Bowers v. Keller

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-12170 ELEVENTH CIRCUIT
AUG 26, 2011
________________________
JOHN LEY
CLERK
D. C. Docket No. 1:08-cv-02095-CAM

VERONZA L. BOWERS, JR.,

Petitioner-Appellant,

versus

JEFFREY KELLER, Warden,
UNITED STATES PAROLE COMMISSION,

Respondents-Appellees.

________________________

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

(August 26, 2011)

Before HULL and BLACK, Circuit Judges, and HUCK,* District Judge .

PER CURIAM:

*
Honorable Paul C. Huck, United States District Judge for the Southern District of
Florida, sitting by designation.
 Veronza L. Bowers appeals the district court’s denial of his petition for a

writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. Bowers is subject to the

1976 Parole Commission and Reorganization Act because he is incarcerated for an

offense he committed prior to the effective date of the Federal Sentencing

Guidelines—specifically, Bowers is serving a life sentence for the 1976 murder of

a U.S. Park Ranger. The primary issue before us is whether the United States

Parole Commission engaged in “unauthorized action” during Bowers’ mandatory

parole proceedings. Glumb v. Honsted, 891 F.2d 872, 873 (11th Cir. 1990). We

conclude that a United States Parole Commissioner engaged in such unlawful

action, which impermissibly tainted the Parole Commission’s June 14, 2005,

decision reopening Bowers’ mandatory parole proceedings.

I. STATUTORY BACKGROUND

As this case centers around the actions of the United States Parole

Commission (Parole Commission), an initial understanding of the governing

statutes and regulations is necessary to provide the proper context to Bowers’

parole proceedings.

A. The Parole Act

In 1976, Congress passed the Parole Commission and Reorganization Act

(Parole Act). Pub. L. No. 94-233, § 2, 90 Stat. 219 (1976) (formerly codified as

2
18 U.S.C. §§ 4201–4218) (repealed 1984; see 18 U.S.C. §§ 4201–4218 note

concerning effective date of repeal).1 The purpose of the Parole Act was neither to

“encourage or discourage the parole of any prisoner;” rather, the purpose was to

“assure the public and imprisoned inmates that parole decisions are openly

reached by a fair and reasonable process after due consideration has been given

the salient information.” S. Rep. No. 94-648, at 20 (1976) (Conf. Rep.). To

achieve this purpose, the Parole Act made the Parole Commission “independent of

the Department of Justice for decision-making purposes.” Id.; see also 18 U.S.C.

§ 4202 (establishing the Parole Commission “as an independent agency in the

Department of Justice”). The Parole Act also established “clear standards as to the

process and the safeguards incorporated into it to insure fair consideration of all

relevant material, including that offered by the prisoner.” S. Rep. No. 94-648, at

21.

Under the Parole Act, an inmate serving a life sentence, like Bowers, is

eligible for release on discretionary parole after serving ten years. See 18 U.S.C.

§ 4205(a). If parole is not granted at this 10-year mark, the inmate is provided

1
Unless otherwise indicated, all citations of 18 U.S.C. §§ 4201–4218 refer to the last
amended version of the 1976 Act, which was applicable in 2005 and is printed at 18 U.S.C.
§§ 4201–4218 note.

3
subsequent parole proceedings (Statutory Interim Hearings) every 24 months. See

18 U.S.C. § 4208(h)(2); 28 C.F.R. § 2.14 (2005).2

B. The presumption of mandatory parole

If, after serving 30 years of a life sentence, the inmate has still not been

released on parole, the Parole Act entitles an inmate to “mandatory parole”3 unless

the Parole Commission makes specific findings to overcome the statutory

presumption of release. 18 U.S.C. § 4206(d). The “mandatory parole” provision

“provides more liberal criteria for release on parole for prisoners with long

sentences after they have completed two-thirds of any sentence or thirty years,

whichever occurs first.” S. Rep. No. 94-648, at 27. Specifically, the Parole Act

provides:

Any prisoner . . . who is not earlier released . . . shall be released on
parole after having served two-thirds of each consecutive term or
terms, or after having served 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.

2
Unless otherwise indicated, all citations to the Parole Commission’s regulations refer to
those in effect through July 1, 2005.
3
We use the term “mandatory parole” in accordance with the Parole Commission’s
regulations. See 28 C.F.R. § 2.53.

4
18 U.S.C. § 4206(d). Bowers’ petition is based primarily on the Parole

Commission’s actions surrounding his mandatory parole proceedings.

The Parole Act grants the Parole Commission the power, “pursuant to the

procedures set out in this chapter,” to “grant or deny an application or

recommendation to parole any eligible prisoner.” 18 U.S.C. § 4203(b)(1).

The Parole Commissioners do not conduct the initial parole hearings, including

the initial mandatory parole hearing. Rather, the Parole Commissioners delegated

this function to Hearing Examiners or a panel of Hearing Examiners pursuant to

§ 4203(c) of the Parole Act. 28 C.F.R. § 2.23(a). Typically, a single Hearing

Examiner conducts the hearing and makes a recommendation, which is then

reviewed by a second examiner, and a third, if necessary. See 28 C.F.R. §§ 2.13,

2.23. The concurrence of two Hearing Examiners is required to obtain a panel

recommendation. 28 C.F.R. § 2.23. After the concurrence of two examiners, the

Hearing Panel’s recommendation goes to a single Regional Commissioner for

review. See 28 C.F.R. §§ 2.23, 2.24.

