Opinion
NO. 02-CV-70505-DT
March 29, 2002
OPINION AND ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Gregory Williams ("Petitioner"), a federal prisoner currently confined at the Federal Detention Center in Milan, Michigan ("Milan"), has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging the United States Parole Commission's ("Commission") decision that he be incarcerated for 20 months due to parole violation conduct. Respondent John Hemingway is the warden at Milan. For the reasons stated below, the petition for a writ of habeas corpus is denied.
I. Facts and Procedural History
Petitioner was originally convicted of stolen mail, forgery, credit card fraud, and mail fraud and sentenced to fours years imprisonment and five years probation by this Court on August 7, 1985. See United States v. Williams, No. 85-CR-80084-DT (E.D. Mich.). On November 20, 1992, Petitioner's probation was revoked and he was sentenced to 10 years imprisonment. Petitioner appealed this revocation and sentence, but the decision was affirmed. See United States v. Williams, 15 F.3d 1356 (6th Cir. 1994). The parole revocation was based on new criminal conduct that resulted in additional fraud convictions. See United States v. Williams, No. 89-CR-800, 15-01-DT (E.D. Mich.). Following his appeal of those additional convictions, Petitioner was re-sentenced to two concurrent terms of 55 months imprisonment for credit card fraud and mail fraud and to a consecutive five-year term for making false statements to his probation officer. Petitioner appealed this decision, but his sentence was affirmed. See United States v. Williams, 1994 WL 702627 (6th Cir. Dec. 15, 1994).
On April 6, 1998, Petitioner was released on parole from his 10-year sentence for the probation violation. While on parole, he was caught participating in a large scale credit card fraud ring in Detroit, Michigan. Petitioner subsequently aided federal authorities in their investigation of the fraud ring. The Commission issued a summons on June 28, 2000, but did not hold the revocation hearing until May 7, 2001. Evidence of Petitioner's fraudulent activities, as well as his cooperation, was presented. On August 1, 2001, the Commission issued a decision revoking Petitioner's parole and continuing him to presumptive parole after the service of 24 months. The Commission assigned Petitioner's parole violation behavior as Category 5 in severity, which resulted in a guideline range of 36-48 months imprisonment. The Commission's decision reflected a downward departure of 12 months below the guideline range based upon Petitioner's "significant medical problem," which Respondent indicates was a phrase used to reflect Petitioner's cooperation with authorities without alerting other inmates to such a fact. Petitioner was returned to custody on August 16, 2001.
Petitioner filed an administrative appeal with the National Appeals Board ("Appeals Board") challenging the Category Five offense severity level, which had been based on Commission's finding that, as a co-conspirator, he was responsible for the entire amount of fraud committed during the conspiracy. Petitioner, with the support of the United States Attorney's Office, convinced the Appeals Board that he was responsible for a lesser monetary loss than the whole of the conspiracy. The National Appeals Board issued a notice of action on September 24, 2001 reducing Petitioner's offense severity level to Category Four, which resulted in a guideline range of 20 to 26 months. The Appeals Board issued a decision continuing Petitioner to presumptive parole after the service of 20 months imprisonment. In reaching this decision, the Appeals Board concluded that Petitioner's cooperation was adequately rewarded by a decision at the lower end of the guideline range, which constituted a four-month reduction in custody from its prior decision. The Appeals Board decided not to implement a downward departure from the new guideline range based upon Petitioner's history of fraud and because he was rewarded for his cooperation with authorities by not being criminally charged for his new criminal conduct. Petitioner's presumptive parole date is April 15, 2003.
Petitioner filed the instant petition on February 7, 2002, asserting that the Commission and the National Appeals Board failed to grant him a 12-month sentence reduction for his cooperation with law enforcement in retaliation for his successful appeal of the initial parole revocation decision and in violation of his constitutional rights. Petitioner claims that his 20-month sentence is illegal and should be vacated and corrected. Respondent filed an answer to the petition on March 14, 2002, asserting that it should be denied for lack of merit.
II. Discussion
A writ of habeas corpus may be granted to a federal prisoner who is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2241(b)(3). Because Petitioner is attacking the execution of his sentence by challenging the computation of his parole, he has properly filed a petition for a writ of habeas corpus in the district court having jurisdiction over his custodian at the time he filed his petition. See 28 U.S.C. § 2241; United States v. Jalili, 925 F.2d 889, 893-94 (6th Cir. 1991).
Generally, judicial review of a parole revocation decision is limited to a determination of whether the Parole Commission abused its discretion. Taylor v. United States Parole Comm'n, 734 F.2d 1152, 1155 (6th Cir. 1984). An abuse of discretion has occurred when the reviewing court has a definite and firm conviction that a clear error of judgment has been made. Id. Essentially, a rational basis for the Parole Commission's decision must exist. Hackett v. United States Parole Comm'n, 851 F.2d 127, 129 (6th Cir. 1987) (per curiam). Credibility determinations and findings of fact made by the Commission are insulated from judicial review. Farkas v. United States, 744 F.2d 37, 38-39 (6th Cir. 1984).
Parole decisions are evaluated under the criteria set forth at 18 U.S.C. § 4206 (1976) and are expressly committed to the Commission's discretion by 18 U.S.C. § 4218(d). Under 28 C.F.R. § 2.62 (2001), the Commission "may consider" providing a reduction of up to one year from the presumptive parole date it would have otherwise granted to reward an inmate for cooperation with law enforcement. The fact that a process exists whereby a cooperating prisoner can be considered for early parole release does not, by itself, create a liberty interest in that early release. See, e.g., Brandon v. District of Columbia Bd. of Parole, 823 F.2d 644, 648-49 (D.C. Cir. 1987). Nonetheless, the Commission may not make a parole decision in violation of a prisoner's constitutional rights. See Wajda v. United States, 64 F.3d 385, 388 (8th Cir. 1995); Wallace v. Christensen, 802 F.2d 1539, 1551-52 (9th Cir. 1986) (en banc); see also Farkas, 744 F.2d at 39.
