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GUERRA v. MEESE

July 31, 1985

STEVEN GUERRA, et al., Plaintiffs,
v.
EDWIN MEESE, Attorney General of the United States, et al., Defendants



The opinion of the court was delivered by: PARKER

 Barrington D. Parker, District Judge:

 In this proceeding, seven prisoners presently incarcerated in various federal correctional institutions petition this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, or alternatively, a writ in the nature of mandamus, pursuant to 28 U.S.C. § 1361. Their incarceration followed convictions and sentences for criminal contempt before trials in the District Court, Eastern District of New York. The respondents are the Attorney General of the United States, the Director of the United States Bureau of Prisons, the Chairman of the United States Parole Commission, and the wardens of the several correctional institutions where the respondents are incarcerated.

 The petitioners challenge a newly promulgated Parole Commission directive applicable to parole guidelines for persons convicted of criminal contempt. They allege that the directive has the effect of denying their release on parole and extending the period of their incarceration. They charge that the actions of the Parole Commission violate the constitutional prohibition against ex post facto laws, their rights under the Fifth and Sixth Amendments to the Constitution and the Administrative Procedure Act, 5 U.S.C. § 551, et seq.

 The government initially raised the question of whether venue was proper in the District of Columbia. On June 13, 1985, a motion to transfer this proceeding to the various judicial districts where each petitioner was incarcerated was denied. The petitioners were granted limited discovery and an oral hearing on the merits was held on July 18, 1985. The parties agree that there are virtually no disputed material facts and thus the Court is called upon to determine issues of law.

 For the reasons set out below the Court concludes that the Parole Commission directive may not be applied to petitioners.

 I.

 BACKGROUND

 The seven petitioners were convicted and sentenced for criminal contempt under 18 U.S.C. § 401. Their convictions resulted from a refusal to testify before a grand jury investigation of criminal terrorist activities of a Puerto Rican nationalist group, the Fuerzas Armadas de Liberacion Nacional Puertorriguena ("FALN"). *fn1" The grand jury was convened by the United States District Court, Eastern District of New York. The petitioners claim they are activists and they refused to cooperate with the investigation and to testify because of their political, religious and moral beliefs not because they were involved or associated with criminal or terrorist activities.

 Petitioners Guerra, J. Rosado, Cueto, A. Rosado, and Romero were tried together in the Eastern District of New York in February, 1983, and were convicted of criminal contempt and sentenced to three years imprisonment in June, 1983. They began serving their sentences in April, 1984. *fn2" Petitioner Fiallo was convicted in the Eastern District of New York in October, 1983, and was sentenced to two years imprisonment, which he began serving in June, 1984. Petitioner Miller was sentenced in April, 1984 to three years imprisonment following her conviction for criminal contempt. She began to serve her sentence in February 1985.

 Petitioners are at various stages of the parole hearing appeal process. *fn3" Guerra is the only petitioner who has exhausted the administrative process to the United States Parole Commission. The parties represented and agreed at the July 18 hearing that all of the petitioners have had an initial hearing, while only some have pursued the parole board's decision to the intermediate appeal level, the regional parole board.

 A.

 Petitioners challenge a Parole Commission directive applied to the parole guidelines for an individual convicted of criminal contempt. The guideline for criminal contempt is found in 28 C.F.R. § 2.20 (chapter six, subchapter B, 618(a)). *fn4" However, an additional directive formulated by the United States Parole Commission was appended to 28 C.F.R. § 220, 618(a). That directive, known as a "Notes and Procedures" (hereinafter "Notes and Procedures provision"), is found in the 1984 United States Parole Commission Rules and Procedures Manual, effective October 1, 1984. It provides:

 
[[ Notes and Procedures. 'Criminal Contempt ' refers to conduct under 18 U.S.C. 402 (punishable by up to six months). If a criminal sentence of more than one year is imposed under 18 U.S.C. 401 for refusal to testify concerning a criminal offense, such conduct normally should be graded as if 'accessory after the fact. '__

 The Notes and Procedures provision to 618(a) was formulated internally by the Parole Commission and became effective April 1, 1984, after at least five of the petitioners had been sentenced. It was not submitted for public comment nor was it published in the Federal Register. Petitioners contend that but for this additional provision five of the petitioners would have been paroled as of this date.

