F.2d at 938. As will be seen below, he cannot demonstrate such prejudice.
The petitioner claims that he lost certain documents and the names of various witnesses as a result of the delay in receiving a copy of the warrant application. See Petitioner's Exhibit G, Document No. 7 of the Record. This evidence, however, concerns mitigating circumstances. Although such evidence must be considered in connection with a formal revocation hearing, see, e.g., Morrissey v. Brewer, 408 U.S. at 488, this type of information is decidedly less important when the matter at issue is the lodging of a detainer. See, e.g., H.R. Conf. Rep. No. 94-838, 94th Cong., 2d Sess. 35, reprinted in  U.S. Code Cong. & Ad. News 351, 367 (when reviewing warrants and detainers, the Commission is not required to hold a hearing "to determine the existence of mitigating circumstances."). But cf. U.S. ex rel. Caruso v. U.S. Board of Parole, 570 F.2d 1150, 1154 & n.9 (3d Cir. 1978), cert. denied, 436 U.S. 911, 56 L. Ed. 2d 411, 98 S. Ct. 2249 (1978) ("It may well be that a credible claim of 'substantial mitigating circumstances' imposes on the Parole Commission the obligation of holding an immediate . . . hearing at which the parolee could preserve evidence" for the later revocation hearing.). Nevertheless, since the petitioner raises the same argument regarding prejudice in connection with his third ground for relief -- that the Commission deprived him of a timely revocation hearing -- the court will examine the facts presented in this case, to determine whether he was indeed prejudiced by the loss of favorable evidence.
The petitioner claims that various witnesses would have shown that there were extenuating factors regarding his parole violations. For example, he claims that one of the police officers present at the time of his arrest on the petit larceny charge would have provided insight into his mental state at the time of the offense. Other witnesses allegedly would have demonstrated that the petitioner tried desperately to fight his addiction, but was steadily losing the battle. The petitioner claims that the names and addresses of these individuals are now unavailable because of the Commission's alleged delay in providing a copy of the warrant application and convening the revocation hearing.
Although it appears that the hearing examiners may not have fully considered these claims of mitigating factors, see Petitioner's Exhibit I, attached to Petitioner's Affidavit, Document No. 10 of the Record, these matters were presented at both the Regional and Appellate levels of the Commission. The petitioner argued, inter alia, that extenuating circumstances justified a different disposition of his case. His arguments were rejected because none of the "information submitted for requested review was deemed significant enough to affect the decision." See Notice of Action on [Regional] Appeal, Exhibit D, attached to Petitioner's Memorandum, Document No. 2 of the Record. Since the petitioner presented his claims regarding mitigation, and it appears that they were considered, he was not prejudiced by the asserted loss of evidence. The Commission acted well within its discretion in rejecting the petitioner's claims that his parole violations were caused by his state of mind, and the court will not disturb its determination. See, e.g., Steinberg v. Police Court, 610 F.2d 449, 452-53 (6th Cir. 1979); U.S. ex rel. Caruso v. Board of Parole, 570 F.2d at 1154 n.8.
REPAROLE GUIDELINES AND THE EX POST FACTO CLAUSE
The next argument raised by the petitioner is based upon the ex post facto clause of the Constitution, see Art. I, § 9, cl. 3; see also Art. I, § 10, cl. 1, which forbids the imposition of punishment for an offense which was not punishable at the time it was committed. See, e.g., Weaver v. Graham, 450 U.S. 24, 28, 67 L. Ed. 2d 17, 101 S. Ct. 960 (1981). The clause also prohibits the government from augmenting punishment after the fact. Id. In order to fall within this constitutional prohibition, a penal law must have two characteristics: "it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it." Id. at 29; United States v. Ferri, 652 F.2d 325, 327-28 (3d Cir. 1981).
The petitioner asserts that the Parole Commission violated the ex post facto clause by relying upon the guidelines in setting his presumptive release date. To support this argument, he urges that in 1972, the year he was originally sentenced, there were no guidelines, and the Commission (then the Parole Board) made its decisions by referring exclusively to a prisoner's institutional adjustment and prospects for rehabilitation. He argues that since the guidelines incorporate the factors of offense severity and parole prognosis, he has been "subjected . . . to more onerous treatment" than he would have faced in 1972. See Petitioner's Memorandum at 11, Document No. 2 of the Record.