Petitioner claims that the Commission and the Appeals Board have refused to grant him a 12-month downward departure from the reduced 20-26 month guideline range in retaliation for his successful appeal of his initial revocation decision. The United States Supreme Court has held that due process of law "requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial." North Carolina v. Pearce, 395 U.S. 711, 725 (1969), overruled in part on other grounds by Alabama v. Smith, 490 U.S. 794 (1989). To prevent actual vindictiveness from entering into a sentencing decision, the Supreme Court has fashioned a prophylactic rule which states that "whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear" on the record. Id. at 726. Courts have interpreted this rule to apply "a presumption of vindictiveness, which may be overcome only by objective information in the record justifying the increased sentence." United States v. Goodwin, 457 U.S. 368, 374 (1982). Where there is no reasonable likelihood that the increased sentence is the product of actual vindictiveness on the part of the sentencing authority, however, the burden remains upon the defendant to prove actual vindictiveness in the sentencing decision. Alabama v. Smith, 490 U.S. 794, 799 (1989).
Several courts have extended the Pearce presumption of vindictiveness to encompass parole determinations. See, e.g., Bono v. Benov, 197 F.3d 409, 419 (9th Cir. 1999); Kindred v. Spears, 894 F.2d 1477, 1479 (5th Cir. 1990); Marshall v. Lansing, 839 F.2d 933, 947-48 (3rd Cir. 1988). As the Third Circuit stated in Marshall, supra:
We believe that the logic of Pearce and its progeny applies with equal force to the facts of this case. Just as a sentencing judge might resent a challenge to an underlying conviction which he himself had overseen, so too might the [U.S. Parole] Commission look unkindly upon a successful court challenge to its [decisions], thus supplying a motive for retaliation.Marshall, 839 F.2d at 947.
In this case, however, the presumption of vindictiveness does not apply. No presumption arises when a second sentence is less severe than the first. See United States v. Jackson, 181 F.3d 740, 745 n. 4 (6th Cir. 1999) (noting that in two prior Sixth Circuit cases the defendants received lower sentences at resentencing and "consequently the Pearce presumption of vindictiveness never arose"); accord United States v. Forester, 874 F.2d 983, 984 (5th Cir. 1989). Two cases from the United States Court of Appeals for the Sixth Circuit are illustrative. In Kimberlin v. O.I. White, 7 F.3d 527, 531-32 (6th Cir. 1993), the Sixth Circuit held that vindictiveness would not be presumed where the inmate's initial parole date had been set at 108 months above the Offense Category 8 minimum for a total of 228 months imprisonment, and following a court-ordered remand, the Commission set a new parole date at 116 months above the Offense Category 7 minimum for a total of 180 months imprisonment. Similarly, in Ferrell v. United States, 198 F.3d 245, 1999 WL 1073662, *4 (6th Cir. Nov. 18, 1999) (unpublished), the Sixth Circuit ruled that a vindictiveness would not be presumed where a federal criminal defendant was initially sentenced to 97 months imprisonment on drug charges (the low end of the guidelines) and 60 months imprisonment on a firearm charge (a mandatory term) for a total of 157 months and, following vacation of his firearm conviction, he was resentenced to 151 months on the remaining drug charges (the high end of the guidelines). The Court concluded that the defendant would have to establish actual vindictiveness to warrant relief from the sentencing decision.
The same is true in this case. Petitioner's parole revocation term of 20-months imprisonment, imposed following his successful appeal of the offense severity rating used to calculate his initial guideline range, is four months shorter than the previously-imposed term of 24 months imprisonment. Consequently, the presumption of vindictiveness does not apply.
In the absence of a reasonable likelihood that the sentencing body's decision was the product of vindictiveness, a petitioner bears the burden of proving actual vindictiveness. See Fenner v. United States Parole Com'n, 251 F.3d 782, 789 (9th Cir. 2001) (citing Bono, 197 F.3d at 416). Petitioner has not established actual vindictiveness in the parole revocation decision. The Appeals Board provided "wholly logical" and "nonvindictive" reasons to justify its 20-month term of incarceration and its refusal to grant Petitioner a downward departure from the minimum term of the guideline range. See Fenner, 251 F.3d at 789. The Appeals Board found that a term of incarceration at the low end of the guideline range was sufficient reward for Petitioner's cooperation with law enforcement. The Appeals Board refused to grant Petitioner a downward departure from the new guideline range based upon his history of fraud and because he received a benefit for his cooperation with authorities by not being criminally charged for his new criminal conduct. Petitioner has offered no proof that the Commission or the Appeals Board acted vindictively in rendering its parole revocation decision. Habeas relief is not warranted on such a basis.
III. Conclusion
For the reasons stated, the Court finds that Petitioner has failed to demonstrate that the Commission or the Appeals Board violated his constitutional rights or committed an abuse of discretion in imposing a 20-month term of imprisonment for his probation violation conduct. Accordingly, the Court DENIES the petition for a writ of habeas corpus.
Because a certificate of appealability is not needed to appeal the denial of a habeas petition filed under § 2241, King v. United States, 124 F.3d 198, 1997 WL 580776, *2 (6th Cir. 1997) (unpublished), Petitioner need not apply for one with this Court or with the Sixth Circuit before seeking to appeal this decision.