Veronza L. Bowers, Jr. v. United States Parole Commission

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 22, 2019
• Docket: 16-15737
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 16-15737 ________________________

D.C. Docket No. 1:08-cv-02095-WCO

VERONZA L. BOWERS, JR.,

Petitioner-Appellant,

versus

UNITED STATES PAROLE COMMISSION, WARDEN,

Respondents-Appellees.

________________________

Appeal from the United States District Court for the Northern District of Georgia ________________________

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Before JORDAN and JULIE CARNES, Circuit Judges, and SCHLESINGER, ∗ District Judge.

JULIE CARNES, Circuit Judge:

Petitioner Veronza Bowers was convicted in 1974 for the murder of a

federal park ranger, and he has been incarcerated ever since. Petitioner argues that

he is entitled to parole, given how much time he has served on his sentence.

Petitioner’s right to any parole is governed by the 1976 Parole Commission and

Reorganization Act, 18 U.S.C. §§ 4201 et seq. (the “Parole Act” or the “Act”),

under which he became eligible to be considered for “mandatory” 1 parole in April

2004. See 18 U.S.C. § 4206(d). Since that time, the United States Parole

Commission has repeatedly denied Petitioner’s requests for release under

§ 4206(d), finding that he is ineligible for this type of parole because he seriously

violated institutional rules.

This appeal arises from his petition for a writ of habeas corpus in the

Northern District of Georgia. In the district court, Petitioner alleged that the

∗ The Honorable Harvey E. Schlesinger, United States District Judge for the Middle District of Florida, sitting by designation. 1 Although the applicable provision is often referred to as the “mandatory parole” provision, in fact the provision is not mandatory, and the Commission can deny parole under this provision under one of three circumstances: if the prisoner has (1) seriously or (2) frequently violated institution rules or (3) if there is a reasonable probability that the prisoner will commit another crime in the future.

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Commission erred in denying his parole for two reasons: first, by applying an

erroneous interpretation of the Parole Act’s mandatory parole provision, § 4206(d),

and second, by denying his parole in response to improper political pressure, thus

failing to act as a neutral, unbiased decision-maker in considering his right to

parole. The district court denied his petition for habeas relief. Petitioner now

appeals. After careful consideration, and with the benefit of oral argument, we

AFFIRM.

I. BACKGROUND

The Sentencing Reform Act of 1984 required federal defendants to be

sentenced pursuant to federal Sentencing Guidelines and it eliminated any early

release from a sentence pursuant to parole. See Pub. L. 98–473, §§ 218(a)(5),

235, 98 Stat. 1837, 2027, 2031 (1984); Walden v. U.S. Parole Comm’n, 114 F.3d

1136, 1138 (11th Cir. 1997). Prior to enactment of the Sentencing Reform Act,

the 1976 Parole Act defined the circumstances under which individuals serving

prison sentences may become eligible for parole. Notwithstanding its repeal, the

Parole Act continues to apply to prisoners who were sentenced prior to the

effective date of the Federal Sentencing Guidelines. See Walden, 114 F.3d at

1138.

The United States Parole Commission (the “Commission”) is the executive

agency responsible for administering the Act’s parole guidelines for the ever

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decreasing number of inmates who are able to avail themselves of its benefits.

The Commission makes discretionary judgments regarding federal prisoners’

right to parole at various stages of incarceration. In performing this function, the

Commission is “independent for policy-making purposes, but is attached to the

Department of Justice for administrative convenience.” S. Rep. 94-369, at 14

(1976), reprinted in 1976 U.S.C.C.A.N. 335, 336.

Ever since the repeal of the Parole Act, Congress has debated whether to

keep the Parole Commission in existence in its current form or to disband it

altogether in favor of a new administrative process for those prisoners who were

not sentenced pursuant to the Sentencing Reform Act of 1984. The Commission

was initially slated for elimination under the latter statute, until Congress changed

course and renewed the Commission’s mandate. Congress has reauthorized the

Commission several times since then, and the Commission’s continued existence

depends, in part, on periodic reports from the Attorney General as to whether “the

continuation of the Commission is the most cost-effective and cost-efficient

manner for carrying out the Commission’s functions.” Parole Commission

Phaseout Act of 1996, Pub. L. No. 104-232, 110 Stat. 3055, 3056 (1996). Thus,

the Commission itself is not involved in its own reauthorization process. Instead, it

is the Attorney General who decides whether to advocate for its periodic

reauthorization by Congress.

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In the present case, Petitioner challenges the Commission’s most recent

denial of his claimed right to release. This present claim, however, is preceded by a

lengthy and complex history involving both the Parole Commission and federal

courts. Indeed, we have twice before considered his case in Bowers v. Keller, 651

F.3d 1277 (11th Cir. 2011) (“Bowers I”), and Bowers v. United States Parole

Comm’n, Warden, 760 F.3d 1177 (11th Cir. 2014) (“Bowers II”). We begin by

summarizing the various phases of the underlying proceedings in order to provide

context for the two core issues before us on appeal.

A. Petitioner’s Incarceration

Petitioner was tried and convicted for the brutal murder of a federal park

ranger in Point Reyes National Seashore, a national park in California. He was

sentenced to life imprisonment in 1974. Bowers I at 1282–83.2

2 The details of the murder are as follows:

Bowers and two other men had been stopped by [Ranger Patrick] while on an expedition to poach deer . . . . According to the Parole Commission, Bowers shot Ranger Patrick in the chest after Ranger Patrick stopped their car to investigate. Bowers jumped out of the car and shot Ranger Patrick a second time, hitting him in the left wrist. Ranger Patrick then staggered down the road and fell into the bushes. The driver brought the car alongside the dying ranger; Bowers attempted to shoot him a third time, in the chest, but his gun misfired. Bowers then attempted a fourth shot but missed. As the car left the scene of the shooting, Bowers asked one of the other men if he had seen the ranger twitch when Bowers shot him as he was lying on the ground. Several days later, Bowers told another friend who suspected him of the killing that “Yes, I had to get me one” and that the ranger had “kicked like a chicken when [Bowers] shot him.”

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Basing its denial of parole on Petitioner’s serious violation of institutional

rules, the Commission cited an unsuccessful attempt by Petitioner to escape from

prison shortly after his conviction. Id. Specifically, in 1979, Petitioner and a

fellow inmate scaled an interior perimeter fence while other prisoners were in the

recreation yard. Id. As soon as guards detected them, Petitioner and his partner

were pinned down by tower gunfire between the inner and outer fences of the

recreation yard. Id. Gunfire twice hit the other inmate involved in the attempted

escape. Id. In the view of prison administrators, Petitioner’s actions created a

“very serious situation” because it created a risk of injury to other inmates in the

area. Id. The prison investigated the incident, and Petitioner was ultimately

convicted of attempted escape. Id. 3

In recent years, Petitioner has violated no prison regulations. A hearing

examiner considering Petitioner’s record in 2004 stated that Petitioner had not been

Bowers I at 1283 (alterations in original) (citations omitted) (quotation marks omitted). Petitioner’s conviction was upheld by the Ninth Circuit in 1976. Id. 3 Petitioner was involved in a second incident that the Commission considered to a lesser degree in denying his parole. This incident involved a letter Petitioner sent to the widow of the murdered park ranger in 1990. Bowers I at 1284. Earlier that year, Petitioner had received a certified return receipt that appeared to show that a letter had been sent from the prison to the widow in Petitioner’s name. Id. Investigators found that the return receipt related to a victim notification letter that the Bureau of Prisons had sent to the widow. Id. The return receipt had erroneously been placed in Petitioner’s mail. Id. Confused by this communication, Petitioner responded with a letter to the widow attempting to explain the circumstances. Id. A parole examiner investigating the situation found that the letter was neither threatening nor intimidating. Id.

