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Harley v. Shartle

United States District Court, D. Arizona

July 17, 2017

Ronald Harley, Petitioner,
v.
JT Shartle, Respondent.

          ORDER

          Honorable Roserfiary Marajtez United States District Juage

         On April 6, 2017, Magistrate Judge D. Thomas Ferraro issued a Report and Recommendation (Doc. 26), recommending that Petitioner Ronald Harley's Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2241 (Doc. 1) be denied. Petitioner filed an Objection (Doc. 27), to which Respondent replied (Doc. 28).

         I. Standard of Review

         A district judge “may accept, reject, or modify, in whole or in part, ” a magistrate judge's proposed findings and recommendations. 28 U.S.C. § 636(b)(1). The district judge must “make a de novo determination of those portions” of a magistrate judge's “report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). The advisory committee's notes to Rule 72(b) of the Federal Rules of Civil Procedure state that, “[w]hen no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation” of a magistrate judge. Fed.R.Civ.P. 72(b) advisory committee's note to 1983 addition. See also Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 999) (“If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error.”); Prior v. Ryan, CV 10-225-TUC-RCC, 2012 WL 1344286, at *1 (D. Ariz. Apr. 18, 2012) (reviewing for clear error unobjected-to portions of Report and Recommendation).

         II. Discussion

         In 1975, Petitioner was sentenced in the District of Columbia to an aggregate term of 15-46 years for three counts of assault with intent to commit rape and one count of sodomy. (Doc. 17-1 at 4.)[1] He was released on parole on December 12, 1988. (Id.) Within a month of his release, he committed assault with intent to commit rape and assault with intent to commit rape while armed. (Id.) His parole was thereafter revoked, and on November 15, 1989, he was sentenced on the new offenses to an aggregate term of 20 years to life. (Id.) Since 2003, the United States Parole Commission (“USPC”) has repeatedly denied Petitioner's requests for parole. (Id. at 5.)[2]

         Petitioner's § 2241 Petition (Doc. 1) challenges the USPC's denial of parole after a hearing held on February 4, 2014. (See Doc. 17-1 at 8-9, 11.) On April 5, 2017, Judge Ferraro granted Petitioner's Motion for Leave to Amend and/or Supplement his Petition with materials concerning the USPC's denial of parole after a hearing held on June 7, 2016. (See Docs. 22, 23, 25.)

         The USPC provided written explanations of its 2014 and 2016 denials of parole. (See Doc. 17-1 at 11; Doc. 22-1 at 11.) In the written explanation of its 2014 denial of parole, the USPC acknowledged that the applicable 1987 District of Columbia Guidelines (“D.C. Guidelines”) indicated that parole should be granted, [3] but it found that a departure from the guidelines was warranted because there was a reasonable probability that Petitioner would not obey the law if released and that his release would endanger the public safety. (Doc. 17-1 at 9, 11.) The USPC noted that Petitioner was considered a moderate to high risk of sexual recidivism based on his Static-99 Risk Assessment and criminal history, [4] and that he had not participated in any follow-up sex offender treatment or mental health counseling since his last parole hearing. (Id.) The USPC further noted that, at his prior parole hearing, Petitioner had stated that he did not need additional treatment. (Id.) The USPC recommended that Petitioner participate in mental health or additional sex offender treatment prior to his next parole hearing. (Id.)

         In the written explanation of its 2016 denial of parole, the USPC again acknowledged that the D.C. Guidelines indicated that parole should be granted but again found that a departure from the guidelines was warranted because there was a reasonable probability that Petitioner would not obey the law if released and that his release would endanger the public safety. (Doc. 22-1 at 11.) The USPC again noted that Petitioner's Static-99 Risk Assessment indicated that Petitioner poses a moderate to high risk of engaging in sexual-based offenses if released on parole. (Id.) The USPC also noted that Petitioner has “over 10 prior arrests for various crimes including sexual assaults, attempted murder and robbery, ” and that “there is nothing to indicate [his] risk to public safety has diminished.” (Id.) The USPC observed that Petitioner had not engaged in additional programming to reduce his risk to public safety since his prior hearing, despite the USPC's recommendation of supplementary programming. (Id.) Finally, the USPC stated that Petitioner became irritated with the examiner at his 2016 parole hearing and then abruptly walked out of the hearing and refused to participate any further. (Id.) The USPC found that “[t]hese factors highlight [Petitioner's] high risk to engage in further criminal behavior if released on parole.” (Id.) The USPC denied parole and continued the matter for rehearing in June 2021. (Id.)

