Unpublished Disposition, 872 F.2d 429 (9th Cir. 1985)

MEMORANDUM^** 

Petitioner, John Norris, appeals the district court's denial of his habeas corpus petition. We have jurisdiction pursuant to 28 U.S.C. § 2253 and review the denial of the petition de novo. Harding v. Lewis, 834 F.2d 853, 856 (9th Cir. 1987), cert. denied. --- U.S. ----, 109 S. Ct. 182 (1988). Because we find Norris' claims moot or otherwise without merit, we affirm.

In 1968 Norris was convicted of bank robbery and sentenced to 15 years in federal custody. About five years later, he was released from prison and paroled. In 1975, while on parole, he was again convicted of bank robbery and sentenced to a prison term of 10 years to run concurrently with the balance of his 1968 sentence. Two months after his new sentencing, the United States Board of Parole (later the United States Parole Commission) ("Commission") formally revoked the parole from his first bank robbery conviction.

In 1979, Norris was reparoled. In 1980 and 1981, he was convicted of three state offenses: drunk driving, third degree theft, and possession of a parking meter key ("the 1980/1981 convictions"). In March of 1981, Norris' parole officer informed the Commission of these convictions, indicating at the same time that he thought Norris was making progress in his mental health counseling, had returned to his old job and was generally a good risk to continue parole. No parole violator warrant was issued, though the Commission, with Norris' acceptance, modified the terms of his parole to expand its counseling requirements.

Nearly two years later, a parole violator warrant was issued alleging the following violations: 1) leaving the jurisdiction without permission; 2) drug use; 3) association with criminals, and 4) possessing an unauthorized firearm. A revocation hearing was held in April 1983, and the panel made findings to the effect that Norris had left the jurisdiction improperly. Norris had not been informed prior to the hearings that the 1980/1981 convictions would be considered by the Commission, and no findings with respect to the convictions were made; nonetheless, the parole board listed the convictions as a consideration supporting its decision. Norris was reincarcerated and forfeited approximately 38 months of street time. He appealed the board's determination to both the regional and national appeals bodies without success.

In December 1983, Norris was again reparoled. Four months later, the Commission issued a new parole violator warrant. After a hearing, the parole board found that Norris had frequented places where drugs were distributed, used drugs himself, refused to follow the drug testing requirements of his parole, been an accessory to a felony and associated with criminals. On August 1, 1984, Norris' parole was revoked and he was ordered imprisoned until the expiration of his sentence.

In December 1984, Norris filed a habeas corpus petition, in part challenging the failure of the parole board to give notice that his 1980/1981 convictions would be examined at the April 1983 revocation hearing. Before formal disposition of the petition, the Commission reopened the case, scheduled a supplemental hearing and gave Norris notice that this time the convictions would be considered as grounds for a potential revocation of parole and forfeiture of street time. On April 23, 1985 the Commission held the supplemental revocation hearing, which affirmed the earlier reincarceration and forfeiture of 38 months of street time.

Norris' habeas corpus petition was subsequently referred to a magistrate who recommended dismissal. The district court adopted the magistrate's recommendation and dismissed the petition. Norris timely appealed.

Prehearing Notice

Norris' first claim challenges the parole board's failure to inform him that his 1980/1981 state convictions would be examined at the April 1983 parole hearing. He correctly relies on United States v. Vanes, 741 F.2d 1197, 1202 (9th Cir. 1984), for the proposition that the minimum incidents of due process which attach at revocation hearings require written notice of the alleged violations of parole which are to be considered at the hearing. See id. at 1199.

It is true that the board did not inform Norris that the state convictions would be raised at his hearing. Furthermore, the board appeared to base its revocation decision partially on the convictions. Norris was thus correct in his assertion that his rights had been violated in this regard. However, the violation entitled him only to a new hearing, conducted after proper notice. Cf. e.g., Grattan v. Sigler, 525 F.2d 329, 331 (9th Cir. 1975) (per curiam) (new parole hearing proper remedy when parolee not advised of reasons for change in offense severity rating); Carlton v. Keohane, 691 F.2d 992, 993 (11th Cir. 1982) (per curiam) (remedy for hearing delay is mandamus to compel prompt hearing). Norris has already received that relief.

