Reynolds v. MccallReynolds v. Mccall
Brook Randolph Reynolds, a federal prisoner, appeals from the denial of his petition for a writ of habeas corpus under
* Background
The parole guidelines adopted by the United States Parole Commission set forth suggested ranges of time to be served before release. The ranges vary according to the characteristics of the offense (“severity rating“) and the characteristics of the offender (“salient factor” score).
Once the Regional Commissioner or National Commissioners have set a presumptive parole date, the prisoner has 30 days to file a regional appeal.
At the age of 22, Reynolds pleaded guilty to armed bank robbery with a kidnapping under
The examiner panel reсommended a parole date after 48 months in custody. On September 25, 1979, the Administrative Hearing Examiner disagreed with the panel‘s recommendation, and recommended a parole date after 60 months in prison because of the severity of the crime. The Regional Commissioner agreed with the 60-month term. Because this reсommendation modified Reynolds’ presumptive parole date by more than six months, the Regional Commissioner referred the case to the National Commissioners on September 28, 1979. The Regional Commissioner, however, did not notify Reynolds of the referral until January 21, 1980. Meanwhile, the National Commissioners had notified Reynolds on November 21, 1979, that they had upheld the decision of the Regional Commissioner. On December 16, 1979, Reynolds filed a regional appeal, requesting an explanation why his presumptive parole date had been extended twelve months beyond the examiner panel‘s recommendation. The Regional Commissioner affirmed her eаrlier decision and notified Reynolds on January 29, 1980. Reynolds filed a national appeal, and the National Appeals Board affirmed the Regional Commissioner‘s decision. Reynolds then petitioned for habeas relief.
II
Untimely Notice
The Government concedes that the Regional Commissioner failed to comply with the requirement оf
We have held that the federal parole statute crеates, at most, a liberty interest entitled to no more protection of due process than that the Supreme Court held to apply to the Nebraska parole statute in Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). Bowles v. Tennant, 613 F.2d 776, 778 (9th Cir.1980). Greenholtz held that Nebraska inmates had an expectation of parole that should not be denied without an opportunity to be heard and notification of the parole board‘s reasons for denial of parole. 442 U.S. at 16, 99 S.Ct. at 2108.
Reynolds relies on Grattan v. Sigler, 525 F.2d 329, 331 (9th Cir.1975), to argue that he was denied due process by the Regional Commissioner‘s failure to notify him of the referral to the National Commissioners before he filed his regional appeal. In Grattan, we held thаt a new parole hearing was required because the Parole Commission did not inform the prisoner of the reasons for its denial of parole until after he had exhausted all his administrative appeals. Id. at 331. Here, however, the National Commission notified Reynolds of the reasons for its decision on November 21, 1979, more than thrеe weeks before Reynolds filed his regional appeal on December 16. This was the official decision on his case, based on the hearing before the examiner panel. Thus Reynolds undertook his regional appeal and his final appeal to the National Appeals Board with full knowledge of the deсision he was appealing. See Bowles v. Tennant, 613 F.2d at 779 (distinguishing Grattan because Bowles was informed of the basis for the denial of parole in time to challenge it in a regional appeal); Izsak v. Sigler, 604 F.2d 1205, 1207 n. 4 (9th Cir.1979) (same). If Reynolds had any arguments or information tending to show that the National Commissioners had erred in extending his presumptive parole date, he сould have presented them in his regional appeal. See
Reynolds contends, however, that the National Commission‘s statement of reasons was inadequate to enable him to mаke an informed administrative appeal. The notice sent to Reynolds on November 21 stated:
Your offense behavior has been rated as Greatest II severity because you were convicted of kidnapping and armed bank robbery. The kidnapped person was used as a hostage to obtain $50,000. You have a sаlient factor score of 9. You have been in custody a total of 13 months. Guidelines established by the Commission for youth cases which consider the above factors indicate a range of more than 40 months to be served before release for cases with good institutional program performance and adjustment. After review of all relevant factors and information presented, it is found that your release at this time would depreciate the seriousness of your offense behavior. Commission guidelines for Greatest II severity cases do not specify a maximum limit. Therefore, the decision in your case is based in part upon a comparison of the relative severity of your offense behavior with the offense behaviors and time ranges specified in the Greatest I severity category.
This notice advised Reynolds of his revised release date and specified why he had been placed in the “Greatest II” severity category. It stated that the 60-month releаse date was necessary to avoid “depreciat[ing] the seriousness of [Reynolds‘] offense.” Although not as complete as it might have been, the notice is as specific as others found to satisfy statutory and due process requirements. See, e.g., Bowles v. Tennant, 613 F.2d at 778-79; Izsak v. Sigler, 604 F.2d at 1207 & n. 3; Shahid v. Crawford, 599 F.2d 666, 668, 670-72 (5th Cir.1979). It gave Reynolds adequate notice of the issues to be raised in his regional appeal.
The only fact that Reynolds was not advised of before commencing his administrative appeals was that the presumptive parole date had been set after referral to the National Commissioners. Reynolds contends that the failure to notify him of the referral confused him about what issues were appealable and to whom, and that this confusion prevented him from adequately presenting his regional appeal. In his regional appeal, Reynolds raised only one question, a request for the reasons for the extension of his presumptive parole date beyond the examiner panel‘s recommendation.
Reynolds appears to contend that had he not been confused by the defect in notification, he would also have argued that: (1) he should have been placed in the “Greatest I” instead of the “Greatest II” category; and (2) the circumstances of his crime did not warrant extension of the prеsumptive parole date to 60 months. These are the same arguments that Reynolds advanced before the National Appeals Board and that he now advances before this court. Even assuming that the defect in notification prevented him from raising these two arguments on his regional appeal, the arguments arе meritless, as we explain below. Thus, Reynolds suffered no prejudice from the Regional Commission‘s failure timely to notify him of the referral of his case to the National Commissioners. See United States v. Miller, 599 F.2d 249, 250-51 (8th Cir.1979); Northington v. United States Parole Commission, 587 F.2d 2, 4 (6th Cir.1978). Furthermore, we note that Reynolds received, in all, six reviews of his parole application, more than his “day in court.”
III
Extension of the Presumptive Parole Date
We will not overturn the judgment of the Parole Commission in setting a presumptive parole date unless the Commission abused its discretion. See Hatton v. Keohane, 693 F.2d at 90; O‘Brien v. Putnam, 591 F.2d 53, 55 (9th Cir.1979). Reynolds presents two arguments why the National Commissioners abused their discretion in extending his presumptive parole date one year beyond the examiner рanel‘s recommendation. First, he contends that because the National Commissioners considered the severity of his crime when they placed him in the Greatest II category, the Commissioners could not reconsider the severity of the crime to justify extending the presumptive parole date beyond the original recоmmendation. He contends that the proper procedure is for the Commissioners to consider the severity of the crime only when they select a category. We rejected such a contention in O‘Brien. Id. See also Brown v. Lundgren, 528 F.2d 1050, 1055 (5th Cir.1976).
Second, Reynolds argues that the reasons that the National Commissioners gave for extending his presumptive parole date do not support the Commissioners’ decision. The Commissioners justified their decision on the ground that the seriousness of the offense required a term longer than 48 months. See
IV
Assignment to the Greatest II Category
Reynolds contends that the Parole Commission viоlated due process by placing him in the Greatest II severity category. The Greatest II category includes: “Kidnapping (for ransom or terrorism; as hostage; or harm to victim).”
The denial of the petition for a writ of habeas corpus is AFFIRMED.