Unpublished Disposition, 846 F.2d 1382 (9th Cir. 1991)

MEMORANDUM^** 

Edward R. Jones, a federal prisoner, appeals the denial of his 28 U.S.C. § 2241 petition for federal habeas corpus relief and his petition for mandamus against the United States Parole Commission (the "Commission"). Jones contends that the Commission violated his due process rights by denying him a timely initial parole hearing and, once his hearing was held, by applying the wrong guidelines. Jones also contends that the Commission denied him due process when it failed to appraise him of particular evidence it had relied upon when it raised his presumptive parole eligibility date.

For purposes of this appeal, we will assume, without deciding, that Jones was denied an initial parole hearing to which he was entitled in 1979, 18 U.S.C. §§ 4205, 4208 (1976); 28 C.F.R. Sec. 2.12(a), and that he has exhausted his available administrative remedies. See Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir. 1983). Having made these assumptions, we consider whether the Commission should have applied the 1979 guidelines.

FACTS

In 1975, Jones began serving his initial incarceration period for interstate transport of stolen property and a weapons charge. Jones received additional sentences for several crimes committed between July 11, 1975 and November 12, 1975, including escape, attempted escape, assault and theft of governmental property. In 1979, Jones also pleaded guilty to an escape which occurred in 1977, and for passing counterfeit currency. Jones was sentenced to an additional five years for this new criminal behavior. As a result, Jones began serving his sentence in its present form in 1979 (an aggregate of 34 years).

Between 1979 and 1984, when Jones received his initial parole hearing, the Commission revised the parole guidelines. Specifically, the Commission changed the way escapes and escape-related offenses would be rated. At Jones' initial parole hearing the panel recommended a presumptive parole eligibility date of July 20, 1985, 38 months below the guidelines (142-200 months). Jones' presumptive parole date was subsequently recalculated by the National Commissioner to April 26, 1991, 80 months above the panel's recommendation (208-272 months). This occurred as a result of recalculating Jones' offense severity rating and the National Commissioner's finding that Jones had participated in a hotel burglary while on escape. Jones appealed to the National Appeals Board which affirmed the decision below on January 25, 1985.

Jones filed his 28 U.S.C. § 2241 and mandamus petitions while a federal prisoner confined at the Federal Correctional Institution in Phoenix, Arizona. In addition to his allegations that the Commission violated his due process rights by failing to give him a required initial parole hearing in 1979, and by failing to apply the 1979 guidelines when his hearing was held in 1984, Jones also alleged that the Commission erroneously relied on his alleged hotel burglary in recalculating his presumptive parole date and that the Commission also miscalculated his offense severity rating and salient factor score.

ANALYSIS

This court reviews de novo the district court's denial of a 28 U.S.C. § 2241 habeas corpus petition. Roberts v. Corrothers, 812 F.2d 1173, 1178 (9th Cir. 1987). The scope of the court's review of parole decisions, however, is "exceedingly narrow." Walker v. United States, 816 F.2d 1313, 1316 (9th Cir. 1987) (citing Wallace v. Christensen, 802 F.2d 1539, 1552 (9th Cir. 1986) (en banc)). "Judgments involving a broad range of factors that the Commission takes into account in arriving at its decision are committed to the Commission's discretion and are unreviewable even for abuse of discretion." Id. A decision of a non-discretionary matter, such as failure to follow certain statutory requirements, is reviewable. Id. Similarly, the court "may consider constitutional challenges and determine whether the Commission's action was so arbitrary as to violate due process." Id.

Because the scope of judicial review of the Commission's parole decision is exceedingly narrow, see Walker v. United States, 8168 F.2d 1313, 1316 (9th Cir. 1987), this court may only reverse the Commission's decision to use the 1984 guidelines if the Commission failed to follow certain statutory requirements and acted arbitrarily, irrationally, unreasonably or capriciously or if the Commission's action violated the Constitution. Id. (citing Wallace v. Christensen, 802 F.2d 1539, 1551-1552 (9th Cir. 1986) (en banc)); see also Bowen v. United States Parole Commission, 805 F.2d 885, 888 (9th Cir. 1986).