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the subject of a disciplinary report since 1988 and had no history of causing

management problems for prison staff. And according to his habeas petition,

Petitioner has used his time in prison to attain an Associate’s Degree and become

an expert in meditation, yoga, the Japanese shakuhachi flute, sign language, and

baking. A chaplain at the prison further described Petitioner as an instrumental

part of the prison’s religious service programs and as having “the most positive

attitude that could be imagined.”

Petitioner became eligible to be considered for mandatory parole under

18 U.S.C. § 4206(d) on April 7, 2004. Id. at 1284. This provision essentially

requires that every prisoner, no matter his crime or sentence, be released after

serving thirty years, subject to three exceptions. The entire provision reads as

follows:

Any prisoner, serving a sentence of five years or longer, who is not earlier released under this section or any other applicable provision of law, shall be released on parole after having served two-thirds of each consecutive term or terms, or after serving thirty years of each consecutive term or terms of more than forty-five years including any life term, whichever is earlier: Provided, however, That the Commission shall not release such prisoner if it determines that he has seriously or frequently violated institution rules and regulations or that there is a reasonable probability that he will commit any Federal, State, or local crime.

18 U.S.C. § 4206(d) (emphasis added). After initially deciding to grant Petitioner

mandatory parole, the Commission subsequently changed its mind, and its actions

are at the center of this appeal. As such, we summarize the procedural history of

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Petitioner’s pursuit of parole before the Commission, the district court, and this

Court.

B. 2005 Parole Proceedings

When Petitioner first became eligible for mandatory parole on April 7, 2004,

the prison automatically processed him for release. Bowers I at 1284. His release

was halted, however, after prison authorities informed him that he was ineligible

for parole because he had waived his right to a statutory interim hearing two years

earlier. Id.

Petitioner immediately filed an emergency habeas petition in the Middle

District of Florida. Id. The court considered and rejected the Commission’s

waiver argument and faulted the Commission for failing to properly review

Petitioner for mandatory parole eligibility. Id. The Commission was ordered to

immediately consider Petitioner’s rights under § 4206(d) and to hold any necessary

hearings within sixty days. Id. In compliance with this directive, the Commission

initiated a series of proceedings to determine whether Petitioner satisfied the

criteria for mandatory parole.

1. The Commission grants parole, revokes parole, reopens Petitioner’s case to consider new information, and grants parole following a tie vote.

Following the above-described remand by the district court, three

Commission examiners recommended that Petitioner be paroled based on his

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record of good behavior during his confinement. The Commission thereafter

approved Petitioner’s parole under § 4206(d), on January 13, 2005. Bowers I at

1284. On February 17, 2005, shortly before Petitioner was set to be released, the

Commission decided to reopen his case “to consider new adverse information.” Id.

at 1284–85. The information prompting reconsideration came from the victim’s

widow, who had submitted to the Commission a letter describing a 2002 radio

interview Petitioner conducted while in prison. Id. at 1285. In the interview,

Petitioner maintained his innocence and stated his belief that the FBI had targeted

him because of his activity as a member of the Black Panthers. Id. Petitioner also

identified himself in the interview with other prisoners who had labeled themselves

“political prisoners.”4 Id.

The Commission re-voted Petitioner’s case for parole, taking the radio

interview into account as possible evidence that Petitioner was likely to commit a

crime in the future. Id. at 1285–86. As noted, under § 4206(d), if the Commission

determines that a prisoner is likely to commit a crime after release, then it must

deny parole. At the time, the Commission comprised five members. Id. at 1282.

One of them, Commissioner Fulwood, had recused himself from Petitioner’s case

4 For the entirety of his incarceration, Petitioner has denied any guilt for the murder of the park ranger, claiming that he was targeted for prosecution because of his association with the Black Panthers. Id. at 1283. He has also repeatedly referred to himself as a “political prisoner.” Id.

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because of his prior service as a law enforcement officer. Id. at 1286. The

remaining four Commissioners split evenly as to whether Petitioner was eligible

for parole under § 4206(d), with two Commissioners finding that he had seriously

violated institution rules and was likely to commit another crime, and two

Commissioners disagreeing with that finding. Id.

This tie vote was unprecedented in such proceedings. The Commission’s

General Counsel advised that, under § 4602(d), parole is mandatory unless the

Commission makes an affirmative finding that one of the circumstances warranting

denial has been met. Id. Because the tied vote produced no affirmative finding on

any of the grounds on which mandatory parole may be denied—that is, a serious or

frequent rule violation or a reasonable probability of committing future crime—the

Commission granted Petitioner mandatory parole on May 17, 2005 (the “May 17

Grant”). Id.

2. The Attorney General intervenes, and the Commission revokes parole and reopens the case for a second time.

At the end of May 2005, the Commission received a communication from

the United States Deputy Attorney General requesting further information

regarding Petitioner’s case and asking one of the dissenting Commissioners to

explain why she voted to detain Petitioner. Bowers I at 1286–87. The

Commission replied that “[i]t would be inappropriate and not in the best interests

of the Commission—or the Attorney General—for the Attorney General to ask [a

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Commissioner] to explain her vote” because it would suggest “a relationship

incompatible with the independence sought by Congress when it established the

Commission and could create the appearance of an attempt to influence.” Id. at

1287.

Unbeknownst to other members of the Commission and in disregard of the

Commission’s position, Commissioner Deborah Spagnoli—who had originally

voted against Petitioner’s parole eligibility—surreptitiously responded to the

Deputy Attorney General’s inquiry in a memorandum dated June 1, 2005 that

outlined arguments the Attorney General could use to file an appeal of a decision

to grant Bowers parole (the “Spagnoli Memo”). See id. at 1289. Apparently in

response to the Spagnoli Memo, the Attorney General sent a follow-up letter to the

Commission on June 9, 2005, which requested that the Commission “review and

consider the Veronza L. Bowers matter and render a new decision on whether to

grant or deny parole to Bowers.” Id. at 1287. The Commission acceded to this

request, reopened the matter, and delayed Petitioner’s release pending

reconsideration. Id.

