycle gang at the time of the murder, and other factors. The Ninth Circuit held that the governor denied defendant due process by reversing the parole determination because there was no evidence that defendant posed an unreasonable danger to public safety if released. The court noted that defendant took responsibility for his crime in 1993, had not used drugs or alcohol for years, had ceased all gang activity in 1981, and had been found to pose no danger to society in a psychological evaluation. The court also found that continued reliance on defendant’s commitment offense as a ground for denying parole denied defendant due process. Hayward v. Marshall, __ F.3d __ (9th Cir. Jan. 3, 2008) No. 06-55392.
9th Circuit says Oregon statute allowing postponement of parole is not unconstitutionally vague. (590) An Oregon statute allows the state parole board to postpone a parole release date if it finds that a defendant “has a psychiatric or psychological diagnosis of a present severe emotional disturbance such as to constitute a danger to the health and safety of the community.” Defendant was serving a sentence on multiple convictions for rape, sodomy, and child sexual abuse charges. The parole board postponed defendant’s parole release date based on a psychologist’s finding that defendant was pedophile predisposed to commit crimes if released. In federal habeas proceedings, defendant argued that the Oregon statute was unconstitutionally vague. The Ninth Circuit held that the Oregon statute was not vague in all its applications or as applied to defendant. Hess v. Board of Parole, 514 F.3d 909 (9th Cir. 2008).
9th Circuit upholds denial of parole based on nature of offense. (590) In response to his landlord’s suspicions that a fellow tenant was dealing drugs, defendant shot the tenant 12 times and stabbed him twice. Defendant then let the victim’s body sit for 10 days before dumping it in the ocean. Defendant was convicted of murder in state court and sentenced to 17 years to life in prison. After defendant had served 16 years, the state parole board declined to grant him parole because he committed the murder for trivial reasons and in a cruel and callous manner. The Ninth Circuit found that there was “some evidence” to support the parole board’s determination and denied defendant’s habeas petition challenging the denial of parole. Irons v. Carey, 479 F.3d 658 (9th Cir. 2007), superseded, 505 F.3d 846 (9th Cir. 2007).
9th Circuit rules that application of post-offense parole postponement statute to defendant violated Ex Post Facto Clause. (590) Prior to 1993, when defendant was convicted of Oregon state crimes, Oregon allowed its parole board to postpone parole if a defendant was diagnosed with an emotional disturbance that would constitute a danger to the community. In 1993, Oregon amended the statute to allow the parole board to postpone parole if it found that a defendant had a mental or emotional condition predisposing the defendant to commit a crime to a degree that would render the defendant a danger to the community. In 1995, a psychological evaluation found that defendant did not have any mental or emotional disorder and that defendant would not pose a danger to the community, but the parole board nevertheless postponed defendant’s parole because it found that defendant suffered from severe emotional disturbance. The Ninth Circuit held that application of the post-1993 law to defendant violated the Ex Post Facto Clause. Brown v. Palmateer, 379 F.3d 1089 (9th Cir. 2004).
9th Circuit finds habeas petition challenging parole date was moot after parole rescinded, but could be amended. (590) In 1986, a state parole board found defendant eligible for parole in 2000. In 1997, defendant filed a federal habeas petition challenging that parole date on the ground that the parole board violated the Ex Post Facto Clause. In 1999, the parole board held that the prior board had erred in granting defendant parole and rescinded defendant’s parole. The Ninth Circuit held that defendant’s challenge to the 1986 parole determination was moot because that determination had been rescinded and thus could not be the subject of relief granted by the court. The court held, however, that defendant should have been granted leave to amend his petition to raise challenges to the rescission decision that he had exhausted in state court. Caswell v. Calderon, 363 F.3d 832 (9th Cir. 2004).
9th Circuit holds that Parole Commission may dismiss charges in lieu of holding violator hearing. (590) Former 18 U.S.C. § 4214(a) required that a parolee taken into custody for a parole violation must receive a hearing to determine whether there is probable cause to believe he has violated a condition of his parole, followed within 60 days by a revocation hearing. The Parole Commission issued a violator warrant for defendant, but instructed that if criminal arrest warrants had been issued for defendant, then its warrant should not be executed. Three state jurisdictions then issued arrest warrants for defendant. Notwithstanding the Commission’s instructions, federal marshals arrested defendant on the parole warrant. Defendant never received the hearings required by § 4214(a). When defendant challenged the Commission’s failure to give him a hearing in federal court, the district court gave the Commission the option of dismissing the charges or holding the required hearing. The Commission dismissed its charges against defendant. The Ninth Circuit held that the district court properly allowed the Commission to choose between dismissal of the charges and holding a hearing and therefore that the Commission acted properly in dismissing the warrant. Johnson v. Reilly, 349 F.3d 1149 (9th Cir. 2003).
9th Circuit affirms order granting immediate release after prior decision finding that parole was improperly rescinded. (590) In McQuillion v. Duncan, 306 F.3d 895 (9th Cir. 2002), the court held that California parole authorities had violated defendant’s due process rights by rescinding a decision to parole him. The court remanded with instructions to grant defendant’s petition for a writ of habeas corpus. On remand, the district court ordered defendant immediately released from prison. After entry of the district court’s judgment, the State asked the court to amend its judgment to require state authorities to conduct a new parole rescission hearing. The district court denied the motion, and the Ninth Circuit affirmed. The court held that there was no need to allow the state to conduct a new rescission hearing because the court’s prior decision had already found that the decision to rescind defendant’s parole was improper. McQuillion v. Duncan, 342 F.3d 1012 (9th Cir. 2003).
9th Circuit holds that Ex Post Facto Clause bars use of 1994 Oregon parole rules for defendant convicted in 1978. (590) Defendant was convicted of rape in 1978 and sentenced to 70 years in prison. He was released on parole in 1994. Two months later, he admitted to parole authorities that he went out of his way to see attractive women and fantasized about sexual relations with them. On this basis, Oregon revoked his parole. Applying new 1994 guidelines, the parole board made a finding of “aggravation” and set his release date for 2024. The 1994 parole guidelines added as a basis for finding “aggravation” “repetition of type [of] conduct associated with commitment of offense.” The new guidelines also required the parole board to deny re-release when it made a finding of “aggravation” and thus eliminated its discretion to set a new release date. The Ninth Circuit held that, standing alone, the change in the “aggravation” factors did not violate the Ex Post Facto Clause, but that the elimination of the parole board’s re-release discretion “almost surely” resulted in a longer period of incarceration than defendant would have received under the prior guidelines. Accordingly, application of the 1994 guidelines to defendant violated the Ex Post Facto Clause. Himes v. Thompson, 336 F.3d 848 (9th Cir. 2003).
9th Circuit finds that California parole statute creates liberty interest. (590) California Penal Code § 3041(b) provides that the state parole board “shall set a release date” for a prisoner unless it finds based on several specified factors that public safety requires a longer period of incarceration and that a parole date cannot be set. The Ninth Circuit held that this statute creates a liberty interest in parole that the state cannot deny without due process. Biggs v. Terhune, 334 F.3d 910 (9th Cir. 2003), overruled, Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010).
9th Circuit finds sufficient evidence supports denial of parole to state prisoner. (590) In 1981, defendant participated in murdering a witness in a grand theft case and was sentenced to a term of 25 years to life. Defendant had been a model prisoner and had obtained two college degrees while in prison. In 1999, the state denied his request to set a parole date, relying on, among other grounds, the nature of defendant’s crime and his failure significantly to modify his behavior in prison. On federal habeas review, the Ninth Circuit found no evidence to support the parole board’s conclusions concerning defendant’s prison behavior but held that the board could properly rely on the nature of defendant’s offense to deny him parole. Biggs v. Terhune, 334 F.3d 910 (9th Cir. 2003), overruled, Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010).
9th Circuit finds vindictiveness in parole board’s increase in defendant’s sentence after successful habeas petition. (590) In 1986, a state court sentenced defendant to seven 15-year minimum prison terms. At his initial 1987 parole hearing, the Oregon parole board applied a newly enacted rule that allowed it to override one or more of the minimum terms. It then used a “matrix” – also newly enacted – to set a release eligibility date. The board overrode three of the minimum terms and set a release eligibility date of 2017. On federal habeas review, the Ninth Circuit held that the board had erred in using the new “matrix” to set defendant’s release date. On remand, the board asked defendant whether he wanted it to use the rules in effect before 1987, and defendant answered in the affirmative. The board then used the pre-1987 rules, which allowed the board to choose between overriding all of defendant’s minimum prison terms or none of them. Using those rules, the board set defendant’s release date in 2062. On federal habeas review, the Ninth Circuit held that defendant had not knowingly chosen to use the “all or nothing” approach in effect before 1987; that the board’s increase in defendant’s release eligibility date was presumptively vindictive; and that the board had failed to rebut the presumption of vindictiveness. Nulph v. Cook, 333 F.3d 1052 (9th Cir. 2003).
9th Circuit finds that rescission of parole date violated due process. (590) Defendant was convicted of murder in 1973 and sentenced to seven years to life. In 1979, the state parole board set his parole date for 1998; eventually defendant’s parole date was advanced to 1995. In 1994, however, the parole board found that defendant was unsuitable for parole and rescinded the parole date. It found that the board granting parole had failed adequately to consider the gravity of defendant’s offense, defendant’s prior criminal history, defendant’s psychiatric reports, and defendant’s lack of vocational training. In federal habeas proceedings, the Ninth Circuit held that defendant had a liberty interest in his release on parole after his parole date had been set and that none of the reasons cited for rescinding his parole were supported by “some evidence” that the original parole board failed adequately to consider the evidence before it. It therefore held that the rescission violated the Due Process Clause. McQuillion v. Duncan, 306 F.3d 895 (9th Cir. 2002).
9th Circuit holds that Parole Commission’s jurisdiction does not automatically end after five years. (590) The Parole Act, 18 U.S.C. §§ 4210(b)(1) and 4211(c)(1), provides that the Parole Commission’s jurisdiction terminates five years after a parolee’s release on parole unless the Commission extends its supervision after a hearing. Defendant was charged with parole violations prior to the expiration of the five-year period, but the Commission did not act until after the five-year period had passed. The Ninth Circuit held that the lapse of five years without a termination hearing does not automatically end the Commission’s jurisdiction; instead, the Commission retained jurisdiction to revoke defendant’s parole. Benny v. U.S. Parole Com’n., 295 F.3d 977 (9th Cir. 2002).
