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UNITED STATES EX REL. JACOBY v. ARNOLD

February 2, 1977

UNITED STATES of America ex rel. Truman L. JACOBY, Jr., Petitioner,
v.
Floyd ARNOLD, Warden, U.S. Penitentiary at Lewisburg, and the United States Parole Commission, formerly known as the United States Board of Parole, Respondents



The opinion of the court was delivered by: NEALON

 NEALON, Chief Judge.

 Petitioner is presently incarcerated at the United States Penitentiary in Lewisburg, Pa. as a result of a guilty plea he entered to an indictment for second-degree murder. A regular adult sentence of 20 years was imposed on April 14, 1970 under 18 U.S.C. § 4202 by Judge Oren R. Lewis of the Eastern District of Virginia. By notice of action dated February 19, 1976 petitioner was denied parole and continued until February 1978 despite the existence of many factors favorable to his parole application. Petitioner, with counsel, has filed this action under 28 U.S.C. § 2241 seeking release from custody and contending (1) that the denial of parole defeated the reasonable sentencing expectations of Judge Lewis; (2) that the Parole Commission relied upon an impermissible consideration; and (3) that the statement of reasons supplied petitioner in the notice of action was inadequate under the Commission's own regulations. On August 25, 1976, after exhaustion of administrative remedies, this habeas corpus action was filed. Respondents' answer was filed October 20. Petitioner filed a supplemental memorandum November 9, and respondents filed a supplemental response November 26. Since there are no disputed issues of fact, an evidentiary hearing has not been conducted. See 28 U.S.C. § 2243. Compare Yarnal v. Brierley, 324 F. Supp. 311 (W.D.Pa.1971), aff'd, 468 F.2d 816 (3d Cir. 1972), cert. denied, 410 U.S. 940, 93 S. Ct. 1405, 35 L. Ed. 2d 607 (1973), with United States ex rel. Jones v. Brierley, 276 F. Supp. 567 (E.D.Pa.1967).

 In imposing sentence Judge Lewis stated:

 
"[. . . Under] federal law you are entitled to be reviewed for parole or probation, as it is called, in serving a third of [the sentence]. The Court knows that when it fixes the sentence. The Court knows how old you are and of course I know what a third of a sentence is and that is the maximum time that you would have to serve unless, of course, you get obstreperous in the institution, you don't cooperate, you don't want to be rehabilitated, you start fighting the establishment, you might have to serve it all." [emphasis added]

 Petitioner contends that in imposing a 20-year sentence Judge Lewis expected petitioner to be paroled after six years and eight months (80 months) unless petitioner had a poor institutional adjustment. It is clear from the record that his adjustment has been good. The February 19, 1976, notice of action stated that petitioner had served 78 months at that time. *fn1" In continuing petitioner to February 1978, at which time petitioner would have served about 102 months, petitioner argues that the Parole Commission is acting in derogation of the intent of the sentencing judge.

 This claim should be heard initially by Judge Lewis in an action pursuant to 28 U.S.C. § 2255. *fn2" Exhaustion of this remedy is a prerequisite to relief under § 2241. Wiley v. United States Board of Parole, 380 F. Supp. 1194, 1201 (M.D.Pa.1974), citing Strollo v. Alldredge, 463 F.2d 1194 (3d Cir.), cert. denied, 409 U.S. 1046, 93 S. Ct. 546, 34 L. Ed. 2d 497 (1972). Respondents contend, and petitioner has conceded in his supplemental brief, that § 2255 provides a remedy when the sentencing expectations of a judge are frustrated by events accompanying a prisoner's parole application. Some cases provide support for this notion. See, e.g., United States v. Salerno, 538 F.2d 1005 (3d Cir.), reh. denied, 542 F.2d 628 (3d Cir. 1976); United States ex rel. Kearns v. United States, Civil No. 76-736 (M.D.Pa., Aug. 13, 1976). Judge Lewis should be free to determine what his intent was at the time of sentencing, whether the subsequent actions of the Parole Commission have been in derogation of that intent, and whether relief under 2255 is to be provided. As it now appears, there is no reason for me to speculate as to the answers to such questions. See Salerno, 538 F.2d at 1009. Consequently, this claim will be dismissed for failure to exhaust a remedy available under § 2255 in a petition before Judge Lewis.

