Gary Robert Williams v. United States Parole Commission

concurring.

The Parole Commission’s interpretation of “new information” adopted by the majority here has been approved in other circuits. See Fardella v. Garrison, 698 F.2d 208, 211 (4th Cir.1982); Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir.1981); McClanahan v. Mulcrome, 636 F.2d 1190, 1191 (10th Cir.1980). I am constrained to concur in the result here but I remain troubled by the inherent arbitrariness in parole decisions permitted under the rule. I find the record kept by the Parole Commission in this case inadequate to account for its statutory duties and to permit effective judicial review.

I agree with the majority that a sentencing judge’s parole comment form or a presentence report may be considered “new and significant adverse information,” within the meaning of 28 C.F.R. § 2.28 (f) (1982), if it was not available to the hearing examiners when they made their decision. 18 U.S.C. § 4207 (1976) requires the Commission to consider, inter alia, the parole comment form if available and relevant. 1 See also 28 C.F.R. § 2.19 (1982). I would also agree that a case could be reopened if the Commission discovers information listed in the statute which it should have considered…

Williams appeals from the denial of his petition for a writ of habeas corpus. He argues that the Parole Commission erred in reopening his presumptive parole date because there was no “new adverse information,” and, in the alternative, that the Parole Commission acted arbitrarily and capriciously in setting his new presumptive parole date. We affirm.

*1061 I. The Facts.

Williams is a federal prisoner confined in a California state prison at San Quentin, to which he was transferred from the federal penitentiary in Atlanta, Georgia, because his life was believed to be in danger in that penitentiary. He is in a special protective custody unit at San Quentin. He is also serving a Texas sentence concurrently, for which a detainer is lodged against him.

In August 1977 Williams was involved in a prison killing at the federal penitentiary in Atlanta. Pursuant to a plea bargain, he testified at the trial of the principals, and pled guilty to one count charging him with being an accessory after the fact. On December 20,1978, he was sentenced to a term of eight years, consecutive to the other sentence that he was serving.

The sentencing judge executed a standard parole comment form. The…

707 F.2d 1060 Gary Robert WILLIAMS, Petitioner-Appellant, v. UNITED STATES PAROLE COMMISSION, Respondent-Appellee. No. 82-4062. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 12, 1982. Reassigned March 8, 1983. Decided June 8, 1983. Geoffrey Hansen, Asst. Fed. Public Defender, San Francisco, Cal., for petitioner-appellant. Kimberly A. Reiley, Asst. U.S. Atty., San Francisco, Cal., for respondent-appellee. Appeal from the United States District Court for the Northern District of California. Before DUNIWAY, SKOPIL, and FLETCHER, Circuit Judges. DUNIWAY, Circuit Judge: 1 Williams appeals from the denial of his petition for a writ of habeas corpus. He argues that the Parole Commission erred in reopening his presumptive parole date because there was no "new adverse information," and, in the alternative, that the Parole Commission acted arbitrarily and capriciously in setting his new presumptive parole date. We affirm.I. The Facts. 2 Williams is a federal prisoner confined in a California state prison at San Quentin, to which he was transferred from the federal penitentiary in Atlanta, Georgia, because his life was believed to be in danger in that penitentiary.…