The opinion of the court was delivered by: Judge Conner
Presently before the court is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 in which petitioner, Keith Bryant Webb ("Webb"), challenges the authority of the United States Parole Commission and procedures it implements. For the reasons set forth below, the petition will be denied.
On September 19, 1985, Webb was sentenced to a term of life imprisonment following a conviction of second degree murder in the United States District Court for the Western District of Texas. (Doc. 40, p. 4). He "murdered his six-year-old son . . . by beating the boy's head against a wall, until the skull had become soft, and by immersing him in water hot enough to cause the skin to peel from his thighs down." (Doc 16, p. 3). He then buried the child's remains. (Id.)
The United States Parole Commission ("parole commission") conducted an initial parole hearing in 1993. On July 19, 1993, Webb was notified, via a notice of action, that because of the level of offense severity, he would be continued to a fifteen-year reconsideration hearing. (Id. at p. 7). In arriving at this decision, the parole commission stated the following:
Your offense behavior has been rated as Category Eight severity because it involved murder. Your salient factor score (SFS-81) is 5. You have been in federal confinement as a result of your behavior for a total of 118 months. Guidelines established by the Commission indicate a range of 150 months to be served before release for cases with good institutional adjustment and program achievement. In addition, you have committed rescission behavior classified as administrative. Guidelines established by the Commission indicate a range of 0-2 months for non-drug related infractions. You have committed 2 non-drug related infractions. Your aggregate guideline range is 150 months to be served. After review of all relevant factors and information presented, a decision more than 48 months above the minimum guideline range is warranted because you tortured the victim by causing him to endure standing in scalding water and while injured, you failed to seek medical assistance which may have saved his life. As required by law, you have also been scheduled for a statutory interim hearing during June 1995. (Id.). He was scheduled for a statutory interim hearing during June 1995, at which time a current psychological evaluation was to be made available to the parole commission. (Id.). The National Appeals Board ("the Board") affirmed the decision. (Id. at pp. 8-9).
Statutory interim hearings have been conducted every two years, resulting in no change in the July 19, 1993 decision. (Id. at pp. 10, 12, 14-15, 16,17-29). On each occasion that Webb pursued an administrative appeal, the parole commission's decisions were affirmed by the Board.
In this petition for writ of habeas corpus, Webb challenges the parole commission's most recent decision issued on August 29, 2005, which reiterated "no change in 15-year reconsideration date June 2008." (Id. at pp. 26-30). The Board affirmed that decision as follows:
The Parole commission is not required to give you a release date under § 235(b)(3) of the 1984 Sentencing Reform Act. This "winding-up" provision only goes into effect shortly before the Parole Commission expires. The Commission was due to expire on October 31, 2005, but the Commission has been extended for another 3 years by the United States Parole Commission Extension and Sentencing Commission Authority Act of 2005, Pub.L.No. 109-76.
The Commission has not extended your parole eligibility date of September 4, 1993. You are eligible for parole but the Commission has decided that you should not be paroled under the release criteria of 18 U.S.C. § 4206(a).
There is no basis for your claim that the Commission has violated the Privacy Act by failing to maintain accurate records on you to assure fairness in your release determinations or violated its regulation at 28 C.F.R. § 2.19(c). You have been afforded disclosure of information in your files and the opportunity to present your arguments at parole hearings.
As you have been informed in a previous decision (the December 28, 1995 notice of action on appeal), the Commission has not made a decision outside the guideline range and the Commission is not required to explain "good cause" for exceeding the guidelines. The Commission has not violated the statute at 18 U.S.C. § 4206(c). The 1995 notice of action also explained to you why the sentencing judge's findings concerning your offense did not invalidate the Commission's findings of aggravating offense factors that warranted the long continuance in your case.
Even if the parole guidelines changed from those in effect from the date of your offense to the date of your parole considerations, application of the revised guidelines would not violate the Ex Post Facto Clause of the Constitution. Decision-making with parole guidelines retains substantial flexibility, especially in cases such as yours in which the guideline range has no maximum limit. (The guideline range in effect at the time of your crime also has no maximum limit.) You have not demonstrated that the use of the revised guidelines substantially increased the punishment for your murder offense. (Doc. 40, p. 30).
The Sentencing Reform Act of 1984 ("SRA") abolished the parole commission and repealed federal parole statutes. Pub.L.No. 98-473, Title II, ch. II, 98 Stat. 1987, 2017-2034 (codified as amended at 18 U.S.C. §§ 3551-3742 (1994)). In their place, the SRA set up a determinate sentencing scheme utilizing the sentencing guidelines. Id. The SRA became effective on November 1, 1987, Lewis v. Martin, 880 F.2d 288, 290 (10th Cir. 1989).
In order to process prisoners convicted under the old parole system, the life of the parole commission was originally extended to five years beyond the effective date of the SRA. See 98 Stat. at 2027, 2032, § 218(a)(5), § 235(b)(1)(A). The five-year provision was amended by § 316 of the Judicial Improvements Act of 1990, and again by the Parole Commission Phaseout Act of 1996. Congress has continued to extend the life of the parole commission and it is now scheduled to expire on October 31, 2008. See United States ...