Appeal from judgment of the United States District Court for the District of Vermont, Jerome J. Niedermeier, Magistrate, holding that Vermont's parole statutory scheme does not create an expectancy protected by due process.
Feinberg, Chief Judge, Van Graafeiland and Kearse, Circuit Judges.
Frank Berard appeals from a judgment of the United States District Court for the District of Vermont, Jerome J. Niedermeier, Magistrate, granting defendant Vermont Parole Board (the Board) summary judgment. The case was referred to the magistrate on the consent of the parties pursuant to 28 U.S.C. § 636(c)(1), and appeal from the judgment was taken directly to this court pursuant to 28 U.S.C. § 636(c)(3). On appeal, Berard argues that the procedures afforded him under the Vermont parole statute, Vt. Stat. Ann. tit. 28 §§ 501 et seq., failed to satisfy due process. Because we find that under governing precedents Berard has no legitimate expectation of release on parole, we affirm the judgment of the district court.
The facts are briefly as follows: After Berard's conviction for murder in the first degree, he was sentenced in February 1973 to a term of life imprisonment with no minimum term. The Board periodically has reviewed Berard's eligibility for parole since his incarceration, and after each review has informed him that the decision of the Board was: "Not determined to be eligible for parole at this time."
In September 1982, Berard filed a pro se complaint in the district court under 42 U.S.C. § 1983, alleging that the Board had violated his civil rights, and seeking declaratory and injunctive relief. Berard alleged, among other things, that the Board denied him various due process rights, including timely notice of hearings, the right to appear before the Board and an adequate statement of reasons for denial of parole.
Following the consensual reference to a magistrate, both sides moved for summary judgment. In a memorandum of decision dated December 22, 1982, the magistrate granted the Board's motion for summary judgment with respect to Berard's due process claims arising under Vt. Stat. Ann. tit. 28 § 501(a) and the rules and regulations of the Board since, under Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 60 L. Ed. 2d 668, 99 S. Ct. 2100 (1979), and Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 69 L. Ed. 2d 158, 101 S. Ct. 2460 (1981), neither the statute nor the Board's rules and policies gave Berard a liberty interest entitled to due process protection. However, the magistrate denied the Board's motion for summary judgment with respect to Berard's due process claims pursuant to Vt. Stat. Ann. tit. 28 § 501(b)&(c) since it was unclear from the record whether those subsections created an expectancy protected by due process. Berard's motion for summary judgment was denied. Subsequently, both sides made supplemental motions for summary judgment. By memorandum of decision dated June 16, 1983, the magistrate granted the Board's supplemental motion for summary judgment, holding that while Berard is entitled to receive parole eligibility review under Vt. Stat. Ann. tit. 28 § 501(b), Vt. Stat. Ann. tit. 28 § 501(c) "does not provide plaintiff with an expectancy of release on parole upon satisfaction of specific criteria. . . . The Parole Board has discretionary authority to determine when prisoners shall be released on parole." This appeal followed.
In Greenholtz, the Supreme Court made a sharp distinction between "a mere hope" of parole, and a "protectible" expectation of parole, 442 U.S. at 11. The mere existence of a state-created parole system provides only the former, and is insufficient to invoke due process protection. But the specific language of the relevant statutory scheme may give rise, as it did in Greenholtz, to the latter. Thus, to decide the threshold issue of whether an inmate serving a sentence of life imprisonment with no minimum term of imprisonment has a legitimate expectation of release on parole, we must turn to the language of Vermont's parole statute.
Vt. Stat. Ann. tit. 28 § 501 governs eligibility for parole, and is reproduced in the margin as it read when Berard filed his action.*fn1 Subsection (a) provides for eligibility for inmates who have served a minimum term and states that such an inmate "shall be released on parole . . . if the board determines there is a reasonable probability that the inmate can be released without detriment to the community or to himself." Subsection (b) provides that if no minimum term has been established, the Board shall review eligibility for parole "at such time as it may establish through the issuance of its rules and regulations." The Rules and Procedures Adopted by the Vermont Parole Board (July 1, 1974, as amended December 5, 1975) at 3 (Rules and Procedures), state that the Board "will review available, pertinent information concerning inmates with zero minimums on the recommendation of the superintendent of the correctional facility, or six months after incarceration. Thereafter, the Board will review available, pertinent information [concerning such inmates] at the recommendation of the Superintendent, but at least every six months." Apparently, the Board periodically has been reviewing Berard's eligibility for parole under this section. Subsection (c) of the statute states that the Board shall consider all pertinent information regarding each inmate in order to determine eligibility for parole, and further states that an "inmate shall be released on parole only when the board determines that the inmate is willing to fulfill the obligations of a law-abiding citizen." The Board's Rules and Procedures also list various factors to be considered in granting parole.
Berard contends that Vermont's statutory scheme creates a legitimate expectancy of release on parole. He points out that an inmate convicted of first degree murder, as he was, is not precluded from parole eligibility, see State v. Battick, 133 Vt. 558, 349 A.2d 221, 222 (1975), and that the Board's stated policy is "that only in extraordinary circumstances should an inmate serve his maximum time," Rules and Procedures, supra, at 3, 5-6. However, under Greenholtz, in order to be accorded some measure of due process protection, an inmate must have a legitimate expectancy of release grounded in the state's statutory scheme. Neither the mere possibility of release, see Boothe v. Hammock, 605 F.2d 661, 663 (2d Cir. 1979); cf. Pugliese v. Nelson, 617 F.2d 916, 925 (2d Cir. 1980), nor a statistical probability of release, cf. Connecticut Board of Pardons v. Dumschat, supra, gives rise to a legitimate expectancy of release on parole.
In analyzing Greenholtz, which involved Nebraska's parole statute, this court has concluded that the
only characteristic of the Nebraska statute that the Court mentioned as relevant . . . was the requirement that release "shall" be ordered "unless" one of the four qualifying conditions is found to exist. The Court emphasized that the Nebraska statute "has a unique structure and language and thus whether any other state ...