Unpublished Disposition, 879 F.2d 865 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 879 F.2d 865 (9th Cir. 1989)

Salud ARELLANO, Plaintiff-Appellant,v.UNITED STATES BUREAU OF PRISONS, Defendant-Appellee.

No. 88-1597.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 8, 1989.Decided July 13, 1989.

Before TANG, CANBY and O'SCANNLAIN, Circuit Judges.


MEMORANDUM* 

Salud Arellano, a federal prisoner, appeals the district court's denial of her 28 U.S.C. § 2241 petition for federal habeas relief. Arellano contends that her due process rights were violated because federal prison officials and parole agencies delayed the scheduling of her initial parole hearing until a date after which changed parole guidelines became effective. Specifically, Arellano contends that prison officials failed to notify her attorney of the correct initial parole hearing date. As a result, her attorney was not present when she was called to appear before the Parole Commission's hearing examiners. Arellano declined to attend the hearing, preferring to await a future hearing with a parole representative. She maintains that the delay cost her a presumption of release of between one-half and one-third of what she actually received because of the adoption of new, more stringent guidelines after the initial parole hearing date. The judgment is affirmed.

A district court's denial of a 28 U.S.C. § 2241 habeas corpus petition is reviewed de novo. Vermouth v. Corrothers, 827 F.2d 599, 601 (9th Cir. 1987). Claims that the Parole Commission's guidelines violated the Constitution are likewise reviewable de novo. Wallace v. Christensen, 802 F.2d 1539, 1552 (9th Cir. 1986) (en banc).

We need not decide here what if any liberty interest the federal parole statute creates if petitioner received all the process she would be due under Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 (1979). See Roberts v. Corrothers, 812 F.2d 1173, 1179 (9th Cir. 1987). Due process here requires no more than an opportunity to be heard and notification of the parole board's reasons for denial of parole. Reynolds v. McCall, 701 F.2d 810, 812 (9th Cir. 1983). Here, Arellano was provided both an opportunity to be heard and the reasons for the Commission's decision. She therefore received all the process to which she was due under Greenholtz. Id.

The failure to notify Arellano's lawyer of the initial parole hearing date did not deprive her of due process. Although prisoners are permitted to have representatives at initial parole hearings pursuant to 28 C.F.R. Sec. 2.13(b), Arellano does not contend, nor does it appear, that this permission translates into a right to have prison officials inform attorneys about hearing dates. Although there were arguably administrative mistakes in scheduling the hearing dates and notifying Arellano's attorney, these were not the fault of the Commission. Moreover, the regulations do not require prisoners to have parole representatives. Thus, Arellano could have opted to go before the Commission without counsel in July, before the new guidelines went into effect, but she declined to do so.

Finally, in order to show a constitutional claim one must show that the delay in scheduling the parole hearing was both unreasonable and prejudicial. See Hopper v. U.S. Parole Commission, 702 F.2d 842, 845 (9th Cir. 1983) (scheduling of parole revocation hearing). This Arellano cannot do. First, the district court concluded that the delay in holding a new initial parole hearing was "reasonable." Arellano does not contend that this factual determination was clearly erroneous. Additionally, Arellano cannot demonstrate prejudice because under either set of guidelines, the Commission had the discretion to go outside the customary range. 28 C.F.R. Sec. 2.20(c) and (d). Indeed, it does not matter what guidelines were employed because Arellano must serve until the expiration of her time. It is thus speculative whether the Commission would have exercised its discretion any differently had the old guidelines been applied. Therefore, the Commission's decision to use the new guidelines was not so arbitrary or capricious as to violate due process. See Walker v. United States, 816 F.2d 1313, 1316 (9th Cir. 1987); Wallace, 802 F.2d at 1551.

AFFIRMED.

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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3