Application by a federal prisoner -- as to whom the Parole
Commission, after revoking his parole, had applied current
guidelines in establishing his next presumptive parole date, rather
than the standards for reparole in effect when he was sentenced --
for a stay of execution of the Court of Appeals' judgment denying a
habeas corpus writ, pending review on certiorari in this Court, is
denied.
MR. JUSTICE REHNQUIST, Circuit Justice.
The United States District Court for the Central District of
California granted applicant's petition for a writ of habeas corpus
and released him from federal custody pending appeal in the Ninth
Circuit. The Ninth Circuit reversed, denying the writ, and declined
to issue an order staying its mandate pending review on certiorari
in this Court. Applicant then filed this request for a stay of
execution of the Ninth Circuit's mandate, scheduled for issuance on
February 11, 1980.
In April, 1972, after pleading guilty to federal offenses,
applicant was sentenced to serve six years in federal custody.
Applicant was released on parole July 1, 1974. During his parole
term, applicant was convicted of two separate offenses in state
court. On June 20, 1978, the Parole Commission held a hearing and
revoked applicant's parole on the basis of the two convictions. The
Commission applied its guidelines currently in force, 28 CFR § 2.21
(1978), in establishing applicant's next presumptive parole date,
indicating that a customary range of 34 to 44 months would be
served before re-release.
Applicant filed a writ of habeas corpus in federal court, and
the trial judge granted the writ, ordering the Parole Commission to
reconsider and determine applicant's parole eligibility under the
standards for reparole in effect when the applicant
Page 444 U. S. 1312
was sentenced in April, 1972. The Ninth Circuit reversed,
relying on its decision in
Rifai v. United States Parole
Comm'n, 586 F.2d 695 (1978), holding that the Parole
Commission did not violate the constitutional prohibition against
ex post facto laws by failing to rely on the guidelines in
effect at the time of sentencing, rather than at the time of parole
eligibility.
When applicant was sentenced in April, 1972, the statutes then
in force provided that, if an individual was found to have violated
parole, "the said prisoner may be required to serve all or any part
of the remainder of the term for which he was sentenced." 18 U.S.C.
§ 4207 (1970 ed.). Now, as in 1972, the Commission's determination
to grant or deny parole is "committed to agency discretion." 18
U.S.C. § 4218(d). The administrative guidelines articulating the
factors relied on by the Commission in making parole and reparole
decisions have changed from those in effect at the time of
applicant's sentencing. But even assuming for purposes of this
application that the Ex Post Facto Clause applies to parole in the
manner it does to trial and sentence, the changes in issue are not
impermissible, as applicant contends. In
Dobbert v.
Florida, 432 U. S. 282,
432 U. S. 293
(1977), this Court held that the prohibition of
ex post
facto laws does not extend to every change of law that "may
work to the disadvantage of a defendant." It is intended to secure
"substantial personal rights" from retroactive deprivation, and
does not "limit the legislative control of remedies and modes of
procedure which do not affect matters of substance."
Ibid.
The guidelines operate only to provide a framework for the
Commission's exercise of its statutory discretion. The terms of the
sentence originally imposed have in no way been altered. Applicant
cannot be held in confinement beyond the term imposed by the judge,
and, at the time of his sentence, he knew that parole violations
would put him at risk of serving the balance of his sentence in
federal custody. The guidelines, therefore, neither deprive
applicant of any preexisting right
Page 444 U. S. 1313
nor enhance the punishment imposed. The change in guidelines
assisting the Commission in the exercise of its discretion is in
the nature of a procedural change found permissible in
Dobbert,
supra.
Since I do not believe that applicant is being held in custody
in violation of the Constitution, I deny the application for a
stay.
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