United States of America Ex Rel. Robert Graham, Petitioner-appellant, v. the United States Parole Commission, Respondent-appellee, 629 F.2d 1040 (5th Cir. 1980)

In September 1973, petitioner Robert Graham was convicted of bank robbery and assault and sentenced to fifteen years in prison under 18 U.S.C. § 4208(a) (2) (1970) (current version at id. § 4205(b) (2) (1976)). He received an initial parole hearing in December 1974, at which time parole was denied and a review hearing scheduled for December 1977, pursuant to regulations then in effect requiring that prisoners be considered for parole at least once every three years. 28 C.F.R. § 2.14 (1974).¹ 

In 1976, Congress passed the Parole Commission and Reorganization Act of 1976, 18 U.S.C. § 4201 et seq. ("PCRA"), which required, inter alia, parole hearings to be held at least once every two years for prisoners with sentences of seven years or more. Id. § 4208(h) (2).²  Accordingly, the parole regulations were modified to provide for an interim hearing every two years "to consider any significant developments or changes in the prisoner's status that may have occurred subsequent to the initial hearing," 28 C.F.R. § 2.14 (1978),³  as well as a "full reassessment of the (prisoner's) case" at four-year intervals. Id. § 2.14(c) (1978).⁴ 

In December 1977, Graham received his scheduled parole hearing. The Parole Commission again denied him parole and slated him for an interim parole hearing in December 1979 and for a full four-year reconsideration in December 1981, as required by the recently promulgated parole regulations.⁵  See nn. 3 & 4, supra.

After exhausting his administrative remedies, Graham filed a pro se petition for habeas corpus pursuant to 28 U.S.C. § 2241 and for mandamus pursuant to 28 U.S.C. § 1361, alleging (1) that the interim hearing for which he was scheduled in December 1979 is a limited hearing that does not meet the statutory requirements of 18 U.S.C. § 4208(h) (2), see n.2, supra, and (2) that retroactive application of the parole regulations set out in 28 C.F.R. § 2.14 (1978) violates the ex post facto clause of the United States Constitution.⁶  On the recommendation of the United States Magistrate, the district court dismissed the petition. Graham appeals this dismissal, asserting the same two grounds.⁷ 

Although Graham cannot prevail on his statutory claim, he has persuaded us that a remand to the district court is in order for further findings on his ex post facto claim.

Graham is foreclosed from arguing that the amended parole regulations do not comport with the statutory requirements of 18 U.S.C. § 4208(h) (2) by our recent decision in United States ex rel. Metro v. United States Parole Commission, 613 F.2d 117 (5th Cir. 1980) (per curiam). In Metro we rejected an argument identical to the one advanced here:The requirement of 18 U.S.C. § 4208(h) (2) is simply that "subsequent parole determination proceedings" be held every two years. The statute does not require a full-scale hearing every two years. To the contrary, the legislative history clearly demonstrates that Congress intended the subsequent biennial parole hearings to have a scope and purpose precisely as provided by the regulations ....

Id. at 119. Petitioner's counsel at oral argument conceded that Metro controls on this question but argued that Metro was wrongly decided. Even if it were, we are nevertheless bound by our previous decision, which can only be overruled en banc. See United States v. Lewis, 475 F.2d 571, 574 (5th Cir. 1973).

The issue of whether the revised parole regulations promulgated under the PCRA can be applied retroactively to prisoners sentenced before the date of the PCRA, however, was not explicitly considered in Metro.⁸  Although changes in the statute or the regulations that are procedural or remedial in nature apply retroactively, see, e. g., United States v. Vanella, 619 F.2d 384, 386 (5th Cir. 1980), "official po(s)t-sentence action that delays eligibility for supervised release runs afoul of the ex post facto proscription." Shepard v. Taylor, 556 F.2d 648, 654 (2nd Cir. 1977). See also Warden v. Marrero, 417 U.S. 653, 663, 94 S. Ct. 2532, 2538, 41 L. Ed. 2d 383 (1974) ("a repealer of parole eligibility previously available to imprisoned offenders would clearly present (a) serious question under the ex post facto clause of .... the Constitution."). Put another way, if the PCRA or the regulations promulgated thereunder effectuate only a procedural change in the manner in which the Parole Commission determines a prisoner's eligibility for parole, then the statute and the regulations may be applied retroactively; however, if the statute or the regulations affect a prisoner's substantive right to parole eligibility, neither can be so applied retroactively without violating the ex post facto clause.

What troubles us is not the abbreviated nature of an interim hearing under the amended regulations,⁹  but the remedy available to the Parole Commission after it holds an interim hearing. Under the amended regulations, after an interim hearing, "a presumptive release date or the date of a four-year reconsideration hearing shall not be advanced except under clearly exceptional circumstances." 28 C.F.R. § 2.14(a) (3) (ii) (1978) (emphasis added). Under the regulations in effect at the time Graham was sentenced, he was eligible for parole review every three years, and the Parole Commission was free to act even in the absence of "clearly exceptional circumstances." Undoubtedly, the "clearly exceptional circumstances" test of the amended regulations circumscribes the Commission's ability to advance a presumptive release date. However, in the absence of any guidance in the regulations as to what circumstances might be "clearly exceptional," and without any evidence in the record as to what meaning the Parole Commission imparts to the term "clearly exceptional circumstances," we are unable to determine whether a prisoner's parole eligibility is in fact significantly restricted by the amended regulations.¹⁰  We therefore remand this case to the district court so that it may determine whether Graham's eligibility for parole is substantially diminished or eliminated by the "clearly exceptional circumstances" standard.

REVERSED and REMANDED.