9th Circuit holds that time in custody for parole violation counts toward five-year early termination deadline. (590) After a parolee has been released on parole for five years, the Parole Commission must hold a hearing to determine whether his parole should be terminated early. The Ninth Circuit held that time that a parolee spent in custody after his arrest on a parole violation, but before he had a parole revocation hearing, counts toward satisfying that five-year period. Benny v. U.S. Parole Com’n., 295 F.3d 977 (9th Cir. 2002).
9th Circuit finds Parole Commission did not retaliate against defendant for filing a habeas petition. (590) Due process forbids enhanced sentences or charges motivated by actual vindictiveness toward the defendant for having exercised guaranteed rights. Bono v. Benov, 197 F.3d 409, 416 (9th Cir. 1999). In certain cases courts apply a presumption of vindictiveness to prevent patently unconstitutional penalties for the exercise of a defendant’s right to appeal or seek a collateral remedy. In Bono v. Benov, the Ninth Circuit extended the presumption of vindictiveness into the area of parole decisions. Nevertheless, in this case the Ninth Circuit found no basis for a presumption of vindictiveness. Petitioner’s habeas petition could not be construed as a challenge to the Commission’s authority, and the Commission provided “wholly logical” “nonvindictive” reasons for issuing the parole violation warrant. Fenner v. U.S. Parole Commission, 251 F.3d 782 (9th Cir. 2001).
9th Circuit finds modified sentence was ambiguous, and included special parole term. (590) In a January 12, 1989 order, the district court partially granted defendant’s motion under Fed. R. Crim. P. 35(b) reducing his total period of incarceration to 12 years. However, the court’s order made no reference to the special parole term that had been part of the original sentence. Years later, defendant claimed that the special parole term had been eliminated when the judge modified his sentence. The Ninth Circuit rejected the argument, finding that the omission of the special parole term in the order created an ambiguity which allowed the court to consider the sentencing judge’s subjective intent. In this case, the sentencing judge stated on the record that he intended for the special parole term to remain, and only amended the custodial portion of the sentence. Defendant’s contrary argument was undermined by his own conduct after he was released, in which he indicated in writing that he understood that he was on special parole. Accordingly, the district court did not err in concluding that defendant was on special parole at the time he violated the conditions of his special parole. Fenner v. U.S. Parole Commission, 251 F.3d 782 (9th Cir. 2001).
9th Circuit says parole amendments did not create “significant risk” of a longer sentence. (590) The 1981 amendments to the Oregon dangerous offender review system eliminated biennial reviews and psychological examinations. But this disadvantage was offset by a provision allowing the prisoner to apply for a hearing at any time. Relying on Garner v. Jones, 529 U.S. 244, 120 S.Ct. 1362 (2000), the Ninth Circuit held that the 1981 amendments did not create a “significant risk” that the prisoner would serve a longer sentence. Under Jones, “ the focus of the ex post facto inquiry is not on whether a legislative change produces some ambiguous sort of ‘disadvantage’ but on whether any such change increases the penalty on which a crime is punishable.” Id. at 1370. Scott v. Baldwin, 225 F.3d 1020 (9th Cir. 2000).
9th Circuit remands where record did not show that Parole Commission reconsidered after PSR modified. (590) After the Parole Commission set defendant’s parole date, the parties stipulated to eliminate from the presentence report some of the important facts on which the Commission based its decision. Petitioner then sought reconsideration, but the record failed to show that the Commission considered petitioner’s request. Instead, it appeared that the Commission allowed the reconsideration function to be performed by a “case analyst.” Accordingly, the Ninth Circuit instructed the district court to remand the case to the Parole Commission to consider the petitioner’s request to reopen. In the alternative, the Commission may provide a supplemental record reflecting that petitioner’s request “was considered and rejected by the Commission or a Commissioner prior to the issuance of the case analyst’s letters.” Marquez-Perez v. Rardin, 221 F.3d 1139 (9th Cir. 2000).
9th Circuit holds 12-year extension of parole date was presumptively vindictive. (590) In 1967, petitioner murdered two border patrol agents. His parole date was initially set for 1992, when he would have served 300 months. Later the Commission rescinded his parole date in favor of a date in 1997, when he would have served 360 months. Petitioner successfully challenged this new parole date on the ground that the Commission had not complied with its own regulations. On remand, the Parole Board set the same date, but petitioner again succeeded in obtaining habeas relief. On remand, the Commission extended petitioner’s presumptive parole date by 12 years to July 17, 2009. The district court found that this was presumptively vindictive, ordered the Commission to set the effective parole date at July 17, 1997, and ordered petitioner released forthwith. On appeal, Judge Wardlaw affirmed, joined by Judges Browning and Thomas. The panel held that the Commission failed to demonstrate the existence of objective information sufficient to rebut the presumption of vindictiveness. Bono v. Benov, 197 F.3d. 409 (9th Cir. 1999).
9th Circuit says oral notice of possible loss of “street time” on parole revocation satisfied due process. (590) Due process, as incorporated in the Parole Commission’s procedure manual, requires written notice before parole revocation, of the possible loss of “street time” if parole is revoked. In this case, defendant did not receive written notice but he was given oral notice and allowed an opportunity for a continuance. The 9th Circuit found this was sufficient to satisfy due process, and the forfeiture of “street time” was affirmed. Zitto v. Crabtree, 185 F.3d 930 (9th Cir. 1999).
9th Circuit says prisoner transferred to U.S. to serve sentence cannot challenge foreign conviction. (590) Under the terms of the prisoner transfer treaty between the U.S. and Mexico, a prisoner who is transferred to the U.S. to serve a Mexican sentence cannot challenge the validity of the underlying conviction. See Pfeifer v. U.S. Bureau of Prisons, 615 F.2d 873, 876-77 (9th Cir. 1980). However, the U.S. Parole Commission is required to calculate the release date for all transferred prisoners, and that this calculation is appealable to the Courts of Appeal just as if the sentence had been imposed by a district court. James v. U.S. Parole Commission, 159 F.3d 1200 (9th Cir. 1998).
9th Circuit says Parole Commission may not impose a second term of special parole after revocation. (590) Under 21 U.S.C. § 841(c), the Parole Commission may revoke a term of special parole, resulting in a new term of imprisonment that includes the entire period of the special parole term without credit for “street time.” The Ninth Circuit agreed with the Third, Fourth, Fifth and Seventh Circuits in holding that although the Parole Commission may choose to release the violator on regular parole, § 841(c) “does not authorize it to impose a new term of special parole.” Accordingly, in the present case, when the petitioner was released by the Commission after his first revocation, he was not released on special parole. Rather he was released on ordinary parole and was entitled to be treated as a violator of ordinary parole. Thus, he must be “accorded any credits for street time properly attending that status.” Robles v. U.S., 146 F.3d 1098 (9th Cir. 1998).
9th Circuit upholds requiring sex offenders to participate in treatment to be eligible for parole. (590) In 1992, Hawaii established a Sex Offender Treatment Program that labeled prisoners as sex offenders based on their prior records. Inmates so labeled lose eligibility for furlough or favorable housing and are required to complete the Sex Offender Treatment Program to be eligible for parole. The Ninth Circuit held that this program did not violate the ex post facto clause, relying on the Supreme Court’s recent opinion in Kansas v. Hendricks, 117 S.Ct. 2072 (1997). That case upheld the Kansas Sexually Violent Predator Act which provided for the involuntary civil commitment of prisoners likely to engage in “predatory acts of sexual violence” by declaring them to have a “mental abnormality.” The majority held that “[i]f involuntary confinement in a ‘treatment facility’ for an indefinite period of time beyond the inmate’s original sentence is not punishment [for ex post facto purposes], then it is certainly not punishment to deny an inmate eligibility for parole following his classification as a sex offender so that he can participate in a treatment program.” Judge Reinhardt dissented, arguing that Hendricks was distinguishable and the Hawaii Act violated the ex post facto clause. Neal v. Shimoda, 131 F.3d 818 (9th Cir. 1997).
9th Circuit upholds Parole Commission’s denial of credit for drug treatment program. (590) The Commission denied petitioner’s application to advance his parole date based on his completion of a residential drug treatment program. The Commission relied on the following factors: (1) petitioner had no history of drug abuse, 2) petitioner’s attendance was excellent but his participation was “superficial,” 3) petitioner’s treatment specialist indicated that he had expressed a desire to resume a “get rich quick” lifestyle upon release, and 4) the treatment specialist considered petitioner to be “at significant risk of future criminal activity.” Based on these factors, the Ninth Circuit held that the Commission acted within the scope of its discretion in refusing to advance petitioner’s parole date despite completion of the residential drug treatment program. Delancy v. Crabtree, 131 F.3d 780 (9th Cir. 1997).
9th Circuit reverses for denying right to call witnesses at parole revocation hearing. (590) In revoking parole and setting the next parole hearing fifteen years in the future, the Parole Commission relied on a police report indicating that petitioner made a threat of death to the rape victim. However, neither the victim nor the officer testified about this at trial, and petitioner claimed that he was too drunk to recall whether he made any threats. The Parole Commission refused to provide a local revocation hearing at which petitioner would have sought to have the victim testify. On appeal, District Judge Shadur and Circuit Judges Hall and Wiggins reversed, holding that it violated due process for the regulations to bar the right to call adverse witnesses without any finding of good cause. The court emphasized that its holding did not “necessarily include a right to the physical presence of the 1986 rape victim.” Affidavits, depositions and documentary evidence may be appropriate substitutes for live witness testimony. John v. U.S. Parole Commission, 122 F.3d 1278 (9th Cir. 1997).
9th Circuit upholds revocation of parole despite repeal of parole statutes. (590) The parole statutes, 18 U.S.C. §§ 4163 and 4164, were repealed by the Sentencing Reform Act of 1984, effective November 1, 1992. Nevertheless, release on parole is a “penalty” within the meaning of the Savings Clause, 1 U.S.C. § 109, and therefore § 4164 continues to apply to prisoners like petitioner who was sentenced before the statute was repealed. More-over, probation officers can supervise parolees despite the repeal of 18 U.S.C. § 3655 because 18 U.S.C. § 4203(b)(4) (which has been extended until 1997), permits the Commission to request probation officers to supervise parolees, and § 3655 has been replaced by a new statute, 18 U.S.C. § 3603. Martin v. U.S. Parole Commission, 108 F.3d 1104 (9th Cir. 1997).