 Parole guidelines encompass two components: a salient factor score which determines the individual risk of parole violations and a severity offense score based on the seriousness of the offense committed. It is the latter factor, the severity offense scores for various offenses, which are set forth in 28 C.F.R. § 2.20. Petitioners contend that the Notes and Procedures provision of 28 C.F.R. § 2.20, 618(a) unjustifiably and unconstitutionally increases the severity of the offense of criminal contempt such that their term of imprisonment is unconstitutionally prolonged.

  They argue that the severity of their offense, criminal contempt, should be rated in Category Three, the category for misprison of felony, 28 C.F.R. § 2.20, 614. With a high salient factor score, a prisoner whose severity offense score is graded in Category Three will ordinarily be paroled after serving from 10-14 months. *fn5" Instead, the severity of petitioners' offenses was construed as the crime of accessory after the fact of the most serious offense the grand jury was investigating and their offenses were graded as Category Six and Category Five. *fn6" Because accessory after the fact is graded as two categories below the underlying offense, 28 C.F.R. § 2.20, 104, most of the petitioners were graded in Category Six, two categories below the category for murder. 28 C.F.R. § 2.20, 201.

 Petitioners were graded as accessories after the fact to murder because the Parole Commission decisions in the underlying cases reflect that the hearing examiners ultimately determined that the Eastern District of New York grand jury was investigating murder. *fn7" The guidelines for a Category Six offense with a high salient factor score suggests that the petitioners should serve from 40-52 months. That determination effectively precludes release on parole for the petitioners, who will be required to complete the term of their sentences.

 II.

 ANALYSIS

 A. Ex Post Facto

 The petitioners argue that the application of the Notes and Procedures provision to their parole eligibility status, the provision becoming effective after at least five of them were sentenced, *fn8" violates the constitutional prohibition against ex post facto laws. U.S. Const. Art. I, § 9, cl. 3. "Critical to relief under the Ex Post Facto Clause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated." Weaver v. Graham, 450 U.S. 24, 30, 67 L. Ed. 2d 17, 101 S. Ct. 960 (1981). Although Weaver dealt with a state "good-time" provision, the Supreme Court held that a law affecting parole eligibility may be an ex post facto violation. Id. at 31-32.

 The test for determining whether a statute violates ex post facto protections is that "it must be retrospective" and "it must disadvantage the offender affected by it." Weaver, 450 U.S. at 29. Accord Burnside v. White, 760 F.2d 217, 220 (8th Cir. 1985).

 The Notes and Procedures provision under consideration is not an unconstitutional ex post facto provision because petitioners cannot demonstrate that they meet the second prong of the Weaver test: proof of disadvantage. Prior to the promulgation of the Notes and Procedures provision, the existing parole guidelines, 28 C.F.R. § 2.20, 618(a), did not set a definite severity category for criminal contempt. The discretion afforded by that provision (as it indeed still exists in the Code of Federal Regulations) suggests that these petitioners were never guaranteed that their offense would be graded in any particular category. "A change merely in the manner in which the Board, now the Commission, exercises its discretion thus cannot offend the ex post facto clause." Warren, 659 F.2d at 195. See also Richardson v. United States Parole Commission, 729 F.2d 1154, 1155 (8th Cir. 1984) (per curiam); Hayward v. United States Parole Commission, 659 F.2d 857, 862 (8th Cir. 1981), cert. denied, 456 U.S. 935, 72 L. Ed. 2d 454, 102 S. Ct. 1991 (1982). Cf. Prater v. United States Parole Commission, 764 F.2d 1230, 1234 (7th Cir. 1985) ("a number of courts have held that such guidelines do ...


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