The court will reject the petitioner's assertion that such matters as offense severity and parole prognosis were not considered by the Parole Board in 1972 with respect to the question of reparoling individuals who had already violated parole. See, e.g., Rifai v. United States Parole Commission, 586 F.2d 695, 699 (9th Cir. 1978) (offense severity is a consideration); Caton v. Smith, 486 F.2d 733, 735 (7th Cir. 1973) (noting that parole prognosis was a "required" consideration); Stubblefield v. Kennedy, 117 U.S. App. D.C. 225, 328 F.2d 526, 528 (D.C.Cir. 1964) (implicitly recognizing that offense severity would be a factor in determining length of incarceration after parole revocation); United States v. Kenton, 252 F. Supp. 344, 346 (D. Conn. 1966) (under statute, Parole Board was required "to determine whether the violator is still a good parole risk;" parolee could try to "induce" the Board "to give him another chance"). But cf. Note, Application of the Federal Parole Guidelines to Certain Prisoners: An Ex Post Facto Violation, 62 B.U.L. Rev. 515, 515-16 (1982) (guidelines fail to incorporate post-sentencing factors like rehabilitation and institutional adjustment).
Nevertheless, the petitioner's challenge to the use of the parole guidelines in his case merits discussion. The Court of Appeals for the Third Circuit has held that "there is a potential violation of the ex post facto clause in the retrospective application of new guidelines promulgated by the United States Parole Commission when they are applied to prisoners who were sentenced prior to the enactment of the [Parole Commission and Reorganization Act (PCRA)] in 1976." United States v. Ferri, 652 F.2d at 327-28; Geraghty v. United States Parole Commission, 579 F.2d 238, 266-67 (3d Cir. 1978), vacated on other grounds, 445 U.S. 388, 100 S. Ct. 1202, 63 L. Ed. 2d 479 (1980). The Third Circuit's position appears to conflict with the views expressed by a majority of other circuit courts. Compare 579 F.2d at 266-67 with Warren v. United States Parole Commission, 212 U.S. App. D.C. 137, 659 F.2d 183, 197 (D.C. Cir. 1981), cert. denied, 455 U.S. 950, 102 S. Ct. 1454, 71 L. Ed. 2d 665 (1982); Zeidman v. United States Parole Commission, 593 F.2d 806, 808 (7th Cir. 1979); Rafai v. United States Parole Commission, 586 F.2d at 698-99; Ruip v. United States, 555 F.2d 1331, 1335-36 (6th Cir. 1977). The Supreme Court, however, has twice declined to resolve the issue. See United States Parole Commission v. Geraghty, 445 U.S. 388, 390, 63 L. Ed. 2d 479, 100 S. Ct. 1202 n.1 (1980); United States v. Addonizio, 442 U.S. 178, 184, 60 L. Ed. 2d 805, 99 S. Ct. 2235 (1979); see also Portley v. Grossman, 450 U.S. 962, 67 L. Ed. 2d 611, 101 S. Ct. 1476 (1981) (mem.). This court, of course, is bound by the views expressed by the Third Circuit in Geraghty.
In Geraghty, the prisoner attacking the Commission's guidelines had been sentenced pursuant to 18 U.S.C. § 4208(a)(2)(1970), and hence, was eligible for parole consideration immediately upon incarceration. See 579 F.2d at 262 n.118. After applying the newly-promulgated guidelines, the Commission determined that Geraghty would have to spend a certain number of months in prison before being paroled. Id. at 262. Geraghty attacked the Commission's guidelines as ex post facto legislation, contending that he was not given serious consideration for early release pursuant to § 4208(a)(2) because the Commission merely applied the "customary release date" as set forth by the guidelines. Id.
Writing for the Geraghty court, Judge Adams engaged in an exacting analysis, starting with the premise that a prisoner's right to "immediate" parole consideration under § 4208(a)(2) was a condition of his punishment which could not be altered to his disadvantage through retrospective legislation. See id. at 264-65. He noted that Geraghty's immediate eligibility for parole was, in reality, an inchoate opportunity to gain early release -- an opportunity which could be brought to fruition only through a favorable exercise of the parole board's discretion. See id. at 263. Judge Adams observed that it was evident that the legislature could not obliterate this opportunity for discretionary release by retrospectively amending § 4208(a)(2) to condition his right to parole consideration upon the service of a certain number of months in prison. Id. at 266. He concluded that a mechanical application of the guidelines would have identical effect. Since the Commission would no longer be exercising its discretion, he reasoned, Geraghty effectively would be deprived of the opportunity for discretionary release. See id. ("To maintain that the present parole guidelines enact no substantive limitation on parole eligibility may well be to misinterpret both the legal and practical effects of the guidelines."); cf. United States v. Ferri, 652 F.2d at 328 (mechanical application of guidelines may deprive a prisoner "of the opportunity to apply for discretionary release").