9th Circuit excludes prior conviction where defendant was paroled 15 years earlier. (590) The criminal history guideline, § 4A1.2(e)(1), excludes prior sentences of imprisonment on which the defendant’s incarceration ended more than 15 years before the present offense. In this case, defendant’s incarceration for a prior robbery and possession of a weapon ended on the date he was paroled, which was more than 15 years before the present offense was committed. The government argued that defendant’s parole was “nothing more than an administrative device” to permit him to begin serving time for a later consecutive sentence. The Ninth Circuit rejected this argument, holding that the legal effect of the parole was to end defendant’s period of incarceration on the prior offenses. The sentence was reversed and remanded for resentencing without including the two prior convictions. U.S. v. Gilcrist, 106 F.3d 297 (9th Cir. 1997).
9th Circuit says prisoner transferred from Canada is subject to U.S. parole laws. (590) Petitioner was convicted in Canada of smuggling heroin. At his request, he was transferred to the U.S. to serve his sentence pursuant to the Treaty between the United States and Canada on the Execution of Penal Sentences, T.I.A.S. No. 9552 (July 19, 1977). He was transferred to the custody of the Attorney General pursuant to 18 U.S.C. § 4100, and was paroled in 1986. Thereafter he was convicted in state court, and a federal parole violator warrant was issued. However, his Canadian sentence would have expired before his parole was revoked. Therefore, he argued that the Parole Commission could not revoke his parole. The Ninth Circuit found no merit in this argument, ruling that under the treaty, U.S. law governs the effect of a parole violation on computation of the sentence, and under U.S. law, a parolee’s sentence is tolled when a parole violator warrant is issued. Thus, under U.S. law, petitioner’s sentence “will not expire until he serves the balance of the sentence which remained when he was paroled.” Boyden v. Reno, 106 F.3d 267 (9th Cir. 1997).
9th Circuit says Parole Commission remains in existence until November 1, 1997. (590) The Parole Commission was abolished by the Sentencing Reform Act of 1984. Nevertheless Congress has extended the Commission’s existence until November 1, 1997, see Pub. L. No. 98-473 § 235(b), 98 Stat. 2031 (1984), as amended by Pub. L. No. 101-650 § 316, 104 Stat. 5115 (1990) (set out as a note following 18 U.S.C. § 3551). Thus, the Commission continues to administer the sentences of persons who were convicted before the Sentencing Reform Act became effective. Therefore in the present case, the Commission acted under statutory authority when it issued a parole violator warrant after petitioner was convicted in state court of being a felon in possession of a firearm. Boyden v. Reno, 106 F.3d 267 (9th Cir. 1997).
9th Circuit says allowing Governor to reverse parole decisions did not violate Ex Post Facto Clause. (590) In 1977, petitioner received an indeterminate sentence of 25 years to life for his California first degree murder conviction. The California Board of Prison terms had the sole responsibility of determining parole suitability. In 1988, California voters gave the Governor the power to review the parole determination by passing Proposition 89, adding Section 8(b) to Article V of the California Constitution. In 1991, on the last day of the 30-day gubernatorial review period, the Governor reversed the decision to parole petitioner. The Ninth Circuit held that the new gubernatorial review procedure did not violate the Ex Post Facto Clause because it was not clear that it resulted in an actual increase in punishment. The new law was neutral, merely transferring the final parole review authority from the Board to the Governor. Johnson v. Gomez, 92 F.3d 964 (9th Cir. 1996).
9th Circuit says Parole Commission cannot let detainer stand after it takes parolee into custody. (590) Agreeing with Still v. U.S. Marshal, 780 F.2d 848 (10th Cir. 1985) and Donn v. Baer, 828 F.2d 487 (8th Cir. 1987), the Ninth Circuit held that when the Parole Commission chooses to execute a parole violator warrant by retaking the parolee into custody, the Commission must abide by the procedural requirements of 18 U.S.C. § 4214 and cannot simply withdraw the warrant and lodge it as a detainer.” Thus, in this case, it was improper for the Parole Commission to simply let its original detainer stand, after the parolee was independently convicted and sentenced to 188 months for bank robberies committed while on parole. This prejudiced the parolee, because he was unable to serve his sentence for the parole violation concurrently with his 188 month bank robbery sentence. However, the additional parole violation charges with respect to the new bank robberies were in effect a “new” warrant which was not executed since the parolee was not detained on the basis of the new charges. Thus the new unexecuted warrant was properly lodged as a detainer. Thompson v. Crabtree, 82 F.3d 312 (9th Cir. 1996).
9th Circuit says Guam special parole term was consecutive to prison time but concurrent to ordinary parole. (590) The Ninth Circuit held that under the Guam Code, the special parole term was required to be consecutive with any prison time. However, applying the “rule of lenity,” the court held that special parole could run concurrently with ordinary parole. The statute was not unconstitutionally vague. U.S. v. Sarno, 73 F.3d 1470 (9th Cir. 1995).
9th Circuit says amending sentence shortly before release from prison did not violate double jeopardy. (590) In U.S. v. Contreras-Subias, 13 F.3d 1341, 1346 (9th Cir. 1994), the Ninth Circuit held that “there can be no expectation of finality as to sentences that are illegal.” In the present case, defendant’s sentence was illegal because it ignored Guam’s mandatory special parole provisions. Thus, defendant had no reasonable expectation of finality, and amending his sentence to include the special parole provisions “could not have violated his constitutional due process rights.” People of Territory of Guam v. Materne, 72 F.3d 103 (9th Cir. 1995).
9th Circuit says Oregon Parole Board violated ex post facto clause. (590) The 9th Circuit held that the Oregon State Parole Board retrospectively applied a statute which significantly increased the prisoner’s parole matrix range. This violated the ex post facto clause because the prisoner’s release date was set in accordance with statute and regulations adopted after the date of his offense. Accordingly, the State Parole Board’s decision was reversed and the case was remanded to permit the board to establish a new release eligibility date. Nulph v. Faatz, 27 F.3d 451 (9th Cir. 1994).
9th Circuit says defendant need not be advised of parole eligibility at time of plea. (590) The judge did not violate Rule 11, Fed. R. Crim. P. by failing to advise defendant that he would be ineligible for parole. The 9th Circuit held that Rule 11 does not require the trial court to notify a defendant of parole eligibility before accepting his guilty plea. U.S. v. Roberts, 5 F.3d 365 (9th Cir. 1993).
9th Circuit finds application of amended Oregon parole guidelines violated ex post facto clause. (590) At the time of petitioner’s crimes, an Oregon state parole regulation provided that the Board of Parole could reduce certain sentences by 20%. Thereafter, the parole regulations were amended to limit reductions to seven months of the three year period under review. The Board applied the new regulations and reduced petitioner’s sentence by seven months rather than the 31.6 months he would have been eligible for under the earlier regulations. Judges Tang, Kilkenny and Poole reversed, finding that applying the new regulations violated the ex post facto clause. Even though the Board of Parole retained discretion over reductions, petitioner’s opportunity for reduction was significantly limited. In so holding, the court limited the impact of an earlier decision, Smith v. Parole Commission, 875 F.2d 1361 (9th Cir. 1988) to the federal parole guidelines. Flemming v. Oregon Board of Parole, 998 F.2d 721 (9th Cir. 1993).
9th Circuit says applying amended Washington parole laws did not violate ex post facto clause. (590) In 1975, petitioner was convicted of first degree murder and sentenced to life imprisonment. Under then-existing Washington law, an inmate sentenced to life for first degree murder had to serve a mandatory minimum sentence of twenty years and then receive a certification and recommendation for parole from the superintendent. The superintendent had absolute discretion in issuing the certification. In 1989, the law was amended to give the Board of Prison Terms power to set terms for mandatory life prisoners. The Board set petitioner’s minimum term at 380 months. The Washington courts found no ex post facto violation because on the whole, the new law benefited petitioner by providing certainty as to when he could be considered for parole. Over a dissent by Judge Poole, Judges Hug and Wright found that applying the new law did not violate the ex post facto clause. Petitioner was not deprived of an opportunity for an earlier parole and the Board retained discretion to redetermine the minimum term. Powell v. Ducharme, 998 F.2d 710 (9th Cir. 1993).
9th Circuit rules court cannot refuse to enforce judgment because law changed after judgment became final. (590) In 1988, the district court ordered the California Board of Prison Terms to grant the petitioner annual parole hearings. The state appealed, but while the appeal was pending, the 9th Circuit issued its first decision in Watson v. Estelle, 859 F.2d 105 (9th Cir. 1988) (“Watson I”), which affirmed the grant of a habeas petition seeking identical relief. In response to Watson I, the state voluntarily dismissed its appeal, and the judgment became final. Eight months later, the Watson panel vacated its earlier opinion and reversed itself. See Watson v. Estelle, 886 F.2d 1093 (9th Cir. 1989) (“Watson II”). Relying on Watson II, the parole board refused to give petitioner annual parole hearings, and the district court denied petitioner’s motion to enforce the earlier order. On appeal, the 9th Circuit held that the petitioner was entitled to have his final judgment enforced even though it was wrongly decided. The court said that neither Rule 59 nor Rule 60 of the Federal Rules of Civil Procedure were applicable. Clifton v. Attorney General of the State of California, 997 F.2d 660 (9th Cir. 1993).
9th Circuit finds delay in filing parole revocation did not violate due process. (590) Petitioner argued he was denied due process in a parole revocation proceeding because there was a delay of 15 months between his drunk driving conviction and the issuance of the parole violation warrant. The Ninth Circuit rejected the challenge, finding the delay in holding the revocation hearing was reasonable and not prejudicial. After petitioner’s driving under the influence conviction, the Parole Commission determined that it would issue a reprimand letter rather than a warrant. However, petitioner later tested positive for cocaine use and a warrant issued alleging both the driving under the influence conviction and the unauthorized use of cocaine. It was petitioner’s illegal actions and not the Parole Commission’s decision that led to the issuance of the warrant. Petitioner was not prejudiced by the delay. He did not lose the ability to present witnesses or evidence and instead of losing time, gained additional time on parole and another chance to remain free. Meador v. Knowles, 990 F.2d 503 (9th Cir. 1993).