When presented with the recommendation of the Hearing Panel, the

Regional Commissioner has three options. Under the first option, which is

utilized in most cases, the Regional Commissioner concurs with the Hearing

Panel, and the recommendation then becomes an effective Parole Commission

5
decision. See 28 C.F.R. §§ 2.23(d), 2.24(a). The prisoner or Attorney General

may, within 30 days, appeal this “decision of a [R]egional [C]ommissioner” to the

Parole Commission’s appellate body, the National Appeals Board. See 18 U.S.C.

§ 4215; 28 C.F.R. §§ 2.26(a), (f).4 A second option permits the Regional

Commissioner to “[r]emand the case for a rehearing, with the notice of action

specifying the purpose of the rehearing.” 28 C.F.R. § 2.24(b)(2). In Bowers’

case, the third option was implemented, which allows the Regional Commissioner

to designate certain cases for the original jurisdiction of the Parole Commission.

28 C.F.R. § 2.24(b)(1).

C. The original jurisdiction of the Parole Commission

The Parole Commission has denominated several categories of cases as

appropriate for original jurisdiction, including “prisoners serving life sentences,”

like Bowers. See 28 C.F.R. § 2.17.5 In this option, the Regional Commissioner

sets the case for original jurisdiction pursuant to § 2.17, votes on the case, and

refers the case to another Parole Commissioner for further review. See 28 C.F.R.

§§ 2.24(b)(1), 2.17(a). The Parole Commission’s original jurisdiction decision

4
The regulations set out seven permissible grounds for appeal. See 28 C.F.R. § 2.26(e).
5
The Parole Commission revised this regulation in 2010, adding a category for prisoners,
like Bowers, “whose offense behavior caused the death of a law enforcement officer while the
officer was in the line of duty.” 28 C.F.R. § 2.17(b)(4) (2011).

6
“shall be made on the basis of a majority vote of Commissioners holding office at

the time of the decision.” 28 C.F.R. § 2.17(a). A prisoner may appeal the original

jurisdiction decision, but it “shall be submitted as a petition for reconsideration

under § 2.27.” 28 C.F.R. § 2.26(a)(1). “The previous decision made under § 2.17

may be modified or reversed only by a majority vote of the Commissioners

holding office at the time of the review of the petition.” 28 C.F.R. § 2.27(a).

During Bowers’ parole proceedings, the Parole Commission also utilized a

regulation permitting the reopening of a case. Section 2.28 sets forth six

situations in which the Parole Commission can reopen a case; only the sixth

situation, the “receipt of new and significant adverse information,” is relevant

here. 28 C.F.R. § 2.28. Upon the “receipt of new and significant adverse

information,” § 2.28(f) permits a Parole Commissioner to “refer the case to the

National Commissioners with his recommendation and vote to schedule the case

for a special reconsideration hearing.” 28 C.F.R. § 2.28(f). This referral

“automatically retard[s] the prisoner’s scheduled release date,” and the special

reconsideration hearing may be scheduled upon the concurrence of two Parole

Commissioners. Id.

D. The Parole Commissioners

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 An understanding of the Parole Commission itself, and how it has evolved,

is also helpful to understanding Bowers’ parole proceedings. The Parole Act

originally provided for a nine-member Parole Commission: a Chairman, three

National Commissioners to serve on the National Appeals Board, and five

Regional Commissioners to make first-level parole decisions. See 18 U.S.C.

§§ 4202, 4204(a)(5). Following passage of the Sentencing Reform Act of 1984,

Pub. L. No. 98-473, ch.2, 98 Stat. 1987 (1984) (codified as amended at 18 U.S.C.

§§ 3551 et seq., 28 U.S.C. §§ 991 et seq),6 the Parole Commission began a phase-

out process and was set for abolishment in 1992. The life of the Parole

Commission has been extended multiple times, in 1990, 1996, 2002, 2005, and

2008.7

6
The Sentencing Reform Act “replace[d] a system of indeterminate sentences and the
possibility of parole with determinate sentencing and no parole.” Walden v. United States Parole
Comm’n, 114 F.3d 1136, 1138 (11th Cir. 1997). Although the Sentencing Reform Act
“abolishe[d] the Parole Commission, and repeal[ed] most of the pre-existing statutory framework
governing parole of federal prisoners,” § 235 saved “the Parole Commission and the federal
parole statues for a period of time during which the transition to the new system will occur.” Id.

See Judicial Improvements Act of 1990, Pub. L. No. 101-650, § 316, 104 Stat. 5089,
7

5115 (1990) (extension from 1992 to 1997); Parole Commission Phaseout Act of 1996, Pub. L.
No. 104-232, § 2(a), 110 Stat. 3055 (1996) (extension from 1997 to 2002); 21st Century
Department of Justice Appropriations Authorization Act, Pub. L. No. 107-273, § 11017(a), 116
Stat. 1758, 1824 (2002) (extension from 2002 to 2005); United States Parole Commission
Extension and Sentencing Commission Authority Act of 2005, Pub. L. No. 109-76, § 2, 119 Stat.
2035 (2005) (extension from 2005 to 2008); United States Parole Commission Extension Act of
2008, Pub. L. No.110-312 § 2, 122 Stat. 3013 (2008) (extension from 2008 to 2011).

