Dare v. United States Parole Commission ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
1-9-2007
Dare v. US Parole Comm
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2640
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"Dare v. US Parole Comm" (2007). 2007 Decisions. Paper 1797.
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CLD-77
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-2640
_____________
JOHN DARE,
Appellant
v.
UNITED STATES PAROLE COMMISSION;
WARDEN, FCI MCKEAN
____________
On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. Civ. No. 05-cv-00257E)
District Judge: Honorable Sean J. McLaughlin
____________
Submitted on a Motion for Summary Affirmance
December 15, 2006
Before: RENDELL, SMITH and COWEN, Circuit Judges.
(Filed January 9, 2007)
_______________
OPINION OF THE COURT
_______________
PER CURIAM
Appellant John Dare, a federal prisoner incarcerated at FCI-McKean in Bradford,
Pennsylvania, was sentenced by the District of Columbia Superior Court to a term of
imprisonment of 45 years for second degree murder on February 11, 1980. He was first
paroled by the District of Columbia Board of Parole in 1991. His parole was
subsequently revoked, and he was reparoled two more times. His most recent release on
parole from his current sentence was on May 11, 2003, and he was to remain under
supervision until July 13, 2033.
After a hearing on October 16, 2004, the United States Parole Commission (“the
Commission”) revoked Dare’s parole by a Notice of Action dated January 3, 2005.1 The
Commission ordered that Dare serve nine months as a sanction for his failure to submit to
drug testing, failure to report to his supervising officer as directed, failure to report a
change in residence, and failure to report a change in employment. Dare was to remain in
custody until his reparole date of May 16, 2005.
On or about April 25, 2005, the Bureau of Prisons (“BOP”) notified the
Commission that Dare had been unable to establish a suitable parole plan. In response to
this information, the Commission added to Dare’s case the requirement that he reside in a
Community Corrections Center (“CCC”) upon his release on parole. See 28 C.F.R. §
2.83(a) (“All grants of parole shall be conditioned on the development of a suitable
release plan and the approval of that plan by the Commission.”). Subsequently, the BOP
informed the Commission that it did not have sufficient time in which to find a CCC
1
Jurisdiction over D.C. Code offenders sentenced to parolable sentences, and over
District of Columbia parolees, was transferred to the U.S. Parole Commission pursuant to
the National Capital Revitalization and Self-Government Improvement Act of 1997,
Public Law No. 105-33, § 11231(a)(1), 111 Stat. 712, 745 (effective August 5, 1998).
See D.C. Code Ann.§ 24-131 (formerly § 24-1231).
2
placement, and it requested that Dare’s release date be retarded. The Commission
ordered that Dare’s parole effective date be retarded by 60 days to July 16, 2005, as
permitted by 28 C.F.R. § 2.83(d) (“Commissioner may retard a parole date for purposes
of release planning for up to 120 days without a hearing.”).
On July 13, 2005, the BOP informed the Commission that the Baltimore
Community Corrections Manager had denied Dare placement in a CCC due to his
criminal history, which included a sex offense. In response to this information, the
Commission retarded the parole effective date on July 15, 2005, and ordered a hearing to
consider a release plan. That hearing took place on October 18, 2005, and as a result of
it, the Commission, ultimately, on November 1, 2005, ordered that Dare be denied parole
pending approval of a suitable release plan. The hearing examiner made this
recommendation based on the practicalities, which were that Dare had been paroled on
three separate occasions unsuccessfully, and that, based on the sex offense, the majority
of Community Correction Centers now would not accept him, and the one facility that
would accept him denied him entry because of his history of escape.
Meanwhile, on September 9, 2005, Dare filed a petition for writ of habeas corpus
under 28 U.S.C. § 2241 in United States District Court for the Western District of
Pennsylvania. Initially, he contended that the lack of a hearing violated his right to due
process, but, after the October 2005 hearing and November 2005 decision, Dare based his
claim for habeas relief on the alleged arbitrary and capricious denial of parole.
3
Specifically, Dare claimed that use of his 1975 juvenile conviction for Carnal Knowledge
to deny him parole was arbitrary and capricious, because the conviction had been
dismissed. The Commission filed a response, clarifying that Dare had received a
suspended sentence for the Carnal Knowledge conviction and a term of probation, and
that, even if the conviction had been expunged (which was not clear), the Commission
could properly use the fact of the conviction in setting conditions for Dare’s release.
The Magistrate Judge filed a Report and Recommendation, in which she agreed
that use of the fact of the Carnal Knowledge conviction in setting conditions for Dare’s
release was not arbitrary and capricious. An expungement, if it occurred, would not
affect the nonpublic record maintained by the Department of Justice, see United States v.
Campbell, 724 F.2d 812, 813 (9 th Cir. 1984) (trial court could consider prior Youth
Corrections Act drug conviction in imposing sentence for subsequent offense),2 and
courts have consistently recognized the Commission’s authority to use information
concerning dismissed charges, see, e.g., Maddox v. U.S. Parole Commission, 821 F.2d
997 (5 th Cir. 1987). In an order entered on May 3, 2006, the District Court denied the
habeas petition and adopted the Magistrate Judge’s Report and Recommendation as the
Opinion of the Court. Dare appealed, and the government has moved for summary
affirmance.
2
The Report and Recommendation mistakenly refers to this case as “United States v.
Richards.”
4
We will grant the government’s motion for summary affirmance, because it clearly
appears that no substantial question is presented by this appeal. 3 rd Cir. LAR 27.4 and
I.O.P. 10.6. Our role in reviewing decisions by the United States Parole Commission on
an application for a writ of habeas corpus is limited. See Gambino v. Morris, 134 F.3d
156, 160 (3d Cir. 1998). The appropriate standard of review is only whether there is a
rational basis in the record for the Commission's conclusions embodied in its statement of
reasons. Id. (citing Zannino v. Arnold, 531 F.2d 687, 691 (3d Cir.1976)). However, we
must ensure that the Commission’s decision is not arbitrary and capricious, nor based on
impermissible considerations. Id.
The Commission may deny parole pending approval of a suitable release plan. See
28 C.F.R. § 2.83(d) (“If efforts to formulate an acceptable release plan prove futile ... the
Commission may deny parole if it finds that the release of the prisoner without a suitable
plan would fail to meet the criteria set forth in § 2.73.”). We have carefully reviewed the
record, and we conclude that the Commission’s decision requiring Dare to reside in a
Community Corrections Center upon his release on parole was not arbitrary and
capricious in view of Dare’s poor parole history. It is unfortunate that Dare’s prospects
for placement are more limited because of the 30 year-old juvenile sex offense, but the
Commission’s decision can hardly be said to be arbitrary and capricious where Dare’s
own history of escape is the reason why the one CCC potentially willing to accept him
will not. We note further that the decision to deny him parole is, by its own terms,
5
temporary “pending approval of a suitable release plan.”
We will grant the motion for summary affirmance and summarily affirm the order
of the District Court denying the habeas petition.
6