Charles R. Warren v. United States Parole Commission

GINSBURG, Circuit Judge,

dissenting;

Charles R. Warren raises a question, novel in this circuit, concerning the retrospective operation of parole release guidelines adopted several years after his 1969 federal conviction. 1 He alleges that the guidelines, as framed and “mechanically” applied by the Commission, augment his sentence retroactively 2 and are therefore incompatible *198 with constitutional limitations on governmental authority. 3 His pro se, in forma pauperis complaint was never served on the Parole Commission. Instead, it was dismissed instantly with a bare citation to 28 U.S.C. § 1915 (d) (1976), which authorizes such swift disposition if the district court is “satisfied that the action is frivolous or malicious.”

On appeal, counsel appointed by this court focused on the question whether the district court misused § 1915(d) in dispatching Warren’s challenge to the guidelines. 4 Counsel urged that the Parole Commission applies the guidelines inflexibly, thereby subjecting Warren and others similarly situated to enhanced penalties. The Parole Commission’s practice in enforcing the guidelines, counsel maintained, “is an issue susceptible of proof,” one “on which Warren should be permitted to offer evidence on remand.” Brief for Appellant at 8. By declaring that no “material facts [are] at issue,” at 186, and that the guidelines “are just that — guidelines,” id. at 192, the majority rejects the opportunity Warren seeks to document his claim of rigid decisionmaking, should this court determine that the action is not frivolous. I believe the shut out comes too soon.

It may well be that the Parole Commission, were it required to respond to Warren’s complaint, could build a secure case for summary judgment. As the majority points out, other circuits have dismissed similar cases. 5 But no other court of appeals that has ruled on the merits of a question kin to the one Warren presents has done so absent any documents in the record other than a prisoner’s pro se complaint. 6

*199 Since this case is devoid of a record, 7 the majority rests on statements in Supreme Court opinions, 8 decisions in other circuits, and a Yale Law Journal Project to support its fact determination that the Parole Commission “[b]y its practice . . . has demonstrated its willingness to deviate from the guidelines,” at 192, and its conclusion that the Commission need not respond to the complaint because it is entitled to judgment as a matter of law. The majority opinion impressively reviews the purposes of the ex post facto guarantee and approaches, old and new, to parole release. I would hold that discussion in abeyance, and would resist assuming, based on records in other cases, that Warren will be unable to prove what he alleges concerning Commission enforcement of the guidelines. Instead, I would await the development of some kind of record in this case before reaching the merits of Warren’s claim.

. The Supreme Court has twice deferred consideration “whether the new guidelines are consistent with the Parole Commission and Reorganization Act of 1976, 90 Stat. 219 ,” and “whether their enforcement may violate the Ex Post Facto Clause of the Constitution.” United States v. Addonizio, 442 U.S. 178, 184 , 99 S.Ct. 2235, 2239-2240 , 60 L.Ed.2d 805 (1979); United States Parole Commission v. Geraghty, 445 U.S. 388 , 390 n.1, 408, 100 S.Ct. 1202, 1205 , 63 L.Ed.2d 479 (1980).

Most recently, the Court vacated and remanded for further consideration in light of Weaver v. Graham, 450 U.S. 24 , 101 S.Ct. 960 , 67 L.Ed.2d 17 (1981), a Ninth Circuit decision rejecting an ex post facto challenge to retroactive application of the parole guidelines. Portley v. Grossman, 450 U.S. 962 , 101 S.Ct. 1476 , 67 L.Ed.2d 611 (1981). The prisoner in Portiey was sentenced in 1972 and released on parole in 1974. The Parole Commission revoked his parole on the basis of two state convictions for offenses committed while on parole and applied the new parole guidelines to establish a date for reparole. See Portley v. Grossman, 444 U.S. 1311 , 100 S.Ct. 714 , 62 L.Ed.2d 723 (Rehnquist, Circuit Justice, 1980) (denying application for stay).

. The majority, drawing support from Gryger v. Burke, 334 U.S. 728 , 68 S.Ct. 1256 , 92 L.Ed.2d 1683 (1948), suggests that in Warren’s case “the guidelines — if they punish at all— punish acts committed after they were promulgated.” at 194. The Supreme Court in Gryger carefully noted that the recidivist statute there at issue escaped condemnation under the ex post facto clause because “[t]he sentence as a fourth offender or habitual criminal [was] not to be viewed as either a new jeopardy or additional penalty for the earlier crimes.” Rather, it was “a stiffened penalty for the latest crime, which [was] considered to be an aggravated offense because a repetitive one.” 334 U.S. at 732 , 68 S.Ct. at 1258 . But the Parole Commission, unlike the tribunal that sentenced Gryger as a fourth offender, is not a court of law. It lacks power to try and convict for any offense, state or federal. Its sole authority is to adjust the prison time Warren serves for his 1969 conviction. See 18 U.S.C. § 4210 (b)(2) (1976). Thus any additional days in prison the parole guidelines may require would enhance punishment for Warren’s 1969 federal conviction; those days cannot count as punishment for crimes left to state or federal courts to try and, upon conviction, to sanction. See also Green *198 field v. Scafati, 277 F.Supp. 644 (D.Mass.1967) (three-judge court), aff’d mem., 390 U.S. 713 , 88 S.Ct. 1409 , 20 L.Ed.2d 250 (1968).

