Thomas M. Roth v. United States Parole Commission

The United States Parole Commission (Commission) appeals from a decision of the United States District Court for the District of Arizona granting Thomas M. Roth’s petition for habeas corpus under 28 U.S.C. § 2241 (1976). Pursuant to the district court’s order, the warden of Safford Federal Prison in Arizona released Roth after he had served about 46 months of a combined 8-year sentence for committing two mail-fraud-related crimes. Roth remains free on parole pending the outcome of this appeal.

In ordering Roth’s release, the district court adopted the magistrate’s report and recommendation. The court found that the Commission had violated the Constitution’s ex post facto clause. The court reasoned that the Commission, by applying its new guidelines for computing parole release dates, had improperly decided to make Roth serve more time in prison to earn parole than he would have served under the old guidelines.

Because Parole Commission guidelines are not “laws” within the meaning of the ex post facto clause, Rifai v. Parole Comm’n, 586 F.2d 695, 698 (9th Cir.1978), we reverse and vacate the writ. But because the district court’s other reason for granting habeas — that the…