8
 Beginning in 1998, the Attorney General reported to Congress annually

whether “the continuation of the Commission is the most effective and cost-

efficient manner for carrying out the Commission’s functions.” Pub. L. No. 104-

232, § 3, 110 Stat. 3055, 3056 (1996). The Attorney General has reported each

year that “it is more cost effective for the Parole Commission to continue as a

separate agency.” See History of the Federal Parole System, p. 2, found at

www.usdoj.gov/uspc/history.htm (last visited Aug. 1, 2011). Most recently, the

life of the Parole Commission was extended from November 1, 2008, to

November 1, 2011. Pub. L. 110-312, § 2, 122 Stat. 3013 (2008).

Although the number of Parole Commissioners has declined following the

passage of the Sentencing Reform Act, the terms “Regional Commissioner” and

“National Appeals Board” are still applicable. See 28 C.F.R. § 2.1(c),(e). Instead

of having separate Regional Commissioners, one of the Parole Commissioners is

now assigned “to make initial decisions” as a Regional Commissioner. 28 C.F.R.

§ 2.1(e). Likewise, instead of having three Parole Commissioners designated as

National Appeals Board members only, the Parole Commission sits “as a body to

decide appeals taken from decisions of a Regional Commissioner, who

participates as a member of the National Appeals Board.” 28 C.F.R. §§ 2.1(c);

2.26(b)(2). These same Parole Commissioners also review “original jurisdiction”

9
cases pursuant to 28 C.F.R. § 2.17. Essentially, each Parole Commissioner may

wear different “hats” under the Parole Act and the Parole Commission’s

regulations—whether sitting as a single Regional Commissioner, a member of an

appellate body, or sitting “en banc” in an original jurisdiction proceeding.

At the time of Bowers’ parole proceedings in 2005, the Parole Commission

consisted of five members: Chairman Edward F. Reilly, Jr., Commissioner

Cranston J. Mitchell, Commissioner Patricia K. Cushwa, Commissioner Isaac

Fulwood, Jr., and Commissioner Deborah A. Spagnoli. Today, the Parole

Commission consists of four members: Chairman Fulwood, Commissioner

Mitchell, Commissioner Cushwa, and Commissioner J. Patricia Wilson Smoot,

who was appointed in 2010. See USDOJ: USPC: The Chairman and

Commissioners, http://www.justice.gov/uspc/executive.htm (last visited Aug. 1,

2011). Our concerns with Bowers’ mandatory parole proceedings center only

around the actions of Commissioner Spagnoli in 2005. Commissioner Spagnoli

has since resigned.

II. FACTUAL BACKGROUND

With the background of the Parole Act and the Parole Commission’s

regulations in mind, we now describe Bowers’ proceedings before the Parole

Commission. The facts are lengthy, but undisputed. The record is composed

10
primarily of documents obtained by Bowers from the Parole Commission under

the Freedom of Information and Privacy Acts; many of these same documents

were also submitted by the Parole Commission.

For the purposes of our analysis in Part V, we focus primarily on the Parole

Commission’s reopening of Bowers’ case on both February 17, 2005, and June 14,

2005. We ultimately conclude the February 17, 2005, reopening was lawful under

§ 2.28(f), but the June 14, 2005, reopening was tainted by the “flagrant,

unwarranted, or unauthorized” actions of Commissioner Spagnoli. Glumb, 891

F.2d at 873. Although our analysis centers on the events surrounding these two

reopenings, we present the full history of Bowers’ parole proceedings to date.

A. Bowers’ underlying 1974 conviction

Bowers, a former Black Panther, was convicted for the 1973 murder of U.S.

Park Ranger Kenneth C. Patrick in Point Reyes National Seashore. On April 26,

1974, the United States District Court for the Northern District of California

sentenced Bowers to life in prison. The Ninth Circuit Court of Appeals affirmed

his conviction on appeal. United States v. Bowers, 534 F.2d 186, 187 (9th Cir.

1976).

The Ninth Circuit stated that Bowers and two other men “had been stopped

by [Ranger Patrick] while on an expedition to poach deer, and appellant Bowers

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had shot [Ranger Patrick].” Bowers, 534 F.2d at 188. 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.”

Despite his conviction for murder, Bowers has always maintained his

innocence and contends he was targeted for prosecution based on his Black

Panther membership. In this context, Bowers sometimes refers to himself as a

“political prisoner.” Although there is no support for Bowers’ claim that he is a

“political prisoner,” the validity of his 1974 murder conviction is not before us.

We are concerned only with the actions of the Parole Commission 30 years later

during Bowers’ mandatory parole proceedings, and specifically, both the February

17, 2005, and June 14, 2005, reopening of Bowers’ case.

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B. Bowers’ prison record and prior parole hearings

Bowers’ prison record is relevant to the Parole Commission’s mandatory

parole determination of whether “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). In its October 6, 2005,

original jurisdiction decision denying Bowers mandatory parole, the Parole

Commission discussed Bowers’ escape attempt and a letter Bowers sent to the

victim’s wife. We thus briefly describe these events as well as Bowers’ initial

mandatory parole hearing in which Bowers was granted mandatory parole.

While serving his 1974 murder sentence, Bowers unsuccessfully attempted

to escape from prison on August 1, 1979. In the early evening, while other

inmates were in the recreation yard, Bowers and another inmate scaled an interior

perimeter fence and were subsequently pinned down by tower gunfire between the

inner and outer fences. The other inmate was hit twice by the gunfire and Bowers

stopped his attempt to escape. The 1979 attempted escape created a “very serious

situation” because a number of inmates were in the yard at the time. The

investigator recommended that Bowers “be transferred to another . . . institution,

[and] that any and all administrative sanctions be taken due to the seriousness of

the situation.” Bowers was convicted and sentenced to a 6-month consecutive

13
prison term for attempted escape by the United States District Court for the

Central District of California.