Shortly thereafter, the Office of the Deputy Attorney General submitted

another letter to the Commission advocating for the denial of Petitioner’s parole on

the ground that Petitioner’s attempted prison escape was a “serious” rule violation

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and should therefore preclude parole under the plain language of § 4206(d) (the

“Position Letter”). See id. at 1288.

3. The Commission unanimously denies parole.

In a final, closed meeting held on October 6, 2005, the Commission re-voted

and unanimously agreed that Petitioner was not entitled to mandatory parole

because his attempted prison escape constituted “serious institutional misconduct”

under § 4602(d). Bowers I at 1288. Three of the four voting Commissioners

further found that, in light of Petitioner’s continued insistence that he was a

political prisoner, Petitioner’s initial crime was motivated by a hatred for the

United States Government, and he was likely to commit another similarly

motivated crime in the future. Id. On the basis of this vote, Petitioner’s parole was

denied (the “October 6 Denial”). Id.

C. 2010 Habeas Proceeding

The Commission learned of the Spagnoli Memo in September 2007 and

promptly notified Petitioner that the impartiality of the Commission’s decision

with respect to the October 6 Denial may have been compromised. Bowers I at

1289. By this time, Petitioner had applied for parole again and was awaiting a new

hearing. Id. Upon learning of the Spagnoli Memo, Petitioner requested a

postponement of his upcoming hearing and instead filed a habeas petition under 28

U.S.C. § 2241 in the Northern District of Georgia on June 24, 2008. Id. Later in

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that proceeding, Petitioner requested leave to conduct discovery regarding

potential bias of the Parole Commission in the event his petition was denied on its

face.

In his habeas petition, Petitioner challenged as unlawful the Commission’s

decisions in February and June 2005 to reopen his case and vote again on his

parole eligibility. Id. at 1289–90. He also argued that the October 6 Denial was

improperly tainted by political pressure on the Commission and by the actions of

Commissioner Spagnoli. Id. at 1290.

The district court denied the petition, concluding that, because Petitioner had

not actually been released from prison at any point, the Commission did not err in

twice deciding to reconsider his parole eligibility. Id. at 1291.

D. Eleventh-Circuit Review in Bowers I

Petitioner appealed the district court’s denial of his habeas petition in May

2010. This Court reviewed that order de novo, focusing on the legality of the

Commission’s decisions to reopen Petitioner’s case in both February and June of

2005. Bowers I at 1291. This Court first found that the February 2005 reopening,

which was prompted by the Commission’s receipt of new information regarding

Petitioner from the victim’s widow, did not violate the relevant regulations. Id. at

1292.

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This Court did, however, find significant flaws in the June 2005 reopening.

Id. at 1292–96. We concluded that, by sending a memo to the Attorney General

and advocating for his intervention in Petitioner’s proceeding, Commissioner

Spagnoli had “violated the Parole Act’s mandate that the Parole Commission

function as an independent agency, impermissibly tainting the Parole

Commission’s decision to reopen.” Id. at 1293. On this basis, we reversed the

denial of habeas relief and remanded the matter to the district court with

instructions to remand the case to the Commission in its posture as of May 17,

2005—before Commissioner Spagnoli intervened in the matter. Id. at 1296. The

Court further instructed the Commission to immediately review Petitioner’s case

on a clean slate to determine whether further action was necessary or authorized.

Id. The Court affirmed the district court on all other grounds. Id.

E. 2011 and 2012 Parole Proceedings

The Commission took immediate action consistent with this Court’s order in

Bowers I. It informed Petitioner that it intended to reconsider his case and set a

deadline of October 14, 2011, by which he could submit any new materials in

support of his release. On October 4, 2011, the Commission decided to re-vote the

May 17 Grant. The Commission conducted its re-vote during a closed session on

December 8, 2011, and reached a unanimous decision to deny Petitioner parole

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under § 4206(d) (the “Final Denial”). 5 The Commission did not record this

meeting, nor did it maintain a transcript or contemporaneous notes summarizing

the Commissioners’ discussion. Its decision was memorialized in a one-page letter

to Petitioner dated December 15, 2011, which identified the grounds for the

Commission’s decision (the “Denial Letter”). In the Denial Letter, the

Commission asserted that Petitioner’s escape attempt “seriously violated prison

rules” and “[t]he passage of time does not diminish the gravity of this rule

violation.”6 The Commission withheld “for now” a finding as to whether there

was a reasonable probability that Petitioner would commit another crime.

5 At the time, the Commission comprised four individuals: Commissioners Mitchell, Fulwood, and Cushwa, who had previously been involved with the case, and Commissioner Smoot, who was new to the case. As before, Fulwood recused himself from the re-vote. Thus, only three Commissioners were involved in the re-vote. Both Mitchell and Cushwa had voted with respect to the October 6 Denial that Petitioner was not eligible for parole because his attempted escape constituted a “serious violation.” Recall that this Court found in Bowers I that the October 6 Denial was invalid because it had been tainted by the improper actions of Commissioner Spagnoli. Notably, Mitchell had voted with respect to the May 17 Grant that Petitioner should be released but later changed his mind. Hence his vote against parole in subsequent proceedings. 6 In relevant part, the Denial Letter reads as follows:

As a result of a vote taken at the closed session of the Commission’s quarterly business meeting on December 8, 2011, the Commission determined that you should be denied parole under the criteria of 18 U.S.C. § 4206(d).

1. The Commission found that you seriously violated prison rules by your attempted escape in 1979. The violation was serious because your attempt had the potential of causing significant unrest and disruption among the population of a secure institution. Other prisoners were in the yard at the time you and another prisoner scaled the inner fence and were trapped between the inner and perimeter fences. Your attempt drew gunfire from tower guards. Your fellow

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In reaching this decision, the Commission had before it two memoranda

written by the Commission’s then-General Counsel, Rockne Chickinell, which

discussed the language of § 4206(d) and made a recommendation as to Petitioner’s

application (the “Chickinell Memos” or the “Memos”). Both Memos expressed

the opinion that Petitioner should be denied mandatory parole because his

attempted escape from prison constituted a “serious” rule violation,

notwithstanding his subsequent record of good behavior. Specifically, Chickinell

advised that, “[g]iven the statutory terms, the Commission must deny parole to

Bowers if it finds, by a majority vote, that any of the criteria listed disqualify

Bowers for parole.” As such, Chickinell stated that “the Commission must deny

mandatory parole to Bowers if it determines that [his 1979] escape attempt

seriously violated prison rules, regardless of the passage of time after the incident.”

The Memos proceeded to discuss the circumstances of Petitioner’s attempted

escape and recommend that the Commission treat that attempt as a “serious” rule

escapee was wounded by the gunfire. The passage of time does not diminish the gravity of this rule violation.

2. The Commission did not find that you have frequently violated prison rules.

3. For now, the Commission has withheld any findings on the criterion of whether there is a reasonable probability that you would commit another federal, state, or local crime if you were paroled. . . .

(emphases added).