9th Circuit defers to 10th Circuit on “street time” in parole revocation. (590) As a result of petitioner’s conviction for driving under the influence, the Parole Commission ultimately forfeited street time he had accrued. Petitioner argued that he was entitled to application of the more favorable Ninth Circuit law regarding the validity of the loss of street time because he was sentenced in the Ninth Circuit and was serving his sentence in the Ninth Circuit. The court rejected the argument finding that Tenth Circuit, not Ninth Circuit law applied to petitioner’s case because petitioner was on parole from the Tenth Circuit. In the Tenth Circuit, the loss of street time is a mandatory consequence of a parole violation based on conviction of a state crime. In addition, subsequent to the hearing, the Parole Commission adopted a regulation mandating the loss the street time after a parole violation for a state criminal conviction punishable by imprisonment. Meador v. Knowles, 990 F.2d 503 (9th Cir. 1993).
9th Circuit upholds converting imprisonment to special parole under former Rule 35(e). (590) Pursuant to former Fed. R. Crim. P. 35(b), as it existed before the Sentencing Guidelines became effective on November 1, 1987, the district court modified defendant’s sentence from five years imprisonment and five years special parole to two years imprisonment and eight years special parole. Four years later, the defendant argued that the increase in his special parole term was illegal because he was not personally present when the modification was made. The 9th Circuit rejected the argument, concluding that conversion of three years of defendant’s sentence from imprisonment to special parole did not constitute an increase in sentence. Accordingly, there was no requirement under Fed. R. Crim. P. 43(c)(4) for the defendant to be present. U.S. v. Thompson, 979 F.2d 743 (9th Cir. 1992).
9th Circuit says change in law regarding parole eligibility did not render guilty plea involuntary. (590) Petitioner argued that his 1986 guilty plea to bank robbery was involuntary because he relied on parole provisions in section 235(b)(3) that required the Parole Commission to set a release date within the applicable parole guideline range. Although the provision was enacted before the 1986 sentencing, it took effect November 1, 1987 and was amended shortly after that date to require parole decisions to be made under 18 U.S.C. section 4206. Petitioner was not disadvantaged by the amendment because section 235(b)(3) was a transition provision which controls the timing of the Parole Commission but does not change the parole eligibility of prisoners. Reliance on the previous version did not render the guilty plea involuntary because petitioner could not have relied on it. Evenstad v. U.S., 978 F.2d 1154 (9th Cir. 1992).
9th Circuit finds no ex post facto violation in denying parole to California prisoner. (590) Petitioner was sentenced to life imprisonment under California’s Indeterminate Sentencing Law (ISL). Following his sentencing, California repealed the ISL and enacted the current Determinate Sentencing Law (DSL). The new law required the DSL guidelines to be used in deciding whether to grant parole. The 9th Circuit rejected the argument that this violated the ex post facto clause, noting that the DSL guidelines require consideration of the same criteria as did the ISL. Since petitioner was not disadvantaged by the DSL guidelines, the court found it unnecessary to determine whether the DSL guidelines were “laws” for ex post facto purposes. See Smith v. U.S. Parole Commission, 875 F.2d 1361, 1367 (9th Cir. 1989) (holding that U.S. Parole Commission guidelines are not laws for ex post facto purposes. Connor v. Estelle, 981 F.2d 1032 (9th Cir. 1992).
9th Circuit says court may consider loss of parole eligibility in deciding whether to depart downward. (590) Defendant argued that the court erred by ordering his sentence to run consecutively to the pre-guidelines sentence he was serving when he escaped. He argued that there should be a per se rule requiring the court to depart downward by ordering a concurrent sentence for a defendant who commits a subsequent crime while serving a pre-guidelines sentence, because the Parole Commission is almost certain to increase the time that the defendant will serve on his original sentence. The 9th Circuit, following the 6th Circuit’s decision in U.S. v. Stewart, 917 F.2d 970, 974 (6th Cir. 1990), rejected the argument, stating that although the district court “may consider a defendant’s loss of parole eligibility as a factor in its decision whether to depart downward, it is not required to grant the departure.” Since all parties agreed that the district court exercised its discretion here, the appeal was dismissed. U.S. v. Moss, 972 F.2d 273 (9th Cir. 1992).
9th Circuit holds that Parole Commission did not retroactively forfeit street time after term expired. (590) Defendant argued that the Parole Commission improperly extended his special parole term by retroactively forfeiting street time after his “term” expired. The 9th Circuit held that his term had not expired. Therefore regulations implementing 21 U.S.C. section 841(c) (which permit reopening to deduct street time erroneously credited) were properly applied to defendant’s case. The court rejected the defendant’s arguments that the commission should be “estopped” from reopening his case, that it violated due process, and that it acted contrary to the commission’s own regulations. McQuerry v. U.S. Parole Commission, 961 F.2d 842 (9th Cir. 1992).
9th Circuit holds that a defendant may simultaneously be on parole and probation. (590) The judgment stated that probation would begin “upon defendant’s release from prison,” not on release from detention or custody. Thus, regardless of how one might characterize his status, once he was released he was no longer in prison. Therefore his probationary term began on the date of his parole. The 9th Circuit held that “a defendant may simultaneously be on parole and probation.” The court found nothing inherently inconsistant about the two custodial formats. “They constitute two separate punishments for two separate crimes.” U.S. v. Laughlin, 933 F.2d. 786 (9th Cir. 1991).
9th Circuit holds Parole Commission cannot limit parolees’ right to confront witnesses. (590) Parole Form F-2 allowed a parolee to request a “local revocation hearing” at which adverse witnesses could be called, only if the parolee could certify that he or she had “not violated any of the conditions of [his or her] parole or mandatory release.” Because the petitioner here admittedly had violated two non-criminal parole conditions, Form F-2 barred him from requesting a local revocation hearing. At the subsequent institutional hearing, his request to confront adverse witnesses on the more serious parole violations was denied. Judges Boochever, Nelson and Trott held that this violated due process. The court said that “admitting some, but not all, parole violations is hardly a volitional waiver of the right to confront.” White v. White, 925 F.2d 287 (9th Cir. 1991).
9th Circuit upholds rescinding parole date after Mistretta. (590) After the 9th Circuit held the guidelines unconstitutional, the Parole Commission granted petitioner a presumptive parole date. Soon after, however, the Supreme Court upheld the constitutionality of the guidelines in Mistretta v. U.S., 488 U.S. 361 (1989). Thereafter, the Parole Commission notified petitioner that its previous action was in error, and that he would serve an unparolable sentence under the guidelines. On appeal from the denial of his habeas petition, the 9th Circuit upheld the Parole Commission’s decision, noting that Mistretta was fully retroactive. The court also rejected the petitioner’s argument that the government was “estopped” to reverse its decision. Petitioner failed to demonstrate that he relied to his detriment on the Commission’s short-lived decision. Marsh v. Taylor, 925 F.2d 1131 (9th Cir. 1991).
9th Circuit finds failure to notify parolee of possible forfeiture of “street time” credit not prejudicial. (590) The Parole Commission failed to notify petitioner before his 1981 and 1985 parole revocation hearings that the “street time” from his earlier parole was subject to forfeiture. This violated his right to adequate notice of the possible consequences of his parole revocation hearing. Nevertheless, the 9th Circuit held that the 1985 notice was cured by the Commission’s mailing a “probable cause” letter to petitioner before the hearing, notifying him of the possible forfeiture of “street time.” As for the 1981 hearing, the court remanded the case for a new hearing on whether the street time was properly forfeited. The court rejected petitioner’s argument that a new hearing was inadequate due to delay, finding that much of the delay was attributable to the petitioner’s own failure to appeal the earlier proceedings. Camacho v. White, 918 F.2d 74 (9th Cir. 1990).
9th Circuit holds that illegality of requested relief defeats prisoner’s due process claim. (590) The Oregon Board of Parole set a 1987 release date for petitioner based on a mistaken application of the state’s “matrix system.” The date was later corrected. Petitioner claimed that his right to due process was violated by the state’s refusal to abide by the 1987 date. Judges Alarcon, Browning, and Kozinski disagreed. Because the 1987 date violated the matrix system, the board’s establishment of the date created no protected liberty interest. And while some evidence suggested that the Board was “biased and prejudiced” against petitioner, that claim would not support the relief petitioner sought. Petitioner sought enforcement of the 1987 date, while at most he would hve been entitled to the setting of a legal release date by an unbiased Board. O’Bremski v. Maass, 915 F.2d 418 (9th Cir. 1990).
9th Circuit holds that parole commission has discretion not to forfeit parolee’s street time for new conviction. (590) Rejecting the 10th Circuit’s ruling in Harris v. Day, 649 F.2d 755 (10th Cir. 1981), the 9th Circuit held that 18 U.S.C. § 4210(b)(2) does not require the forfeiture of street time when a parolee commits a new offense. Forfeiture of street time is discretionary, as indicated by the Commission’s obligation to notify a parolee in advance of his parole revocation hearing about the possible forfeiture of street time. 28 C.F.R. § 2.52(c)(2), which mandates the forfeiture of street time, is contrary to the statute. Since the Commission relied on it in this case, the 9th Circuit reversed and remanded with directions to credit the petitioner with his street time if the Commission fails to conduct another parole revocation hearing. At the hearing the Commission may consider whether to forfeit petitioner’s street time, but this time it must exercise its discretion. Rizzo v. Armstrong, 912 F.2d 1111 (9th Cir. 1990), amended, 921 F.2d 855 (9th Cir. 1990).
9th Circuit holds that Parole Commission’s decision to go outside its guidelines is reviewable for vindictiveness. (590) Petitioner was convicted of mail fraud. He successfully obtained a writ of habeas corpus from the district court ordering the Parole Commission to set a salient factor score based on the “replacement cost to the victim,” rather than “profit to the perpetrators.” In its new hearing, however, the Parole Commission went outside the parole guidelines and reaffirmed the original parole date. Petitioner filed a new habeas petition, arguing that the Commission’s decision created the appearance of vindictiveness. The 9th Circuit agreed, remanding the case to the district court to determine whether the Commission’s decision to go outside the guidelines was based on a vindictive motive and was intended to punish petitioner for successfully contesting the original determination. Weinstein v. U.S. Parole Commission, 902 F.2d 1451 (9th Cir. 1990).