. A legislature may not augment a crime' retroactively by reason of the ex post facto clause. The judiciary may not do so through statutory construction by reason of the due process clause. Bouie v. City of Columbia, 378 U.S. 347, 353-54 , 84 S.Ct. 1697, 1702-1703 , 12 L.Ed.2d 894 (1964); Marks v. United States, 430 U.S. 188, 191-92 , 97 S.Ct. 990, 992-993 , 51 L.Ed.2d 260 (1977). The majority does not suggest that the acts of administrative or executive boards are immune from the same constraint.

. As the majority observes, the claim Warren emphasized on appeal is “hardly ‘frivolous,’ ” at 185, thus the district court acted improperly in invoking § 1915(d) to dismiss Warren’s action. As the length of the majority opinion indicates, the district court casts a heavy burden on this court when it dismisses, without pausing to offer reasons, a case that cannot fairly be characterized as “frivolous or malicious.” See also Fed.R.App.P. 24(a) (requiring a written statement of reasons when leave to appeal in forma pauperis is denied by the district court).

. Ruip v. United States, 555 F.2d 1331 (6th Cir. 1977); Zeidman v. United States Parole Commission, 593 F.2d 806 (7th Cir. 1979); Rifai v. United States Parole Commission, 586 F.2d 695 (9th Cir. 1978). But cf. Geraghty v. United States Parole Commission, 579 F.2d 238 (3d Cir. 1978), vacated and remanded on other grounds, 445 U.S. 388 , 100 S.Ct. 1202 , 63 L.Ed.2d 479 (1980); United States ex rel. Graham v. United States Parole Commission, 629 F.2d 1040 (5th Cir. 1980); Hayward v. U.S. Parole Commission, 502 F.Supp. 1007 (D.Minn.1980) (holding, after evidentiary hearing before magistrate, that post-sentencing change in parole guidelines violates ex post facto clause), appeal docketed, 659 F.2d 857 (8th Cir. 1981).

. In Zeidman v. United States Parole Commission, 593 F.2d 806 (7th Cir. 1979), the district court granted summary judgment for the Government. The record, however, contained at least the Parole Commission’s Hearing Summary, which showed that the prisoner had received individualized consideration. See id. at 808 . In addition, the record must have contained the Government’s responses to the complaint, including a request for summary adjudication. In both Ruip v. United States, 555 F.2d 1331 (6th Cir. 1977), and Rifai v. United States Parole Commission, 586 F.2d 695 (9th Cir. 1978), the courts of appeals neglected to explain the posture of the case below when the district court rejected the prisoner’s claims. The district court dockets in both cases, however, reveal that the Government had at least filed a response to the prisoner’s petition. See Ruip v. United States, No. 75-1167 (N.D.Ohio Feb. 18, 1976); Rifai v. United States Parole Commission, Civ. No. 77-194T (W.D.Wash. Mar. 16, 1978).

But see Richards v. Crawford, 437 F.Supp. 453 (D.Conn.1977) (rejecting ex post facto challenge to post-1976 changes in parole guidelines and dismissing petition for habeas corpus without requiring service).

. The margin statement made by the court (see maj. op. footnote 57) that Warren, a pro se complainant, “did not and cannot allege a judicially remediable claim,” jars with the approach of most other federal courts (see note 6 and accompanying text supra) treating similarly composed allegations of other pro se petitioners as at least worthy of a response. I therefore cannot agree, in light of the contrary indications by other federal courts, that this court can say “with assurance that under the allegations of the pro se [petition], which [must be held] to less stringent standards than formal pleadings drafted by lawyers, it appears ‘beyond doubt that the [petitioner] can prove no set of facts in support of his claim which would entitle him to relief.’ ” Haines v. Kerner, 404 U.S. 519, 520-21 , 92 S.Ct. 594, 595-596 , 30 L.Ed.2d 652 (1972), quoting Conley v. Gibson, 355 U.S. 41 , 45—46, 78 S.Ct. 99, 101-102 , 2 L.Ed.2d 80 (1957).

. But see note 1 supra.