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ROBINSON v. UNITED STATES BD. OF PAROLE

October 30, 1975

George F. ROBINSON, Plaintiff,
v.
UNITED STATES BOARD OF PAROLE, Defendant


Curtin, Chief Judge.


The opinion of the court was delivered by: CURTIN

CURTIN, Chief Judge.

On March 1, 1973, plaintiff was convicted of violating 18 U.S.C. § 2113(b) in that he "[wilfully,] knowingly and unlawfully did take and carry away, with intent to steal and purloin money belonging to an FDIC-Insured bank, (Ct. 1)," and he was also convicted of violating 18 U.S.C. § 2113(a) in that he "[entered] an FDIC-Insured bank with the intent to commit in said bank a larceny, by means of stealing from the bank certain money belonging to and in the care, custody and control of the bank, (Ct. 2)." Judgment and Commitment order, United States v. Robinson, CR-1973-88 (W.D.N.Y.1973). Each count arose out of separate incidents at the same bank. He was sentenced, after a period of study under 18 U.S.C. § 4208(b), to five-year terms on each count to be served concurrently. Further, on March 23, 1973, he was convicted of possession of heroin in violation of 21 U.S.C. § 844(a) and sentenced to one year to be served concurrently with the above convictions. Judgment and Commitment order, United States v. Robinson, CR-1973-138 (W.D.N.Y.1973). The plaintiff is presently serving these sentences at the Federal Institution at Lewisburg, Pennsylvania.

 On September 11, 1974, plaintiff made an appearance before the Board of Parole and a hearing was held. At that time the Board recommended that he be continued to the expiration of his term and parole was denied. This statement was given to the plaintiff:

 
Your offense behavior has been rated as very high severity. You have a salient factor score of 2.
 
Guidelines established by the Board which consider the above factors indicate a range of 55-75 months to be served before release for adult cases with good institutional program performance and adjustment. You have been in custody a total of 20 months. After careful consideration of all relevant factors and information presented, it is found that a decision outside the guidelines at this consideration [sic] does not appear warranted.
 
Letter from Val D. Emery, Case Analyst, United States Board of Parole, dated December 6, 1974. *fn1"

 The plaintiff has alleged and the government has not denied exhaustion of administrative remedies.

 On July 16, 1975, this suit was commenced. The plaintiff alleges that the reasons the Board gave him for denial of parole were clearly erroneous and unlawful, and that the proceedings which resulted in the denial and the explanation provided violated his rights to equal protection and due process of the law. Robinson requests the court to remand the case to the Board with instructions that a new hearing be held and that the Board place the plaintiff on parole after he has served thirty-eight months of his sentence.

 This court in its recent decision, Billiteri v. United States Board of Parole, 385 F. Supp. 1217 (W.D.N.Y.1974), examined the bases for reviewing decisions of the Board of Parole and concluded that "judicial examination of the action of the Board to determine whether or not there has been an abuse of discretion" is proper when the plaintiff, before incarceration, resided in the district in which he seeks relief. *fn2" Id. at 1218-19; see U. S. A. ex rel. Harrison v. Pace, 357 F. Supp. 354, 356 (E.D.Pa.1973). Here, the plaintiff resided in the Western District of New York prior to his incarceration.

 The plaintiff places primary reliance in his claim on the fact that records in the parole file indicate that he was convicted of "bank robbery," that this information is false and erroneous, and that this mistake resulted in his offense characteristic being placed in the "very high" category rather than the "high." See 28 C.F.R. 2.20, Adult Guidelines Table (1974). According to plaintiff, this alleged improper placement vitally affects the Board's decision as to the amount of time he must spend incarcerated.

 The government submitted affidavits from a senior case analyst who attempted to justify the "very high" classification. But, since the Board did not provide these reasons to the plaintiff after denying his parole, the court will not allow someone later to hypothesize reasons for the decision after the fact. The affidavit from the Board is useful only in that it gives the court partial insight into the contents of the plaintiff's file.

 The Board must provide the inmate with reasons for denial of his parole. Billiteri, supra, at 1219; United States ex rel. Johnson v. Chairman, New York State Board of Parole, 500 F.2d 925, 934-35 (2d Cir.), judgment vacated as moot sub nom., Regan v. Johnson, 419 U.S. 1015, 95 S. Ct. 488, 42 L. Ed. 2d 289 (1974); Childs v. United States Board of Parole, 167 U.S. App. D.C. 268, 511 F.2d 1270, 1281-84 (D.C. Cir. 1974); see also United States v. Stewart, 478 F.2d 106 (2d Cir. 1973); Lupo v. Norton, 371 F. Supp. 156, 161 (D. Conn.1974). Although, in Lupo, the district court held that due process did not require that reasons be given upon denial of parole, it did hold that the Board's own recently adopted regulations would require that reasons be given. Lupo, supra, at 161; see 28 C.F.R. § 2.13(d) (1974). This requirement that reasons be given would be valueless if the Board were allowed to meet it by mere conclusory statements with no indication of the factual determinations for those conclusions. For, if the Board does not set forth these factual bases (or it is allowed to provide them much later when the inmate seeks relief in federal court), the inmate will not know why he has been denied parole so that he can improve his conduct, or correct mistakes, and the district court will not be able to determine if there has been an abuse of discretion. Candarini v. Attorney General of United States, 369 F. Supp. 1132, 1137 (E.D.N.Y.1974); Harrison, supra, at 357.

 In the instant case, the plaintiff alleges his offense characteristic was improperly placed in the "very high" category because his parole file indicated he was convicted of bank robbery. This categorization, combined with the plaintiff's salient factor score of two, resulted in the Board concluding that his total time in prison should be between 55-75 months. See Letter from Val D. Emery, supra, and 28 C.F.R. § 2.20, Adult Guidelines Table (1974). The plaintiff supports his allegations with a copy of a "Progress Report" dated September 2, 1974, which indicates in one of the headings that his sentence was "5 yrs -- Bank Robbery." The text of the report contains this statement: "Robinson received a 30 year term under Provision of 4208(b) for charges of Bank Larceny and Attempted Bank Larceny." The Judgment and Commitment order cited at the beginning of this decision and the transcript of the sentencing clearly indicate that Robinson was never convicted of "Bank Robbery" and that he was sentenced to two concurrent five-year terms under § 4208(a)(2). *fn3" Since the Board did not give reasons for its decision to deny parole, it cannot be accurately determined what part that erroneous "Progress Report" played in that determination. However, the Board's regulations mandate:

 
Decisions as to whether a parole shall be granted or denied shall be determined on the basis of the application, if any, submitted by the prisoner, together with the classification study and all reports assembled by all the services which shall have ...

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