Opinion
No. C-02-5562 SC.
March 11, 2003
ORDER RE: PETITIONER'S PETITION FOR WRIT OF HABEAS CORPUS and WRIT OF MANDAMUS
I. INTRODUCTION
Arguing that the Parole Commission improperly delayed his termination hearing and then incarcerated him on the basis of parole violations that occurred after his parole supervision should have been terminated, petitioner Jon Perroton ("Petitioner") seeks a writ of habeas corpus. Alternatively, he asks for a writ of mandamus ordering the Parole Commission to grant him a hearing at which only information known to :he Commission in September of 2001, when his supervision termination hearing should have occurred, would be considered. For one following reasons, the Court holds that Petitioner is not entitled to either writ.
II. BACKGROUND
In 1985, this Court sentenced Petitioner to twenty years on prison for bank fraud, bank larceny, and interstate transportation of money taken by fraud. In September 1996, Petitioner was released from prison and placed under parole supervision.
Five years after a parolee's release from prison, the Parole Commission is required to hold a hearing to determine whether parole supervision should be terminated. 18 U.S.C. § 4211(c)(1). Five years elapsed in September, 2001, but the Parole Commission did not schedule Petitioner's hearing until October, 2002. At Petitioner's request, the hearing was stayed until December of 2002.
By the time the Commission held the hearing, it had learned of numerous potential parole violations by Petitioner. In 1998, Petitioner failed to file an income tax return. In 1999, he was convicted of contracting without a license. In 2000, he pled guilty to soliciting an act of prostitution; that plea lacer was set aside and replaced with a misdemeanor conviction for disturbing the peace. Petitioner was involved in a series of business deals that led to allegations of fraud, extortion, forgery, and threats. In the period after September of 2001, Petitioner also failed to submit parole supervision reports and failed several times to report to his supervising officer.
In September, 2001, when Petitioner's termination hearing should have taken place, the Parole Commission did not know of all of this activity. The Commission was aware of the conviction for contracting without a license and of the misdemeanor conviction for disturbing the peace, but Petitioner's probation officer had not yet reported Petitioner's failure to file an income tax return or the allegations of fraud, forgery, threats, and extortion. The failures to submit reports or to report to his probation officer had not yet occurred.
Because of all of these actual or alleged violations, the Commission held Petitioner's termination hearing in conjunction with a hearing at which it revoked his parole. The Commission briefly noted that it would not terminate Petitioner's supervision, citing the 1999 conviction for contracting without a license as sufficient reason to extend supervision. Coleman Decl. Exh. W at 11. As a result of that hearing, Petitioner is now incarcerated.
III. LEGAL STANDARD
This Court has very little authority to review the basis for the Parole Commission's decisions. Walker v. United States, 816 F.2d 1313, 1316 (9th Cir. 1987). It does, however, have the authority to review whether the Commission acted unconstitutionally or outside its statutory authority.Rizzo v. Armstrong, 921 F.2d 855, 858 (9th Cir. 1990); Marquez-Perez v. Rardin, 221 F.3d 1139, 1142 (9th Cir. 2000)
The Parole Commission clearly was required to hold a termination hearing five years after the date of Petitioner's release. 18 U.S.C. § 4211(c)(1). The proper remedy for failure to provide such a hearing, however, normally is a writ of mandamus ordering the Parole Commission to provide a hearing. Benny v. U.S. Parole Comm'n, 295 F.3d 977, 989 (9th Cir. 2002); Tatum v. Christensen, 786 F.2d 959, 963 (9th Cir. 1986), overruled on other grounds by Wallace v. Christensen, 802 F.2d 1539, 1554 n. 10 (9th Cir. 1986). Immediate termination of supervision generally is not appropriate, although the Ninth Circuit has suggested that habeas relief might be proper if the petitioner's custody is causally related to the delay in providing a termination hearing. Id. ("We do not hold that a habeas petition is never the proper avenue to seek a new parole hearing, even though the Commission may decide upon holding such a hearing to deny or revoke parole . . . Habeas relief was proper in those cases (citing Benitez v. United States Parole Comm'n, 595 F.2d 518 (9th Cir. 1979) and John v. United States Parole Comm'n, 122 F.3d 1278 (9th Cir. 1997)) because, unlike Benny, the petitioners demonstrated the necessary causal link between improper action by the Commission and the fact or duration of their custody."). If no such causal connection exists, however, the sole proper remedy is a writ of mandamus ordering that the hearing take place.