Under the Geraghty court's analysis, then, a prisoner can show that a retrospective application of the guidelines "disadvantages" him within the meaning of the ex post facto clause if he can demonstrate that he has been deprived of a meaningful exercise of the Commission's discretion through individualized consideration of his parole application. 579 F.2d at 267; Crisp v. Wilkinson, Civil No. 82-0032, slip op. at 3 (M.D. Pa., April 22, 1982); Darby v. United States Parole Commission, Civil No. 81-0609, slip op. at 8 (M.D. Pa., April 22, 1982); Collins v. McCall, Civil No. 81-1089 (M.D. Pa., Mar. 23, 1982). By the same token, however, if the prisoner has received individualized treatment, then he has not been disadvantaged by retrospective application of the guidelines, for he will not have been deprived of an exercise of the Commission's discretion and he will have been given the same opportunity for discretionary release that existed prior to the promulgation of the guidelines. See, e.g., United States v. Ferri, 652 F.2d at 328; Crisp v. Wilkinson, supra, slip op. at 3-4; United States v. Tully, 521 F. Supp. 331, 336-37 (D.N.J. 1981).
Because the petitioner is challenging the Commission's decision in setting a new release date subsequent to revocation of his parole, he does not stand in the same situation as Geraghty and cannot rely upon § 4208(a)(2) to demonstrate his entitlement to "individualized consideration." Nevertheless, at the time that the petitioner originally was sentenced, parole violators were entitled to a form of "immediate parole eligibility" analogous to that involved in the Geraghty case. See 18 U.S.C. § 4207 (1970)(upon revocation of parole, "the prisoner may be required to serve all or any part of the remainder of the term for which he was sentenced"). The Parole Board was permitted to exercise a broad degree of discretion in determining the length of time, if any, that a parole violator was to remain incarcerated following the revocation of his parole. See, e.g., McKinney v. Taylor, 358 F.2d 689, 690 (10th Cir. 1966). See generally Warren v. United States Parole Commission, 659 F.2d at 195-96. Thus, it is clear that the concerns outlined in Geraghty regarding the ex post facto clause apply with equal force in cases involving parole violators who complain of retrospective application of the reparole guidelines. See generally Greenfield v. Scafati, 277 F. Supp. 644, 646 (D. Mass. 1967), aff'd mem., 390 U.S. 713, 88 S. Ct. 1409, 20 L. Ed. 2d 250 (1968). But see Warren v. United States Parole Commission, 659 F.2d at 194 (opining that the policies underlying the ex post facto clause are not implicated when a prisoner violates parole after promulgation of the guidelines).
After applying the Geraghty analysis in the present case, the court concludes that the petitioner has not been disadvantaged through a retrospective application of the reparole guidelines. The fact that the Commission rendered a decision "above the guidelines" in his case is, of course, persuasive evidence that the petitioner was not subjected to a "mechanical application" of these regulations. Indeed, under these circumstances, it is apparent that the petitioner actually would have been in a better position if the Commission had not exercised any discretion in his case and had decided instead to apply the guidelines mechanically. The court finds it unnecessary, however, to hold that a decision to depart from the guidelines vitiates a colorable ex post facto claim as a matter of law, for the record in this case clearly demonstrates that the petitioner was accorded "individualized consideration" by the Commission. For instance, the hearing examiners observed that the petitioner had "violated parole . . . in an unusually rapid fashion, less than three months after [his] release, and after serving almost five years in custody for a prior parole violation." See Respondent's Exhibit J, attached to Document No. 8 of the Record. In addition, the examiners noted that the petitioner "impressed [them] as . . . reasonably intelligent" but found that he had a "normally passive, dependent addict personality." Id. The hearing examiners also evaluated factors militating against continued incarceration of the petitioner. They considered the fact that he had a six-month old child, and that he had "a romantic attachment in the community." Id. They considered his explanations regarding his parole violations. For example, they observed that he had reverted back to his drug habit "because he lost his job and because his father had throat cancer." Id. Given the fact that the Commission did much more than "mechanically" apply the guidelines in considering the petitioner's case, therefore, the court must reject his ex post facto claim.
