guidelines "calculated to have a substantial effect on ultimate parole decisions" are not exempt from rulemaking under the APA. Pickus v. United States Board of Parole, 165 U.S. App. D.C. 284, 507 F.2d 1107, 1112-13 (D.C. Cir. 1974). Further, the legislative history of the Parole Act recognizes that parole guidelines are subject to the APA. "Guidelines promulgated by the full Commission for parole decision-making are rules and regulations within the meaning of this definition." S. Rep. No. 369, 94th Cong., 1st Sess. 20, reprinted in 1976 U.S. Code Cong. & Ad. News 335, 341 (citing Pickus, supra). See also H.R. Rep. No. 838, 94th Cong., 2d Sess. 27, reprinted in 1976 U.S. Code Cong. & Ad. News, 335, 359 ("The Parole Commission shall actively seek the counsel and comment of the corrections and criminal justice communications prior to promulgation of guidelines and shall be cognizant of past criticism of parole decision making").
Thus, the Notes and Procedures provision applied to the petitioners' parole decisions was enacted in violation of the rulemaking provisions of the APA. However, the fact that the Parole Commission did not comply with the APA is not sufficient, in and of itself, to warrant petitioners' immediate release on habeas corpus. "A prisoner has no right to release on parole; he has only a statutory right to have the board comply with the APA and its own rules and guidelines. A departure by the board does not necessarily make his custody illegal." Brown v. Lundgren, 528 F.2d 1050, 1054-55 (5th Cir. 1976), cert. denied, 429 U.S. 917, 50 L. Ed. 2d 283, 97 S. Ct. 308 (1976).
In accord with the above Memorandum Opinion, it is this 31st day of July, 1985,
ORDERED, DECLARED AND ADJUDGED
1. That the Notes and Procedures provision of 28 C.F.R. § 2.20, 618(a) is declared invalid and shall not be applied by the Parole Commission where there has been no demonstration or showing in any underlying judicial proceeding that individuals convicted of criminal contempt have participated in the underlying substantive offenses; and
2. That respondents shall hold a further parole hearing for each petitioner by August 20, 1985 and shall not utilize the Notes and Procedures provision of 28 C.F.R. § 2.20, 618(a) in their determination of the release on parole decision. If by that date, no parole hearing is held, each petitioner who is denied such hearing shall be released forthwith; and
3. That the Notes and Procedures provision of 28 C.F.R. § 2.20, 618(a) was enacted in violation of the APA. Respondents are enjoined from applying that provision in any case unless and until the statutory rulemaking procedures are utilized.
[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 614 F. Supp.]
September 3, 1985
Barrington D. Parker, District Judge:
Because they refused to testify before a grand jury investigating terrorism and other criminal activities associated with and attributed to a Puerto Rican independence group, the seven petitioners in this proceeding were convicted and sentenced for criminal contempt. The grand jury was convened in the United States District Court for the Eastern District of New York. The petitioners are incarcerated in various federal correctional institutions throughout the country. One petitioner received a sentence of two years; the others received sentences of three years.
After the petitioners had served a portion of their sentences, the United States Parole Commission made a determination of their parole eligibility date -- when they would be released from custody. Representatives of the Commission decided that each petitioner would remain incarcerated until the expiration date of the sentence imposed. That determination resulted from the application of certain guidelines and procedures promulgated and applied by the Commission.
In this proceeding, the seven petitioners challenge the standards and guidelines employed by the Commission in reaching a determination of their parole eligibility date. The petitioners are Steven Guerra, Maria Cueto, Julio Rosado, Andres Rosado, Michelle Miller, Ricardo Romero, and Federico Cintron Fiallo. The respondents are the United States Attorney General, the Chairman of the United States Parole Commission, and other federal government officials.
On May 10, 1985, the petitioners applied for a Writ of Habeas Corpus. At the outset, the respondents raised questions of whether venue was appropriate in addition to challenging the jurisdiction of this Court to consider the petitioners' application for relief. The merits of the matter were deferred until those questions were decided. On July 31, 1985, this Court ruled that the standards used by the Court in denying parole to the petitioners were invalid, enacted in violation of the Administrative Procedures Act, and improperly applied.
In accordance with the Court's ruling of July 31, the respondents held a joint administrative record review hearing for petitioners. The results of that hearing were forwarded to the Regional Commissioners where the seven petitioners are incarcerated. The Regional Commissioners reviewed the matter and ruled in each case that the petitioner's incarceration should be continued until full expiration of sentence.
On August 30, 1985, this Court heard testimony and argument on the petitioners' request for release pending final determination of the issues presented,1a including any appeal to the Circuit Court. On the basis of that hearing and the briefs submitted thereafter by the parties, the Court determines that it is appropriate to grant petitioners' request.
