Garza v. Holt

Filing 14

MEMORANDUM (Order to follow as separate docket entry)The written decision issued by the Parole Commission clearly explained the reasons behind its conclusion that Garza was not eligible for mandatory parole. Since there was no discernible violation of Petitioners due process rights, he petition for habeas corpus will be denied. An appropriate order will enter.Signed by Honorable Richard P. Conaboy on 12/19/13. (cc)

IN THE UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
ALBERT GARZA,

:
:
Petitioner
:
:
v.
: CIVIL NO. 3:CV-12-1585
:
WARDEN RONNIE R. HOLT,
: (Judge Conaboy)
:
Respondent
:
________________________________________________________________
MEMORANDUM
Background
Albert Garza, an inmate presently confined at the Allenwood
United States Penitentiary, White Deer, Pennsylvania (USPAllenwood), filed this petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241.

Service of the petition was

previously ordered.
Petitioner was convicted in the United States District
Court for the Western District of Texas on charges of robbery,
kidnaping, and murder.1

He is presently serving a life sentence

which was imposed on July 19, 1973.

See Doc. 1, ¶ 4. His

conviction and life sentence were affirmed in 1974 following a
direct appeal to the United States Court of Appeals for the
Fifth Circuit.

See Garza v. United States, 498 F.2d 1066 (5th

1

Petitioner committed a bank robbery during which he killed a
bank patron.
1

Cir. 1974).2
Petitioner was subsequently convicted in the United States
District Court for the Southern District of Illinois of escape
and sentenced to a consecutive fifteen (15) year term of
imprisonment.3
Garza states that he became eligible for mandatory parole
after completing service of thirty (30) years of confinement
(service of two thirds of his life sentence).

He asserts that

the United States Parole Commission (Parole Commission) acted
improperly by denying him release on mandatory parole without
providing him with an in person hearing.

He further generally

contends that the Parole Commission erred when it based its
adverse decision on policies, regulations, and guidelines which
were not in effect at the time he committed his underlying
offense in violation of his due process rights, 18 U.S.C. §
4206(d)4 and the Ex Post Facto Clause.
By Order dated June 18, 2013, this Court directed the
Respondent to file a written status report regarding the current

2

However, the Court of Appeals vacated an additional
consecutive twenty-five (25) year sentence.
3

Petitioner escaped from USP-Marion in 1979.
recaptured after a shootout with police.
4

He was

§ 4206(d0 provides that a prisoner is eligible for mandatory
parole after completing two thirds of each consecutive term or
terms or after serving 30 years of each consecutive term.
2

status of Petitioner’s mandatory parole eligibility.
11.

See Doc.

Respondent thereafter notified the Court that Garza had

been afforded an in person mandatory parole review on May 15,
2013 which resulted in an ultimate determination that he was not
eligible for release.

See Doc. 13.

Petitioner also responded

to the June 18, 2013 Order by submitting an addendum indicating
that the recent denial of mandatory parole was improper because
the Parole Commission continues to use the same reasons to deny
him parole and misapplied § 4206.

See Doc. 12, p. 2.

Discussion
Title 28, United States Code § 2241, vests the federal
district courts with jurisdiction to grant a writ of habeas
corpus to persons in custody in violation of the Constitution,
laws, or treaties of the United States.

28 U.S.C. § 2241(c)(3).

Habeas corpus review under § 2241 “allows a federal prisoner to
challenge the ‘execution’ of his sentence.”

Woodall v. Federal

Bureau of Prisons, 432 F.3d 235, 241 (3d Cir. 2005).

Review is

available “where the deprivation of rights is such that it
necessarily impacts the fact or length of detention.”

Leamer v.

Fauver, 288 F.3d 532, 540 (3d Cir. 2002).
With respect to actions taken by the Parole Commission, the
Court of Appeals for the Third Circuit has routinely recognized
that a federal court's review of a decision issued by the Parole

3

Commission is limited to an "abuse of discretion" standard.
E.g., United States v. Friedland, 83 F.3d 1531, 1542 (3d Cir.
1996); Bridge v. United States Parole Comm'n, 981 F.2d 97, 105
(3d Cir. 1992).
In Person Hearing
Petitioner initial claim contends that he was denied
mandatory parole without being provided with an in person
hearing.
“[P]arties must continue to have a 'personal stake in the
outcome' of the lawsuit."
U.S. 472, 477-78 (1990).

Lewis v. Continental Bank Corp., 494
For example, once a habeas corpus

petitioner is released from custody, a federal court’s authority
to adjudicate the controversy is called into doubt.