APPLICATION OF THE GUIDELINES
The next group of arguments raised by the petitioner in support of his claim for habeas relief concerns the manner in which the Commission applied the reparole guidelines. Unlike the petitioner's ex post facto claim, these contentions are founded upon the premise that the Commission exercised some form of discretion in applying, and then exceeding, the guidelines. In raising these arguments, the petitioner seeks to show that the Commission abused this discretion. The court recognizes that it is not empowered to substitute its own judgment for that of the Commission in evaluating the petitioner's claims. "Unless the Commission's exercise of its discretion represents an egregious departure from rational decision-making, its determination must stand." Christie v. United States Parole Commission, Civil No. 80-1451, slip op. at 5 (M.D. Pa., Sept. 14, 1981); see Zannino v. Arnold, 531 F.2d 687, 690-91 (3d Cir. 1976).
The first issue raised by the petitioner regarding the use of the guidelines concerns the Commission's use of his two most recent convictions in determining his offense severity rating. The petitioner contends that the Commission may not consider these offenses because he has fully served the sentences imposed pursuant to these convictions. He argues that since the use of these convictions increases his offense severity rating -- thereby pushing forward his presumptive release date -- he is being punished again for these crimes despite the service of his sentences.
As both parties to this action observe, Judge Muir considered and rejected this practice in Silberberg v. U.S. Parole Commission, 483 F. Supp. 1280 (M.D. Pa. 1980), stating:
Once a prisoner has served his term of incarceration, the Commission may not consider that crime in determining offense severity for another crime. It is irrelevant if upon expiration of the first sentence the petitioner is released from custody or is confined for the service of an additional sentence. In both situations the only sentence from which he can be paroled is the sentence that has not expired. It follows that in determining a parole date under the guidelines, the only relevant offense severity is the one applicable to that crime. Otherwise, the Commission is, in effect, holding a prisoner in custody beyond the term of imprisonment originally imposed.
Id. at 1283. Although the Commission argued that this practice was "authorized by statute and a long line of court decisions," Judge Muir carefully examined these authorities and found that they did not support the Commission's position. Id. at 1282. Therefore, having found that the Commission had "improperly utilized its guidelines," Judge Muir conditionally granted Silberberg's petition for a writ of habeas corpus. Id. at 1283. Significantly, the Silberberg case involved a construction of the Commission's guidelines; Judge Muir's holding did not depend upon any constitutional or federal statutory principles.
The petitioner's reliance on Silberberg is misplaced for in 1980 the Commission's guidelines were amended to provide the needed authority for considering expired sentences. See Ronning v. United States, 547 F. Supp. 301 (M.D. Pa. 1982); 28 C.F.R. § 2.20, General Note E ("In cases where multiple sentences have been imposed . . . an offense severity rating shall be established to reflect the overall severity of the underlying criminal behavior. This rating shall apply whether or not any of the component sentences has expired."). More importantly, Silberberg did not involve parole revocation, so Judge Muir was not faced with the effect of 18 U.S.C.§ 4214(d) upon his decision. This statute provides that before the Commission may take any action regarding a parole violation, whether it be revocation or a mere reprimand, it must first consider "whether or not the parolee has been convicted of any Federal, State or local crime subsequent to his release on parole, and the seriousness thereof." 28 U.S.C. § 4214(d); see 28 C.F.R. § 2.21(b)(1)-(3). Since the Commission was permitted to consider his most recent offenses, the petitioner's argument on this issue must be rejected.
The petitioner's next contention is that the Commission erroneously classified his offense behavior. He argues that the Commission should have treated his petit larceny offense as an administrative violation, see 28 C.F.R. § 2.21, rather than as a low severity offense. See 28 C.F.R. § 2.20. The petitioner's argument must be rejected. Although he has constructed an unusual argument that the guidelines contemplate a distinction between petit and grand larceny, his contention is not supported by the regulations. The guidelines state that theft is a low severity offense, absent aggravating factors. See id. The regulation does not expressly state that petit larceny should not be treated as "theft," and the court can find no reason for manufacturing such a distinction. The two cases cited by the petitioner to support his view deal with an immigration statute that clearly contemplates a distinction of this kind. See Soetarto v. Immigration and Naturalization Service, 516 F.2d 778, 779 n.2 (7th Cir. 1975); Giammario v. Hurney, 311 F.2d 285, 286 (3d Cir. 1962). These cases are, therefore, inapposite.
The petitioner also argues that the Commission erroneously classified his Bail Reform Act violation, which arose from his failure to appear in the District of Columbia court in connection with his petit larceny offense. The Notice of Action sent to the petitioner following his national appeal states:
You were in violation of the Bail Reform Act, which is classified as escape without force or threat. . . . You were in violation for a period of 15 days. Guidelines established for this violation . . . indicate a customary range of 6-12 months.