Bowers also sent a letter to Ranger Patrick’s widow, Tomie Patrick Lee, in

1990. During one of Bowers’ requests for discretionary parole, Lee informed the

Parole Commission about the letter. Bowers admitted sending a letter to Lee, but

explained that he did so because he received a certified receipt form indicating that

a letter had been sent from the penitentiary to Lee in his name. According to a

summary written by Hearing Examiner Samuel Robinson following a November

29, 1995, hearing, “the return receipt was actually a victim-witness notification

sent out by the Bureau of Prisons and erroneously given to [Bowers] at mail call.”

Robinson reviewed the letter and “found that it appeared to be the type of letter

that [Bowers] represented it to be in that it was an explanation of the

circumstances regarding his receipt of a notice that a letter had been sent to her

under his name.” Robinson “did not find this letter to be threatening or

intimidating in any manner” and “would not find that th[e] letter would be . . . any

basis for the denial of parole.” Robinson did not recommend discretionary parole,

however, and Bowers remained incarcerated.

Although Bowers was not granted discretionary parole, he was scheduled

for release on mandatory parole on April 7, 2004. On that day, however, Bowers

14
was informed that he was precluded from parole based on his waiver of a 2002

Statutory Interim Hearing. Bowers filed an emergency petition for writ of habeas

corpus in the United States District Court for the Middle District of Florida.8 In an

order dated October 26, 2004, the district court rejected the Parole Commission’s

waiver argument, granted Bowers’ petition, and ordered the Parole Commission to

“immediately review Petitioner’s file to determine whether or not a mandatory

parole consideration hearing is necessary,” and, if so, to hold the hearing within 60

days. Order Granting Petition at 7, Bowers v. Holder, No. 5:04-cv-208-Oc-10GRJ

(M.D. Fla. Oct. 26, 2004).

A mandatory parole hearing was held on December 21, 2004. Hearing

Examiner Rob Haworth found Bowers was not likely to commit a future crime and

noted, for the previous 15 years, Bowers “has been an outstanding inmate and an

asset to the operation of the prison.” After conducting the hearing and a “thorough

review” of the case, Haworth found Bowers to be “an excellent candidate for

mandatory parole.” Haworth recommended Bowers be granted mandatory parole

effective February 21, 2005. A second Hearing Examiner concurred with

Haworth’s recommendation on January 6, 2005, and Commissioner Mitchell,

acting in his Regional Commissioner capacity, approved the panel’s

8
Bowers’ 2004 emergency petition for writ of habeas corpus is not before us.

15
recommendation on January 13, 2005. The Attorney General did not request

review of the Regional Commissioner’s decision by the National Appeals Board

pursuant to § 4215(c) of the Parole Act. See also 28 C.F.R. § 2.26(f).

C. The Parole Commission’s February 17, 2005, reopening of Bowers’ case

On February 16, 2005, a few days before Bowers’ scheduled release, Parole

Commission staff member Stephen Husk advised the Parole Commission’s

General Counsel and Chief of Staff that a victim had not been notified of Bowers’

mandatory parole hearing. The next day, the Parole Commission received a letter

from Ranger Patrick’s widow reporting that she had not been notified of the

hearing and requesting that she be allowed to provide information to the Parole

Commission.

That same day, Commissioners Spagnoli and Cushwa voted to reopen the

case, delay Bowers’ release, and schedule a “special reconsideration hearing”

pursuant to 28 C.F.R. § 2.28(f). The Parole Commission issued a Notice of Action

on February 17, 2005, reopening the case pursuant to 28 C.F.R. § 2.28(f) “to

consider new adverse information” and stating that the Parole Commission “has

received information from the registered victim(s) in your case that may impact

the Commission’s decision to parole you.”

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 On March 18, 2005, Douglas Thiessen, the Parole Commission’s Assistant

General Counsel, prepared a memorandum noting that Ranger Patrick’s widow

had sent the Parole Commission a letter regarding a 2002 radio interview given by

Bowers. Thiessen “listened to the interview several times” and summarized its

contents. In the interview, Bowers maintained his innocence and stated his belief

that the FBI targeted him because of his political activity. Bowers also

“identifie[d] himself with other prisoners who have labeled themselves ‘political

prisoners.’”

That same day, the Parole Commission provided Bowers a Supplemental

Notice of Action advising him that it had received “two letters from the wife of the

victim and one letter from a confidential source.” The March 18, 2005, notice

specified that the victim’s wife’s March 12, 2005, letter described an “attempt to

contact her via the mail and [Bowers’] repeated denial of guilt and multiple claims

(both at sentencing and recently) to be a political prisoner.” The notice also

specified that the confidential source’s March 14, 2005, letter asserted that the

1979 escape attempt and 1990 letter to Mrs. Lee constituted “serious institutional

misconduct under 18 U.S.C. § 4206(d).” The Parole Commission noted it would

consider the new information, as well as the information already in the Parole

Commission’s possession, at the special reconsideration hearing. Specifically, the

17
Parole Commission stated it would determine (1) “whether your political views

were the impetus for your crime, and whether you continue to be motivated by the

underlying reason for your crime (your reported desire to kill a law enforcement

officer), if you were to be released from prison,” (2) “whether you pose a

particular risk to the victim’s family,” and (3) “whether your 1979 escape attempt

and 1990 letter writing to the victim constitute serious institutional misconduct

under 18 U.S.C. § 4206(d).

