William Dunne v. T. Jusino ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 5 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM D. DUNNE, No. 21-55507
Petitioner-Appellant, D.C. No. 2:20-cv-04504-MWF-JC
v.
T. JUSINO, Warden, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Submitted April 5, 2023**
Before: WALLACE, D. NELSON, and FERNANDEZ, Circuit Judges.
Federal prisoner William D. Dunne appeals pro se from the district court’s
judgment denying his 28 U.S.C. § 2241 habeas petition, which challenged the
Parole Commission’s (“Commission”) failure to grant parole at his 2014 parole
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
reconsideration hearing and 2019 parole interim hearing.1 We have jurisdiction
under 28 U.S.C. § 1291. We review the denial of a § 2241 petition de novo, see
Rizzo v. Armstrong, 921 F.2d 855, 858 (9th Cir. 1990), and we affirm.
The Commission’s decision to deny parole was based, in part, on its finding
that Dunne continued to associate with anarchist organizations. Dunne contends
that in doing so, the Commission relied on non-existent criteria, rendering its
decision “arbitrary and capricious,” and violated his First Amendment right of
association. We disagree. The Commission shall consider relevant information as
may be reasonably available when determining whether paroling Dunne would
“jeopardize the public welfare.” 18 U.S.C. §§ 4206(a) and 4207; 28 C.F.R. § 2.19.
Nor has Dunne shown that the Commission’s consideration of his anarchist
affiliation violated his First Amendment right to associate, which is limited in the
context of prison. See Overton v. Bazzetta, 539 U.S. 126, 131 (2003); see also
Blaisdell v. Frappiea, 729 F.3d 1237, 1246 (9th Cir. 2013) (explaining that the
First Amendment’s right to associate only extends to “groups engaged in
expressive activities”). Further, insofar as Dunne criticizes the weight the
1
Although the Sentencing Reform Act of 1984 repealed the Parole Commission
and Reorganization Act (“Parole Act”), federal inmates who committed an offense
before November 1, 1987, remain eligible for parole. See Benny v. U.S. Parole
Comm’n, 295 F.3d 977, 981 n.2 (9th Cir. 2002). Because Dunne was convicted in
1972 and 1980, his claims are governed by the Parole Act. See 18 U.S.C. §§
4201–4218.
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Commission gave to documents concerning his affiliations with anarchist
organizations, his challenge is beyond the scope of judicial review. See Coleman
v. Perrill, 845 F.2d 876, 878 (9th Cir. 1988) (“Courts may not . . . review the
relevance the Commission attributes to the information it considers.”).
Dunne also contends that his due process rights at his 2019 interim parole
hearing were violated by the Commission’s consideration of a 2017 disciplinary
infraction, and by the fact the Bureau of Prisons (“BOP”) keeps records of
disciplinary infractions longer than it maintains records of an inmate’s positive
behavior. The Parole Act and applicable regulations require the Commission to
consider reports and recommendations prepared by prison staff. See 18 U.S.C.
§ 4207(1); 28 C.F.R. § 2.19(a)(1); see also 28 C.F.R. § 2.14(a)(2)(iii) (providing
that the Commission may delay or rescind a presumptive parole date for
disciplinary infractions). Consistent with this authority, the Commission
considered Dunne’s positive programming in addition to his disciplinary
infractions. Whether the 2017 disciplinary hearing suffered from alleged
procedural and substantive flaws is beyond the scope of this appeal, and the weight
the Commission gave to the disciplinary matter is beyond the scope of judicial
review. See Coleman, 845 F.2d at 878. Dunne’s conclusory statement that the
BOP’s record retention policy violates due process does not amount to a
constitutional claim subject to judicial review. See Roberts v. Corrothers, 812
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F.2d 1173, 1177 (9th Cir. 1987) (“Petitioners unhappy with discretionary parole
decisions cannot circumvent the Parole Act and obtain judicial review simply by
labeling their claims as constitutional or ‘extra-discretionary.’”).
Dunne next contends that the Commission impermissibly increased his
severity category from seven to eight at his 2014 rehearing. As an initial matter,
the Commission may revise a prisoner’s guidelines “at any time as deemed
appropriate.” 28 C.F.R. § 2.20(g). Further, the record belies Dunne’s contention
that the hearing examiner decided to increase his severity category before the
hearing. Rather, consistent with the regulations, the examiner made the change
after learning new information regarding Dunne’s co-conspirator’s shooting of a
police officer. See 28 C.F.R. § 2.20, ch. 13, subch. A, § 4 (providing that prisoners
convicted of conspiracy “must be held accountable for the criminal activities
committed by his co-conspirators . . . .”); Vargas v. U.S. Parole Comm’n, 865 F.2d
191, 195 (9th Cir. 1988) (“The Commission’s consideration of unadjudicated
allegations or hearsay information to determine reparole guidelines does not
violate due process.”). Insofar as Dunne challenges the Commission’s
characterization of his co-conspirator’s conduct, that is a matter within the
Commission’s discretion and therefore beyond the scope of judicial review. See
Coleman, 845 F.2d at 878.
Dunne lastly argues that the Commission’s failure to consider the disparate
4 21-55507
treatment of his codefendants who were already released was “unreasonable,
irrational, arbitrary, or capricious.” This claim is not subject to judicial review, see
Coleman, 845 F.2d at 877–79, notwithstanding Dunne’s attempt to characterize the
Commission’s inaction as a constitutional deprivation, see Roberts, 812 F.2d at
1177.
Because Dunne’s claims are either belied by the record or fail to show that
the Commission acted outside of its statutory authority or violated the Constitution,
the district court properly denied his § 2241 petition. See Coleman, 845 F.2d at
878 (explaining that “federal courts can review Parole Commission decisions only
within a very narrow scope”).
AFFIRMED.
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