Petitioner clearly was not released on parole. The type of hearing conducted in his case was a rescission hearing to reopen and retard his parole date following a violation of institutional rules or charges of new criminal conduct. Therefore, the Commission cannot have erred in failing to "revoke" petitioner's parole at a rescission hearing. Whether a parole rescission entitles petitioner to due process protection (and if so, the degree of protection afforded) will be discussed below.
B. Credit for Time in Local Facility
Since petitioner was not paroled and escaped while he was still a prisoner awaiting parole, the time he spent in the county jail after he was arrested for escape was counted toward his federal sentence. The Notice of Action, dated October 9, 1991, informed him that the Commission had added 24 additional months to his parole date of June 4, 1991, plus time in escape status. Although the time petitioner spent in county jail from March 15, 1991, to July, 1991, is counted as time toward his federal sentence, the Commission does not have to make that time part of the penalty since it was simply part of the 34 months originally required by the June 4, 1991 date. The 34 months was the penalty for the original parole violation in 1988. Petitioner has no basis for having part of that time credited to the 24-month penalty that was added to the original 34 months as a result of his escape.
When the Bureau of Prisons informed the Commission that the date petitioner was returned to federal custody (i.e., to the county jail) after his escape from the halfway house was computed incorrectly, the Commission corrected its records accordingly. Petitioner escaped from the halfway house on March 8, 1991, and was returned to federal custody on March 15, 1991, and not March 27, 1991, as reflected in Bureau records. Therefore, petitioner's full-term date was revised to reflect credit of twelve days.
C. Due Process in Rescission Hearings
Petitioner asserts that the Commission failed to provide him with due process in various respects: time of preliminary hearing, time of parole rescission hearing, and fairness of preliminary hearing because the investigating officer was the same individual who made the recommendation. These due process concerns raise an issue of first impression within the Third Circuit. However, recent opinions of the United States Supreme Court and various other courts of appeals provide this Court with sufficient background to make an informed decision as to how the Court of Appeals for the Third Circuit would evaluate this situation.
Since Morrissey v. Brewer, 408 U.S. 471, 484, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972), the Supreme Court has held that the possible deprivation of liberty inherent in a parole revocation proceeding entitles a parolee to certain due process protections. "The Court ruled that a parolee is entitled to a two-tiered hearing procedure, a preliminary hearing at or near the time of the arrest to determine whether probable cause exists to believe that he has committed a parole violation, and a somewhat more comprehensive hearing prior to making the final parole revocation decision." Parson v. Edwards, 709 F. Supp. 548, 551 (M.D. Pa. 1988) (citing Morrissey, 408 U.S. at 485-89). See also Gagnon v. Scarpelli, 411 U.S. 778, 782, 36 L. Ed. 2d 656, 93 S. Ct. 1756 (1973); Bond v. Fulcomer, 864 F.2d 306, 307 n.1 (3d Cir. 1989).
The Supreme Court has never addressed the issue of whether due process protections apply when a parole commission rescinds a prisoner's grant of parole. The Commission refers the Court to decisions of courts of appeals from other circuits for the proposition that "until a parole is finalized, no constitutional protections associated with a parole revocation embrace the intended parolee." Sexton v. Wise, 494 F.2d 1176, 1178 (5th Cir. 1974). See also Ready v. United States Parole Comm'n, 483 F. Supp. 1273, 1278 (M.D. Pa. 1980).
On the other hand, the Court of Appeals for the Second Circuit reviewed this issue in detail and held that "a federal prisoner whose date of parole has been approved but who has not yet been released from prison (a parole grantee) is entitled to procedural due process in his rescission hearing." Drayton v. McCall, 584 F.2d 1208, 1209 (2d Cir. 1978). The court reviewed the parole commission's regulations governing when parole may be rescinded and then held that:
Because the Commission, by these regulations, has limited to carefully defined situations its own authority to rescind a parole grant, there is no resemblance to cases such as Montanye [v. Haymes, 427 U.S. 236, 49 L. Ed. 2d 466, 96 S. Ct. 2543 (1976)], Meachum [v. Fano, 427 U.S. 215, 49 L. Ed. 2d 451, 96 S. Ct. 2532 (1976)], and others where the Government was in essence not bound by any criteria in engaging in various types of conduct. The regulatory structure, therefore, justifies the parole grantee's expectation of future liberty under the Supreme Court's recent rather formalistic emphasis on governmentally established entitlements. A grantee's entitlement of course, cannot be withdrawn without due process of law.
Id. at 1215-16 (footnotes omitted). The court concluded that a parole grantee is entitled to some, but not all, of the due process protections afforded to a parolee at a parole revocation hearing. Id. at 1218-20.
Subsequently, the Supreme Court analyzed some related parole due process questions, and the Second Circuit revisited its decision in Drayton. In Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 60 L. Ed. 2d 668, 99 S. Ct. 2100 (1979), the Supreme Court addressed the issue of whether state prisoners who had not been given release dates had a liberty interest in having the parole board set those dates entitling them to due process protection. The Court held that "there is a crucial distinction between being deprived of a liberty one has, as in parole, and being denied a conditional liberty that one desires." Id. at 9. Because prisoners who had not received a parole date had at most only the possibility of parole, "the general interest asserted here is no more substantial than the inmate's hope that he will not be transferred to another prison, a hope which is not protected by due process." Id. at 11. Nevertheless, the Court "accepted [the Nebraska petitioners'] view that the expectancy of release provided in [the Nebraska parole] statute is entitled to some measure of constitutional protection." Id. at 12. Because the statute was written in such a way as to direct that a Nebraska prisoner "shall" be given a parole date "unless" certain conditions are met, the Court inferred in the statute a liberty interest entitled to some due process protection. Id. at 11-12. See also Board of Pardons v. Allen, 482 U.S. 369, 96 L. Ed. 2d 303, 107 S. Ct. 2415 (1987) (protectable liberty interest created by Montana statute requiring that a prisoner "shall" be released when certain conditions are met).
In Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 69 L. Ed. 2d 158, 101 S. Ct. 2460 (1981), Connecticut prisoners argued that, based on the statistical frequency with which the Connecticut Board of Pardons had in the past commuted life sentences, they had a protectable interest in similar treatment. The Court disagreed, holding that "the Connecticut commutation statute, having no definitions, no criteria, and no mandated 'shalls,' creates no analogous duty or constitutional entitlement." Id. at 466.
In Jago v. Van Curen, 454 U.S. 14, 70 L. Ed. 2d 13, 102 S. Ct. 31 (1981), the Supreme Court addressed the issue of the Ohio Adult Parole Authority's rescission, without a hearing, of its decision to grant a prisoner early parole. The Court held that "we think that the reasoning of Greenholtz, Dumschat, and the Court of Appeals' own concession that Ohio law creates no protected 'liberty' interest, require reversal of the holding of the Court of Appeals that [Van Curen] was entitled to a hearing prior to denial of his parole. . . ." Id. at 21.
In Green v. McCall, 822 F.2d 284 (2d Cir. 1987), the Second Circuit reviewed its decision in Drayton in the light of the intervening Supreme Court decisions. The Court determined that:
Though the regulations in effect when Drayton was decided have since been modified, the pertinent changes have not been substantial. The Commission's rescission authority remains limited, as 28 C.F.R. § 2.34(a) (1986) provides that the Commission may reconsider the parole grantee's early release date if the parole grantee has been found to have violated institutional rules or is alleged to have committed a new criminal act. . . . Thus, unless Drayton has been undermined by later cases, its ruling that a parole grantee is entitled to due process in a rescission hearing remains the law of this Circuit.