Unpublished Disposition, 855 F.2d 864 (9th Cir. 1988)

MEMORANDUM^* 

Wilcox appeals from the dismissal of his petitions for habeas corpus and a writ of mandamus. A warrant to revoke his federal parole was issued because of an intervening criminal conviction in Oregon state court. Wilcox contends that the Parole Commission ("Commission") denied him due process when it did not give him notice of the date of his dispositional review or allow an appearance or representation by counsel. He further claims that the Commission failed to follow the applicable rules when it set his parole revocation hearing for November 1998, five years after his presumptive parole date for release from state prison.

Wilcox filed a petition for habeas corpus, alleging that the Commission's actions deprived him of due process and a liberty interest. He then filed a new petition for review under a writ of mandamus as an alternative to the habeas corpus petition. The district judge affirmed the Commission's decision. We agree.

DISCUSSION

A. Standard of Review.

Federal courts review Commission decisions within a narrow scope. Wallace v. Christiansen, 802 F.2d 1539 (9th Cir. 1986) (en banc). This court may only review whether the Commission has acted outside its statutory authority or has committed a constitutional violation, but we may not review any decision involving the "exercise of judgment among a range of possible choices or options." Wallace, 802 F.2d at 1552. See Coleman v. Perrill, No. 87-2376, slip op. at 5105 (9th Cir. May 3, 1988) We have jurisdiction to review a claim that the parole guidelines or their application violates the Constitution. Wallace, 802 F.2d at 1552. If Wilcox states such a claim, it is reviewable de novo. Vermouth v. Corrothers, 827 F.2d 599, 601 (9th Cir. 1987).

B. Wilcox Failed to Show Prejudice.

The Commission is not bound to follow its own internal rules if the rules are merely statements of policy, organization, or practice which are within the Commission's discretion to set. Coleman, slip op. at 5107. The Commission must follow its own published regulations, and such regulations have the force of law. See Wallace, 802 F.2d at 1552 n. 8; Roberts v. Corrothers, 812 F.2d 1173, 1179 (9th Cir. 1987). Here the dispositional review procedures were publicly promulgated.

Different regulations apply to each of three separate hearing categories: (1) preliminary interviews, 18 U.S.C. § 4214(a) (1) (A); 28 C.F.R. Sec. 2.48; (2) dispositional reviews, 28 C.F.R. Sec. 2.47; and (3) revocation hearings, 28 C.F.R. Secs. 2.49 et. seq. It is this final group of regulations which were amended effective October 1, 1984.

The Commission was not required to grant Wilcox a preliminary interview for which an attorney may be needed. See 28 C.F.R. Sec. 2.48(b). The purpose of a preliminary interview is to notify the parolee of the charges lodged against him that are relevant to a revocation of parole and then to determine whether there exists probable cause to believe that the parolee violated parole. 28 C.F.R. Sec. 2.48(a)-(d) (1987). Wilcox's state conviction constitutes probable cause for purposes of this regulation.

It is not enough for Wilcox to establish that the Commission violated its procedures and regulations in failing to afford him adequate notice or an opportunity to participate in the dispositional review. Wilcox must also establish that the Commission's failure to afford him a voice at the hearing violated his constitutional rights. Myers v. United States Parole Com'n., 813 F.2d 957, 960 (9th Cir. 1987); see Donn v. Baer, 828 F.2d 487, 490 (8th Cir. 1987). Moreover, no constitutional right to a prompt parole revocation hearing exists. Moody v. Daggett, 429 U.S. 78, 86 (1976). A federal prisoner or parolee has no constitutional right to a prompt revocation hearing because the Commission has virtually complete discretion over the institution of revocation proceedings and over the issuance of a parole revocation warrant. Baer, 828 F.2d at 489; see also 18 U.S.C. § 4213(b).

Thus, Wilcox must prove prejudice or bad faith to be entitled to habeas relief. Heath v. United States Parole Com'n., 788 F.2d 85, 89-90 (2d Cir. 1986); Hopper v. United States Parole Com'n., 702 F.2d 842 (9th Cir. 1983). Not only must Wilcox prove that the delay was prejudicial, he must also "demonstrate that he was prejudiced by the delay between the time the warrant was issued and the time of his conviction on the state charge; at that time [Wilcox's] conviction constituted probable cause for the purposes of a preliminary hearing, and the USPC had express authority to place the detainer." Hopper, 702 F.2d at 847. Because the Commission could have allowed the detainer to stand following a timely dispositional review, the time lag in conducting a review of the detainer is not prejudicial. See Heath, 788 F.2d at 90; 18 U.S.C. § 4214(b) (3) (A); 28 C.F.R. Sec. 2.47(b) (1). Thus, Wilcox did not show that the delay between the time that the first detainer issued and the time at which he was convicted of the intervening state crime and when the second detainer issued created any prejudice. See Hopper, 702 F.2d at 847.

C. The Commission Correctly Set Petitioner's Revocation Hearing.

Wilcox argues that the Commission's use of the new amended parole revocation hearing guidelines was improper. The contention that the Commission incorrectly applied the guideline range for murder rather than attempted murder is without merit. The Offense Behavior Severity Index directs the Commission to " [g]rade attempt in the same category as the offense attempted." 28 C.F.R. Sec. 2.20, Chap. 1, section 102 (1987). Because the Commission followed its guidelines regarding determinations committed to its discretion, this court lacks jurisdiction to review the Commission's decision as to the proper guideline range. Wallace, 802 F.2d at 1552.

The Commission is under no duty to afford the parolee a revocation hearing until the parolee is released from his intervening state sentence and taken into federal custody by execution of the warrant placed against him. See Spotted Bear v. McCall, 648 F.2d 546, 547 (9th Cir. 1980). Wilcox does not allege that the delay prejudiced his ability to conduct his state court defense. See Vermouth, 827 F.2d at 602. Wilcox alleges no bad faith on the Commission's part in its failure to set the dispositional review before the October 1st date.

Additionally, the amended guidelines themselves provide that Wilcox will receive a revocation hearing upon return to a federal institution if that event occurs before his scheduled 1998 hearing. See 28 C.F.R. Sec. 2.47(b) (1) (A). Thus, if he is indeed paroled in 1993, Wilcox can petition at that time for a writ of mandamus to compel the Commission to hold a revocation hearing earlier than 1998. Therefore, the Commission's decision to apply the amended guidelines to Wilcox violated neither his due process rights nor his liberty interests, because the Commission agrees that, should he be paroled on the state sentence, a revocation hearing will be held upon his return to federal custody.

For the reasons explained above, we AFFIRM.