United States District Court, D. Maryland
CATHERINE C. BLAKE, District Judge.
Michael Edward Kennedy contests his continued federal parole supervision via a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. A response opposing the petition was filed, (ECF No. 7), and petitioner, through counsel, has filed a reply, (ECF No. 14). The court finds a hearing in this matter unnecessary. See Local Rule 105.6 (D. Md. 2014). For the reasons described below, Kennedy's petition will be denied.
Kennedy was convicted in the United States District Court for the Southern District of California of murder while perpetrating a rape and carnal knowledge of a female against her will in violation of 18 U.S.C. §§ 1111(b), 2031. (Petition 6, ECF No. 1.) Kennedy was sentenced to serve life imprisonment on January 15, 1981. On January 25, 2000, the United States Parole Commission released him on parole. ( See Petition Ex. 3, Prehearing Assessment & Hearing Summary 1, ECF No. 1-4.) Kennedy states that during the period of time he has been under parole supervision he has "had no violations of parole" and remained consistently employed until he was laid off in February of 2011 "due to an economically forced closure of his employer's facility." (Petition 12.)
Kennedy received early termination review hearings from the United States Parole Commission ("the Commission") in 2005, 2007, and 2008, but received no hearings from 2009 through 2012. Kennedy v. U.S. Parole Comm'n, Civ. No. CCB-13-19, 2013 WL 4517270, at *1 (D. Md. Aug. 23, 2013).
The Commission held an early termination review hearing on June 27, 2013, pursuant to this court's order. See id. at *3; (Petition Ex. 2, Hearing Tr. 1, ECF No. 1-3). Counsel represented Kennedy at that hearing, and Kennedy's wife spoke on his behalf. ( See Hearing Tr. 3, 25.) Kennedy asserts that he produced undisputed evidence at the hearing establishing that he: had not incurred any infractions of the terms of his supervision; had passed several polygraph examinations since 2006; had been registered as a sex offender for five years with updates to his registration every three months; had lived in the same residence for nine years; had been married for seven years; had made every effort to remain employed; and was otherwise in full compliance with his parole conditions. ( See Petition 13; Hearing Tr. 6-7, 11-13, 15, 17.) In addition, Kennedy indicates his parole officer, Edwin Zahler, Jr., stated that Kennedy was on high supervision and was "100 percent" compliant with the conditions of his parole, but recommended that Kennedy remain on supervision "due to the originating events." (Petition 13; Hearing Tr. 20-21.) Kennedy maintains that Zahler made this recommendation because the Commission forced him to do so. ( See Petition 13.) Kennedy states that the hearing examiner, Sandra Hylton, made the following statement:
I don't talk about the offense, that's not important at this point because you've served the time. You were given the sentence, you've served the time. So what we're looking at now is what you're adjustment has been in the community. And more importantly, how your adjustment has been since your last hearing which was in .
(Id.; Hearing Tr. 4-5.) Hylton recommended termination of Kennedy's parole supervision, stating he had done everything asked of him and had exceeded the qualifications necessary to justify termination. ( See Hearing Tr. 32-33.) Despite Hylton's recommendation, the Commission issued a notice of action on September 4, 2013, denying Kennedy's request for early termination of parole. (Petition Ex. 1, Notice of Action 1, ECF No. 1-2.) Kennedy asserts the denial was based on his originating offense as well as "decade-old sexual harassment allegations." (Petition 14.) The National Appeals Board affirmed that decision on March 20, 2014. (Id.; Response Ex. D, Bd. of Appeals Decision 1, ECF No. 7-4.)
Kennedy concedes the scope of review of the termination proceeding is limited under 18 U.S.C. § 4218(d). ( See Petition 14.) He nevertheless asserts that this court should hold that decision unlawful on the ground that it involves a "flagrant, unwarranted, or unauthorized action that constitutes an abuse of the Commission's discretion." (Petition 14 (quoting Glumb v. Honsted, 891 F.2d 872, 873 (11th Cir. 1990) (per curiam))). Specifically, Kennedy argues that the Commission violated 18 U.S.C. § 4211(c)(1) when it determined there was a likelihood he would engage in conduct violating criminal law without sufficient evidence to support that conclusion. According to Kennedy, the nature of his underlying offense and decade-old allegations of sexual harassment are insufficient to deny termination. ( See Petition 15-19.) Kennedy further claims that the Commission violated 28 C.F.R. § 2.43, insofar as the Commission failed to consider expressly his risk categorization and record on parole, as that regulation requires. See 28 C.F.R. § 2.43(g)(1). Lastly, Kennedy argues that the Commission violated his "due process right to be free of an arbitrary and capricious decision." (Petition 21-24.)
Standard of Review
Under the Parole Act,  the court's review of certain decisions made by the Commission is limited. See 18 U.S.C. § 4218(d); see also 18 U.S.C. § 4203(b). "Where the controlling statute indicates that particular agency action is committed to agency discretion, a court may review the action if there is a claim that the agency has violated constitutional, statutory, regulatory or other restrictions, but may not review agency action where the challenge is only to the decision itself." Garcia v. Neagle, 660 F.2d 983, 988 (4th Cir. 1981) (citing Ness Inv. Corp. v. U.S. Dep't of Agric., 512 F.2d 706, 715 (9th Cir. 1975)). Such discretionary decisions "are unreviewable even for abuse of discretion." Benny v. U.S. Parole Comm'n, 295 F.3d 977, 982 (9th Cir. 2002). Whether to terminate early supervision is a decision committed to the Commission's discretion. See Mitchell v. U.S. Parole Comm'n, 538 F.3d 948, 951 (8th Cir. 2008) ("[U]nder section 4211(c)(1), parole remains subject to the Commission's discretionary finding of rehabilitation...."); Valona v. U.S. Parole Comm'n, 235 F.3d 1046, 1048 (7th Cir. 2000) (explaining that 18 U.S.C. § 4211(c)(1) "effectively hands discretion to the Parole Commission"). Absent violation of some constitutional, statutory, or regulatory restriction, the substance of such a decision is thus unreviewable. See Kennedy v. Reilly, Civil No. L-09-1802, 2010 WL 761204, at *2 (D. Md. Mar. 1, 2010).
As noted, Kennedy asserts violations of 18 U.S.C. § 4211(c) and 28 C.F.R. § 2.43(b), as well as the denial of due ...