See Burkey

v. Marberry, No. 07-4782, ___ F.3d ___, 2009 WL 385419, at *3
(3d Cir. Feb. 18, 2009). This is due to the fact that federal
courts can only resolve actual cases or controversies, U.S.
Const., Art. III, § 2, and this limitation subsists “through all
stages of federal judicial proceedings. . . .”

Id. see also

Steffel v. Thompson, 415 U.S. 452, 459 (1974) (the adjudicatory
power of a federal court depends upon "the continuing existence
of a live and acute controversy)" (emphasis in original).

"Past

exposure to illegal conduct is insufficient to sustain a present
case or controversy . . . if unaccompanied by continuing,

4

present adverse effects."

Rosenberg v. Meese, 622 F. Supp.

1451, 1462 (S.D.N.Y. 1985) (citing O'Shea v. Littleton, 414 U.S.
488, 495-96 (1974)); see also Gaeta v. Gerlinski, Civil No.
3:CV-02-465, slip op. at p. 2 (M.D. Pa. May 17, 2002) (Vanaskie,
C.J.).
As explained in Burkey in the context of a habeas corpus
challenge to the execution of a sentence under 28 U.S.C. § 2241,
“[i]ncarceration satisfies the case or controversy requirement;
it is a concrete injury.”

Burkey, 2009 WL 385419, at *3.

The

Supreme Court in Spencer v. Kemna, 523 U.S. 1, 7 (1998), held
that release of a petitioner from custody on a parole violator
term deprived federal courts of the power to act.
Significantly, the Court found that there were no
“collateral consequences” remaining after expiration of the
parole violator term sufficient to animate the matter with a
case or controversy capable of concrete redress, explaining that
federal courts “are not in the business of pronouncing that past
actions which have no demonstrable continuing effect were right
or wrong.”

Id. at 18.

See also

Scott v. Schuylkill, FCI,

298

Fed. Appx. 202, 204 (3d Cir. 2008)(once a prisoner is placed on
supervised release, his § 2241 petition challenging a prison
disciplinary hearing which resulted in a loss of good time
credit is subject to dismissal on the basis of mootness);

5

Hagwood v. Grondolsky, 2009 WL 455499 *2 (D.N.J. Feb. 19, 2009).
After the filing of this matter, Garza was afforded an in
person hearing with respect to his eligibility for mandatory
release on May 15, 2013.

See Doc. 13-1.

Accordingly, his

present habeas corpus petition to the extent that it raises a
claim based upon a denial of an in person hearing or seeks such
relief has become moot.

A finding of mootness is appropriate

because Petitioner has been afforded the relief requested, i.e.,
an in person hearing.

See Taylor v. Reilly, 2010 WL 891276 *1

(D.D.C. March 9, 2010).
Mandatory Parole Date Calculation
Petitioner also claims that under § 4206(d) he became
eligible for mandatory parole consideration after completing
service of two thirds of his life sentence (30 years).
Respondent asserts that the Bureau of Prisons (BOP)
calculated the two-thirds date of Petitioner’s sentence as being
May 2, 2013.

Specifically, the BOP concluded that Garza needed

to serve 40 years, two thirds of his life sentence (30 years)
plus two thirds of his escape sentence (10 years).

As a result,

they assert that this action is premature as it was filed prior
to the date Petitioner completed two-thirds of his sentence.
Based upon this Court’s reading of § 4206(d), it agrees
with the BOP’s computation.

Regardless, since it is undisputed

6

that Petitioner has become eligible for mandatory parole review
under either computation and has in fact been afforded mandatory
parole consideration, this claim is likewise subject to
dismissal on the basis of mootness.
Ex Post Facto
On May 15, 2013, Petitioner was provided with an in person
hearing as to the issue of whether he was entitled to release on
mandatory parole.

The Hearing Examiner recommended that

Petitioner be granted mandatory parole as of August 2, 2013 to
serve a consecutive 25 year sentence imposed by the State of
Illinois.5
However, an Executive Reviewer disagreed and recommended a
denial of mandatory parole with an interim hearing to be
conducted in May, 2015.

By Notice dated June 7, 2013, the

Parole Commission denied Garza mandatory parole and scheduled a
statutory interim hearing for May, 2015.
Garza generally asserts that the Parole Commission erred
when it based its adverse decision on policies, regulations, and
guidelines which were not in effect at the time he committed his
underlying offense in violation of the Ex Post Facto Clause.
Respondent argues that the wholly conclusory Ex Post Facto claim

5

Petitioner was convicted of attempted murder in Illinois
state court for shooting a law enforcement officer following his
escape from USP-Marion.
7

should be dismissed.

See Doc. 4, p. 7.