9th Circuit holds that by failing to object, defendant waived the right to attack the salient factor score in the presentence report. (590) Defendant argued that the salient factor score in the presentence report was inaccurate. The Parole Commission corrected the error in the initial hearing but defendant argued that the inaccuracy may have resulted in a higher recommendation to the sentencing court. However defendant failed to object at the time of sentencing and did not otherwise raise the issue prior to filing his § 2255 motion. The district court therefore correctly concluded that petitioner had waived his right to attack the presentence report through a § 2255 motion. U.S. v. Keller, 902 F.2d 1391 (9th Cir. 1990).
9th Circuit rejects petitioner’s argument that parole board denied him due process. (590) Petitioner claimed that he was entitled to a preliminary interview before the execution of the parole violator warrant. He also claimed that the U.S. Parole commission failed to conduct a timely review of the detainers placement as required by 18 U.S.C. § 4214(b)(1). In addition, he argued that the district court should not have dismissed his claims relating to his custodial status in the state of Arizona, but should have transferred these claims to the district court in Arizona. Finally, he argued that the court erred in denying his habeas petition without an evidentiary hearing. The 9th Circuit rejected each of these arguments in turn. Anderson v. U.S., 898 F.2d 751 (9th Cir. 1990).
9th Circuit disapproves of general waivers of Fourth Amendment rights as a condition of parole. (590) Citing U.S. v. Consuelo-Gonzalez, 521 F.2d 259, 262-63 (9th Cir. 1975)(en banc), the 9th Circuit noted that the 9th Circuit does “not approve of general waivers of Fourth Amendment rights as a condition of parole.” However the court noted that a parole search may be conducted without a warrant under a reasonableness standard. Here the search, conducted by the parole officer, after defendant had been arrested with probable cause, was found reasonable. Toomey v. Bunnell, 898 F.2d 741 (9th Cir. 1990).
9th Circuit upholds Bureau of Prisons rejection of Parole Commission’s recommendation to reduce sentence. (590) A Regional Parole Commissioner sent a memo to the petitioner’s warden recommending that the Director of the Bureau of Prisons consider a motion under 18 U.S.C. § 4205(g) for reduction of the petitioner’s minimum sentence from 100 months to 72 months. The Parole Commissioner’s recommendation was rejected and the petitioner sought habeas relief in the courts. The 9th Circuit concluded that no constitutional right was violated. All § 4205(g) provides is the possibility of a motion to a court for a reduction in sentence. Simmons v. Christensen, 894 F.2d 1041 (9th Cir. 1990).
9th Circuit finds that failure to inform parolee of forfeiture of “street time” credits before parole revocation hearing violates due process. (590) The fact that forfeiture of credits is mandatory upon revocation of parole does not obviate the requirement that a parolee be given notice of the forfeiture before the revocation hearing. No prejudice need be shown, as the lack of notice constitutes a violation of constitutional due process. The case was remanded to the Parole Commission for a new hearing on proper notice. Jessup v. U.S. Parole Commission, 889 F.2d 831 (9th Cir. 1989).
9th Circuit holds that two year delay did not bar challenge to forfeiture of “street time” credit. (590) The defendant waited two years before raising the issue of forfeiture of “street time” credits upon revocation of his parole. Nevertheless the 9th Circuit held that he was not barred from asserting the claims in his habeas corpus petition. The government failed to show prejudice and the defendant’s delay was found reasonable since he was misinformed as to his release date. Jessup v. U.S. Parole Commission, 889 F.2d 831 (9th Cir. 1989).
9th Circuit rules that review of Parole Commission decisions is very narrow. (590) Judicial review of Parole Commission decisions is “very narrow.” The courts may review “whether the Commission acted outside its statutory authority or has violated the Constitution.” The courts are precluded from reviewing “whether the Commission’s decision involves the exercise of judgment among a range of possible choices or options,” but they may determine whether a decision involves “a plain violation of a matter which does not admit of discretion and choice.” If there is a violation of a non-discretionary matter, the Commission must show “good cause” for that action. Horner v. U.S. Parole Commission, 889 F.2d 929 (9th Cir. 1989).
9th Circuit upholds waiver of counsel at parole revocation hearing despite misconduct in obtaining waiver. (590) Petitioner’s attorney sent a letter to the Assistant U.S. Attorney stating that he would be out of the country on the date set for the parole revocation hearing, but that he had advised the parole representatives that petitioner wanted the hearing continued so that counsel could represent him. In spite of this, petitioner’s case manager made improper representations to the petitioner which resulted in petitioner signing a waiver of counsel. The 9th Circuit condemned the actions of the case manager, but held that petitioner’s subsequent waiver of counsel before the hearing examiner’s was nevertheless valid. The hearing examiners read counsel’s letter to the petitioner, and exhibited “special caution” in accepting his waiver of counsel. Horner v. U.S. Parole Commission, 889 F.2d 929 (9th Cir. 1989).
9th Circuit holds that parolee at rescission hearing was not entitled to information about confidential informant. (590) 28 C.F.R. § 2.34 provides that the evidence upon which the rescission hearing is to be conducted shall be disclosed to the prisoner upon request, subject to the exemptions set forth at § 2.25. The petitioner here failed to make a request, and in any event the material was exempt because it contained the identity of a confidential informant. Horner v. U.S. Parole Commission, 889 F.2d 929 (9th Cir. 1989).
9th Circuit holds that Parole Commission is not required to give reasons for continuing parolee on parole. (590) The parole officer recommended that petitioner be continued on parole because he had not finished paying his fine. The case analyst noted that this was not a valid reason to continue supervision. The Parole Commission continued the petitioner on parole, but gave no reason. The 9th Circuit ruled that the Commission’s decision was not “arbitrary, irrational, unreasonable or capricious.” The Commission need not give reasons for its decisions. Moreover, the Commission could properly consider the district court’s concern that the petitioner serve an extended period of time on parole. Horner v. U.S. Parole Commission, 889 F.2d 929 (9th Cir. 1989).
9th Circuit holds state court ruling regarding applicability of ex post facto prohibition not binding on federal court. (590) A California Supreme Court ruling that a change in the parole law disadvantaged the defendant was not binding on the federal court in considering an ex post facto challenge to that law. Watson v. Estelle, 886 F.2d 1093 (9th Cir. 1989).
9th Circuit holds retrospective application of California law permitting postponement of parole hearings does not violate ex post facto clause. (590) Vacating their contrary prior opinion in Watson v. Estelle, 859 F.2d 105 (9th Cir. 1988), the 9th Circuit rejected the defendant’s argument that he was entitled to be considered for parole annually. They held that 1981 changes in California law that allowed the parole board to postpone the annual review dates of certain classes of prisoners did not operate as an ex post facto change. Judges Hall and Goodwin found that the law in effect at the time the defendant committed the offense allowed only for “periodic” reviews, not annual reviews. District Judge Marquez concurred in the result, finding that the 1981 amendment was merely a procedural change in law that did not disadvantage the defendant. Watson v. Estelle, 886 F.2d 1093 (9th Cir. 1989).
9th Circuit rules there were no special parole terms for narcotics offenses under 21 U.S.C. 841(b)(1)(A) between 1984 and 1987. (590) Prior to 1984, 21 U.S.C. § 841(b)(1)(A) required a minimum special parole term of at least 3 years. On October 12, 1984, the Comprehensive Crime Control Act amended that section, but contained no provision authorizing special parole terms. A later provision, 18 U.S.C. § 3558 provided for “supervised release,” but that provision did not go into effect until November 1, 1987. Thus, the 9th Circuit held that when defendant was sentenced on May 22, 1987 for distribution of cocaine, there was no authority for imposing a special parole term or a term of supervised release on him. His 25-year special parole term was vacated. U.S. v. Torres, 880 F.2d 113 (9th Cir. 1989).
9th Circuit holds delay in conducting parole revocation hearing does not warrant relief absent prejudice. (590) Petitioner sought habeas corpus relief because the government, after lodging a parole revocation detainer, failed to review the detainer within 6 months as required by 18 U.S.C. § 4214(b)(1). He also sought relief because the Parole Commission conducted his parole revocation hearing 32 months after he was taken into state custody on the new charges, rather than within 24 months as required by the Commission’s regulations. The 9th Circuit held that petitioner was entitled to no relief absent a showing that he was prejudiced by the delay. The court found no prejudice here despite the petitioner’s claim that he was unable to locate witnesses because of the delay. Poynor v. U.S. Parole Commission, 878 F.2d 275 (9th Cir. 1989).
9th Circuit holds 25-year special parole term was proper. (590) The 9th Circuit held that a judge is not required to give reasons justifying the length of a 25-year special parole term. The court noted that special parole terms may not be imposed for conspiracy under 21 U.S.C. sections 846 or 963, nor may a special parole term be imposed under § 960 for a violation of § 963. Nevertheless, although the trial court misstated at one point, it was clear from the record that the special parole term was properly imposed for violation of the substantive drug offense under 21 U.S.C. § 841(a)(1). U.S. v. Garcia, 877 F.2d 23 (9th Cir. 1989).
9th Circuit holds Sentencing Reform Act did not make existing prisoners eligible for parole under the guidelines. (590) The statute governing petitioner’s parole eligibility, 18 U.S.C. § 4205 provided for parole eligibility after serving one-third of the term “except to the extent otherwise provided by law.” The petitioner argued that 18 U.S.C. § 3551(b)(3) — which requires the Parole Commission to set release dates for all prisoners by 1992 — constituted an exception “otherwise provided by law,” and therefore he was entitled to release on parole in accordance with the sentencing guidelines. The 9th Circuit rejected the argument, holding that nothing in the new Act suggests that the petitioner is free from § 4205’s requirements. Stange v. U.S. Parole Commission, 875 F.2d 760 (9th Cir. 1989).
9th Circuit holds Parole Commission has until 1992 to set parole dates for prisoners sentenced under old law. (590) The Sentencing Reform Act repealed the Parole Commission effective November 1, 1987, but provided that the Commission should continue operating for five years beyond that date. The petitioner argued that the Act required the Commission to set immediate parole release dates. The 9th Circuit rejected the argument, holding that 18 U.S.C. § 3551(b) (3) only requires the Commission to set parole dates “early enough to permit consideration of an appeal of the release date” before November 1, 1992. Stange v. U.S. Parole Commission, 875 F.2d 760 (9th Cir. 1989).
