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May 18, 1984


The opinion of the court was delivered by: Prentice H. Marshall, District Judge.


Petitioner Frank M. Briggs has filed a petition for writ of habeas corpus alleging that the United States Parole Commission impermissibly refused to advance his date of release from incarceration. Respondents have moved to dismiss; in part, the motion is essentially one for summary judgment, as both parties have submitted materials outside the pleadings.*fn1

Petitioner was convicted of conspiracy to commit arson, interstate transportation in aid of racketeering, and use of an instrumentality of interstate commerce to facilitate commission of arson in the Western District of Wisconsin on May 29, 1981. On July 30, 1981, he was sentenced to three consecutive terms of 18 months in the custody of the Attorney General, to be followed by three years probation. His conviction was affirmed on appeal. United States v. Briggs, 700 F.2d 408 (7th Cir.), cert. denied, 461 U.S. 947, 103 S.Ct. 2129, 77 L.Ed.2d 1307 (1983).

Petitioner's first hearing before the Parole Commission took place on June 16, 1982. The Parole Commission decided that petitioner should serve his full sentence, minus good time reduction. Affidavit of James C. Rogers, Exs. A, B. Petitioner appealed this decision. Id., Ex. C. The decision was affirmed on August 31, 1982. Id., Ex. D. On September 20, 1982, petitioner further appealed the decision to the National Appeals Board of the Parole Commission. Id., Ex. E. The appeal was denied on December 7, 1982, though the reasons for the previous decision were modified. Id., Ex. F.

On December 6, 1983, petitioner had an interim parole hearing pursuant to 18 U.S.C. § 4208(h)(1)(1982) and 28 C.F.R. § 2.14 (1983). Petitioner has provided us with a tape recording of the hearing. The purpose of the hearing, as stated by one of the members of the hearing panel, was to consider whether there were any developments or changes that warranted reconsideration of the Commission's earlier decision. Petitioner submitted numerous documentary exhibits and made an oral statement in support of his request that he be considered for "Superior Program Achievement," see 28 C.F.R. § 2.60 (1983), a program which permitted the Commission to advance his release date. The panel agreed to take this into account, and retired to deliberate. In rendering the panel's oral decision, the chairperson of the panel stated that

  [a]lthough you do have the [sic] good
  institutional record, we are of the opinion that
  based on the severity of the offense plus the
  fact that your . . . time served are [sic] well
  below the guidelines, we are not going to
  recommend Superior Program Achievement or
  advancing your date. . . .

Memorandum in Opposition to Respondent's Motion to Dismiss, Ex. B (tape recording; the above is transcribed from the recording).

Petitioner was notified at the hearing and in the hearing panel's written decision of his right to appeal the decision. See Rogers Affidavit, Ex. H. However, petitioner did not appeal. Rather, he filed this lawsuit. Petitioner asserts that the Parole Commission violated its own regulations, acted arbitrarily and capriciously, and denied him equal protection of law, in refusing to recommend Superior Program Achievement because of the seriousness of his offense.

Respondents first argue that petitioner has failed to exhaust his administrative remedies by failing to appeal the December 1983 decision, or alternatively that petitioner's deliberate bypass of the appeal process should bar him from relief here. Respondents agree that these requirements are not jurisdictional in nature. See Memorandum in Support of Respondents' Motion to Dismiss at 5 (citing Jackson v. Carlson, 707 F.2d 943 (7th Cir. 1983)). As the court noted in United States ex rel. Marrero v. Warden, 483 F.2d 656, 659 (3d Cir. 1973), rev'd on other grounds, 417 U.S. 653, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1974), delays may make an administrative remedy inadequate. In his petition, which was filed pro se, petitioner stated that he was not pursuing further Parole Commission remedies "due to the time factor involved." Petition for Writ of Habeas Corpus ¶ 3. Petitioner is due to be released in August of this year; it is possible that his request for early release would not be able to run the gamut of administrative appeals within that time. Respondents have not controverted petitioner's suggestion that the Parole Commission's in-house remedies may be inadequate, so for purposes of the present motion we cannot rule in their favor on the exhaustion or waiver defenses. We therefore turn to the merits.*fn2

The Superior Program Achievement regulations are found at 28 C.F.R. § 2.60 (1983). Section 2.60(a) states that prisoners who demonstrate superior program achievement may be considered for a limited advancement of their release date. In § 2.60(b), superior program achievement is defined as achievement in areas such as educational, vocational, industry, or counseling programs. Section 2.60(c) states that "[u]pon a finding of superior program achievement, a previously set presumptive date may be advanced" up to a maximum established in the regulation. In petitioner's case, he would be eligible for an advancement of up to six months.See id. § 2.60(e).

The parties have cited no case law interpreting the Superior Program Achievement regulations, nor have we found any. It appears clear to us from the wording of § 2.60(a) & (c) that advancement of a prisoner's release date even after a finding of superior program achievement was intended to be left to the Parole Commission's discretion: this is shown by the use of the word "may" in both subparagraphs. Further, we see nothing in the regulations themselves or in their history to indicate that the seriousness of a particular prisoner's offense was intended to be left out of the decision whether to advance the prisoner's release date. The most reasonable reading of the regulations, in light of their history, is that the Parole Commission is to balance the prisoner's achievement against the other factors that enter into the decision whether to release on parole. And it is clear from the history of the regulations that the major factor in deciding whether to release an inmate before the expiration of his sentence is to remain the seriousness of his offense. We think that the regulation permits the Parole Commission to balance the inmate's achievement against the seriousness of his offense and thus to deny advancement of the inmate's release date due to the seriousness of his offense.

It is possible to read the Commission's decision here as finding that petitioner's achievement was not "superior" as defined in § 2.60(b) because of the seriousness of his offense. Such a finding might be questionable, particularly in light of petitioner's excellent record while incarcerated, as the regulation appears to make the finding of achievement or non-achievement turn completely on factors relating to the inmate's participation in programs. However, we think that a more reasonable reading is that the Commission decided that the seriousness of petitioner's offense outweighed the considerations favoring early release. Though the oral decision is not entirely clear on this point, one must remember that it was made, for all practical purposes, off the top of the panel member's head, and thus a lack of syntactical clarity is excusable. The panel's written finding makes the basis for the decision quite clear: "[b]ased on the seriousness of the offense, the panel does not see a reason for a recommendation for earlier release." Rogers Aff., Ex. G at 1-2. It is sufficient for present purposes that the oral decision reasonably may be construed as employing a similar balance. In the circumstances presented here, the Commission did not abuse its discretion in declining to advance petitioner's release date.

Petitioner argues that since the seriousness of a prisoner's offense is one factor used in setting the prisoner's release date initially, there is no rational basis for using the same factor a second time to deny advancement of the release date. The cases petitioner cites in support of the argument that "doubling up" on a single factor is arbitrary, capricious, and irrational, however, are distinguishable from the present case. See Brach v. Nelson, 472 F. Supp. 569, 574 (D.Conn. 1979); United States ex rel. Jacoby v. Arnold, 442 F. Supp. 144, 148-49 (M.D.Pa. 1977); Lupo v. Norton, 371 F. Supp. 156, 162-63 (D.Conn. 1974). In each of those cases what the court considered arbitrary was the use of the seriousness of the offense factor to set the initial guidelines for the length of a prisoner's sentence and then again to deny release after the prisoner had served the time specified in ...

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