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violation within the meaning of § 4206(d). As Chickinell expressly noted in each

of the Memos, his recommendations were consistent with the analysis contained in

the 2005 Position Letter from the Department of Justice (“DOJ”), in which the

Deputy Attorney General advocated for the denial of Petitioner’s parole.

As he had done at each prior stage of his parole proceedings, Petitioner

pursued administrative routes to appeal the Final Denial, including a motion for

reconsideration. See Bowers II at 1182. The Commission took note of this motion

and voted during another closed session to affirm the Final Denial.

Petitioner argues that the timing of the Commission’s decision supports an

inference of bias, making the context of the Commission’s Final Denial and related

decision-making critical to Petitioner’s position on appeal. Specifically, in

September 2011, as the Commission was reconsidering Petitioner’s case on

remand following Bowers I, a bill to extend the Commission’s mandate was

pending in Congress, subject to a senatorial hold. Once the Commission

determined that it would reconsider Petitioner’s case, General Counsel Chickinell

advised the Commission not to act on Petitioner’s case until after he had an

opportunity to submit supplemental information in support of his case. Thus, he

advised the Commission not to take further action until after October 14, the

deadline the Commission had set for Petitioner’s supplementary submissions. The

Commission disregarded this advice and authorized the re-vote nonetheless,

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without waiting for input from Petitioner himself. Two days later, the hold on the

reauthorization bill was lifted and the bill to extend the life of the Commission was

passed. The Commission, however, did not actually vote on whether to deny

parole until December 8, 2011.

Petitioner infers from this timeline of events that the Commission made a

decision to re-vote the case prior to the Congressional vote in order to increase the

likelihood of reauthorization by Congress. Petitioner argues that because the DOJ

is responsible for convincing Congress to reauthorize the Commission, and

because the DOJ had repeatedly articulated its desire to preclude Petitioner’s

release on parole, the Commission conformed to the DOJ’s preferences and agreed

to release the case in order to increase the chances of a favorable outcome in

Congress. As noted, the Commission did not actually vote to deny parole until two

months later, after it had been re-authorized as an agency by Congress.

F. 2012 Habeas Proceeding

Petitioner’s habeas proceeding in the Northern District of Georgia remained

ongoing while the Commission reconsidered his case. Immediately following the

Final Denial, Petitioner moved the district court for leave to conduct discovery

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regarding ongoing bias in the Commission’s decision-making process.7 Petitioner

also moved for leave to amend his habeas petition to include allegations of

misconduct relating to the Commission’s 2011–2012 parole proceedings.

The district court denied both motions, noting that this Court’s mandate in

Bowers I did not “authorize, instruct, or suggest . . . that any additional discovery

concerning ex-Commissioner Spagnoli’s activities would be necessary or prudent”

and that this Court had not granted Petitioner any relief regarding his claims that

the Parole Commission was subject to political pressure. Bowers II at 1182–83

(alterations accepted). The district court further held that the Parole Commission

7 Petitioner sought discovery on five issues:

(1) The materials considered by the Commission in connection with its “re-vote” and whether those materials were received pre- or post-remand;

(2) The steps the Commission took (if any) to purge the taint of Commissioner Spagnoli’s actions on the agency and the undue influence of the DOJ;

(3) The contacts and pressures placed on the Commission by other people and organizations outside of the agency relating to its “re-vote”;

(4) The extent to which any members of Congress contacted the agency about Mr. Bowers’s case or placed any pressure on the agency during the recent reauthorization process; and

(5) The Commission’s basis for its decision to “re-vote,” the basis for its December 8, 2011 decision, and the standards and procedures the agency used.

Bowers II at 1183 n.6 (alterations accepted) (quotation marks omitted).

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did not violate the Parole Act or any of the Commission’s rules or regulations in

the process of re-voting his case. See id. at 1183.

G. Eleventh-Circuit Review in Bowers II

Petitioner appealed the district court’s judgment to this Court. In Bowers II,

we first concluded that the district court abused its discretion in denying discovery

because it had failed to consider whether good cause existed and had denied

discovery based on an unduly narrow reading of the Bowers I remand order.

Bowers II at 1183–84. We also found that the court abused its discretion in

denying Petitioner leave to amend his petition. Id. at 1185. Given these

conclusions, this Court permitted Petitioner to amend his petition and granted him

discovery on the limited issue of potential bias and political pressures on the

Commission during his post-2005 parole proceedings.8 Id. at 1184–85. We

8 In so ordering, we stated:

Bowers alleges that external political pressure prevented the Parole Commission from acting as an unbiased, independent agency when deciding his case. He points to past allegations of political considerations influencing the Parole Commission’s decisions, as well as the suspicious timing of the October 4, 2011 decision to re- vote. Given the unique history of bias and alleged political pressure in this case, we find that these allegations are more than “mere speculation” and give us reason to believe that, with further discovery into post-October 2005 political pressure on the Parole Commission from any source Bowers may “be able to demonstrate that he is entitled to relief.” Therefore, Bowers should be granted discovery on the impact that post-October 2005 political pressure may have had on the Parole Commission’s 2011 decision. However, Bowers should not be granted discovery on the influence on the Commission before October 2005 nor on the impact

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remanded the matter for further action by the Commission in accordance with our

instructions. Id. at 1185.

H. 2014–2016 Habeas Proceedings

Petitioner filed an amended habeas petition on October 29, 2014 (the

“Amended Petition”), expanding his allegations of misconduct by the Commission

to include the 2011–2012 timeframe and the Commission’s Final Denial of his

parole eligibility. In the Amended Petition, Petitioner alleged that the Commission

had been improperly influenced by the DOJ in the course of its decision-making

and was thereby biased against him when it reconsidered his case. To support this

claim, Petitioner alleged that, because the DOJ supervises the Commission’s

budget and is solely responsible for advocating before Congress for the

Commission’s reauthorization, the Commission has strong incentives to make

decisions in line with the DOJ’s preferences. Because the DOJ had already

indicated its preference for denying Petitioner’s parole and construing § 4206(d)

narrowly, Petitioner alleged that the Commission was predisposed to follow the

DOJ’s guidance upon reconsideration. And the fact that the Final Denial of

Petitioner’s parole followed shortly after Congress’s most recent reauthorization of

Commissioner Spagnoli’s bias may have had on the Parole Commission as it stands now.

Id. at 1184–85 (emphasis added) (footnotes omitted) (citations omitted).

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the Commission’s mandate purportedly supported this bias narrative as well.

Petitioner also alleged that the interpretation of § 4206(d) that the Commission

adopted in his case was unreasonably narrow and inconsistent with the Parole

Act’s broader structure.

Petitioner ultimately asked the district court to find that “the probability of

actual bias” was “too high to be constitutionally tolerable,” Withrow v. Larkin, 421

U.S. 35, 47 (1975), and that the Commission’s actions violated (1) his Fifth

Amendment due process rights, (2) the Parole Act, and (3) the Commission’s own

rules and regulations. He also asked the court to reverse the Commission’s

unreasonable interpretation of § 4206(d) as applied in his case.

