IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
January 20, 1999
THOMAS FELL, PETITIONER,
KEITH OLSON, WARDEN, F.C.I FAIRTON RESPONDENT.
The opinion of the court was delivered by: Simandle, District Judge:
HONORABLE JEROME B. SIMANDLE
In this application for habeas corpus relief pursuant to 28 U.S.C. § 2241, petitioner Thomas Fell seeks an Order from this Court directing the Bureau of Prisons ("BOP") to consider his eligibility for parole annually as opposed to biannually. The primary issue to be decided is whether the BOP violated the Ex Post Facto or Equal Protection Clauses of the United States Constitution by extending from one year to two the interval between petitioner's parole hearings after his transfer from military prison to general federal prison. For reasons discussed herein, the Court finds that the BOP's policies are not in violation of the Ex Post Facto or Equal Protection Clauses, and will deny petitioner's application for habeas relief.
On June 7, 1989, a United States Army Court-Martial sentenced petitioner to life imprisonment for murder, robbery, and sodomy committed while he was in military service. Petitioner's sentence was subsequently reduced to twenty-five years.
Having served one-third of his sentence in military prison, petitioner became eligible for parole in April of 1997. On April 14, 1997, however, the Army Clemency and Parole Board denied petitioner parole. On March 13, 1998, pursuant to an agreement between the Department of the Army and the Federal Bureau of Prisons, petitioner was transferred to the federal prison system. On January 6, 1999, having already served 119 months in prison, petitioner received his initial parole hearing from the United States Parole Commissioner. Petitioner was denied parole, and was ordered to serve at least 180 months (to February 9, 2004) before release on parole. The Parole commission also ordered, in accordance with 28 C.F.R. § 2.14(a)(ii), that petitioner receive an interim hearing two years after the initial hearing.
Petitioner has since filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner makes three claims in support of his petition, all relating to his failure to receive timely interim parole hearings. First, petitioner asserts that he should receive a parole hearing annually, instead of every two years. Second, petitioner asserts that he was improperly denied a hearing within 120 days of his transfer pursuant to 28 C.F.R. § 2.12. Lastly, petitioner contends that he was improperly denied a parole hearing during 1998, as was required under Army regulations.
A. Preliminary Motions
Petitioner has also filed a motion for appointment of counsel and a motion for injunctive relief, both of which were returnable on November 5, 1999. Plaintiff's motion for appointment of counsel in this § 2241 case is governed by 18 U.S.C. § 3006A(a)(2), which provides in essence that counsel may be appointed under the Criminal Justice Act if the interests of justice so require for a person seeking relief under § 2241. In the present case, the motion for appointment of counsel will be denied because the Court finds that the interests of justice do not so require. The petitioner, Thomas Fell, has demonstrated that he is fully able to represent himself by citing the Court to facts and law relevant to his case. Moreover, as demonstrated below, this is not a case in which an evidentiary hearing must be convened to determine disputed facts material to the § 2241 relief sought, and thus no counsel is needed for such a hearing. For these reasons, the Court will deny petitioner's motion to appoint counsel.
Petitioner's motion for injunctive relief seeks to compel the Parole Commission to respond to an information request under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 and 28 C.F.R. §§ 2.55 & 2.56. The information sought under FOIA appears to be probing the reasons why petitioner's parole hearing was not convened within 120 days of his transfer to the Federal Bureau of Prisons. This is not a FOIA case, and the Court may not intrude into the FOIA process until there has been an adverse final agency decision, that has (1) improperly (2) withheld (3) agency records. United States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989) (quoting Kissinger v. Reporters Comm. For Freedom of the Press, 445 U.S. 136, 150 (1980)). Only once an agency has contravened all three components of its obligation under FOIA is judicial intervention proper. Kissinger, 445 U.S. at 150. The BOP had not committed such a violation of the FOIA at the time this motion was filed. Moreover, even if the Court were to construe this motion as a request to compel discovery, the issue of the Parole Board's exceeding the 120-day rule became moot upon their holding of a parole hearing in January 1999, as discussed below. Therefore this discovery would not be relevant to a material issue in the case and this motion will be denied.
B. Petitioner's Claim that He Should Receive Annual Parole Hearings
Turning to a discussion of the merits of Mr. Fell's petition, his first argument can be liberally construed as a claim for violation of the Ex Post Facto and Equal Protection Clauses of the United States Constitution. The gravamen of petitioner's claim is as follows. Under regulations established by the Secretary of the Army, military inmates with sentences similar to that of petitioner receive parole hearings annually. Dept. of Defense Directive 1325.4 (Encl.1), Procedures for the Administration of Correctional Programs and Operation of Correctional Facilities, § J(3)(a)(2)(c). *fn1 As a federal prisoner, however, inmates with sentences similar to that of petitioner receive parole hearings only biannually. 28 C.F.R. § 2.14(a)(1)(ii). Consequently, petitioner claims that his transfer to federal prison retroactively altered his sentence by increasing his punishment, and fails to provide him with equal protection of the laws under the Fifth Amendment of the Constitution.
As a threshold matter, the law clearly provides that military prisoners later transferred to civilian prisons are subject to normal federal prison procedures:
Under such instructions as the Secretary concerned may prescribe, a sentence of confinement adjudged by a court- martial or other military tribunal . . . may be carried into execution by confinement in any place of confinement under the control of any of the armed forces or in any penal or correctional institution under the control of the United States . . . Persons so confined in a penal or correctional institution not under the control of one of the armed forces are subject to the same discipline and treatment as persons confined or committed by the courts of the United States. 10 U.S.C. § 858(a) (1998) (emphasis added).
