United States of America Ex Rel. Alex Metro, Petitioner-appellant, v. United States Parole Commission, Respondent-appellee, 613 F.2d 117 (5th Cir. 1978)

After exhausting his administrative remedies, appellant, Alex Metro, 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. Metro seeks to require the Parole Commission to conduct a "meaningful" parole reconsideration hearing in 1980 rather than in 1982. The District Court dismissed appellant's petition on the recommendation of the United States Magistrate. For the reasons below, we affirm.

Appellant Metro, a federal prisoner at the United States Penitentiary in Atlanta, Georgia, is serving a 20-year sentence imposed in early 1972 for his involvement in a large-scale drug conspiracy. Metro received a Parole Commission hearing in April, 1978, following completion of one-third of his sentence. He was referred to the Atlanta Regional Commission for its consideration and on May 11, 1978, the Atlanta Regional Review Panel denied parole and scheduled appellant Metro for a four-year reconsideration hearing pursuant to 28 C.F.R. § 2.14(c) (1978)¹  in April, 1982, and a statutory interim hearing pursuant to 28 C.F.R. § 2.14(a) (1978)²  in April, 1980.

Metro argues that the parole hearings presently scheduled for him, as above set out, do not meet the statutory requirement under 18 U.S.C. § 4208(h) (2), which provides:

"(h) In any case in which release on parole is not granted, subsequent parole determination proceedings shall be held not less frequently than:

(2) twenty-four months in the case of a prisoner with a term or terms of seven years or longer."

Metro apparently contends that § 4208(h) (2) requires a full parole hearing every two years, and that the interim hearing for which he is scheduled in April, 1980, is a limited hearing³  which does not meet the statutory requirement.

The precise posture appropriate for our consideration of Metro's contention has been changed by a 1979 amendment to the Parole Commission regulations.⁴  Under the amended regulations, Metro's hearing already scheduled for 1980 will be converted into the full-scale hearing which was not originally scheduled until 1982.⁵  Under current regulations, Metro will receive in 1980 the full-scale parole hearing which he desires, and will receive an interim hearing in 1982, and every 24 months thereafter until released.

In this changed context, we hold that Metro has no meritorious complaint with respect to the hearing scheduled for 1980, which will be the full-scale hearing he apparently desires. Considering his complaint that the interim hearings scheduled for 1982, and every two years thereafter, will be limited hearings, as opposed to full-scale hearings, we find no merit in this contention. 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:

"It is the intent of the Conferees that all of the items which bear upon the parole decision are considered at the initial determination proceeding, but that the subsequent proceedings required by this section (4208) focus upon those items which have changed, or which may have changed, in the intervening time." Joint Explanatory Statement of the Committee of Conference, House Conf.Rep.No. 94-838, 94th Cong., 2d Sess., Reprinted in (1976) U.S.Code Cong. & Admin.News, pp. 351, 363.

The judgment of the District Court is accordingly

AFFIRMED.