         In his § 2241 Petition, Petitioner alleges that his due process rights have been violated by the USPC's denial of parole. Judge Ferraro found that Petitioner has no constitutionally protected liberty interest in parole upon which to base a procedural due process claim. (Doc. 26 at 3-4.) Judge Ferraro recognized that there is some authority for the proposition “that exceptionally arbitrary governmental conduct may in itself violate the due process clause, whether or not a liberty interest is at stake.” (Id. at 5 (quoting Harvell, 2015 WL 1883982, at *10).) However, Judge Ferraro found that the USPC set forth rational reasons for denying parole. (Id.) Accordingly, Judge Ferraro recommended denying Petitioner's § 2241 Petition on the grounds that Petitioner does not have a protectable liberty interest in parole and that the USPC's decision to deny parole was not arbitrary. (Id. at 5-6)

         In his Objection, Petitioner argues that the Report and Recommendation is based upon an incorrect understanding of the facts surrounding Petitioner's parole hearings and the programming available to Petitioner. (Doc. 27 at 2, 6-9.) According to Petitioner, the USPC's decision to deny parole was arbitrary and capricious because it was based on Petitioner's Static-99 Risk Assessment score, even though that score is unchanging for a man of Petitioner's age, and upon Petitioner's failure to participate in additional sex-offender programming, even though Petitioner has completed the only sex-offender treatment programming offered at USP Tucson. (Id. at 6-9.) Petitioner complains that he has consistently fallen within the 1987 D.C. Guidelines' standards for release and has complied with all parole recommendations, and yet has repeatedly been denied parole. (Id. at 2-3.)

         Petitioner did not object to the Report and Recommendation's finding that Petitioner does not have a protected liberty interest in parole. Accordingly, the Court has reviewed that finding for clear error, and has found none. There is no direct constitutional liberty interest in parole. Swarthout v. Cooke, 562 U.S. 216, 220 (2011) (per curiam) (“There is no right under the Federal Constitution to be conditionally released before the expiration of a valid sentence, and the States are under no duty to offer parole to their prisoners.”) Furthermore, the applicable D.C. parole regulations do not create a liberty interest in parole. Blair-Bey v. Quick, 151 F.3d 1036, 1047 (D.C. Cir. 1998) (finding that D.C. parole regulations do not create a protected liberty interest in parole); Harvell, 2015 WL 1883982, at *9 (same); see also D.C. Code § 24-404(a) (lacking mandatory language).

         As Judge Ferraro recognized, “[t]here is some authority for the proposition that exceptionally arbitrary governmental conduct may in itself violate the due process clause, ” even when there is no constitutionally protected liberty interest at stake. (Doc. 26 at 5 (quoting Harvell, 2015 WL 1883982, at *10).) However, Petitioner has not shown that the USPC's denial of parole “was so arbitrary as to violate due process.” Wallace v. Christensen, 802 F.2d 1539, 1552 (9th Cir. 1986); see also Harvell, 2015 WL 1883982, at *10. The USPC provided written reasons for departing from the D.C. Guidelines. See Gambrell v. Fulwood, 950 F.Supp.2d 109, 118 (D.D.C. 2013) (“The Commission . . . has broad discretion to depart from the D.C. Guidelines, and to do so the Commission need only specify in writing” the factors supporting the decision to depart). The USPC denied parole based upon Petitioner's Static-99 Risk Assessment score, his failure to participate in follow-up sex-offender treatment or mental health counseling, and his criminal history.[5] Petitioner complains that no additional sex-offender treatment programming is offered at the facility in which he is housed, but he has not shown that no mental health counseling or other programming is available. Furthermore, the USPC's reliance on Petitioner's Static-99 Risk Assessment score is not arbitrary merely because that score is unchanging for an individual of Petitioner's age. Whether the score is unchanging or not, it supports the USPC's conclusion that Petitioner poses a moderate to high risk of sexual recidivism. Finally, the USPC rationally relied on Petitioner's criminal history-which includes numerous sexual assaults, including two attempted sexual assaults committed within one month of his release on parole in 1988-in denying parole. Cf. Zannino v. Arnold, 531 F.2d 687, 691-92 (3d Cir. 1976) (finding that the severity of petitioner's crime provided a rational basis for denial of parole). The USPC had a rational basis for concluding that there is a reasonable probability that Petitioner would not obey the law if released and that his release would endanger the public. Its decision to deny parole was not arbitrary, much less so “exceptionally arbitrary” as to violate due process even in the absence of a protected liberty interest. See Harvell, 2015 WL 1883982, at *10.[6]

         Accordingly, IT IS ORDERED that Petitioner's Objection (Doc. 27) is overruled. The Report and Recommendation ...


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