The opinion of the court was delivered by: LEVAL
PIERRE N. LEVAL, U.S.D.J.
Pro se petitioner, Homer Lee, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241. He claims that the actions of the United States Parole Commission in setting his presumptive parole date constituted an abuse of discretion and a violation of the Ex Post Facto clause. The Commission moves to dismiss.
In January, 1982, Lee pleaded guilty in the Southern District of Florida to one count of bank robbery. A second bank robbery charge was dropped as part of the plea bargain. On February 22, 1982, Lee was sentenced to a term of 20 years. He was held in the county jail after receiving his sentence. On about March 2, 1982, he escaped from the jail and was apprehended in Philadelphia on about June 28, 1982. On October 4, 1982, Lee pleaded guilty in the Southern District of South Carolina to one count of escape. On November 4, 1982, he was sentenced to a five-year term, to run consecutive to the 20-year term.
According to Jack Schneider, the Case Analyst in the Regional Office of the Parole Commission, Lee was sentenced for the bank robbery under 18 U.S.C. § 4205(b)(2), making him immediately eligible for parole. As to Lee's escape conviction, his parole eligibility was determined by 18 U.S.C. § 4205(a) which requires service of one-third of the sentence before being eligible for parole. As a result, Lee's original parole eligibility date on the total 25 year term was twenty months--one-third of his five year sentence.
On March 7, 1983, Lee was given an initial parole hearing pursuant to 28 C.F.R. § 2.12. The examiner panel found that Lee was involved in one armed, masked bank robbery and an escape involving an assault on a jail guard. The panel found insufficient evidence to conclude that Lee had committed the second bank robbery. The panel recommended that Lee be held for a presumptive parole date after service of 60 months. The basis for this recommendation was that the panel rated Lee's offense behavior at category 5 because of his involvement in the bank robbery and the escape. His salient factor score was 4. Under the parole guidelines, this resulted in a minimum service requirement of 48-60 months. See 28 C.F.R. § 2.20. The panel recommended a presumptive parole date at the top of the guidelines, i.e. 60 months, because Lee participated in an armed, masked robbery and the escape involved an assault on a jailer.
The Regional Office then reviewed the panel's recommendation. The Administrative Hearing Examiner recommended that the information relating to the second bank robbery was sufficient to support a finding by the Parole Commission that Lee committed that robbery. He recommended that the panel's recommendation of 60 months be increased to 70 months. The Regional Commissioner agreed with this recommendation and this became the final decision of the Parole Commission pursuant to 28 C.F.R. § 2.23(d).
A Notice of Action that was sent to Lee explained that the basis for the 70 month presumptive parole date was that Lee's offense behavior was rated as Category 6 severity because of his participation in three Category 5 offenses (two bank robberies and an assault on a jail guard).
Lee's salient factor score equaled 4. Under the Parole Commission guidelines, a range of 64-78 months must be served before release for cases with the above factors. In addition, the Notice stated that an additional 6-12 months was added to the original range for the escape offense under the Parole Commission's recission guidelines.
The combined the guideline range was 70-90 months.
Lee filed regional and national appeals of this decision. On appeal, the Commission retained the 70 month parole date, but gave the petitioner credit for an additional 32 days he spent in jail. Therefore, Lee was given a revised presumptive parole release date of January 21, 1988. Lee then filed this habeas petition.
In June 1984, after the instant petition was filed, the Regional Commission reopened Lee's case pursuant to 28 C.F.R. §§ 2.28(a) § 2.55(f) because it discovered that the Parole Commission had received a presentence report for the bank robbery after the initial hearing and that Lee had never been given an opportunity to review and respond to the information contained in this report.
On September 18, 1984, Lee was given a new hearing.
After the new hearing, the panel recommended that the 70 month presumptive parole date be continued. It found that there was sufficient information to conclude by a preponderance of the evidence that Lee had committed both bank robberies. It also concluded that escape involved some means of force against the prison guard. The Regional Commissioner agreed with this assessment and a Notice of Action was sent on or about October 18, 1984.
This Notice set out the reasons for the 70 month parole date. Lee's original offense, the bank robbery, is a Category 5 severity offense which requires a minimum service of 48-60 months where the prisoner has a salient factor score of 4. See 28 C.F.R. § 2.20. In addition, since the escape involved the use of fear or force, it is rated as a Category 5 offense under the recission guidelines which require that an additional 24-36 months be added to Lee's original guideline range. The total guideline range was 72-96 months. However, since Lee had initially been given a 70 month parole date, the Commission retained the 70 month date because it had not received any new adverse information to support a more adverse decision. Pursuant to 28 C.F.R. § 2.14(a)(1)(ii), Lee was scheduled for an interim hearing in March 1985. It appears that Lee never appealed the second decision by the Parole Commission.
As an initial matter, it should be noted that this action could be dismissed for petitioner's failure to exhaust his administrative remedies. Although Lee appealed the first Commission decision, he apparently has not appealed the second decision after the rehearing. See Miller v. Quinlan, 564 F. Supp. 802, 804 (S.D.N.Y. 1983) (Weinfeld, J.) (habeas petition challenging Parole Commission actions dismissed on merits and ...