On June 28, 2016, the district court dismissed the Amended Petition on

several grounds. The court properly narrowed the bias inquiry to events that took

place after Commissioner Spagnoli’s improper intervention, as this Court had

already returned Petitioner’s case to its posture as of the May 17 Grant. After

thorough review of Petitioner’s arguments and the evidence gleaned through

discovery, the court concluded that the Amended Petition failed to establish that

the Commission violated the Parole Act, the regulations promulgated thereunder,

or Petitioner’s due process rights by acting with bias in his case. It noted that the

decision whether to grant parole is highly discretionary and that a reviewing court

is not authorized to substitute its own view of a prisoner’s eligibility for that of the

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Commission. To do so, the court concluded, would “alter the balance Congress

has drawn by establishing the Parole Commission and [ ] potentially do harm to the

manner in which the [Commission] and the various state parole commissions

operate.” For the same reasons, the court found no abuse of the Commission’s

discretion in its application of § 4206(d) to the facts of Petitioner’s case.

Petitioner now appeals the district court’s denial of his Amended Petition for

habeas relief.

II. STANDARD OF REVIEW

This Court reviews a district court’s denial or dismissal of a habeas petition

de novo. Santiago-Lugo v. Warden, 785 F.3d 467, 471 (11th Cir. 2015).

III. DISCUSSION

On appeal, Petitioner asks this Court to consider two questions. First: Did

the Commission violate the Parole Act by denying Petitioner parole based on an

incorrect interpretation of § 4206(d)? And second: Did the Commission fail to act

as an impartial decision-maker in Petitioner’s case, thereby violating the Due

Process Clause, the Parole Act, and this Court’s mandate in Bowers I? We answer

both questions in the negative and affirm the district court’s judgment.

23 Case: 16-15737 Date Filed: 05/22/2019 Page: 24 of 42

A. Interpretation and Application of § 4206(d)

1. Deference due to an agency’s decision, generally

The threshold question is how much, if any, deference is owed to the

Commission’s decision denying mandatory parole. We therefore begin by

outlining the principles that guide our review of agency decision-making.

The Parole Commission’s substantive decisions to grant or deny parole—

including its factual findings and applications of the Parole Act to individual

cases—are reviewed only for abuse of discretion. Glumb v. Honsted, 891 F.2d

872, 873 (11th Cir. 1990); see Meagher v. Clark, 943 F.2d 1277, 1283 (11th Cir.

1991) (“The power of the United States Parole Commission to make [substantive]

parole decisions is well-settled and has been protected by the courts.”). As we

have previously clarified, “[a] federal court will not reverse a decision of the

Commission unless it involves flagrant, unwarranted, or unauthorized action that

constitutes an abuse of the Commission’s discretion.” Glumb, 891 F.2d at 873.

By contrast, we review an executive agency’s determinations of pure legal

questions de novo, subject to principles of deference articulated by the Supreme

Court. See, e.g., DeKalb Cty. v. U.S. Dep’t of Labor, 812 F.3d 1015, 1020 (11th

Cir. 2016) (“Legal conclusions are reviewed de novo, keeping in mind that

agencies often receive deference in construing the statutes they administer.”); Li v.

U.S. Att’y Gen., 488 F.3d 1371, 1374 (11th Cir. 2007) (“To the extent that the

24 Case: 16-15737 Date Filed: 05/22/2019 Page: 25 of 42

decision of the Board [of Immigration Appeals] was based on a legal

determination, our review is de novo.”); Sierra Club v. Adm’r, U.S. E.P.A., 496

F.3d 1182, 1186 (11th Cir. 2007) (granting deference to an order of the

Environmental Protection Agency interpreting federal and state statutory schemes).

Thus, to the extent the Commission’s denial of Petitioner’s parole was based on a

legal interpretation of § 4206(d) with which the non-prevailing party disagrees, we

review that interpretation de novo, subject to whatever deference to that

interpretation is due. See Bender v. U.S. Parole Comm’n, 802 F.3d 690, 695–96

(5th Cir. 2015) (granting deference to Parole Commission’s regulatory

interpretation of two ambiguous provisions of the Parole Act).

That being said, not every interpretation of law by an executive agency is

entitled to the same measure of deference. The nature of the underlying statute and

the formality of the interpretation at issue dictate the proper analytical approach.

Most fundamentally, no deference is due to an agency interpretation of a statute

that is not ambiguous in the first instance. See Castillo v. U.S. Att’y Gen., 756 F.3d

1268, 1272 (11th Cir. 2014) (“We review de novo the [Board of Immigration

Appeals’] interpretation of the Immigration and Nationality Act (‘INA’), deferring

to the Board’s permissible construction only where the statute is ambiguous.”); see

also Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1299 (11th

Cir. 2011) (“Regulations entitled to Chevron deference bind us in regard to the

25 Case: 16-15737 Date Filed: 05/22/2019 Page: 26 of 42

ambiguous text only.”). Where statutory language is plain and unambiguous, we

apply it according to its terms. Carcieri v. Salazar, 555 U.S. 379, 387 (2009).

When statutory language is ambiguous, however, we ask whether the

agency’s interpretation is of a type that renders it eligible to receive deference

under the standard articulated in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council,

Inc., 467 U.S. 837 (1984). Under Chevron, “[w]hen a court reviews an agency’s

construction of the statute which it administers . . . . [and] the statute is silent or

ambiguous with respect to the specific issue, the question for the court is whether

the agency’s answer is based on a permissible construction of the statute.”

Chevron, 467 U.S. at 842–43. Thus, when Chevron applies, we defer to the

agency’s interpretation of an ambiguous statute so long as the agency’s

interpretation is reasonable. Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117,

2124–25 (2016).

Because the Chevron standard is generous, its application is limited. See

Buckner v. Fla. Habilitation Network, Inc., 489 F.3d 1151, 1154–55 (11th Cir.

2007) (explaining that “[f]ederal regulations are subject to one of two levels of

deference”). Generally speaking, we grant Chevron deference only to agency

statements that carry the force of law or otherwise bind future agency action, such

as rules or regulations promulgated under statutory authority. See United States v.

Mead Corp., 533 U.S. 218, 226–27 (2001) (holding that Chevron deference applies

26 Case: 16-15737 Date Filed: 05/22/2019 Page: 27 of 42

“when it appears that Congress delegated authority to the agency generally to make

rules carrying the force of law, and that the agency interpretation claiming

deference was promulgated in the exercise of that authority”); see also Barnhart v.

Walton, 535 U.S. 212, 222 (2002) (concluding that Chevron deference applied to

an agency regulation in light of “the interstitial nature of the legal question, the

related expertise of the Agency, the importance of the question to administration of

the statute, the complexity of that administration, and the careful consideration the

Agency has given the question over a long period of time”).

By contrast, informal interpretive statements that do not carry the force of

law—such as those contained in opinion letters, policy statements, agency

manuals, and enforcement guidelines—are generally reviewed under the less

deferential standard described in Skidmore v. Swift & Co., 323 U.S. 134 (1944).