On March 21, 2005, Hearing Examiner Paul Howard conducted the “special

reconsideration hearing.” Howard found that the issues raised in the Notices of

Action and the letters were “not new and significant information” because “the

Commission has addressed them and they are not relevant to the subject’s current

mindset and behavior.” Howard stated Bowers “has been a model prisoner since

1979 and there is simply no basis to deny mandatory parole at this time.” Howard

recommended Bowers be granted mandatory parole effective May 7, 2005.

Howard also recommended designating the case for the original jurisdiction of the

Parole Commission “[b]ased on the significant public interest in this case, the

nature of the offense, and that it being a life sentence.”

Hearing Examiner K. Pinner concurred with the grant of mandatory parole

and the original jurisdiction designation, but recommended that the parole date be

18
set at June 21, 2005. A second Hearing Examiner, S. Husk, agreed with Hearing

Examiner Pinner. Both Husk and Pinner agreed that Bowers did not pose a risk

upon release based on his political beliefs. Husk also “weighed the seriousness of

the past infraction(s) against the entire institutional record and conclude[d] that the

seriousness of the escape attempt [did] not overrule [Bowers’] suitability for

mandatory parole at the current time.” Thus, the recommendation of the Hearing

Panel was to grant Bowers’ mandatory parole effective June 21, 2005, and set the

case for the original jurisdiction of the Parole Commission.

D. The Parole Commission’s May 2005 original jurisdiction decision

On April 19, 2005, Commissioner Spagnoli voted to designate the case for

the Parole Commission’s original jurisdiction. Per agency practice, each

Commissioner voted on the case without holding an additional hearing. See 28

C.F.R. § 2.17(a). Commissioner Spagnoli wrote a four page memorandum

disagreeing with the Hearing Panel recommendation to grant Bowers’ mandatory

parole effective June 21, 2005, and instead voted to deny mandatory parole

because there was a “reasonable probability that [Bowers would] commit a federal,

state or local crime and that you seriously violated institution rules and

regulations.” Commissioner Cushwa agreed with Commissioner Spagnoli on

April 20, 2005. That same day, the Parole Commission informed Bowers that his

19
case had been “designated as Original Jurisdiction and referred to the National

Commissioners for decision.”

On May 6, 2005, Commissioner Mitchell, the Regional Commissioner on

the case, signed off on the order prepared by the Hearing Panel granting Bowers

mandatory parole effective June 21, 2005. Three days later, Chairman Reilly also

signed the order. On May 12, 2005, Commissioner Fulwood recused himself from

voting on Bowers’ case because he previously “served for 29 years in law

enforcement and during that period there were a number of police officers killed in

the performance of duty and in this case a police[man] was murdered.” The

remaining four Parole Commissioners were thus evenly spit in the original

jurisdiction decision.

Due to the 2-2 split vote, Chairman Reilly sought the advice of the Parole

Commission’s legal counsel, Rockne Chickinell. In a memorandum dated May

13, 2005, Chickinell stated “because the Commission has not found by a majority

vote of the Commission that one of the permissible reasons for denying mandatory

parole exists, the Commission must grant Bowers mandatory parole in order to

comply with 18 U.S.C. § 4206(d).”9 That same day, Regional Commissioner

9
In 2010, the Parole Commission revised its regulations to explain that a tie vote in this
situation results in the grant of mandatory parole. 28 C.F.R. § 2.63(b)(1),(2) (2011).

20
Mitchell and Chairman Reilly signed another order granting Bowers mandatory

parole. By Notice of Action dated May 17, 2005, the Parole Commission

informed Bowers of its decision to grant him mandatory parole effective June 21,

2005. The Notice stated “the Commission has not made a finding that one of the

permissible reasons for denying mandatory parole exists in your case.” The

Notice also stated the decision was “appealable to the Commission under 28

C.F.R. [§] 2.27.”

E. The Attorney General’s appeal and the Parole Commission’s June 14,
2005, reopening of Bowers’ case

At the end of May 2005, the Office of the Deputy Attorney General

requested information about Bowers’ case from the Parole Commission’s Chief of

Staff. In a memorandum dated May 31, 2005, the Parole Commission’s Chief of

Staff described the administrative appeal process as well as the background on the

Bowers case. The memorandum noted both an inmate and an attorney general

may appeal a Parole Commission decision under 18 U.S.C. § 4215, and stated in a

footnote “the view of the Commission’s legal office that § 4215(c) would also

apply to original jurisdiction cases, even though the Commission’s regulations do

not specifically refer to Attorney General appeal of such cases.” Counsel to the

Deputy Attorney General posed some followup questions, including whether it

21
would be “appropriate for Commissioner Cushwa to explain in her own words

why she voted to detain.” The Parole Commission’s Chief of Staff responded in a

June 1, 2005, memorandum:

[I]t would be inappropriate and not in the best interests of the
Commission—or the Attorney General—for the Attorney General to
ask her to explain her vote. For one thing, it suggests a relationship
incompatible with the independence sought by Congress when it
established the Commission and could create the appearance of an
attempt to influence.

