On Dеcember 20, 1977, Marshall Zeidman filed a Petition for a Writ of Habeas Corpus, alleging (1) thаt he had been denied meaningful parole consideration in violation of the due process clause of the Fifth Amendment, and (2) that the United States Parole Commission had violated the ex post facto clause of the Constitution by applying a new set of guidelinеs in determining his parole eligibility. The district court granted the government’s motion for summary judgment and Zeidman now appeals.
The two major issues in this appeal are сoncerned with parole guidelines adopted by the Parole Commission in an effort to promote a more consistent and equitable exercise of its disсretion. See 28 C.F.R. § 2.20 (1976). Under the guidelines, an inmate’s record is first examined to determine the so-called “salient factor score,” a rating that is designed to reflect the estimated risk of parole violation. Next, the inmates’s criminal behavior is classified on an “offense severity scale” which ranges from “low” to “greatest.” Thesе two factors are then taken together to determine a suggested time rangе during which the inmate should remain incarcerated. In Zeidman’s case, for example, the Commission found that his salient factor score and offense severity rating “indicate a range of 20-26 months to be served before release.”
Zeidman argues that the Commission applied the guidelines in a fixed and mechanical manner, аnd thus deprived him of the due process right to meaningful parole consideratiоn. In making the claim, he relies solely on statistics cited in
Kortness v. United States,
We cannot agree, however, that either the Geraghty decision or the statistics cited by the appellant are relevant to the case at hand. While Geraghty involved a class action, this еase is concerned only with Zeidman’s claim, and it is clear from the record that he received individualized consideration from the Commission. In particular, the Cоmmission’s Hearing Summary shows that it looked not only to the guidelines but also to such factors as Zeidman’s health and institutional adjustment. Indeed, only after a “review of all relеvant factors and information presented” did it conclude that “a decision outside the guidelines . is not found warranted.” We cannot agree, therefore, that the district court erred in granting summary judgment on the appellant’s due process clаim.
The appellant also argues that the trial court erred in granting summary judgment on his ex post facto сlaim. In this connection, Zeidman notes that the guidelines in effect at the time of his sentencing were subsequently changed, so that, in his case, the recommended pеriod of incarceration increased from 12-16 months to 20 — 26 months. He thus contends that thе application of the new guidelines violated the Constitution’s ex post facto prohibition.
However, both the Second Circuit, in
Shepard v. Taylor,
“[Wjhat is involved in this case is not agency interpretation of law but an agency’s setting up guidelines for itself to assure the uniform execution of its business. These guidelines are not law, but guideposts which assist the Parole Commission (аnd which assisted the Board of Parole) in exercising its discretion. Nor do these guidelines have the characteristics of law. They are not fixed and rigid, but are flexible. Thе Commission remains free to make parole decisions outside of these guidelines.”
The judgment of the district court is therefore
AFFIRMED.