It is initially noted that since this action was filed
prior to the May 15, 2013 mandatory parole review, it is unclear
as to what adverse decision is being referenced by Petitioner.
Second, a new law or policy violates the Ex Post Facto
Clause when it is applied to events which occurred prior to its
enactment and disadvantages the offender affected by it.
v. Graham, 450 U.S. 24, 29 (1981).

Weaver

“One function of the Ex Post

Facto Clause is to bar enactments, which by retroactive
operation increase the punishment for a crime after its
commission.”

Garner v. Jones, 529 U.S. 244, 249 (2000); Puifory

v. Reilly, 2009 WL 839354 *5 (M.D. Pa. March 30, 2009)
(retroactive application of a parole regulation which creates a
significant risk of increasing the prisoner’s incarceration may
violate the ex post facto prohibition); Bonilla v. Vaughn, 1998
WL 480833 *7 (E.D. Pa. 1998)

(retroactive application of a

change in parole laws if applied rigidly or mechanically can
constitute an ex post facto violation).
However, a petitioner must show that the parole policy
change was given retrospective effect and that its retrospective
application created a real risk of increasing the measure of the
prisoner’s punishment.

See Tyler v. Cain, 2006 WL 2038398 * 1

(M.D. Pa. July 19, 2006); Richardson v. Pa. Parole Board, 423

8

F.3d 282, 288 (3d Cir. 2005).
Based upon a careful review of the undisputed record,
Petitioner has not set forth any facts or allegations which
could establish that the denial of mandatory parole in his case
was accomplished in violation of the Ex Post Facto Clause.

He

has not shown that any parole policy was given retroactive
application and that said application created a significant risk
of increasing his punishment.

Simply put, there is no basis for

a determination that the denial of mandatory parole to Garza was
the result of reliance on a parole policy which was not in
effect on the date of his offense.6
Due process
Garza’s remaining contention is a vague allegation that the
Parole Commission’s adverse decision constituted a due process
violation.
As previously mentioned, a federal district court needs
only to consider whether the record provides a rational basis
for the Parole Commission’s ruling.
156, 160 (3d Cir. 1998).

Gambino v. Morris, 134 F.3d

It must ensure that the Parole

Commission has followed appropriate criteria rational and

6

However, if Petitioner can show the conduct of the Parole
Commission with respect to the mandatory parole review conducted
during May-June, 2013 (after the filing of this action) was in
violation of the Ex Post Facto Clause, he may file a new petition.
9

consistent with its enabling status and that its “decisions are
neither arbitrary and capricious nor based on impermissible
considerations.”

Id. (citation omitted).

The Parole Commission is not precluded from relying on
factors known to the sentencing judge when rendering a decision
to deny mandatory parole.
Supp.2d 466, 473

See Muhammad v. Mendez, 200 F.

(M.D. Pa. 2002) (Parole Commission can use the

nature of a prisoner’s conviction as a basis for exceeding
parole guidelines, even if the conviction was used in his
sentence computation). Accordingly, the vague claim set forth in
the addendum filed by Garza that the denial of mandatory parole
was improper because the Parole Commission continues to use the
same reasons to deny him parole lacks merit.
Furthermore, the Third Circuit has noted that, when the
Parole Commission issues any written determinations, it "must
reveal reasoning and not simply present conclusions, at least
where the reasoning is not apparent from the facts of the case."
Marshall v. Lansing, 839 F.2d 933, 943 (3d Cir. 1988) (emphasis
in original); see also Greene v. United States Parole Comm'n,
749 F. Supp. 650, 654 (M.D. Pa. 1990).

The court in Marshall

added that “Congress has required the Commission to furnish a
statement of reasons to the prisoner so that he can receive ‘an
understandable explanation of his parole status.’”

10

Id. at 942

(citations omitted).
An application of the above standards to the undisputed
facts of this action clearly provides that there was a rational
basis for the Parole Commission’s conclusion that Petitioner was
not entitled to mandatory parole.

It is equally apparent the

Parole Commission did not abuse its discretion by considering
Garza’s underlying violent crime during which he shot and killed
a bank official during an armed robbery and his escape from a
high security federal correctional facility

which included the

attempted murder of a police officer, in rendering its decision.
The written decision issued by the Parole Commission
clearly explained the reasons behind its conclusion that Garza
was not eligible for mandatory parole.

Since there was no

discernible violation of Petitioner’s due process rights, he
petition for habeas corpus will be denied.7

An appropriate

order will enter.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED:

DECEMBER 19, 2013

7

Once again, if Petitioner can show that a due process
violation (other than his claim that the Parole Commission used the
same reasons which has been addressed herein) occurred during his
May-June, 2013 denial of mandatory parole proceedings, he may file
a new petition.
11

12