Jones argues that the Commission should have used the 1979 guidelines. As applied to Jones, the difference between the 1979 and 1984 guidelines is the more severe treatment afforded escapes and escape-related offenses under the later guidelines. The record indicates that the Commission relied on Jones' escapes or escape-related offenses in recalculating his presumptive parole date.¹  Nevertheless, Jones does not show that he would have received a more favorable decision under the 1979 guidelines. Under either of the guidelines, the Commission had the discretion to go outside the guidelines (either above or below). See 28 C.F.R. Sec. 2.20(c) (d). It is speculative whether the Commission would have exercised its discretion any differently had the 1979 guidelines been applied. Therefore, although the 1984 guidelines allowed the Commission to give harsher treatment to escapes and escape-related offenses, the Commission's decision to use those guidelines was not so arbitrary or capricious as to violate due process. See Walker, 816 F.2d at 1316; Wallace, 802 F.2d at 1551; Bowen, 805 F.2d 888.

III. Failure to Notify Jones of Information Used in Recalculating His Presumptive Parole Date

Jones contends that the Commission violated due process by failing to appraise him of certain information on which the Commission relied in recalculating his presumptive parole date. This contention lacks merit.

The Commission need not give a prisoner advance notice of the factors that may be considered at a parole hearing. See Greenholtz v. Inmates of Nebraska, 442 U.S. 1, 15 (1978); Bowles v. Tennant, 613 F.2d 776, 779 (9th Cir. 1980). Similarly, the Commission need not notify the prisoner of the specific grounds upon which the Commission intends to rely. See Izsack v. Sigler, 604 F.2d 1205, 1207 n. 4 (9th Cir. 1979). Nevertheless, Commission statutes and regulations require that at least 30 days prior to any parole determination, the Commission must provide the prisoner with "reasonable access to a report or other document to be used by the Commission in making its determination." 18 U.S.C. § 4208(b) (c); 28 C.F.R. Sec. 2.19(c).

Jones argues that the Commission raised his guidelines range without giving him notice and an opportunity to be heard on allegations that he burglarized a hotel and that he had taken in excess of $500,000 in jewelry. Specifically, the Commission raised Jones' presumptive parole date by a range of 24-28 months based on a 1979 burglary for which Jones alleges he was never formally charged or convicted. In addition, the Commission placed a higher value upon stolen jewelry that Jones possessed after the 1975 robbery in Florida. These charges raised Jones' offense severity rating to Category Six and increased his guideline range by 32-52 months. See C.F.R. Sec. 2.20. After his initial hearing, but before he exhausted his administrative appeals, Jones received the Notice of Action disclosing the offenses considered by the Commission and explaining how the guidelines were recalculated.

Jones argues that, under Anderson v. United States Parole Commission, 793 F.2d 1136 (9th Cir. 1986), he was entitled to notice of these allegations before the hearing. In Anderson, this court found the Commission's failure to make a presentence investigation report reasonably available to the prisoner prior to his parole hearing violated the prisoner's statutory rights under 218 U.S.C. § 4208(b) (2). Id. at 1137.² 

Unlike Anderson, however, Jones received reasonable access to his presentence report prior to his initial hearing. The report contained information concerning the burglary and robbery allegations. Jones should have been put on notice of the particular information contained in this report. Hence, Jones had reasonable access to the same information that the Commission relied upon in recalculating his presumptive parole date, and also had the opportunity to challenge the Commission's actions on administrative appeal. Accordingly, the district court did not err in determining that the Commission did not deprive Jones of his due process right to receive this information. See Anderson, 739 F.2d at 1136.³ 

CONCLUSION

The district court's judgment denying Jones' petition for habeas corpus relief and for mandamus is AFFIRMED.