9th Circuit holds special parole term for drug offense runs consecutively to regular parole for a different offense. (590) In this pre-guidelines case, defendant argued that 18 U.S.C. § 4210(d) [repealed October 12, 1984] required his term of special parole to be served concurrently with his regular parole on other charges. The 9th Circuit rejected the argument, holding that that section only requires that regular parole terms be concurrent. U.S. Parole Commission v. Viveros, 874 F.2d 699 (9th Cir. 1989).
9th Circuit rules there is no federal constitutional right to parole. (590) A state prisoner argued that he was subjected to double jeopardy because the prison board declined to credit his previous jail-time toward parole eligibility after he escaped. The 9th Circuit found no double jeopardy violation because “there is no federal constitutional right to parole.” Mayner v. Callahan, 873 F.2d 1300 (9th Cir. 1989).
9th Circuit holds parole provisions remain in effect until October 31, 1992 for individuals convicted before Sentencing Reform Act became effective. (590) Petitioner contended that the Sentencing Reform Act of 1984 eliminated the Parole Commission’s authority to set parole eligibility dates beyond the dates in the suggested parole guidelines. The 9th Circuit rejected the argument, noting that under § 235(b)(1) of the Sentencing Reform Act, 18 U.S.C. § 4206 remains in effect for individuals convicted before November 1, 1987, until October 31, 1992. Accordingly the repeal of § 4206 did not apply to the petitioner. Tripati v. U.S. Parole Commission, 872 F.2d 328 (9th Cir. 1989).
9th Circuit holds amendment which restored law to that in effect when petitioner was convicted was not ex post facto. (590) At the time of petitioner’s conviction, 18 U.S.C. § 4206 permitted the Parole Commission to set his parole date. Effective November 1, 1987, the Sentencing Reform Act required the Parole Commission to set release dates for individuals who will be in its jurisdiction on October 31, 1992 “within the range that applies to the prisoner under the applicable parole guideline.” On December 7, 1987, Congress amended the Act to require the Parole Commission to set such release dates “pursuant to § 4206.” The 9th Circuit rejected the petitioner’s argument that applying the December 7 amendment to him would violate the ex post facto clause. Because § 4206 was applicable at the time of the defendant’s sentencing, application of the amendment would not disadvantage him, but would “merely maintain the status quo.” Tripati v. U.S. Parole Commission, 872 F.2d 328 (9th Cir. 1989).
9th Circuit holds that failure to provide prisoner with annual review of parole eligibility violated due process. (590) While serving a sentence for robbery, the prisoner escaped, and was sentenced consecutively on the escape conviction. As a result, the Montana Parole Board stopped giving him an annual review of his parole date. The 9th Circuit noted that Montana’s parole statute creates a due process liberty interest in being considered eligible for parole. Board of Pardons v. Allen, 107 S.Ct. 2415, 2420-22 (1987). Accordingly the court held that even though the prisoner had not yet begun to serve his second (consecutive) sentence, he was entitled to annual review of his parole eligibility on his original sentence. Kelly v. Risley, 865 F.2d 201 (9th Cir. 1989).
9th Circuit holds that delay in holding parole revocation hearing was neither unreasonable nor prejudicial. (590) Forty days elapsed before the Commission conducted the parolee’s preliminary interview and 97 days passed before a revocation hearing was held. “The Commission clearly violated 28 CFR § 2.49 when the revocation hearing was not held within 90 days.” Nevertheless, the 9th Circuit found no due process violation, because there was no showing that the delay was unreasonable or prejudicial. Vargas v. U.S. Parole Commission, 865 F.2d 191 (9th Cir. 1988).
9th Circuit holds that parole violator must be given notice of charges and information against him. (590) The Parole Commission and Reorganization Act, 18 U.S.C. 4201 et seq. requires the Commission to provide alleged parole violators with notice of the charges against them as well as access to information which the Commission considers instrumental to its decision. Here the district court failed to make findings as to whether the parolee actually received notice. Accordingly, the 9th Circuit remanded the case for findings on these issues. Vargas v. U.S. Parole Commission, 865 F.2d 191 (9th Cir. 1988).
9th Circuit holds that Parole Commission may consider hearsay in setting parole. (590) Appellant argued that the Parole Commission exceeded its discretion by considering the arrest report when determining his guideline range. Citing recent precedent, the 9th Circuit held that the “Commission’s consideration of unadjudicated allegations or hearsay information to determine reparole guidelines does not violate due process.” Vargas v. U.S. Parole Commission, 865 F.2d 191 (9th Cir. 1988).
9th Circuit holds that parole guidelines are not “laws” for ex post facto purposes. (590) Appellant argued that the Parole Commission violated the ex post facto clause when it acted pursuant to a procedures manual that was not in effect at the time that the parole violator warrant was issued. Judges Nelson, Wallace and Tang noted that the “Commission is not bound to follow its own rules if the rules are merely statements of policy, organization, procedure, or practice which are with in the Commission’s discretion to set.” Thus the Commission’s procedures are not deemed “laws” within the meaning of the ex post facto clause. Vargas v. U.S. Parole Commission, 865 F.2d 191 (9th Cir. 1988).
9th Circuit holds that Parole Commission decisions in setting parole dates are reviewable only if arbitrary. (590) Although the parole guidelines suggested a 12-18 month parole date, the adult sentencing provisions made petitioner ineligible for parole for 40 months. The Commission set his parole date at 60 months. The 9th Circuit held that in light of petitioner’s history of drug trafficking, this was not “arbitrary, irrational or unreasonable” and was “amply supported by good cause.” Solheim v. Armstrong, 859 F.2d 755 (9th Cir. 1988).
9th Circuit holds that retrospective application of California law permitting postponement of parole hearings violates ex post facto clause. (590) Prior to 1982, all California prisoners were entitled to annual parole hearings. In 1982, California amended the law to permit the Parole Board to wait up to 3 years between hearings for inmates convicted of multiple homicides. The 9th Circuit held that applying the new law to a prisoner who was sentenced in 1971 violated the ex post facto clause. Such retrospective application of the law to prisoners sentenced before 1982 resulted in a “detriment or material disadvantage” to them. Watson v. Estelle, 859 F.2d 105 (9th Cir. 1988).
9th Circuit holds that parole violator cannot be denied “street time” credit unless notice is given. (590) In Vanes v. U.S. Parole Commission, 741 F.2d 1197 (9th Cir. 1984) the Ninth Circuit held that 18 U.S.C. § 4213(c)(3) requires notification that street time credit may be subject to forfeiture. That decision is retroactive. Raines v. U.S. Parole Commission, 829 F.2d 840 (9th Cir. 1987). In this case, the 9th Circuit emphasized that the Vanes rule applies regardless of whether the defendant can show prejudice. Even if the Commission would not have been influenced by anything the parolee might have presented if he were notified that he could lose “street time” credit, the fact that the parolee was “deprived of this right is all the prejudice necessary to support his claim of lack of due process.” Boniface v. Carlson, 856 F.2d 1434 (9th Cir. 1988).
9th Circuit holds that new parole guidelines do not apply to prisoners who will be released on parole before November 1, 1992. (590) The Sentencing Reform Act of 1984 requires the Parole Commission to set release dates within the applicable new parole guidelines for individuals who will be in the Parole Commissions “jurisdiction” on the day before the expiration of five years after the effective date of the act. The Ninth Circuit held that “jurisdiction” means custody, and that therefore the new guidelines did not apply to prisoners who would be on parole or mandatory release supervision at the expiration of the five year period. The court also held that the effective date of the Act was November 1, 1987, not 1984, and therefore it was inapplicable to prisoners who would be released on parole before November 1, 1992. Kele v. Carlson, 854 F.2d 338 (9th Cir. 1988).
9th Circuit holds Parole Commission has discretion, based on severity of crime, to deny “Superior Program Achievement” credit. (590) Although the exercise of discretion by the Parole Commission is unreviewable, the question of whether it has followed its own regulations may be reviewed. Here, the 9th Circuit concluded that, under the regulations, the Commission was entitled to determine that the severity of the petitioner’s offense outweighed his claim to “Superior Program Achievement” credit. The denial of his habeas corpus petition was affirmed. Kele v. Carlson, 854 F.2d 338 (9th Cir. 1988).
9th Circuit rules that parole guidelines are not laws for ex post facto purposes. (590) Distinguishing Miller v. Florida, 107 S.Ct. 2446 (1987), the 9th Circuit reaffirmed that the Parole Commission’s parole guidelines are not laws for purposes of the ex post facto clause. Therefore the district court properly dismissed petitioner’s claim pertaining to the Parole Commission’s retroactive application of its 1983 guidelines to his 1980 parole violation. Smith v. U.S. Parole Commission, 850 F.2d 500 (9th Cir. 1988).
9th Circuit finds parole violator not entitled to credit for time in state custody despite state court’s “concurrent” sentence. (590) The state court ordered petitioner’s state sentence to run concurrently with any federal sentence. However, the federal Parole Board declined to take custody of him on its parole violation warrant until the state relinquished complete jurisdiction of him. Since the federal government has no duty to take anyone into custody, the 9th Circuit held that petitioner was not entitled to credit on his federal sentence for time served in state custody. Smith v. U.S. Parole Commission, 850 F.2d 500 (9th Cir. 1988).
9th Circuit holds that denial of counsel prior to parole revocation hearing was not prejudicial. (590) While the Constitution does not confer an absolute right to an attorney during a parole revocation proceeding, [Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973)], under 28 C.F.R. § 2.47(a)(2), a federal parolee may request a court-appointed attorney to assist him in preparing a written application containing information relevant to the disposition of the warrant. Here the petitioner did not obtain counsel until after his dispositional record review. But the 9th Circuit held that any error was not prejudicial because it was not until the revocation hearing that the petitioner faced the loss of his liberty, and by that time he had counsel to assist him. Smith v. U.S. Parole Commission, 850 F.2d 500 (9th Cir. 1988).
