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TRUDO v. WARDEN

December 27, 1977

Calvin TRUDO
v.
WARDEN, UNITED STATES PENITENTIARY, LEWISBURG, PENNSYLVANIA, et al.



The opinion of the court was delivered by: NEALON

 NEALON, Chief Judge.

 Petitioner, presently incarcerated at the United States Penitentiary at Lewisburg, filed this action pursuant to 28 U.S.C. § 2241 on May 3, 1977. On May 20, 1977, he was granted permission to proceed in forma pauperis. All responses and counterresponses having been filed, the case is now ready for a determination on the merits. Since only issues of law are involved, a hearing is not necessary. See 28 U.S.C. § 2243. Pursuant to Rule 8(a) of the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C.A. Appendix of Rules and Forms (Supp.1977), applicable to 28 U.S.C. § 2241 through Rule 1(b), I have decided that a writ of habeas corpus shall issue unless within 30 days the United States Parole Commission gives petitioner a parole review hearing. At this hearing the examiners may not apply the new reparole guidelines, which went into effect as of October 4, 1976, to petitioner.

 Petitioner was originally sentenced, under 18 U.S.C. § 4208(a)(2), *fn1" to an eighteen-year term on December 11, 1970 by the United States District Court for the District of Vermont for a violation of 18 U.S.C. § 2113(d) (armed bank robbery). He was released on parole on September 27, 1974. On November 26, 1974, while on parole, he was arrested on three charges of firearms' violations. He pleaded guilty to one of the counts on January 26, 1975 and was sentenced to a term of eighteen months. On February 10, 1975 a parole violator warrant was issued and it was lodged against him at the United States Penitentiary at Lewisburg on July 10, 1975. This warrant was automatically executed at the expiration of the firearms' violation sentence on January 30, 1976. At a hearing before a Parole Commission Panel on April 5, 1976 petitioner's parole was revoked and he was given an eight-month continuance to a review hearing in December 1976. At this December institutional review hearing he was continued to another review hearing in June 1978. Petitioner claims that at the December 1976 hearing new reparole guidelines were unlawfully applied to him. He has exhausted his administrative remedies by appealing the December 1976 hearing decision to the Regional Commissioner and to the National Appeals Board. The decision was affirmed at both levels.

 In order to understand the facts of this case it is necessary to trace the promulgation of reparole guidelines and their interaction with the timing of petitioner's hearings. At petitioner's hearing on April 5, 1976 (hereinafter referred to as the first institutional hearing), no reparole guidelines were yet in effect. After this first institutional hearing, on May 14, 1976, new regulations promulgated by the United States Parole Commission went into effect. See 41 Fed.Reg. 19337 (May 12, 1976) (§§ 2.1 through 2.58). Section 2.21 established reparole consideration guidelines. Under this section petitioner's reparole guideline range was 32-38 months. *fn2"

 On October 4, 1976, before petitioner's December 1976 review hearing (hereinafter referred to as the second institutional hearing), another set of United States Parole Commission regulations became operative. Among other things, some of the guideline ranges were increased. Under these new guidelines, petitioner's range would be 34-44 months. It was also stated that:

 
The Commission recognizes that policy decisions decreasing or increasing the period of incarceration served by any federal prisoner must not be lightly embarked upon, and has devoted considerable discussion and study to those described above. Therefore, the Commission has decided that these amendments will be applied only to those prisoners who have not received their initial hearings as of the effective date of these rules. In the interests of consistency and fairness, prisoners who have already received initial hearings will not be reconsidered under the increased guideline ranges set forth herein. 41 Fed.Reg. 37317, § (B)(4)(d), Application of the Changes, (Oct. 4, 1976). Hereinafter referred to as § (B)(4)(d).

 Thus, only those prisoners who had not had an initial hearing prior to October 4, 1976 would be considered under the new guideline ranges. The term "initial hearing" is nowhere specifically defined, but it is the heading for 28 C.F.R. § 2.13 (Oct. 1976). According to that section, at an initial hearing the examiners discuss with the prisoner his guideline range under § 2.20, his institutional conduct, and any other matter the examiners feel is relevant. At the end of the hearing the panel informs the prisoner whether it will recommend for or against parole.

 At petitioner's first institutional hearing (April 1976), entitled "revocation hearing" *fn3" on the United States Board of Parole Hearing Summary, see Document 8, Exhibit E, filed June 9, 1977, the hearing panel revoked petitioner's parole based on the behavior which resulted in his arrest in November 1974 and his guilty plea in January 1975. The panel also discussed petitioner's institutional behavior, his release plans, and his domestic problems. Since no reparole guidelines were in effect at that time, they obviously could not be discussed. In evaluating the review it was stated:

 
The panel feels that there is an accountability of at least two years overall for the violation of parole which took place within 2 months of release. The panel, therefore, is constrained to give subject a set-off to measure up to this accountability standard which will call for review later in the year. It is also felt that time (sic) subject if he is given a favorable consideration would be released at a time when job opportunities are again good in this Northern State. United States Board of Parole Hearing Summary, Document 8, Exhibit E, filed June 9, 1977.

 At petitioner's December 1976 regular review hearing, the second institutional hearing (held after the enactment of the May 1976 and October 1976 reparole guidelines), he was told that his reparole guideline range was 34-44 months. This is the applicable range under the October 1976 guidelines, see supra. The panel noted that in October of 1976 the prison institution recommended an 18-month set-off. The panel also found that during his entire incarceration petitioner's only misconduct was in July 1975 and that he has maintained an excellent conduct record since that time. It was felt that he was at a turning point in his life and that at his next hearing (June 1978) he would have served 3 1/2 years, "which should certainly satisfy the accountability." It was then decided that a decision outside the guidelines was not warranted. United States Board of Parole Hearing Summary, Document 8, Exhibit F, filed June 9, 1977.

 Petitioner contends that the application of the October 1976 reparole guidelines at his second institutional hearing was in contravention of § (B)(4)(d). Reading this prose petition with the appropriate liberality, the court also construes the petition to contain the allegation that if it was proper as a question of statutory construction to exclude petitioner from the application of § (B)(4)(d), he has been denied the equal protection of the laws. Petitioner also contends that the Parole Commission acted arbitrarily and capriciously when it extended his incarceration beyond the two years mentioned at his first institutional hearing and beyond the eight-month set-off given to him at the same hearing.

 It is respondent's position that it was proper to apply the new reparole guidelines to petitioner at his second institutional hearing because § (B)(4)(d), which would prohibit using the new guidelines, applies only to those who had an initial hearing and petitioner's first institutional hearing was a revocation hearing, not an initial hearing. Respondent also contends, in effect, that there is a rational reason not to apply § (B)(4)(d) to those who have not had an initial hearing. Finally, respondent argues that it was the May 1976 reparole guidelines which were applied at petitioner's second institutional hearing. However, this last claim appears to be refuted by the copy of that hearing's summary submitted with respondent's answer. That summary specifically states that petitioner's guideline range is 34-44 months, the range specified by the October 1976 guidelines.

 Judicial review of a parole decision is appropriate to determine if a denial of parole was inconsistent with the statutory authority, or if there was an abuse of discretion, or if there was a denial of a constitutional right. See United States ex rel. Harrison v. Pace, 357 F. Supp. 354 (E.D.Pa. 1973). Cf. deVyver v. Warden, 388 F. Supp. 1213 (M.D.Pa.1974). Here the court must first decide, according to the applicable criteria, whether the Parole Commission correctly interpreted and applied its own regulations. If it is decided that the section was correctly interpreted and applied, then the question is whether petitioner has been denied the equal protection of the laws. Finally, it must be ...


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