On June 9, 2005, then-Attorney General Alberto Gonzales requested that,

“[p]ursuant to the Rules and Procedures of the United States Parole Commission

and in response to the May 17, 2005 Notice of Action,” the Parole Commission

“review and consider the Veronza L. Bowers matter and render a new decision on

whether to grant or deny parole to Bowers.” The memorandum further stated

that:

Because the original jurisdiction decision was split 2-2-1,
reconsideration may clarify the Parole Commission’s decision in this
matter. Further, review will give each of the five Commissioners the
opportunity to clarify their positions on whether to grant or deny
parole to Bowers. Finally, the review may address any factual and/or
legal ambiguities contained in the initial decision.

On June 14, 2005, the Parole Commissioners, with the exception of Commissioner

Fulwood, voted to reopen the case and delay Bowers’ mandatory parole date of

22
June 21, 2005, “for up to 60 days to consider petition of the Attorney General for

reconsideration of Original Jurisdiction decision.”

F. The Parole Commission’s October 6, 2005, reconsideration of its May 2005
original jurisdiction decision

In the Parole Commission’s 30-year history, no Attorney General had ever

sought review of an original jurisdiction decision. Based on the “unprecedented

review,” it was necessary for the Parole Commission to develop procedures to

handle the Attorney General’s request. The Parole Commission scheduled two

meetings for July 28, 2005, to develop these procedures. The first meeting was to

be open to the public to discuss “[r]ule amendments for reviewing future requests

from the Attorney General for reconsideration of a Commission decision.” The

second meeting was to be “closed” to discuss the “[p]rocedure to be followed for

review of one original jurisdiction case upon request of the Attorney General as

provided in 18 U.S.C. Sec. 4215(c).”10 On July 18, 2005, Bowers’ counsel faxed

his objections to the Parole Commission’s review of the original jurisdiction

decision, as well as the Parole Commission’s failure to give Bowers an

opportunity to participate in the “closed” meeting. The Parole Commission

10
On July 21, 2005, the Parole Commission’s General Counsel certified that
consideration of the procedures in Bowers’ case could be closed to the public under the
Government in the Sunshine Act, 5 U.S.C. § 552b. Consideration of the potential rule change,
however, was a matter for an open business meeting.

23
provided the Department of Justice a draft set of rules and procedures for deciding

the Attorney General’s petition, and on July 27, 2005, the Department of Justice

provided comments as to how its appeal should be handled. At the July 28, 2005,

meeting, the Parole Commission postponed consideration of the procedures to be

used in Bowers’ case.

The Parole Commission reconvened on August 2, 2005, at a second

“closed” meeting and voted on the procedures for Bowers’ case. According to an

August 8, 2005, internal memorandum from Commissioner Spagnoli, the Parole

Commission “had not noticed the meeting as required by law.” In a letter dated

August 9, 2005, the Parole Commission sent Bowers and his attorney letters

notifying them that “[t]he Parole Commission has adopted procedures for

consideration of the Attorney General’s request for review in your case,” and it

has enclosed a copy of the procedures. The Parole Commission noted it would

consider the Attorney General’s request at its next regularly scheduled meeting on

October 5, 2005. Under the procedures adopted by the Parole Commission, the

Attorney General, Ranger Patrick’s widow, and any other interested party had 20

days to submit written comments. Bowers then had 20 days to file his response.

The Office of the Deputy Attorney General filed comments on September 1,

2005. On September 21, 2005, Bowers filed a timely response. The Department

24
of Justice filed another set of comments on September, 30, 2005, and requested an

opportunity to appear before the Parole Commission during its closed meeting.11

On October 3, 2005, Bowers’ counsel objected to the September 30, 2005, filing

as unauthorized by the Parole Commission’s newly-adopted procedures. Bowers’

counsel also filed a substantive response to the September 30, 2005, comments.

On October 6, 2005, the Parole Commission considered Bowers’ case in a

“closed” meeting.12 Commissioner Fulwood recused himself. At the meeting,

Assistant General Counsel Thiessen orally presented the case, stating he was “the

person who would know the facts of this case better than anybody because I

defended it several times in federal court and have been working closely with the

Attorney General’s Office back and forth regarding this review.”13 Thiessen then

summarized the underlying crime, the 1979 escape attempt, Bowers’ political

views, and the fears expressed by Ranger Patrick’s widow. Thiessen

recommended denying mandatory parole. Ultimately, all four Commissioners

agreed that the escape attempt was “serious institutional misconduct,” while

11
This request was denied.
12
The meeting was closed to the public under the Government in the Sunshine Act, 5
U.S.C. § 552b.
13
On September 23, 2005, Thiessen had prepared an appeal summary for the Parole
Commission, recommending denial of mandatory parole.

25
Chairman Reilly, Commissioners Cushwa and Spagnoli also all found that Bowers

was likely to commit a crime in the future. Commissioners Cushwa and Spagnoli

further found Bowers’ 1990 letter to Ranger Patrick’s widow to be a “serious”

violation of institutional rules.

On October 7, 2005, the Parole Commission issued a Notice of Action on

Appeal informing Bowers of the parole denial. The notice stated Bowers had

“seriously violated the rules of the institution and that there is a reasonable

probability that [Bowers] will commit a Federal, State, or local crime.” With

respect to the finding that Bowers was likely to commit another crime, the Parole

Commission explained that the “killing of Ranger Patrick was motivated by your

attitude towards and hatred for the United States Government,” and it found that

Bowers “continue[d] to harbor the same beliefs and attitudes that led [him] to”

murder Ranger Patrick. The Parole Commission relied on the 2002 radio

interview, in which Bowers “reiterated [his] hatred for the United States

Government” and his continued claims of being held as a “political prisoner.”