See Mead, 533 U.S. at 234 (citing Christensen v. Harris Cty., 529 U.S. 576, 587

(2000)); see also, e.g., Lanfear v. Home Depot, Inc., 679 F.3d 1267, 1279 n.15

(11th Cir. 2012) (noting that “an agency’s interpretation of a statute in an amicus

brief is entitled to, at most, Skidmore deference”); Gregory v. First Title of Am.,

Inc., 555 F.3d 1300, 1302 (11th Cir. 2009) (confirming that agency opinion letters

do not warrant Chevron deference but are entitled to respect under Skidmore);

Rodriguez v. Farm Stores Grocery, Inc., 518 F.3d 1259, 1268 & n.5 (11th Cir.

2008) (holding that an agency interpretive bulletin was eligible for Skidmore

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deference but not Chevron deference). Deference under Skidmore “depend[s] upon

the thoroughness evident in [the interpretation’s] consideration, the validity of its

reasoning, its consistency with earlier and later pronouncements, and all those

factors which give it power to persuade, if lacking power to control.” Skidmore,

323 U.S. at 140; see also Christensen, 529 U.S. at 587 (holding that

“interpretations contained in formats such as opinion letters are ‘entitled to respect’

under [the Court’s] decision in [Skidmore], but only to the extent that those

interpretations have the ‘power to persuade’”).

The district court considered the Commission’s Final Denial of Petitioner’s

parole—as memorialized in its December 2011 Denial Letter—under the abuse-of-

discretion standard, concluding that the Commission’s determination that

Petitioner was ineligible for mandatory parole because he had “seriously” violated

prison rules was not so flagrant, unwarranted, or unauthorized as to warrant

reversal. Because the court treated the Commission’s decision with respect to

Petitioner as a substantive parole decision rather than a determination of pure law,

the court found no occasion to consider whether any apparent interpretation of

§ 4206(d) was entitled to deference under Chevron or Skidmore.

Petitioner challenges the district court’s analysis, insisting that the

Commission’s parole denial reflected an official agency interpretation of § 4206(d)

28 Case: 16-15737 Date Filed: 05/22/2019 Page: 29 of 42

that must be analyzed under the Chevron framework. 9 To clarify the standard and

measure of deference appropriate here, if any, our first step is to parse the

Commission’s ruling as to Petitioner’s parole eligibility to determine whether it

involves a disputed interpretation of § 4206(d), as opposed to a mere application of

the statute.

2. Whether the Commission’s decision reflects an interpretation of § 4206(d)

The Government has maintained, both in the district court and on appeal,

that the Parole Commission effectively adopted the construction of 18 U.S.C.

§ 4206(d) proposed by its General Counsel, and has sought to defend that statutory

analysis. However, we are not bound by that position in characterizing the

Commission’s actions. Cf. Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212

(1988) (“[W]e have declined to give deference to an agency counsel’s

interpretation of a statute where the agency itself has articulated no position on the

question, on the ground that ‘Congress has delegated to the administrative official

and not to appellate counsel the responsibility for elaborating and enforcing

9 Neither party’s briefing addresses whether Skidmore’s less deferential standard should be considered here. In its briefing, the Government asserts that Glumb’s abuse-of-discretion standard applies but that, if this Court reaches an interpretive issue, Chevron deference is due. At oral argument, however, the Government took the position that any statutory interpretation within the Commission’s decision should be analyzed under Skidmore. Petitioner has maintained throughout this proceeding that Chevron is the appropriate lens through which to review the Commission’s decision.

29 Case: 16-15737 Date Filed: 05/22/2019 Page: 30 of 42

statutory commands.’”). And, in fact, we do not agree that the Commission

adopted its Counsel’s interpretation.

In its December 2011 Denial Letter, the Commission denied Petitioner

mandatory parole under 18 U.S.C. § 4206(d) because his August 1979 escape

attempt “seriously violated prison rules.” The Commission found that this escape

attempt was “serious” because it:

had the potential of causing significant unrest and disruption among the population of a secure institution. Other prisoners were in the yard at the time [Petitioner] and another prisoner scaled the inner fence and were trapped between the inner and perimeter fences. [Petitioner’s] attempt drew gunfire from tower guards. [Petitioner’s] fellow escapee was wounded by the gunfire.

Importantly for this appeal, the Commission further noted that “[t]he passage of

time does not diminish the gravity of this rule violation.”

It appears to be Petitioner’s argument that, in determining whether a prisoner

has “seriously violated prison rules,” the statute requires the Commission to

balance any serious violation against the amount of time that has elapsed since the

violation and the absence of any new serious violations. Petitioner contends that

the Commission failed to do so. Leaving aside for the moment the fact that the

statute contains none of the language attributed to it by Petitioner, we will assume

that the statute does articulate the requirement he puts forward. Yet, even with this

assumption, the Commission’s Denial Letter never promulgated a general rule or

otherwise indicated that the passage of time or subsequent good conduct after a

30 Case: 16-15737 Date Filed: 05/22/2019 Page: 31 of 42

serious violation could not diminish the seriousness of “a” rule violation. To the

contrary, the Commission made a factual finding that “this” specific rule

violation—meaning Petitioner’s very dangerous 1979 escape attempt—remained

serious, despite the passage of time. Specifically, after explaining why it

considered Petitioner’s escape attempt to be serious, the Commission saw fit to add

the statement, “The passage of time does not diminish the gravity of this rule

violation,” a statement suggesting that for another instance of putative, serious

misconduct, the passage of time might well result in a conclusion that the violation

did not constitute a serious violation under the statute.

Likewise, when denying reconsideration, the Commission avoided adopting

a general rule precluding the Commission from considering a prisoner’s entire

record or the passage of time. In that decision, the Commission concluded only

that it need not “find more than one serious rule violation before denying parole

under § 4206(d).” Notably, Petitioner does not challenge this construction of the

statute—that a single violation may suffice to deny mandatory parole. Indeed, he

concedes that “[a] recent violation might be sufficiently serious to merit denial” on

its own, although he contends that “the same violation committed decades earlier

might not.”

Given this concession by Petitioner and the statement in the Denial Letter

indicating the Commission’s operating assumption that the passage of time could

31 Case: 16-15737 Date Filed: 05/22/2019 Page: 32 of 42

play a role in a decision to characterize a particular violation as “serious,” we

conclude that there is no disputed interpretation of the statute to referee. That

being so, we must determine whether the Commission abused its discretion in

denying parole to Petitioner. On that point, we agree with the Government that it

was not an abuse of discretion for the Parole Commission to conclude that

Petitioner’s escape attempt was a serious violation rendering him ineligible for

mandatory parole. The Commission provided a reasoned analysis, explaining that

Petitioner’s escape attempt constituted a “serious” violation of prison rules because

it endangered the prison population, drew gunfire, and caused injury to Petitioner’s

fellow escapee. It further found that the escape attempt still qualified as a serious

offense many years later, given the gravity of the violation.

