F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 1 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
ROY MASON ALEXANDER,
Petitioner-Appellant,
v. No. 99-1262
(D.C. No. 98-M-2111)
UNITED STATES PAROLE (D. Colo.)
COMMISSION,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before KELLY , HENRY , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
BACKGROUND
Petitioner Roy Mason Alexander appeals the district court’s order denying
his second application for writ of habeas corpus under 28 U.S.C. § 2241 seeking
release from his confinement. 1
Alexander was sentenced in 1981 to four
consecutive life terms on August 28, 1981, under the former Youth Corrections
Act (“YCA”), 18 U.S.C. § 5010(c) (repealed 1984), for his participation in the
execution-style killing of four people, including a two-year-old child. Alexander
was sixteen at the time he committed the offenses.
Prior § 2241 Proceedings
Alexander’s first § 2241 petition was dismissed by the district court in
1993. On appeal, we affirmed the district court’s decision denying immediate
release, but remanded the case, ordering the Parole Commission to come forward
with contemporary evidence supporting its decision to deny Alexander parole.
See Alexander v. Crabtree , No. 93-1019, 1993 WL 307649 (10th Cir. Aug. 9,
1
Alexander is incarcerated at the federal correctional institution in Sheridan,
Oregon. Alexander was previously incarcerated at the federal correctional
institution in Englewood, Colorado, where he was a member of a class action
which litigated the rights of prisoners sentenced under the Youth Corrections Act.
See Watts v. Hadden , 651 F.2d 1354 (10th Cir. 1981). The Colorado district
court’s jurisdiction was based on a 1988 order issued in that litigation which
specified that class members could be transferred to other districts, but that the
District of Colorado would retain jurisdiction over them. See Alexander v.
Crabtree , No. 94-1375, 1994 WL 722961, at **1 n.2 (10th Cir. Dec. 20, 1994)
(unpublished disposition) (citing Watts v. Belaski , No. 78-M-495 (D. Colo.
Dec. 6, 1988)).
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1993) (unpublished disposition). The Commission then ordered an additional
psychiatric evaluation of Alexander and held a special reconsideration hearing. In
1994, the Commission recommended no change to Alexander’s continuation to a
fifteen-year reconsideration hearing scheduled for March 2001. Alexander
appealed that decision. We affirmed the Commission’s decision denying parole,
finding that the Commission had complied with the relevant regulations and that
its decision was not irrational, arbitrary or unsupported by evidence. See
Alexander v. Crabtree , No. 94-1375, 1994 WL 722961 (10th Cir. Dec. 20, 1994)
(unpublished disposition).
Current § 2241 Petition
Following the dismissal of Alexander’s first § 2241 petition, the Parole
Commission conducted interim reconsideration hearings in 1995, 1996 and 1997.
The most recent decision denying Alexander parole noted that Alexander was
eligible for a new interim hearing in September 1998, but Alexander waived his
right to that hearing and, instead, filed the underlying § 2241 habeas petition on
September 30, 1998.
After an in camera review of the Parole Commission’s record, the district
court denied the petition, stating:
[T]he record shows that the Parole Commission has conducted
numerous reviews and that multiple psychological evaluations have
produced varying results. The Commission has complied with its
regulations, published in 28 C.F.R. § 2.6[4], but has refused to
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release [Alexander] because the Commission is concerned that a
release now would depreciate the seriousness of his offenses and
jeopardize public safety. The Commission has consistently noted
Alexander’s failure to acknowledge his culpability in the commission
of these murders of four innocent people, including a two-year old
child, and he has continued to place the blame fully on the
co-defendant. No psychiatrist or psychologist has been able to offer
an explanation of this behavior.
Because the Parole Commission followed the procedural steps required of
it, the district court dismissed the habeas petition.
DISCUSSION
The Youth Corrections Act
“The core purpose of the Youth Corrections Act is rehabilitation.” Johnson
v. Rodgers , 756 F.2d 79, 80 (10th Cir. 1985) (per curiam) (citing Dorszynski v.
United States , 418 U.S. 424 (1974)).
To accomplish this purpose, a youthful offender may receive an
indeterminate sentence, during which he is to undergo a
comprehensive program of rehabilitation, followed by a period of
conditional release. The time of release is based upon a
determination that the offender has acquired the stability and
redirection to overcome the past and begin life anew.
Id. (citations omitted).
The Commission may advance a prisoner’s presumptive parole date if it
determines that he has sufficiently responded to his treatment program. See
28 C.F.R. § 2.64(e). The decision must be arrived at on a case-by-case basis, and
the Commission must equally weigh the prisoner’s response to treatment, the
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seriousness of the offense, and the original parole prognosis, with no one factor
capable of excluding the others. See id . In order to evaluate the extent of an
offender’s positive response to treatment, the Commission must examine “the
degree by which the prisoner has increased the likelihood that his release would
not jeopardize public welfare through his program performance and conduct
record.” 28 C.F.R. § 2.64(d)(2).