Finally, the Parole Commission relied on the 1990 letter, which “further indicates

that you are likely to commit a crime.”

G. Bowers’ interim parole hearings and the discovery of Commissioner
Spagnoli’s June 1, 2005, memorandum

26
 Bowers submitted another parole application on May 7, 2007, for a

Statutory Interim Hearing. 18 U.S.C. § 4208(h)(2). The Parole Commission

scheduled Bowers for a hearing on August 3, 2007. This hearing was cancelled by

the Parole Commission at the last minute, over Bowers’ counsel’s objection, based

on a request from an Associate Deputy Attorney General, who had not received

adequate notice of the hearing. In a letter dated August 8, 2007, Bowers’ counsel

stated “the Commission’s willingness to accede to [the Department of Justice’s]

demands reflects a lack of the independence Congress contemplated when it

established the Commission.” The Parole Commission rescheduled the hearing for

September 27, 2007.

On September 7, 2007, Chairman Reilly informed Bowers that

Commissioner Spagnoli “had prepared a memorandum dated June 1, 2005

addressed to the Deputy Attorney General, in which the Commissioner outlined

arguments that could be used by the Attorney General to file an appeal of a

decision that had granted you parole.” In his letter, Chairman Reilly provided

Bowers with a redacted copy of Commissioner Spagnoli’s June 1, 2005,

memorandum, which had been sent without the other Parole Commissioners’

knowledge, and informed Bowers that the Parole Commissioners agreed

Commissioner Spagnoli’s memorandum “creates an appearance that former

27
Commissioner Spagnoli may not have exercised impartial judgment in voting on

the Attorney General’s appeal.” The Chairman also stated that Commissioner

Spagnoli’s memorandum played no role in his or the other Parole Commissioners’

decision-making, and “that our votes were based on our independent assessments

of the merits of your case.” Finally, Chairman Reilly stated that Bowers’

upcoming hearing would be held as a de novo proceeding, and that “[a]ny findings

that were made in the October 7, 2005 decision will not be determinative of the

outcome following your new hearing.”

Bowers’ counsel requested postponement of the interim hearing set for

September 27, 2007, after receiving a copy of Commissioner Spagnoli’s June 1,

2005, memorandum. Based on this “startling revelation,” counsel believed he

might find other documents bearing on the Parole Commission’s actions in 2005

and requested more time to do so. Bowers again applied for parole by a form

dated April 14, 2008. He was scheduled for the December 2008 docket in Atlanta,

but Bowers’ counsel again requested that the parole hearing be removed from the

docket without prejudice to Bowers reapplying for a hearing.

III. PROCEDURAL BACKGROUND

On June 24, 2008, Bowers filed his petition for a writ of habeas corpus in

the Northern District of Georgia, challenging the October 6, 2005, decision of the

28
Parole Commission to deny him release on mandatory parole pursuant to 18

U.S.C. § 4206(d). Specifically, the petition challenges the February 17, 2005,

decision to reopen Bowers’ case pursuant to 28 C.F.R. § 2.28(f), and the June 14,

2005, decision to reopen Bowers’ case pursuant to 28 C.F.R. § 2.27. The petition

claims the Parole Commission violated Bowers’ due process rights, the Parole Act,

and the Parole Commission’s rules and regulations, “by twice reopening Mr.

Bowers’ case, failing to release him on parole as twice scheduled, failing to act as

a neutral, unbiased decision-maker, making arbitrary and result-oriented decisions,

and then denying him release on mandatory parole.”

In his memorandum of law supporting the petition, Bowers challenges as

unlawful both the Parole Commission’s reopening of his case on February 17,

2005, and its consideration of the Attorney General’s request for review on June

14, 2005. Bowers also contends the Parole Commission’s October 6, 2005,

decision was tainted by political pressure and the actions of Commissioner

Spagnoli. As relief, the petition claims the court should reinstate the Parole

Commission’s May 17, 2005, decision granting Bowers parole and order Bowers

released on mandatory parole to restore him to his status before the Parole

Commission unlawfully rescinded his parole. He claims this is the only adequate

remedy in light of the Parole Commission’s actions.

29
 In its response, the Parole Commission concedes that Commissioner

Spagnoli’s June 1, 2005, memorandum gave “an appearance that she may not have

been an impartial decision-maker in considering the [Attorney General’s] petition

for review.” However, the Parole Commission opposes Bowers’ contention that

the remaining Parole Commissioners acted unlawfully. With regard to the

February 17, 2005, decision to reopen, the Parole Commission argues the decision

was authorized by its regulations because it was based on the receipt of “new and

significant adverse information.” With regard to the June 14, 2005, decision to

reopen, the Parole Commission focuses on the Attorney General’s authority to

petition for review of the original jurisdiction decision. Although the Parole

Commission concedes that a biased Parole Commissioner “would so undermine

the integrity of the decision-making process [such] that the decision must be

vacated,” it argues Bowers’ requested remedy of immediate release was improper.

Rather, the Parole Commission claims the appropriate remedy would be an order

to correct any error within a selected time period.