Both this statute and the Federal Regulation promulgating the two-year period between parole hearings were in effect at the time petitioner committed his crime. Therefore, as noted in the respondent's brief, these provisions are not applied retroactively to the petitioner.
Additionally, although no courts of the Third Circuit have spoken to the exact issue presented in this case, there is a highly relevant unpublished Tenth Circuit opinion. In Hirsch v. Secretary of the Army, 1999 WL 110549; 172 F.3d 878 (10th Cir. 1999), the petitioner also filed a habeas corpus petition under § 2241. Like Mr. Fell, the petitioner in Hirsch was a convicted felon who was sentenced to life imprisonment in military prison. Also like Mr. Fell, the petitioner in Hirsch was transferred to a federal prison pursuant to 10 U.S.C. § 858(a), and was therefore subject to biannual parole hearings instead of the annual hearings in military prison. The Hirsch petitioner also grounded his petition on Ex Post Facto and Equal Protection violations.
The Hirsch court stated, "Courts interpreting § 858(a) have `consistently held that a military prisoner who is committed to the service of his sentence in a federal penitentiary automatically becomes entitled to any advantages and subject to any disadvantages which accrue to the civilian prisoner.'" Hirsch, (citing Stewart v. United States Board of Parole, 285 F.2d at 421-22 (10th Cir. 1960)). In addition, the Tenth Circuit held that the statute reflects Congress's intent that petitioner and other military prisoners who have been transferred into federal custody are subject to all of the federal laws and regulations governing any other prisoner, including federal parole provisions. See also, Roberts v. United States Dept. of the Navy, 1992 WL 75205; 961 F.2d 220 (10th Cir. 1992) (unpublished opinion). Given the wealth of authority on the issue, the Tenth Circuit dismissed the Ex Post Facto and Equal Protection clause arguments asserted by the petitioner. This Court finds the reasoning of the Hirsch court persuasive, and reads § 858 to preclude claims of the sort brought by Mr. Fell.
In response to a possible argument relating to a change in petitioner's circumstances (i.e., new reasons why petitioner should be paroled earlier than February of 2004), the respondent points to the unexhausted administrative remedies available under 28 C.F.R. § 2.28(a), which states that a prisoner has an opportunity to present new circumstances to the parole board in the form of a motion to reopen the parole process for new favorable information. Id. This regulation gives petitioner the potential of relief if his circumstances are somehow changed, and precludes speculation as to whether he might be denied deserved relief while he waits for his biannual parole hearing. (Resp't's Br. at 9.)
C. Petitioner's Claim that he was Improperly Denied aHearing Within 120 Days of Transfer and in the Year1998.
Petitioner next asserts that he was improperly denied a hearing within 120 days of his transfer pursuant to 28 C.F.R. § 2.12. In addition, petitioner argues that because he should receive parole suitability hearings annually (see analysis above), he was improperly denied a hearing in 1998, which was the year of his transfer to federal prison. Petitioner asserts, therefore, that his due process rights were violated, and a new parole suitability hearing should be convened.
Section 2.12 states that an initial parole hearing should be conducted within 120 days of an inmate's transfer to federal prison, "or as soon thereafter practicable." See 28 C.F.R. § 2.12 (1999). Petitioner was transferred to the federal prison system on March 13, 1998. (Resp't's Br. at 2.) Therefore, assuming strict adherence to the regulation, the petitioner should have received a parole hearing prior to July 13, 1998 (i.e. within 120 days). Petitioner, however, did not receive his initial parole hearing until January 6, 1999, or almost six months after the 120 day period expired.
First, this claim is precluded by the permissive language of the statute, which provides only that an initial parole hearing should be convened within 120 days after transfer, but can be delayed until a time more practicable. See 28 C.F.R. § 2.12. Second, petitioner's request for a new parole suitability hearing has no merit because of the result of petitioner's initial parole hearing in January of 1999. There, the parole board set a presumptive parole date for February of 2004. With a presumptive date set for over four years hence, a court order for a new parole hearing to be held now would likely be meaningless. By the time petitioner filed this suit in March of 1999, his parole hearing had already convened and the failure to have afforded him the opportunity for a parole hearing within 120 days of his transfer to the federal system was remedied. Third, and most importantly, the petitioner has not shown any prejudice from his delay in receiving his initial parole hearing, or his failure to receive a parole hearing during 1998. The respondent concedes that even if he received his initial parole hearing within the 120 day limit, and therefore received a hearing in 1998, the parole board would not have released him sooner than his presumptive parole date.
For the reasons stated above, petitioner's claims have no merit, and his application for habeas relief will be denied.
JEROME B. SIMANDLE U.S. District Court Judge
THIS MATTER having come before the court on petitioner Thomas Fell's application for writ of habeas corpus pursuant to 28 U.S.C. § 2241, and the Court having considered the submissions of the parties, and for the reasons discussed in the Opinion of today's date; and the Court finding that petitioner's claims have no merit;
And the Court further finding that petitioner's motion to appoint counsel shall be denied; and
And the Court further finding that petitioner's motion for injunctive relief to compel production of documents shall be denied;
IT IS this ________ day of December 1999
ORDERED as that petitioner's motion to appoint counsel shall be, and hereby is, DENIED; and
IT IS FURTHER ORDERED that petitioner's motion for injunctive relief to compel production of documents shall be, and hereby is, DENIED; and
IT IS FURTHER ORDERED that the present petition for habeas relief under 28 U.S.C. § 2241 shall be, and hereby is, DENIED.
JEROME B. SIMANDLE U.S. District Court Judge