Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. No. TH 76-119-C - James E. Noland, Judge .
Before Fairchild, Chief Judge, and Swygert and Pell, Circuit Judges.
The appellant, Phillip Bruce Christopher, appeals from the district court's judgment denying and dismissing his habeas corpus petition. The principal issue raised in this appeal concerns the extent, if any, that Fifth Amendment due process rights are involved in the revocation of a federal prisoner's parole grant.*fn1
Petitioner Phillip Christopher is serving a twenty-year sentence at the United States Penitentiary at Terre Haute, Indiana.*fn2 He has been a well-behaved inmate since arriving at the prison in July 1972. His case manager characterized his institutional adjustment and attitude as "excellent," noting that Christopher "work(s) diligently on his assigned duties" and "participate(s) in some self-improvement activities." After being transferred to the prison's honor camp in February 1975, Christopher was recommended for release on parole by his case manager.
On October 7, 1975, the United States Board of Parole (now the Parole Commission) granted Christopher parole effective February 10, 1976. Preparatory to his actual parole Christopher was transferred to a community treatment center in Cleveland, Ohio.
Christopher alleges that in January 1976, while residing at the center, he was approached by a Cleveland newspaper reporter. He refused to be interviewed. The reporter thereupon began writing a series of newspaper articles criticizing Christopher's participation in the program. She also undertook further reportorial investigation of Christopher and his background.*fn3
On January 16, 1976, after being informed that the judge who sentenced Christopher, the Federal Bureau of Investigation, and the Cleveland police department were objecting to Christopher's release on parole, Carpenter ordered Christopher's parole be suspended and that a rescission hearing be held.*fn4 A notice of action was filed against Christopher by the Parole Board on January 28, scheduling a rescission hearing for February. The grounds for the action were that Christopher had engaged in other criminal activity prior to his incarceration in 1972, and that while residing at the treatment center he began reassociating with individuals having a criminal record.*fn5
A rescission hearing was conducted before two parole board examiners on February 12, 1976, after Christopher had been returned to the penitentiary at Terre Haute.
In the notice given petitioner he was advised that he could present affidavits and other documentary evidence and be represented by counsel. He did have counsel present. He alleges, however, that he was denied his demand for the personal appearance at the hearing of all persons who had given information against him which is the basis of his principal claim that he was denied due process by virtue of not having the right to confront and cross-examine witnesses against him. He apparently particularly wanted to obtain the appearance of the newspaper reporter, the local prosecuting attorney, and Broeckel. Reasons were not given for the denial. The examiners recommended that Christopher's parole grant be rescinded and that his incarceration be restored. The parole board, having taken the case for original jurisdiction,*fn6 adopted the examiners' tentative decision on March 9, 1976. Specific reasons were given for the decision.*fn7 The order was affirmed on appeal by the full Parole Commission on July 13, 1976. The habeas petition followed.
We have no difficulty in disposing of two of the respondents' contentions: (1) that this action should not be entertained because a similar petition was dismissed by the United States District Court for the Northern District of Ohio, and (2) that the rescission of petitioner's parole grant does not embrace a liberty interest within the meaning of the due process clause.
With regard to the first of these contentions, in Christopher v. Sheriff of Lake County, No. C 76-50 (N.D.Ohio, January 26, 1976) the district court did dismiss the petition filed by Christopher. A major reason why the district court in Ohio dismissed the first petition was that it was premature, the court stating: To warrant . . . intervention by way of habeas corpus at this point in time (this) court would have to indulge in the presumptions that the Parole Board's review of petitioner's parole will result in a revocation thereof and that such revocation would be without a proper justification. This court cannot make those assumptions . . . ." In concluding its Memorandum and Order, the court said: "In the event that the Parole Board does take the action petitioner postulates is forthcoming, he will have an opportunity to seek review of the same in the proper forum and at the proper time." In view of the foregoing we would not deem it proper exercise of our discretion, Sanders v. United States, 373 U.S. 1, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963) to dismiss this cause because of the Ohio disposition.
The second threshold question is whether petitioner's parole grant embraces a liberty interest at all sufficient to require the application of procedural due process. The respondents contend it does not.
The respondents do correctly note that the procedural requirements of due process do not extend to all situations in which governmental action relating to a convict's imprisonment status may be adverse to his interests. Whether a convict has a constitutionally protected liberty interest depends upon whether he has a justifiable expectation that adverse action will not be taken except for misbehavior or upon the occurrence of specified events. Meachum v. Fano, 427 U.S. 215, 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976); Montanye v. Haymes, 427 U.S. 236, 96 S. Ct. 2543, 49 L. Ed. 2d 466 (1976).
In our opinion a federal prisoner who has been given an effective date of parole does have some justifiable expectation sufficient to trigger the protections of the Due Process Clause. Unlike an inmate being considered for parole, one who has been given a parole grant, under regulations, has a justifiable expectation of being released on parole on the date set.*fn8 This right is not absolute however; it is conditioned on the occurrence of certain events. Specifically, release on the scheduled date is "conditioned upon the continued good conduct by the prisoner and the completion of a satisfactory plan for parole supervision," 28 C.F.R. §§ 2.29(c), 2.34(a) (1977), and upon the absence of "new information adverse to the prisoner regarding matters other than institutional misconduct." 28 C.F.R. §§ 2.34(b), 2.54(b) (1977).*fn9 Because rescission is limited to the occurrence of specified events, some due process applies.
Finally, we should note that this circuit,*fn10 along with a majority of other circuits which have considered the question,*fn11 has held that the minimal requirements of due process attach to parole release decisions. It would seem anomalous to hold that some due process applies to that kind of proceeding but does not apply once a parole date has been set and rescission is contemplated. In the present case, as contrasted with an inmate who is denied parole and therefore remains in the same custodial situation as before, Christopher, although in a custodial status while residing at the community treatment center, was subjected to a curtailing change in ...