The Commission reopened Norris' case upon the original filing of his habeas corpus petition, and afforded him a proper hearing. This action cured whatever violation may have occurred with regard to the April 1983 hearing. Carlton, 691 F.2d at 993 (procedural error "cured by the parole revocation hearing which occurred after proper notice and in accord with constitutional requirements"); see also Wright v. Young, 443 F. Supp. 617, 618-19 (D. Conn. 1977). As Norris has, in receiving a new, properly conducted, hearing, already received the relief to which he is entitled, his first claim became moot prior to the time the district court ruled on it.

Untimely Hearing

Norris next claims that the parole board should not have considered his 1980/1981 convictions at the supplemental hearing, basing his argument on an internal Commission guideline which provides that, "except in unusual cases," warrant applications should allege only those convictions less than one year old. Specific reasons are required for cases designated as "unusual." 1988 Rules & Procedures Manual, United States Parole Commission, Sec. 2.44-03(d). This argument is without merit. The manual itself makes clear that its provisions "are intended only for the guidance of Parole Commission personnel [,] ... do not confer legal rights and are not intended for reliance by private persons." Id. at 4. Indeed, we have held that "the Parole Commission is not bound by [its] internal regulations because they are merely precatory." Coleman v. Perril, 845 F.2d 876, 879 (9th Cir. 1988). The Commission's decision to follow its own guidelines is committed to its sound discretion; "the exercise of that discretion is not reviewable by this court." Id. Accordingly, we find no cognizable violation in the board's reliance on the 1980/1981 convictions in the 1985 hearing.

Prejudice/Estoppel Claims

Norris raises two additional, intertwined challenges to the Commission's use of the 1980/1981 convictions in deciding to revoke his parole. He first argues that he was "prejudiced" by the Commission's failure to consider the convictions promptly, thereby putting him at risk of losing a greater amount of street time when the convictions were finally addressed in 1983. His argument is unpersuasive. First, as noted above, the Commission was not required to consider the convictions within a specified period of time; its failure to do so promptly cannot be said to have worked any unfair (and therefore potentially remediable) prejudice. Second, it appears that the Commission delayed taking any revocation action, even after it had been apprised of the convictions by Norris' parole officer, in order to give Norris the opportunity to remain, and make progress on, the street. We agree with the magistrate's conclusion that it was Norris' own actions subsequent to this decision which ultimately compelled issuance of the parole violator warrant and caused him to lose street time. The timing of the Commission's decision thus cannot be said to have worked any unfair prejudice against him.

Finally, Norris claims that the Commission in some way led him to believe that his 1980/1981 convictions would never be the subject of a revocation proceeding and was therefore estopped from relying on them at the 1983 hearing (and, by extension, the supplemental hearing in 1985). We note that estoppel is applied against the government only in rare cases and then only when the party claiming estoppel can show that the government's actions "threaten 'to work a serious injustice'." Johnson v. Williford, 682 F.2d 868, 871 (9th Cir. 1982), quoting United States v. Lazy FC Ranch, 481 F.2d 985, 989 (9th Cir. 1973). Norris has not demonstrated the existence of an injustice in the timing of the Commission's consideration of his state convictions. The Commission is not barred from considering a parolee's complete and cumulative criminal history at any hearing, assuming proper notice, even if it has examined parts of that history before. 1988 Rules & Procedures Manual, Sec. 2.19. Norris has failed to identify any action of the Commission which might demonstrate that it explicitly waived its right to consider his 1980/1981 convictions at any time or which might otherwise show how the exercise of the Commission's discretion worked a serious injustice on him. Accordingly, and as with Norris' other contentions, we find his estoppel claim to be without merit.

AFFIRMED