We find no abuse of discretion in these findings. Although Petitioner

disagrees with the Commission’s ultimate conclusion, he does not dispute that his

escape attempt created great danger and constituted a very serious violation. In

short, Petitioner has not shown that the Commission’s factual findings or

application of the statute involved a “flagrant, unwarranted, or unauthorized

action” constituting an abuse of discretion. Glumb, 891 F.2d at 873; see S. Rep.

94-648, at 28 (1976) (Conf. Rep.) (noting that “[t]he relevance of material before

the Commission is a determination committed to the agency’s discretion” and that

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“the weight assigned to individual factors (in parole decision making) is solely

within the province of the (commission’s) broad discretion”).

As a final note, we acknowledge that the Chickinell Memos, authored by the

Commission’s General Counsel, did advance an interpretation that is at odds with

the more flexible test that Petitioner proposes. Specifically, these memos

expressed the General Counsel’s legal conclusion that “the word ‘seriously’ in

§ 4206(d) does not allow the Commission to consider the antiquity of a particular

rule violation” or to “weigh a ‘serious’ but dated rule infraction with a subsequent

satisfactory disciplinary record.” But as one of the Memos recognized, “[t]he

Commission has not as yet promulgated a rule adopting this statutory

interpretation.” In fact, a review of the Commission’s decisions here reveals that

it likewise declined in the present case to promulgate such a rule or endorse the

General Counsel’s interpretation.10 Accordingly, because the Commission did not

10 Although the Commissioners’ private views on § 4206(d)’s proper interpretation ordinarily would have no bearing on whether the Commission’s written decision reflected a particular statutory interpretation, we find it appropriate to consider the Commissioner’s deposition testimony under the circumstances here, given that the only relevant regulation, 28 C.F.R. § 2.53(a), says nothing about the proper construction of § 4206(d) and no transcript exists for the meeting where the Commission denied Petitioner parole. That testimony supports our conclusion that the Commission did not adopt the General Counsel’s statutory interpretation, as only one Commissioner who participated in the re-vote fully agreed with that construction. Specifically, Commissioner Mitchell said that he had decided that any serious violation precluded parole, notwithstanding the passage of time. The other Commissioners, however, did not indicate their full agreement with Chickinell’s statutory interpretation. Commissioner Cushwa stated that “serious misconduct” would “[n]ot necessarily” preclude mandatory parole “forever and ever” because “[y]ou can’t speculate on what’s going to happen in two years or five

33 Case: 16-15737 Date Filed: 05/22/2019 Page: 34 of 42

adopt its General Counsel’s interpretation, we need not consider whether that

interpretation is accurate or merits deference. Instead, we look to the statements

made by the Commission in its Denial Letter and, as explained above, conclude

that the Commission’s factual findings and application of the Parole Act did not

constitute an abuse of discretion. Glumb, 891 F.2d at 873.

B. Commission Bias

Petitioner further asserts that the Commission has continually failed to

review his case “on a fair and unbiased basis, free of the taint” of internal political

pressure—particularly in light of Commissioner Spagnoli’s improper intervention

and the subsequent involvement of the Attorney General in Petitioner’s case.

Petitioner claims that this alleged bias violated (1) his due process rights, see

Schweiker v. McClure, 456 U.S. 188, 195 (1982) (establishing that the Due Process

Clause “demands impartiality on the part of those who function in judicial or

quasi-judicial capacities”), (2) the Parole Act’s mandate that the Commission act

as an independent decision-maker, see Bowers I at 1279 (noting that the Parole Act

was designed to make the Commission independent of the DOJ for decision-

making purposes), and (3) this Court’s mandate in Bowers I that the Commission

years.” And Commissioner Smoot said that she agreed with Chickinell’s interpretation, but disagreed that a serious violation automatically precluded mandatory parole, stating that granting parole was within the Commission’s discretion.

34 Case: 16-15737 Date Filed: 05/22/2019 Page: 35 of 42

consider his case on a clean slate, see Bowers I at 1295–96 (instructing

Commission to “immediately review Bowers’ file to determine ab initio whether

any further action is necessary or authorized”).

To succeed on his claim that the Commission’s impartiality violated his due

process rights, Petitioner must show that “the probability of actual bias . . . is too

high to be constitutionally tolerable.” Withrow v. Larkin, 421 U.S. 35, 47 (1975).

In proving bias sufficient to warrant relief, a petitioner may rely upon

circumstantial evidence. See Rippo v. Baker, 137 S. Ct. 905, 907 (2017)

(establishing that, when considering a due process claim regarding judicial bias,

courts must ask “whether, considering all the circumstances alleged, the risk of

bias was too high to be constitutionally tolerable”).

We begin by clarifying the intended effect of this Court’s holding in

Bowers I on the course of proceedings on remand. In Bowers I, we held that

Commissioner Spagnoli’s interactions with the DOJ in 2005 impermissibly tainted

the Commission’s subsequent decision regarding Petitioner’s parole. To remedy

this bias, we remanded to the Commission with instructions to return Petitioner’s

case to its posture as of May 2005—prior to Spagnoli’s improper intervention—

and to proceed with his case ab initio. Our intent with that instruction was to

cleanse the proceeding of any undue DOJ influence that the Spagnoli Memo may

have invited.

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On appeal, Petitioner argues that our remedy was insufficient, asserting that

“the resulting DOJ pressure did not vanish merely because the Court remanded the

case.” At the center of Petitioner’s bias argument is the fact that the Commission

depends upon the DOJ to lobby on the Commission’s behalf before Congress, as

well as for its budget and operational support. See S. Rep. 94-369, at 14 (1976),

reprinted in 1976 U.S.C.C.A.N. 335, 336 (stating that the Commission is

“independent for policy-making purposes, but is attached to the Department of

Justice for administrative convenience”). This dependence, Petitioner posits,

incentivizes the Commission to adopt the DOJ’s views on the interpretation and

application of the Parole Act because clashing with the DOJ on these issues would

jeopardize the Commission’s very existence.

Because DOJ intervention in Commission matters is uncommon, the

incentive Petitioner identifies would at most affect a small number of cases. In this

case, however, the DOJ did expressly argue during the 2005 proceedings for its

interpretation of § 4206(d). The DOJ advocated this position in its 2005 Position

Letter and related communications, and it argued that the Commission should deny

Petitioner mandatory parole. Subsequently, the Commission did issue a decision

denying parole on October 6, 2005. Given Spagnoli’s misconduct and interaction

with the DOJ during this 2005 proceeding, we required the Commission to

reconsider its decision. After this remand directing ab initio review—and as the

36 Case: 16-15737 Date Filed: 05/22/2019 Page: 37 of 42

Commission was deciding in 2011 whether to reconsider Petitioner’s parole

eligibility—the DOJ did write to the Commission to “reaffirm our strong

opposition to his release,” as was its right. The Chickinell Memos also agreed with

the DOJ’s position by explicitly “concur[ring] with [the] interpretation of the

§ 4206(d) criteria [offered] by Justice Department attorneys.”