Respondents assert that this Court lacks jurisdiction to grant the writ of habeas corpus and release the petitioners. They assert that petitioners have failed to exhaust the administrative appeals process provided by Parole Commission regulations. See 28 C.F.R. § 2.26 (1984). The Court agrees that an appeal to the National Parole Board should be pursued before final determination of the legality of the Commission's action. See Guida v. Nelson, 603 F.2d 261, 262 (2d Cir. 1979); United States ex rel. Sanders v. Arnold, 535 F.2d 848, 850-51 (3d Cir. 1976).
However, the Court does not agree that the exhaustion doctrine prohibits the release of the petitioners pendente lite. And since the Court now determines that a temporary release is appropriate in this case, it is not necessary at this time to fully explore petitioners' arguments as to the futility of an appeal to the National Appeals Board.2a
The Court's authority to order release stems from its inherent power in all habeas corpus cases to provide the manner in which the petitioner will be held until disposition of the proceeding. Johnston v. Marsh, 227 F.2d 528, 532 (3d Cir. 1955) (Hastie, J., concurring) ("The court is under no ministerial duty to direct or permit the person who produces the petitioner to continue to hold him during this period.").
The controlling case in this jurisdiction is Baker v. Sard: "[T]he court's jurisdiction to order release as a final disposition of the action includes an inherent power to grant relief pendente lite, to grant bail or release, pending determination of the merits." 137 U.S. App. D.C. 139, 420 F.2d 1342, 1343 (D.C. Cir. 1969); see also Luther v. Molina, 627 F.2d 71, 76 (7th Cir. 1980); Calley v. Callaway, 496 F.2d 701, 702 (5th Cir. 1974). Baker involved an appeal from the dismissal of a habeas petition by the district court. On appeal, the court held that it was within the district court's power to order release of the petitioner pending his appeal of the district court's ruling. Baker, 420 F.2d at 1343; see also Fed. R. App. P. 23(b) (an unsuccessful petitioner may be released pending appeal). The language in Baker indicates that a final decision by the district court is not a prerequisite to granting release on bond. See Baker, 420 F.2d at 1343.
Petitioners and respondents differ as to the standard that should apply in determining whether release on bond is appropriate. Petitioners argue that Federal Rule of Appellate Procedure 23(c) governs, while respondents rely on the Bail Reform Act of 1984, 18 U.S.C.A. § 3143 (West Supp. 1985). Neither standard is technically applicable. Petitioners have not received a final release in their habeas corpus proceeding as required by Rule 23(c). Neither are they awaiting sentence or appeal from their criminal conviction, the situation addressed in 18 U.S.C.A. § 3143.
The presumption of entitlement to release that Rule 23(c) embodies, see United States ex rel. Barnwell v. Rundle, 461 F.2d 768, 770 (3d Cir. 1972), is not appropriate here, since a final determination of the merits of the petitions must await the decision of the National Appeals Board. The proper standard to be applied is nearer that suggested by Rule 23(b) for persons whose petitions have been denied. That standard is a strict one, as outlined in Baker v. Sard: "[T]he release request ordinarily must be measured against a heightened standard requiring a showing of special circumstances. A forceful special circumstance is the likelihood of success on appeal. . . . Other matters, including the threat of flight from the jurisdiction, must be considered." 420 F.2d at 1343-44. Contrary to respondents' repeated assertion, this language does not set out a two-pronged test. Rather, a single showing of special circumstances must be made, of which likelihood of success on the merits is an important factor to be considered.3a
While it is possible that the National Appeals Board will offer a different justification than that of the Regional Commissioners, the identical wording of each regional decision strongly suggests the existence of a national policy decision with respect to these petitioners. Assuming the same policy and rationale are followed by the National Appeals Board, petitioners have a strong likelihood of prevailing in a review by this Court.
The Regional Commissioners in all six cases determined that it was appropriate to make a decision above the guidelines generally followed by the Parole Commission for Category III offenses. Decisions above the guidelines are permissible only upon showing of good cause. 18 U.S.C. § 4206(c) (1982). Good cause was defined by the drafters of the Parole and Reorganization Act as "substantial reason and includes only those grounds put forward by the Commission in good faith and which are not arbitrary, irrational, unreasonable, irrelevant or capricious." S. Rep. No. 369, 94th Cong. 2d Sess. 27 (1976), reprinted in 1976 U.S. Code Cong. & Ad. News 335, 359.