We have held that:
To comply with the YCA, . . . the Parole Commission must conduct a
release hearing to evaluate the youth offender’s response to treatment
within a reasonable time following the Warden’s certification of
program completion. This does not mean . . . that the Commission
must adopt the recommendation of the Warden and automatically
release each offender upon completion of his program plan. Pursuant
to its duty under [18 U.S.C.] section 4206, the Commission must still
consider whether release will depreciate the seriousness of the
offense or jeopardize the public welfare. Nevertheless, the
individual offender’s response to treatment and degree of
rehabilitation must be [a] determinative factor in a final decision. 2
The evaluation must be made in sufficient detail to permit a
determination that the Commission has complied fully with the
requirements of the YCA.
Benedict v. Rodgers , 748 F.2d 543, 547 (10th Cir. 1984) (footnote omitted).
Analysis
2
On January 14, 1985, this court amended its opinion in Benedict to provide
that rehabilitation must be “a” determinative factor rather than “the”
determinative factor in the parole decision. See Paz v. Warden, Fed. Correctional
Inst ., 787 F.2d 469, 472 n.* (10th Cir. 1986).
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Alexander contends that the Parole Commission has focused solely on the
severity of his offense, and has failed to give proper weight to the fact that he has
completed all of his prescribed treatment programs. He contends that the Parole
Commission’s failure to release him based on his completion of the prescribed
treatment programs demonstrates that the Parole Commission is impermissibly
converting his YCA conviction into a “punitive” determinate sentence in violation
of the YCA.
The Commission’s decision may not be disturbed unless there is a clear
showing of arbitrary or capricious action and an abuse of discretion. See Misasi
v. United States Parole Comm’n , 835 F.2d 754, 758 (10th Cir. 1987). “The
inquiry is not whether the Commission’s decision is supported by the
preponderance of the evidence, or even by substantial evidence; the inquiry is
only whether there is a rational basis in the record for the Commission’s
conclusions embodied in its statement of reasons.” Id. (quotation omitted).
“[R]ehabilitation must not be presumed upon completion of the [prescribed
treatment] program; it must be evaluated based on an individual’s response to
treatment.” Benedict , 748 F.2d at 547. Thus, the fact that Alexander has
completed his prescribed treatment does not compel the Parole Commission to
grant him early release. The Parole Commission carefully considered Alexander’s
program performance, including his participation in mental health counseling and
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treatment, but found that he was not an acceptable risk for release to the
community.
The Parole Commission did express concern that Alexander has
continuously changed his account of his involvement in the four murders, stating
that Alexander has “never given a truthful account of the murders.”
See R. Doc. 13, Ex. 20 at 1. This was a valid factor for the Commission to take
into consideration. The applicable regulations provide that the nature of the
offense may be considered in determining the risk to the public presented by the
prisoner’s release, and provide that, for those offenders who have exhibited
serious or violent criminal behavior, the Commission is to be more cautious in
finding that the offender has responded to treatment to the degree that he may be
released. See 28 C.F.R. § 2.64(d)(2). The Commission may also properly
consider whether Alexander “evidences an alteration of his values system,
including an understanding of the wrongfulness of his past criminal conduct.” Id.
We agree with the district court that the Commission complied with the
applicable regulations, and we find no evidence in the record that the Commission
acted arbitrarily or capriciously or abused its discretion in determining that
Alexander should not be paroled at this time. 3
There is a rational basis in the
3
The district court expressed concerns that bear repeating. After noting that
Alexander is frustrated because there is nothing further he can do in the way of
(continued...)
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record for the Commission’s conclusion and we do not reweigh the evidence,
redetermine the credibility of reports, or substitute our judgment for that of the
Commission. See Fiumara v. O’Brien , 889 F.2d 254, 257 (10th Cir. 1989). Thus,
we see no basis to reverse the decision of the Parole Commission.
The judgment of the United States District Court for the District of
Colorado is AFFIRMED. Alexander’s motion for leave to proceed in forma
pauperis on appeal is granted.
Entered for the Court
Robert H. Henry
Circuit Judge
3
(...continued)
further participation in treatment programs to satisfy the Parole Commission, the
district court remarked that:
This court is also frustrated because these sentences simply do not
square with the purposes of the YCA. They are an aberration and
there is an understandable caution involved in determining that the
release of a cold-blooded teenage killer would not jeopardize public
safety. Because the Parole Commission has followed the procedural
steps required of it, there is no authority for the court to contradict
the conclusion of the Commission. It is to be expected that the
opportunity for interim hearings will be given to [Alexander] before
the reconsideration hearing and that any new developments will be
considered by the Parole Commission.
Dist. Ct. Order at 3.
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