 Petitioner also contends that the Parole Commission relied upon an impermissible criterion, viz. that release would "depreciate the seriousness of your offense," and that the statement of reasons was inadequate. By notice of action dated February 19, 1976 petitioner was denied parole by an examiner panel:

 
Your offense behavior has been rated as greatest severity because a life has been taken. You have a salient factor score of 10. You have been in custody a total of 78 months. Guidelines established by the [Commission] for adult cases which consider the above factors indicate a range of 36 or more months to be served before release for cases with good institutional program performance and adjustment. [Commission] guidelines for greatest severity cases do not specify a maximum limit. Therefore the decision in your case has been based in part upon a comparison of the relative severity of your offense behavior with offense behavior examples listed in the very high severity category. After a review of all relevant factors and information presented, it is found that a decision outside the guidelines does not appear warranted.

 As indicated in this notice, petitioner was placed in the category of "greatest" severity of offense behavior because he was a convicted murderer. In addition petitioner rated a salient factor score of 10 indicating an excellent parole prognosis. Following appeals, the National Appellate Board affirmed the denial of parole, stating in part that release would "depreciate the seriousness of the offense." *fn3"

 In accordance with the regulations in effect during this period, a prisoner with a salient factor score of 10 but with only a "very high" severity of offense behavior could expect parole after serving 26 to 36 months. *fn4" However, guidelines do not exist for parole applicants, such as petitioner, who are in the "greatest" category of offense behavior. As set forth in the regulations, guidelines cannot be provided such prisoners because of the "limited number of cases and the extreme variations in severity possible within the category." *fn5" Guidelines do not exist because, for example, the sentences served by persons convicted of murder do not fall within a reasonably narrow range, but instead vary considerably, from the highest limit for the "very high" category up to mandatory release. Consequently, petitioner, as a prisoner in the "greatest" category, was in a position analogous to a prisoner in the "very high" category who, because of aggravating circumstances, is continued beyond his guideline period. *fn6"

 While due process may require an adequate statement of reasons after a denial of parole in order to facilitate judicial review, see Garcia v. United States Board of Parole, 409 F. Supp. 1230, 1235 (N.D.Ill. 1976); Soloway v. Weger, 389 F. Supp. 409, 411 (M.D.Pa.1974), the parole regulations themselves also mandate an adequate statement in order to permit full exercise of an applicant's right of appeal. See 40 Fed. Reg. 41329 (Sept. 5, 1975) (Background Statement, part (B)(b)(3) citing Fisher v. United States, 382 F. Supp. 241 (D.Conn. 1974)). See also Bowman v. United States Board of Parole, 411 F. Supp. 329, 330 (W.D.Wis.1976). Cf. Robinson v. United States Board of Parole, 403 F. Supp. 638, 640 (W.D.N.Y.1975). Therefore, the inquiry now, although highly circumscribed, must focus on the February 19 notice of action, set forth supra, as well as notice provided by the National Appellate Board to petitioner after his appeals.

 There are five elements in the February 19 notice: (1) petitioner's classification in the "greatest" category; (2) his salient factor score of 10; (3) the 78 months petitioner had been incarcerated; (4) reference to the guideline range of 26-36 months which would be applicable were petitioner classified in the "very high" category; and (5) a statement that, after comparing petitioner's case with the usual case in the "very high" category, a decision "outside the guidelines" was not warranted. This latter statement was not very meaningful since there are no guidelines for prisoners in the "greatest" category and since petitioner had served a period in excess of the range provided those in the "very high" category. The notice of action from the National Appellate Board corrected this mistake and added a sixth element, that release would "depreciate the seriousness of the offense."

 In the ordinary case, where potentially applicable guidelines exist and where a decision is reached to apply those guidelines after a finding that no special aggravating or mitigating factors are present, I am satisfied that a notice of action containing the first four elements listed supra (the category of offense behavior, the salient factor score, the period of incarceration, and the applicable guidelines period) followed by the conclusion that a decision outside the guidelines was not warranted would constitute an entirely sufficient notice. See deVyver v. Warden, 388 F. Supp. 1213, 1219 (M.D.Pa.1974) (Sheridan, C.J.); Lupo v. Norton, 371 F. Supp. 156, 162 (D.Conn.1974) (Newman, J.). The guidelines, applied in the great majority of cases, *fn7" provide a safeguard against arbitrary action, and, when an applicant feels that unusual mitigating factors are present, the applicant can argue on appeal in reference to the ordinary case and the guidelines. Clearly, in cases where an applicant is continued beyond a guideline period applicable to his category of offense behavior, there must be a reason for that action beyond the four elements supra and that reason should be stated in the notice to facilitate the appeal provided by regulation. See Lupo, 371 F. Supp. at 163. For prisoners such as petitioner who are in the "greatest" ...


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