Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. TH-76-42-C - S. Hugh Dillin, Judge.
Fairchild, Chief Judge, Swygert and Cummings, Circuit Judges. Fairchild, Chief Judge.
This appeal from the denial of a habeas petition filed by a prisoner concerns certain procedural aspects of the federal prison parole system. Two issues are presented for review: (1) whether the National Appellate Board arbitrarily rescinded the Parole Board's release date in disregard of its own regulations; and (2) whether the Parole Board regulations as applied to the petitioner violated his constitutional guarantees to due process of law.
Petitioner Charles Layton Cox was convicted of armed robbery under 18 U.S.C. § 2113(d) in 1968. After serving seven years of a twenty-four year sentence at the United States Penitentiary at Terre Haute, Indiana, he was given a parole hearing in October 1975, and thereafter notified that he had been granted a tentative decision of parole effective February 11, 1976.*fn1
In the recommendation for release, Cox was given a positive report. He was described as having been receptive to programming and having matured significantly. It was the opinion of this case manager that his behavior and attitude suggested an ability to make a normal community adjustment.*fn2
The National Appellate Board, on its own motion, reviewed the examiners' decision and denied parole without further parole consideration for three years.*fn3 When petitioner appealed this decision to the National Board, the denial was affirmed. Cox then filed a pro se petition for a writ of habeas corpus in the Southern District of Indiana. The district court denied his petition to proceed in forma pauperis and dismissed the habeas petition as frivolous.
On appeal petitioner argues that the National Appellate Board proceeded arbitrarily, in violation of its own regulations and in the application of the new parole guidelines to his case, and that this denied him due process of the law in violation of the Fifth Amendment. He also urges that due process required the opportunity for a hearing before the National Board could change the decision to deny him parole.
The extent of petitioner's claim that due process requires a hearing before the National Appellate Board was delineated by this circuit in McGee v. Aaron, 523 F.2d 825 (7th Cir. 1975). We held there that due process did not require a rehearing if a prisoner is given written reasons for a denial following the hearing. However, we went on to state: "At that point, the prisoner can petition for a writ of habeas corpus if he thinks the reasons given are false, insufficient, or capricious, as he can if no reasons are given." 523 F.2d at 827. Here the petitioner alleges that the reasons given were arbitrary and capricious. Under these circumstances we cannot say that the claim is frivolous.
The reasons for denial given by the National Board cited the new United States Board of Parole Guidelines, 28 C.F.R. § 2.20. Under these guidelines, petitioner's crime was classified as of "greatest severity" and he was given a "salient factor score" (parole prognosis) of three, which combination places him in the highest category of punishment. The reason given in the Notice of Action for such classification was that "shots were fired and there was assaultive behavior" at the time of his offense. He was given no reason why his salient factor score was placed at "three."
Petitioner disputes the fact that shots were fired during the commission of the crime. He claims that the shots fired were only between police and his accomplice in the robbery at a time when the accomplice was fleeing separately. Because an evidentiary hearing has not yet been held in this case, no such information is available in the record. Petitioner should at least be permitted to prove these facts as they appear to have been highly significant to the National Board's decision.
Moreover, there appears to be a possibility that the guidelines were arbitrarily applied to petitioner, in which case his right to due process would have been violated. Even if the National Appellate Board placed petitioner in the correct classification with the correct salient factor score according to the guidelines, that classification calls for a period of incarceration of greater than 55-65 months. Petitioner has already served 96 months. Further, the Board's decision stated that petitioner's case was given a continuance of thirty-six months before another parole hearing because "board policy prohibits a continuance of more than thirty-six months without review." The clear implication is that the Board very well may have put the hearing off for a longer period if this had not been prevented by Board policy. This statement, coupled with the fact that petitioner has served over half again as much time as the minimum required by the guidelines and the affirmative report on the petitioner's rehabilitative progress, indicate the possibility of arbitrary action on the part of the National Appellate Board.
The appearance of arbitrariness is enhanced by the fact that the National Board did not follow normal procedures set out in the governing administrative regulations in this case. The regulations state that the decision of the initial hearing examiner panel shall be final with one exception. 28 C.F.R. § 2.13(a).*fn4 This finality is subject to two conditions. The first is not applicable to this case.*fn5 The second*fn6 provides for review of a case by the regional administrative hearing examiner where an original panel proposes a decision falling outside the explicit guidelines. Because petitioner has served ...