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Bialkin v. Baer

decided: October 11, 1983.

ROBERT BIALKIN, PETITIONER-APPELLEE,
v.
BENJAMIN F. BAER, ET AL., RESPONDENTS-APPELLANTS



Appeal from the February 10, 1983 judgment of the District Court for the District of Connecticut, Daly, Ch. J., granting appellee's petition for a writ of habeas corpus. Reversed.

Van Graafeiland and Pratt, Circuit Judges, and Coffrin, District Judge.*fn*

Author: Pratt

PRATT, Circuit Judge:

The United States Parole Commission appeals from the February 10, 1983 judgment of the District Court for Connecticut, T. F. Gilroy Daly, Chief Judge, granting Robert Bialkin's petition for a writ of habeas corpus. The district court concluded that the commission erred in classifying petitioner's offense as one of "low moderate" severity, when the commission's guidelines "clearly indicate that [his] offense was one of low severity." Further, the court ruled that the commission abused its discretion when it set Bialkin's presumptive parole date five months beyond the time recommended by the commission's guidelines for prisoners with similar offense and offender characteristics. The district court, 567 F. Supp. 15, ordered the commission to establish an appropriate parole release plan for Bialkin and to release him within two weeks.

For the reasons set forth below, we reverse.

I.

In 1978, Bialkin pled guilty in the United States District Court for the District of Massachusetts to three indictments and an information charging him with interstate transportation of stolen securities and money obtained therefrom. After serving part of his concurrent ten-year prison terms, he was released on parole March 16, 1981.

Less than three months later, on May 30, 1981, Bialkin was arrested in Canada and charged with possession of $600 worth of stolen traveler's checks. He pled guilty and was sentenced to 30 days. As a result, the commission issued a parole violation warrant, and, after a parole revocation hearing on August 17, 1981, the commission found that Bialkin had violated the conditions of his parole and that his parole should be revoked. Based on arrest reports made by Canadian officials indicating that Bialkin's offense involved $7,000 worth of traveler's checks, the commission concluded that his new offense was of "moderate" severity. It also assigned him a salient factor score of "3" partly as the result of his many prior convictions. Under the parole guidelines these combined classifications call for a presumptive parole date in the range of 24 to 32 months. The commission did not then think a parole date above this particular guideline was warranted, and it decided to reparole Bialkin after he served 32 months.

Bialkin then filed this action, claiming that his offense had involved not $7,000, but only $600 worth of traveler's checks and that his rating under the guidelines should have been not "moderate" but "low" severity, which would have carried a presumptive parole date of 12 to 16 months. Satisfied that there was insufficient evidence that Bialkin's offense involved $7,000 worth of traveler's checks, the commission agreed to reopen his case and filed a motion to dismiss this action without prejudice. Ruling that Bialkin's offense, possession of $600 worth of traveler's checks, should be classified "low" severity under the guidelines, the court granted the motion and ordered a rehearing before the commission to determine if a decision outside this guideline was warranted.

After the rehearing, the hearing examiners rated Bialkin's offense as one of "low moderate" severity, reasoning that stolen checks are not simply stolen property, but are similar to stolen securities. Combined with Bialkin's salient factor score of "3", this new rating indicated a presumptive parole date of 16 to 22 months. The examiners further recommended that Bialkin serve 10 months beyond the time suggested by the guideline, because of the pattern of his criminal activity.

Accepting the examiners' recommendation in part, the commission classified Bialkin's offense as one of "low moderate" severity, but ruled that, although an additional period above the guideline was justified, it should be for only five instead of the ten months recommended by the examiners. The reasons why the commission decided to go beyond the guideline were (1) this was Bialkin's seventh conviction in the past 15 years for either check or stock fraud; and (2) Bialkin's latest offense had occurred less than three months after his release on parole.

Bialkin then filed a motion to vacate the prior judgment of dismissal and for a writ of habeas corpus. He argued the commission did not have the authority to give him a rating other than "low" severity, and also that it had no valid reason to go above the guideline. The district court granted the writ of habeas corpus and ordered Bialkin released from custody.

II.

Congress vested in the sound discretion of the commission the sole power to grant or deny parole, Billiteri v. U.S. Board of Parole, 541 F.2d 938, 944 (2d Cir. 1976), and directed the commission to establish guidelines for exercising its powers, including the granting, denying and modifying of parole, 18 U.S.C. §§ 4203(a)(1), (b)(1), and (b)(3) (1976). Under its guidelines, the commission determines for each prisoner, the severity of his offense behavior (offense characteristics) and classifies it in any of sic categories ranging from "low" to "Greatest II". The commission also determines a prisoner's parole prognosis (offender characteristics) and calculates his "salient factor score" on a scale from 0 to 10. For various combinations of offense severities and salient factor scores the guidelines indicate a range of "customary range of time to be served before release" on parole. 28 C.F.R. § 2.20(b) ...


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