A final determination of the reasonableness of the Parole Commission's decision must await the decision of the National Appeals Board. For the moment, the Court notes that the rationale followed by the Regional Commissioners very likely utilizes reasoning that has been termed "double-counting" and declared improper by some district courts. See Hearn v. Nelson, 496 F. Supp. 1111, 1115 (D. Conn. 1980); Lupo v. Norton, 371 F. Supp. 156, 163 (D. Conn. 1974); cf. Alessi v. Quinlan, 711 F.2d 497, 500 (2d Cir. 1983) (noting the existence of the double-counting doctrine, but not passing on its validity because the petitioner's parole determination did not, in the court's opinion, constitute double-counting). Congress clearly intended the Parole Commission to go outside of its guidelines in appropriate cases. See Alessi, 711 F.2d at 500. The legislative history of the Parole and Reorganization Act gives some examples of the factors that the Commission should consider in making such a decision: "[W]hether or not the prisoner was involved in an offense with an unusual degree of sophistication or planning, or has a lengthy prior record, or was part of a large scale conspiracy or continuing criminal enterprise." S. Rep. No. 369, 94th Cong. 2d Sess. 27 (1976), reprinted in 1976 U.S. Code Cong. & Ad. News 335, 359. The Notices of Action issued by the Regional Commissioners, and the entire record presented thus far by respondents in this case, do not indicate the existence of any such aggravating factors. Cf. Alessi, 711 F.2d at 500 (Commission's decision not arbitrary because petitioner had a "managerial role" in a "large-scale drug operation").
Baker v. Sard requires that the Court consider an array of factors before making a determination that release on bond is appropriate. 420 F.2d at 1344. Accordingly, this Court held the August 30 hearing to gain information that would allow it to properly consider other factors.
At that hearing, an interested attorney and two Episcopal church officials offered general but nonetheless useful testimony on the question that the Court had to decide -- the release of the respondents. The witnesses were: Robert S. Potter, an attorney with the New York law firm of Patterson, Belknap, Webb & Tyler;4a Jose Antonio Ramos, former Bishop of Costa Rica and presently assigned to New York City; and Barbara Harris, an Episcopal priest, who has served as the Executive Director of the Episcopal Church Publishing Company for several years.
Attorney Potter had filed amicus briefs on behalf of the Episcopal Church, the National Council of Churches, the Episcopal Bishops of New York, Puerto Rico and Michigan, and the Episcopal Church Publishing Company in the criminal contempt proceedings brought against the petitioners. Attorney Potter was of the opinion that they would not present a danger or threat to the community if released. The Episcopal Church witnesses were not close personal friends of the petitioners or their families. However, within the last seven years they had come to know them through their involvement in various church and related community activities. Within the seven-year period, the witnesses had varying degrees of contact and interaction with the respondents. On basis of such contacts, they vouched for the petitioners and opined that they would not pose a threat to the community nor a risk of flight. Their testimony showed that the respondents had close family and other substantial ties in the communities where they resided. The two church witnesses were in regular attendance at the criminal contempt proceedings in the Eastern District of New York. Their testimony was in complete accord, namely, that the petitioners were released on personal recognizance over the course of that trial, they appeared initially on their own upon return of the indictment, were similarly released through the course of the appellate proceedings and surrendered without incident on return of the mandate from the appeals court. They never presented a risk of non-appearance and danger of flight, or violated any of the conditions of their release in any manner.
The Court finds that the testimony of the three witnesses was reliable, credible, straightforward, and was of assistance in making a determination that the petitioners should be released pending a final resolution of the issues under consideration.
A fourth witness was Priscilla Falcon Romero -- wife of the petitioner Ricardo Romero. She presented relevant and credible testimony about her husband, their three children and the family. Her testimony showed that the petitioner and his family were close knit, that her husband maintained regular, full time employment prior to his incarceration and that he was released during the course of the contempt trial and the appeals of that conviction. Ricardo Romero also testified that he was born in the State of Colorado, that he is fifth generation Coloradian, that in 1966 he suffered removal of a herniated disc and he faces the possibility of a recurrence of that problem. For some time he has had a continuing back problem and faces the prospect of surgery. He is under prescribed medication for back problems at the Springfield Missouri FCI where he is incarcerated.
Beyond those witnesses, the petitioners Maria Cueto, Julio Rosado, Andres Rosado and Steven Guerra5a gave relevant testimony which showed and established their close family ties, their close identification with the communities where they resided prior to incarceration, the nature and consistency of their prior employment, the absence of any prior criminal record within 10 years, and the absence of any problems during their release on personal recognizance over the course of the criminal contempt proceedings.
On basis of the above testimony, the Court finds that there has been a substantial showing, through clear and convincing testimony, that petitioners do not present a threat of flight; nor do they present a danger to their communities. The Court also determines that they should be released on their personal recognizance during the pendency of this proceeding. An appropriate order will be entered.