Petitioner asserts that, once the Commission became aware of the DOJ’s

preferences with respect to his case, the pressure to conform to those preferences

overcame its duty to conduct an independent analysis of the statute. Specifically,

as the Commission was deciding whether to reconsider Petitioner’s case, Congress

was preparing to vote on a bill re-authorizing the Commission’s mandate. Because

the DOJ remained the sole entity responsible for lobbying before Congress on the

Commission’s behalf, Petitioner argues that the incentive to satisfy the DOJ was

uniquely urgent. In particular, Petitioner points to the Commission’s decision to

proceed with a re-vote of his case without honoring the deadline the Commission

itself had set for Petitioner’s submission of materials in support of his release, a

decision that deviated from the Commission’s normal procedures and that

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Petitioner contends can only be explained as an effort to curry favor with the

DOJ. 11

Although Petitioner was unable to uncover any direct evidence that the

Commission (1) engaged in discussions with DOJ officials or members of

Congress regarding its reauthorization, (2) discussed that issue internally when

deciding to expedite the vote, or (3) otherwise entered into the vote with a

predetermined outcome in mind, Petitioner points to a few additional facts

uncovered during discovery that he claims bolster his narrative. First, it is

undisputed that Commissioner Mitchell, who had supported Petitioner’s eligibility

for parole in 2005, changed his position in 2011. As noted, the DOJ had

reaffirmed its interpretation of § 4206(d) during the 2011 proceedings. (During

his deposition, however, Mitchell stated that he changed his vote based on his

general counsel’s advice, as set out in the Chickinell Memos.) Second, the

Commission conceded that it did not record its re-vote proceeding in October 2011

and thus has no record of the discussion (or lack thereof) regarding the meaning

and application of § 4206(d). Petitioner asks us to infer from all these facts that the

11 Notably, however, the Commission did not actually decide whether to grant Petitioner parole until after Congress had already re-authorized the Commission for a new five-year term.

38 Case: 16-15737 Date Filed: 05/22/2019 Page: 39 of 42

Commission failed to independently consider his case and instead “blindly

adher[ed]” to the DOJ’s recommendation.

Taken together, these circumstances demonstrate that, as a structural matter,

the Commission can be expected to pay attention to the DOJ’s input when

interpreting and applying the Parole Act. The question is whether the Commission

acted with bias against Petitioner, in particular, when in this case it acted

consistently with the DOJ’s advocacy. We conclude that it did not. The dynamic

Petitioner describes is an inherent and unavoidable feature of the bureaucratic

structure Congress erected when it created the Commission as an independent

agency housed within the DOJ. While it may be unusual for the Attorney General

to advocate for a particular outcome in a parole case, or to opine on an unsettled

matter of law under the Parole Act, such intervention is not improper as a general

matter.12

To be sure, Commissioner Spagnoli’s misconduct influenced the DOJ

Position Letter that was later sent to the Commission in 2005, and her conduct was

12 In fact, the Attorney General may appeal a Parole Commission decision under a separate provision of the Parole Act. 18 U.S.C. § 4215(c) (“The National Appeals Board may review any decision of a regional commissioner upon the written request of the Attorney General . . . and, by majority vote, shall reaffirm, modify, or reverse the decision within sixty days . . . .”). Thus, the Parole Act itself contemplates some measure of DOJ involvement. We have found no authority suggesting that the DOJ may not submit its opinions to the Commission as the latter considers pending cases.

39 Case: 16-15737 Date Filed: 05/22/2019 Page: 40 of 42

clearly improper. But it is important to note that her outreach was not the sole

impetus for the DOJ’s interest in Petitioner’s case. Indeed, the Office of the

Deputy Attorney General requested information about Petitioner’s case from the

Parole Commission’s Chief of Staff before Spagnoli sent her Memo. In short, the

DOJ’s involvement pre-dated the Spagnoli Memo and persisted throughout

subsequent proceedings. Thus, if we remove Spagnoli’s misconduct from the

picture, we are left with the following scenario: the impending release of an

individual convicted of the brutal and senseless murder of a park ranger

understandably captured the attention of the DOJ, which then advocated an

interpretation of the operative statute that disfavored Petitioner. It is not surprising

that, in this scenario, the Commission would consider carefully the DOJ’s views.

But if we were to conclude that the DOJ’s conduct here created an intolerable

likelihood of bias in Petitioner’s case, we would likewise have to find bias

whenever the Commission knows or believes the DOJ to have a particular opinion

on a matter and issues a decision that comports with that opinion. In short, any

interplay between the Commission and the DOJ follows from Congress’s chosen

legislative structure for parole, and it does not, by itself, give rise to a redressable

claim.

Because Petitioner has produced no evidence, direct or circumstantial, of

specific bias against Petitioner within the Commission that issued the decision now

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before us, we cannot conclude that “the probability of actual bias” against him was

“too high to be constitutionally tolerable.” See Rippo, 137 S. Ct. at 907 (quoting

Withrow, 421 U.S. at 47). Indeed, parole is a matter of grace and there is no

constitutional requirement that Congress authorize parole or any mechanism

allowing a prisoner to be released any sooner than the expiration of his sentence.

The Sentencing Reform Act currently in effect allows for no parole. That

Congress instituted parole, but made it subject to a protocol that allowed for

substantial input by the DOJ, does not violate the Due Process Clause. In short, we

do not find that the Commission here violated the Parole Act or this Court’s

directive in Bowers I that it act impartially in deciding Petitioner’s case. We thus

affirm the district court’s denial of Petitioner’s petition for writ of habeas corpus.

IV. CONCLUSION

Upon review, we conclude that the Parole Commission did not adopt an

erroneous interpretation of § 4206(d). Because the Commission found that

Petitioner committed a serious violation of prison rules, the Commission did not

err in finding him ineligible for mandatory parole under § 4206(d). Moreover, we

do not find that the Commission acted with actual bias against Petitioner or

otherwise violated his due process rights or the Parole Act. As such, we affirm the

district court’s denial of Petitioner’s petition for writ of habeas corpus.

AFFIRMED.

41 Case: 16-15737 Date Filed: 05/22/2019 Page: 42 of 42

JORDAN, Circuit Judge, concurring.

I join the court’s opinion in full, and offer an additional observation.

In my view, 18 U.S.C. § 4207 further supports our conclusion that the Parole

Commission believed it could consider (and did in fact consider) Mr. Bowers’ entire

prison history notwithstanding its finding of a serious institutional violation. The

final sentence of § 4207 states without limitation that, in a parole proceeding under

“this chapter” (which includes § 4206(d)), “[t]here shall also be taken into

consideration such additional relevant information concerning the prisoner

(including information submitted by the prisoner) as may be reasonably available.”

Given that statutory directive, it is difficult to conclude, on this limited record, that

the Commission refused to consider Mr. Bowers’ post-violation behavior in prison.

See also 28 C.F.R. § 2.19(b)(1) (repeating the language found in § 4207).