9th Circuit holds that Bureau of Prisons complied with the Privacy Act by appending defendant’s rebuttal to the presentence report. (590) The 9th Circuit held that the Bureau of Prisons has not exempted itself from the part of the Privacy Act, 5 U.S.C. 552 a(e)(5) that requires it to maintain records with such accuracy as is necessary to insure fairness. Nevertheless, it adequately complied with the law by appending defendant’s 17-page rebuttal to the presentence report, as well as in the reports it sent to the Parole Commission. Fendler v. U.S. Bureau of Prisons, 846 F.2d 550 (9th Cir. 1988).
9th Circuit holds that release on parole rendered habeas corpus petition moot. (590) Petitioner filed a 28 U.S.C. 2241 petition for habeas corpus seeking release on parole, arguing that the Parole Commission was relying on inaccurate information in the presentence report. The 9th Circuit held that his release on parole rendered the petition moot. Petitioner can obtain review, however, by applying to the Parole Commission for early termination of parole, and exhausting his administrative remedies. Fendler v. U.S. Bureau of Prisons, 846 F.2d 550 (9th Cir. 1988).
9th Circuit holds that Parole Board decision to set release date outside the guidelines complied with due process because “some” evidence supported it. (590) In Superintendent v. Hill, 472 U.S. 445 (1985), the Supreme Court held that decisions about good time credits satisfy the requirements of due process if some evidence supports the decision. Here the prisoner argued that in setting his release date outside the range guidelines because of aggravating circumstances, the parole board considered information that was unsupported by the record. The 9th Circuit rejected the argument, noting that “there was not just `some’ evidence to support the board’s finding of aggravation, but ample evidence.” Jancsek v. Oregon Board of Parole, 833 F.2d 1389 (9th Cir. 1987).
9th Circuit reverses because Parole Board failed to provide written notice that credit for street time might be revoked. (590) In Vanes v. U.S. Parole Commission, 741 F.2d 1197 (9th Cir. 1984), the Ninth Circuit held that 18 U.S.C. 4213(c)(3) requires notification that street time may be subject to forfeiture in a parole revocation proceeding. Applying Vanes retroactively, the court held that the notice here was not specific enough to inform the appellant that his street time was subject to forfeiture. He was thus denied the opportunity to prepare a defense or gather facts in mitigation. He was entitled to reversal of the order denying him credit. Raines v. U.S. Parole Commission, 829 F.2d 840 (9th Cir. 1987).
9th Circuit holds that applying increased parole severity guidelines after petitioner had been sentenced did not violate equal protection or ex post facto. (590) Despite petitioner’s efforts the Parole Board postponed his initial parole setting hearing until October 1, 1984, when more severe parole guidelines took effect. As a result, his presumptive parole date was increased from 40-50 months to 100+ months. The Board set his parole date at 96 months, which meant that he would serve his entire sentence in custody with no parole. The Board also stated that even under the old guidelines, it would have set parole at 96 months. The 9th Circuit upheld the Board’s action, rejecting petitioner’s argument that applying the new guidelines to him violated equal protection. The court also rejected petitioner’s ex post facto argument, noting that Wallace v. Christensen, 802 F.2d 1539 (9th Cir. 1986) (en banc) reaffirmed the principle that parole guidelines are not laws for ex post facto purposes. Vermouth v. Corrothers, 827 F.2d 599 (9th Cir. 1987).
9th Circuit finds that order in which consecutive sentences are served is irrelevant for parole eligibility purposes. (590) When the district court imposes consecutive sentences for federal offenses, the Federal Bureau of Prisons aggregates the maximum terms into a single sentence. Because the Bureau of Prisons will compute defendant’s parole eligibility based on his aggregate sentence, the order in which the serves the sentences is irrelevant. U.S. v. West, 826 F.2d 909 (9th Cir. 1987).
9th Circuit rules that Parole Board need not include a statement of the evidence it relied on in setting parole date. (590) The Oregon Parole Board found evidence of “significant planning and preparation” in petitioner’s murder of her husband, apparently relying on the fact that the petitioner was the beneficiary of his life insurance policy and that she shot him in the head while he was in bed. Petitioner claimed that there was insufficient evidence of “planning and preparation” to place her in that category. The 9th Circuit rejected the argument, noting that under Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1 (1979) due process does not require a statement of evidence relied on by the Board. Thus petitioner’s claims of insufficient evidence must fail, along with her claim that due process required the Board to articulate a definition of the term “significant planning and preparation.” Pedro v. Oregon Parole Board, 825 F.2d 1396 (9th Cir. 1987).
9th Circuit holds that Parole Commission did not use same information twice in setting parole date above guidelines. (590) The 9th Circuit rejected the argument that the Parole Commission used the same information twice (“double-counted”) in setting his parole date above the guidelines. The court also found that the petitioner’s good institutional adjustment did not entitle him to an early parole date. Finally, the court upheld the Commission’s reliance on the facts in the presentence report, noting that the presentence report need not be based on evidence that meets the rigorous evidentiary standards required at trial. Walker v. U.S., 816 F.2d 1313 (9th Cir. 1987).
9th Circuit holds that claim that Parole Board violated due process must be “colorable”. (590) Petitioner claimed that the Parole Board denied him due process in denying his request for early release from parole, which would have expunged his conviction. The 9th Circuit rejected the argument, stating that in order to be “colorable”, a constitutional claim must have both legal and factual support. An indispensable element of any due process claim is a constitutional or statutory entitlement, and there is no such entitlement to early parole. Accordingly, since the court has no jurisdiction to entertain claims that the parole Board abused its discretion, the petition was denied. Myers v. Parole Commission, 813 F.2d 957 (9th Cir. 1987).
9th Circuit holds that Court had no jurisdiction to review Parole Commission’s evaluation of the severity of petitioner’s offense. (590) In Wallace v. Christensen, 802 F.2d 1539 (9th Cir. 1986) (en banc), the Ninth Circuit held that Congress committed all “substantive decisions to grant or deny parole” to the discretion of the Parole Commission and that such decisions are therefore not reviewable. However, the court may review “whether the commission violated the Constitution,” or “completely failed to consider [the] factors which by statute it is required to consider in rendering its parole decision.” Here, the petitioner alleged that in setting her offense severity score, the Commission violated due process and equal protection. Despite these allegations, The 9th Circuit held that her claims actually challenged unreviewable discretionary decisions of the commission. The court affirmed the denial of her petition for habeas corpus. Roberts v. Corrothers, 812 F.2d 1173 (9th Cir. 1987).
9th Circuit holds that Parole Commission may consider unadjudicated allegations. (590) Judges Farris, Beezer and Brunetti refuse to consider whether the Parole Commission abused its discretion in considering assault charges at the parole revocation hearing which were later dropped. The court lacks jurisdiction unless the commission “has acted outside its statutory limits, or disregarded the parole guidelines without good cause. The court noted however that “[i]t does not violate due process for the Commission to consider unadjudicated allegations in determining the parolee’s ‘offense severity rating’ under the guidelines.” Bowen v. U.S. Parole Commission, 805 F.2d 885 (9th Cir. 1986).
9th Circuit upholds notice to parole violator that he might not be given credit for “street time.” (590) Relying on Vanes v. U.S. Parole Commission, 741 F.2d 1197 (9th Cir. 1984), the parolee argued that the parole commission failed to give him adequate notice that he might not be given credit for the time while he was on parole, if his parole was revoked. The 9th Circuit rejected the argument, ruling that the parolee was notified in writing that “[i]f revocation is ordered, the Commission will also determine whether to reparole you or to require service of all or part of your violator term.” This was sufficient to satisfy due process. Bowen v. U.S. Parole Commission, 805 F.2d 885 (9th Cir. 1986).
9th Circuit holds that Parole Commission guidelines are not laws for purposes of the ex post facto clause. (590) The prisoner claimed that the application of the more severe 1983 Parole Commission guidelines to him violated the ex post facto clause of the Constitution. The en banc Ninth Circuit rejected his claim, holding that these guidelines are not laws for purposes of the ex post facto clause, but are merely “procedural guideposts.” Wallace v. Christiensen, 802 F.2d 1539 (9th Cir. 1986) (en banc).
9th Circuit holds Parole Commission decisions are not reviewable unless they involve “a plain violation of a matter which does not admit of discretion and choice.” (590) The Parole Commission gave defendant an “offense behavior” rating of seven. He thought he deserved only a five, so he filed a habeas petition alleging that the Commission’s decision was “arbitrary, capricious, and an abuse of discretion.” In a unanimous en banc decision, the Ninth Circuit overruled a number of previous Ninth Circuit cases referring to the “abuse of discretion” standard as a basis for review of Commission decisions. The court noted that under 18 U.S.C. § 4218(d), the Commission’s substantive decisions are “committed to agency discretion” and therefore they may not be reviewed even for abuse of discretion. A majority of the judges, however, concluded that judicial review is available if the Commission’s decision does not involve “the exercise of judgment among a range of possible choices or options”, but instead “involves a plain violation of a matter which does not admit of discretion and choice.” The court held that “the Commission acted within the scope of discretion granted by Congress and hence our review of the Commission’s classification of Wallace’s offense is complete.” Wallace v. Christiensen, 802 F.2d 1539 (9th Cir. 1986) (en banc).
9th Circuit holds that prisoner must be given reasonable access to reports or documents to be used by Parole Commission in advance of hearing. (590) In setting a release date outside the recommended guideline range, the Parole Commission may rely on presentence investigation reports, the prisoner’s institutional record and his prior criminal history. But if the Commission intends to rely on such reports, it must give the prisoner reasonable access at least 30 days before the hearing. The Commission’s failure to do so here requires remand for a new hearing. Anderson v. U.S. Parole Commission, 793 F.2d 1136 (9th Cir. 1986).
9th Circuit rules that judge may set minimum parole date at more than ten years. (590) Although 18 U.S.C. § 4205(a) provides for parole eligibility after one-third of the sentence or ten years, whichever is shorter, § 4205(b)(1) permits a judge to impose a longer minimum parole date. Thus, the judge’s thirty-year minimum in this case did not exceed his authority. U.S. v. Gwaltney, 790 F.2d 1378 (9th Cir. 1986).
9th Circuit holds that Parole Commission did not improperly consider presentence report. (590) Defendant claimed that the Parole Commission improperly considered a presentence report, which allegedly had been sealed by trial court order. Although presentence reports are routinely sealed to prevent public access, they are routinely forwarded to the Commission since they provide the Commission with information pertaining to parole. Since defendant did not allege that the report contained false information, the Commission’s reliance on it was not an abuse of discretion. U.S. v. Quan, 789 F.2d 711 (9th Cir. 1986).