At the hearing, the Parole Commission has broad discretion to consider available information. 18 U.S.C. § 4207; see also Robbins v. Thomas, 592 F.2d 546, 548-49 (9th Cir. 1979) ("Congress intended the Parole Commission to use any information it considered relevant in determining whether a parolee is likely to violate the law, including events occurring both before and after the initial five-year parole period."). The Commission will extend supervision if it finds a likelihood that the parolee will engage in further criminal activity. 18 U.S.C. § 4211(c)(1)
IV. DISCUSSION
Petitioner contends that if the hearing had been held in 2001, as required by law, the Commission would only have considered his conviction for contracting without a license and his conviction for disturbing the peace, and would have found these insufficient reason to continue his supervision. By unlawfully failing to provide him with a timely hearing, Petitioner argues, the Commission delayed his release from supervision until it accumulated sufficient information to not only maintain supervision but actually to re-incarcerate him. Petitioner thus argues that his current incarceration is the direct result of the Commission's unlawful delay, and that he should be released or, in the alternative, given a hearing a: which the Commission would consider only the information possessed in September of 2001.
The Commission agrees that it unlawfully delayed granting Petitioner's termination hearing. It argues, however, than the proper remedy for such delay is a writ of mandamus ordering the hearing, not a release, and that since Petitioner has already received such a hearing his claim is moot. The Court agrees with the Commission, finding first that habeas relief is not proper in this case and second that Petitioner has already received all the relief he may demand.
A. Habeas Relief
Habeas relief for failure to conduct a timely hear appropriate only if the petitioner's custody is causally related to the delay in holding the hearing. Benny, 295 F.3d at 988-89. Petitioner argues that his current incarceration is the result of the Commission's unlawful delay; the Court disagrees.
The Commission did indeed learn of legal violations Z:i ether potentially troubling behavior after September of 2001, but even prior to that date it was aware of unlawful activity by petitioner. In its decision to extend termination, it scecifically relied solely on the conviction for contracting without a license, a conviction of which it was aware prior to September 2001. Thus, petitioner's argument that had the hearing been timely the result would have been different is unsupported by the actual record; had the hearing been held in 2001, the result apparently still would have been continued supervision. Through such supervision, the Commission still would have learned of the violations that led to Petitioner's current incarceration. Accordingly, a habeas writ is not a proper remedy.
The implication of Petitioner's argument is that the Commission probably relied on other bases for its supervision decision even if it only cited one of the pre-2001 violations. This may be plausible, but this Court, which has little authority to review the criteria used by the parole commission in making its parole decisions, will not second-guess the basis for the Commission's decision. The Commission has cited a reason for its decision and that reason supplied a sufficient legal basis for the choice it made. 18 U.S.C. § 4211(c)(1) allows the Commission to extend supervision on the basis of any likelihood of future criminal conduct, and petitioner's action, although perhaps not of the same criminal magnitude as the fraud that led to his original sentence, was clearly in violation of the law. Accordingly, the Court will not speculate abouc hidden causes lurking behind the Commission's decision, and instead takes that decision at face value.
Petitioner notes that in August, 2001, the Commission reviewed Petitioner's file, apparently in preparation for a hearing, and did not cite this violation as a reason. On the basis of this preparatory report, Petitioner argues that if the hearing had been held in September 2001 his supervision would have been terminated. This argument is flawed for two reasons. First, the report actually recommended, albeit for reasons Petitioner believes he could have explained away, that supervision be extended. Second, and more importantly, the report was just a preliminary recommendation, and provides no certain indication of what actually would have happened at the hearing.
B. Writ of Mandamus
For similar reasons, the Court declines to order a writ of mandamus. Petitioner claims that he should be granted another hearing at which the Commission considers only information it obtained prior to September 2001. This argument is premised upon Petitioner's assertion that the Commission relied upon information obtained after that date in deciding to extend supervision. If the Commission simply provided in 2002 the hearing it was required to provide in 2001, its delay was in violation of the law but the proper remedy already has been obtained. The factual record provides no indication that the later-learned information provided the basis for the decision to extend supervision, however, for the Commission, as noted above, cited only the conviction for contracting without a license as a reason for extending supervision.
Additionally, the Court does not find that consideration of such later-obtained information, if it took place, was outside the Commission's discretion. The Commission enjoys broad discretion to consider relevant information during termination hearings, including information obtained after the five year period. Robbins, 592 F.2d at 548-49. Petitioner notes that Robbins did not involve a challenge to the Commission's unlawful delay in providing a hearing, but the underlying legal principle — that the Commission should make its decisions based on relevant information regardless of when that information is obtained — is entirely applicable to Petitioner's case. The Court will not require the Commission to ignore relevant information about Petitioner's conduct during his supervision period simply because Petitioner did not inform the Commission of such activity and the Commission did not otherwise learn of it until after five years had elapsed.
In Robbins, the Parole Commission held a somewhat late termination hearing and decided to terminate supervision. It then sought to reverse that decision based on the parolee's conduct after the hearing but before parole was actually terminated.
V. CONCLUSION
Petitioner's requests for writs of habeas corpus and mandamus are DENIED.
JUDGMENT
Pursuant to the Court's Order Re: Petitioner's Petition for Writ of Habeas Corpus and Writ of Mandamus signed today, this action is dismissed.
IT IS SO ORDERED AND ADJUDGED.