Unpublished Disposition, 863 F.2d 886 (9th Cir. 1988)Annotate this Case
Alfred L. CAMERON, Petitioner-Appellant,v.UNITED STATES ATTORNEY GENERAL'S OFFICE and United StatesParole Commission's Office, Respondents-Appellees.
United States Court of Appeals, Ninth Circuit.
Submitted Nov. 3, 1988.Decided Nov. 21, 1988.
Before JAMES R. BROWNING, TANG and FARRIS, Circuit Judges.
Alfred L. Cameron appeals the district court's order dismissing his petition for habeas corpus relief. Cameron contends that the United States Parole Commission violated the ex post facto clause of the Constitution by changing the time at which his revocation hearing was to be held. Cameron also contends that the Parole Commission's change in the timing of his revocation hearing violated the due process clause. Finally, Cameron claims he should be discharged from parole because the Commission violated its own rules by failing to provide him with counsel at a dispositional review.
We review the district court's denial of a petition for habeas corpus relief de novo. Roberts v. Corrothers, 812 F.2d 1173, 1178 (9th Cir. 1987). Questions of law are also reviewed de novo. See United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.), cert. denied, 469 U.S. 824 (1984).
"Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed" violates the ex post facto clause. Wallace v. Christensen, 802 F.2d 1539 (9th Cir. 1986) (en banc) . The Parole Commission applied guidelines, not laws, when it changed the time of Cameron's revocation hearing. We have repeatedly held that the U.S. Parole Commission's Guidelines are not "laws" for the purposes of ex post facto analysis. See id. at 1553 (citing cases). The guidelines "are merely procedural guideposts without the characteristics of laws." Rifai v. United States Parole Commission, 586 F.2d 695, 698 (9th Cir. 1978) (footnote omitted).
Cameron's reliance on Miller v. Florida, 107 S. Ct. 2446 (1987) is misplaced. Miller involved Florida legislation which created strict standards which had to be met before a judge could depart from presumptive sentencing ranges. The Miller Court distinguished cases such as Wallace which have held retrospective application of Parole Commission Guidelines not to violate the ex post facto clause. Id. at 2453. We recently reaffirmed Wallace, rejecting an argument that Miller casts doubt on the Ninth Circuit's en banc holding in Wallace that the Parole Commission's Guidelines do not implicate the ex post facto clause. Vermouth v. Corrothers, 827 F.2d 599, 604 (9th Cir. 1987).
Cameron claims that the Parole Commission violated his due process rights by informing him that one regulation would be applied and then applying a different regulation it later promulgated. Cameron does not, however, have a property or liberty interest in continued application of any particular procedure. In Vermouth v. Corrothers, we pointed out that "a prisoner has no basis to expect parole guidelines to remain constant." 827 F.2d at 602. Cameron argues that because he was informed of current guidelines, he became entitled to have those guidelines remain constant. We reject the argument.
Cameron contends that because the Parole Commission violated its own regulations by failing to provide counsel at his first dispositional hearing, he should be discharged from parole. The proper remedy, however, in the absence of a showing of prejudice, would be to require another hearing. Berg v. United States Parole Commission, 736 F.2d 378, 379 n. 3 (9th Cir. 1984). Because the Commission has already agreed to provide another dispositional hearing with counsel, nothing further is required. The district court properly found the request for such relief to be moot.
The Parole Commission's retrospective application of its guidelines did not violate the ex post facto clause or the due process clause of the Constitution. Because Cameron was not given counsel at his dispositional review, he is entitled to what the commission has already agreed to give him: a new dispositional review. He is not entitled to be discharged from parole.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3