9th Circuit upholds special parole term despite lack of advice before plea was entered. (590) The proper time to inform the defendant that a mandatory special parole term will be imposed is prior to his pleading guilty. However, in this case, immediately following the plea, the court and counsel gave a full explanation, and the defendant said he understood and did not ask to withdraw his plea. Nor did he object at the sentencing hearing during allocution. Accordingly, the error is not sufficient to overturn the plea on a collateral attack. U.S. v. Lunsford, 787 F.2d 465 (9th Cir. 1986).
9th Circuit holds that government’s parole recommendation did not violate plea agreement as to sentencing. (590) Government’s recommendation that parole not be granted until maximum sentence was served did not violate a plea agreement promising not to make recommendations concerning sentencing. Sentencing is a separate and distinct function from parole which is handled by the Parole Commission. U.S. v. Clark, 781 F.2d 730 (9th Cir. 1986).
9th Circuit upholds parole search. (590) A search of the parolee’s residence turned up shotgun shells linked to a shotgun used in the robbery. The search was proper because it was initiated by the parole officer, not by the police. A parole officer’s right to search is not based on the parolee’s “consent,” but upon the unique status of a parolee. U.S. v. Jarrad, 754 F.2d 1451 (9th Cir. 1985).
9th Circuit holds that arrests and searches of parolees do not require probable cause. (590) Arrests and searches of parolees do not require probable cause. Thus a warrantless arrest of the parolee in a motel room was valid, and needle marks and a sailor hat in plain view were properly admitted into evidence. U.S. v. Rabb, 752 F.2d 1320 (9th Cir. 1984).
9th Circuit reverses part of order for lack of notice of possible consequences of charge. (590) It was proper for the Parole Commission to revoke parole for excessive use of alcohol, but failure to notify parolee that his conviction of drunk driving would be used to forfeit 45 months of “street time” required reversal of this part of the Commission’s order. Vanes v. U.S. Parole Commission, 741 F.2d 1197 (9th Cir. 1984).
9th Circuit upholds prisoner’s right to disciplinary hearing. (590) While on a three-hour pass from a federal halfway house, defendant was arrested and later convicted of burglary. In a disciplinary hearing in absentia, he was found to have “escaped,” and his parole date was delayed. This violated his rights under Bureau of Prisons regulations, and required that he be granted a new hearing in which he may present any defenses. Alexander v. U.S. Parole Commission, 721 F.2d 1223 (9th Cir. 1983).
9th Circuit upholds parole condition barring defendant from returning to State of Washington. (590) A condition of parole that defendant not return to the State of Washington (his home prior to his conviction) was not in violation of defendant’s right to travel, nor was it cruel and unusual punishment under the facts of this case. Bagley v. Harvey, 718 F.2d 921 (9th Cir. 1983).
10th Circuit rules parolee entitled to release prior to November 1 1992 is not entitled to immediate release under guideline parole transition provision. (590) Relying on the 2nd Circuit’s decision in Romano v. Luther, 816 F.2d 832 (2nd Cir. 1987), which requires the Parole Commission to set release dates for prisoners within its jurisdiction before November 1, 1992, the 10th Circuit held that the Sentencing Reform Act did not require the Parole Commission to release a defendant within the parole guideline range. The panel held that the Parole Commission was not required to set defendant’s release date because his term would expire well before the trigger date of November 1, 1992. Lewis v. Martin, 880 F.2d 288 (10th Cir. 1989).
11th Circuit holds Parole Commission has authority until October 31, 2002. (590) Defendant was convicted of armed robbery in 1973. He was released in 1994, but he violated the release, and the Parole Commission issued a mandatory release violator warrant and he was returned to custody. Defendant argued that the Parole Commission had no authority to revoke his parole because the Sentencing Reform Act transferred authority to revoke or amend the conditions of his parole from the Commission to the district court. The Eleventh Circuit held that the Parole Commission has authority until 2002. Section 235 of the SRA “saves” the Parole Commission and the federal parole statutes for a period of time during which the transition to new system will occur. Originally, the Parole Commission and all laws relating to parole in existence on October 31, 1987 were to continue in effect until November 1, 1997. However, in 1990, the transition period was extended until October 31, 2002. Only after the expiration of the wind-up period does the Parole Commission cease to exist. Only then is the authority over any remaining parolees transferred to the district court. Walden v. U.S. Parole Commission, 114 F.3d 1136 (11th Cir. 1997).
11th Circuit, for transferred prisoner, permits downward departure from guideline sentence. (590) Defendants were convicted of drug crimes in the Bahamas, sentenced to 48‑months, and transferred to the U.S. to serve their sentences. The U.S. Parole Commission found that defendants had guideline ranges well in excess of this 48-months, but decided to depart downward based on the harsh prison conditions and beatings they faced while imprisoned in the Bahamas. Concluding that the foreign sentences themselves were more than sufficient departure, the examiner declined to fix release dates prior to expiration of the full terms of the foreign sentences. The Eleventh Circuit upheld the use of the applicable guideline ranges, rather than the foreign sentences, as the baseline for the downward departures. The Commission is not required to disregard the applicable guideline range when determining whether a downward departure should be ordered. The examiner here understood his authority to depart downward from the foreign sentences, but decided against such a departure given the seriousness of defendants’ crimes. A decision not to depart downward is not reviewable on appeal. Tramel v. U.S. Parole Commission, 100 F.3d 129 (11th Cir. 1996).
11th Circuit upholds non-parolable sentence for drug conspiracies committed between 10/27/86 and 11/1/87. (590) Defendant argued that the district court abused its discretion in sentencing him to two non-parolable 12-year terms of imprisonment because the non-parolable terms of imprisonment contained in 21 U.S.C. sections 841 and 960 did not become effective until November 1, 1987, the effective date of the sentencing guidelines. The 11th Circuit disagreed, holding that non-parolable sentences may be imposed for drug conspiracies committed between October 27, 1986 and November 1, 1987. Section 841 and 960 were amended by sections 1001 and 1302 of the Anti-Drug Abuse Act of 1986 and signed into law October 27, 1986. Neither section 1002 nor section 1302 contained an express effective date. The Supreme Court held in Gozlon-Peretz v. U.S., 111 S.Ct. 840 (1991) that absent a clear direction from Congress to the contrary, a law takes effect on the date of its enactment. Since neither section 1002 nor 1302 contained an effective date, and since there was nothing in the Act to rebut the presumption that it became effective upon the ADAA’s enactment, the supervised release provisions contained within sections 1002 and 1302 apply to all specified drug offenses that were committed after October 26, 1986. U.S. v. Giltner, 972 F.2d 1563 (11th Cir. 1992).
11th Circuit rejects argument that Sentencing Reform Act requires Parole Commission to grant parole. (590) Section 235(b)(3) of the Sentencing Reform Act requires the Parole Commission to set a release date for an individual who will be in its jurisdiction October 30, 1992, that is within the range that applies to the prisoner under the applicable parole guideline. Defendant, who was serving a pre-Guidelines sentence, contended that this section mandated that a parole date be set within the applicable guideline range of 20 to 26 months. The 11th Circuit rejected this argument, finding that the language was a “winding up” provision, designed to ensure that every inmate serving a pre-Guidelines sentence would have a release date set before the dissolution of the Parole Commission in 1992. Coleman v. Honsted, 908 F.2d 906 (11th Cir. 1990).
California District Court holds that more lenient D.C. parole guidelines apply equally to females. (590) In Cosgrove v. Thornburgh, 703 F.Supp. 995 (D.D.C. 1988), a class of federally-housed male D.C. Code offenders won a ruling that pursuant to D.C. Code section 24-209, the U.S. Parole Commission must apply the statutes and regulations of the D.C. Board of Parole, including the D.C. parole guidelines. While Cosgrove made no distinction between male and female prisoners, the U.S. Parole Commission refused to apply the decision to female prisoners housed outside of the District of Columbia because females have an option under Garnes v. Taylor, Civ. No. 159-72 (D.D.C. 1976) to transfer to the District of Columbia in order to have the D.C. guidelines apply to them. California District Judge Henderson held that D.C. Code section 24-209 applies equally to females and males, and therefore required the Parole Commission to apply the D.C. parole guidelines to this prisoner without transferring her to the District of Columbia. Bryson v. U.S. Parole Commission, 776 F.Supp. 497 (N.D. Cal. 1991).
Article describes prisoner transfer treaties. (590) The United States has treaties with 59 countries under which inmates can be considered for transfer to their home countries to serve their sentences. This allows an inmate to be closer to friends and family, and may result in an earlier release because parole eligibility is determined by the receiving country. In an article describing the procedures for transfer, defense attorney Alan Ellis suggests that defense counsel can facilitate a client’s transfer by negotiating a provision in the plea agreement wherein the U.S. attorney’s office agrees to recommend – or at least not to oppose – the defendant’s transfer. Alan Ellis, An Introduction to International Prisoner Transfers: Going Home, The Champion 32 (July 1999).
Article summarizes exclusionary rule in probation and parole revocation proceedings. (590) Craig Hemmens, assistant professor at Boise State University and Rolando V. Del Carmen, professor at Sam Houston State University collect and analyze the state and federal case law regarding the admissibility of illegally obtained evidence in probation and parole revocation hearings. According to the article, nineteen states have held that the exclusionary rule does not apply at all, while fourteen others hold that it only applies in certain circumstances such as where the officer is aware that the suspect is on probation or parole. On the other hand, five states apply the exclusionary rule and exclude the evidence. The case law is unsettled in ten additional states. Of the federal circuits, only the Fourth Circuit has held that the exclusionary rule applies. However, five circuits have applied the exclusionary rule if the officer is aware the suspect is on probation or parole or the search is for the express purpose of finding cause to revoke probation or parole. The decisions holding that the exclusionary rule applies will have to be reconsidered in light of the Supreme Court’s ruling in Pennsylvania Board of Probation and Parole v. Scott, 524 U.S. 357, 118 S.Ct. 2014 (1998) that the federal exclusionary rule does not apply to probation and parole hearings. Craig Hemmens and Rolando V. Del Carmen, The Exclusionary Rule in Probation and Parole Revocation Proceedings: Does It Apply? 61 Federal Probation, 32 (Sept. 1997).