Bowers’ petition was referred to a magistrate judge who entered a Report

and Recommendation recommending that his petition be granted. The magistrate

judge did not analyze either the February 17, 2005, reopening or the June 14,

2005, reopening. Rather, the magistrate judge’s recommendation was based on

30
two conclusions: (1) the Attorney General’s June 9, 2005, appeal was

unauthorized, and (2) the Parole Commission’s October 6, 2005, decision was

tainted by the June 1, 2005, memorandum of Commissioner Spagnoli and the

undue influence of the Attorney General, and was not rationally based. The

magistrate judge also concluded the appropriate remedy was to vacate the October

2005 order and reinstate the May 2005 decision granting Bowers mandatory

parole. The magistrate judge did not believe Bowers “could obtain a hearing by

impartial decision-makers if the Court were to order a new hearing before the

Commission as presently composed”14 because she was persuaded “that the

impartiality of the Commission as a whole was affected by the actions of

Commissioner Spagnoli, the Attorney General and others, and that the taint on the

Commission’s decision-making could not be eradicated simply by an order from

this Court directing the Commission to grant Petitioner a new parole hearing.”

Final Report and Recommendation and Order at 59-60, June 4, 2009.

The district court held a hearing on December 17, 2009. The district court

then entered an order, rejecting the magistrate judge’s recommendation. The

substantive portion of the district court’s order reads:

14
At the time of the magistrate judge’s order, “all of the Commissioners involved in the
October 6, 2005 decision, with the exception of Commissioner Spagnoli, remain[ed] on the
Commission.” Final Report and Recommendation and Order at 59-60, June 4, 2009.

31
 The court first duly notes that Magistrate Judge Cole’s well
researched and reasoned Report and Recommendation is
commendable. Regretfully, however, the Court is unable to adopt her
recommendation. As Petitioner acknowledged at the hearing, “a
parole is not effective finally until the prisoner is in fact released.”
Here, the prisoner was never in fact released, and the court is not
persuaded that the Parole Commission, at any point, was without
jurisdiction or authority to revise its decision to grant or deny
Petitioner’s parole. Hence, the court will not reverse the
Commission’s decision to deny Petitioner’s parole. The court hereby
DENIES the habeas petition.

Order at 1-2, March 11, 2010.

On March 15, 2010, the clerk of court entered judgment, denying and

dismissing Bowers’ habeas petition. Bowers filed a notice of appeal on May 7,

2010.

IV. STANDARD OF REVIEW

We review de novo the district court’s denial of habeas relief under 28

U.S.C. § 2241. Byrd v. Hasty, 142 F.3d 1395, 1396 (11th Cir. 1998). A district

court’s factual findings are reviewed for clear error. Id.

Our review of a Parole Commission proceeding is narrow and limited.

Congress has provided that the Parole Commission’s substantive decisions to

grant, deny, modify, revoke, or impose conditions on parole “shall be considered

actions committed to agency discretion for purposes of section 701(a)(2) of title 5,

United States Code.” 18 U.S.C. § 4218(d). Here, however, we are not reviewing

32
the substantive decision of the Parole Commission to deny Bowers’ mandatory

parole. Our review is limited to whether the Parole Commission acted unlawfully

such that Bowers “is in custody in violation of the Constitution or laws . . . of the

United States.” 28 U.S.C. § 2241(c)(3). We will not reverse the decision of the

Parole Commission “unless it involves flagrant, unwarranted, or unauthorized

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

at 873.15

V. DISCUSSION

The parties focus heavily on whether the Attorney General had the authority

to seek reconsideration of the Parole Commission’s original jurisdiction decision.

We find these arguments misplaced. The Attorney General’s June 9, 2005,

memorandum requesting reconsideration of the Parole Commission’s decision is

not determinative. We focus instead on whether the Parole Commission engaged

in “flagrant, unwarranted, or unauthorized action” by reopening Bowers’ case on

February 17, 2005, to consider new adverse information, and on June 14, 2005, to

reconsider the Parole Commission’s original jurisdiction decision. See Glumb,

891 F.2d at 873. As discussed below, we conclude the first reopening was lawful,

but the second was not.

15
This is the standard of review espoused by the Government.

33
A. The Parole Commission’s February 17, 2005 reopening

The lawfulness of the February 17, 2005, decision is dependent on whether

the Parole Commission received “new and significant adverse information”

pursuant to 28 C.F.R. § 2.28(f). Section 2.28(f) provides:

Upon receipt of new and significant adverse information . . . , a
Commissioner may refer the case to the National Commissioners with
his recommendation and vote to schedule the case for a special
reconsideration hearing. Such referral shall automatically retard the
prisoner’s scheduled release date until a final decision is reached in
the case.

28 C.F.R. § 2.28(f).

On February 16, 2005, the Parole Commission received notice from Ranger

Patrick’s wife, the registered victim, stating she had not been notified of Bowers’

mandatory parole hearing. On February 17, 2005, the Parole Commission

received a letter from Ranger Patrick’s wife indicating a desire to provide

additional information relevant to the § 4206(d) factors. That same day,

Commissioners Spagnoli and Cushwa signed an order reopening Bowers’ case

pursuant to § 2.28(f) for a special reconsideration hearing.16

16
The Parole Commission subsequently received a second letter from the registered
victim summarizing what she believed Bowers’ institutional misconduct to be, as well as a letter
from a confidential source stating Bowers’ claims to be a political prisoner were baseless,
summarizing Bowers’ institutional misconduct, and arguing Bowers remained a danger to society
due to his lack of remorse.

34
 Although Bowers contends the information received by the Commission

was not “new and significant adverse information,” that phrase has been

interpreted broadly by the courts. See Lewis v. Beeler, 949 F.2d 325, 328 (10th

Cir. 1991) (noting information is “new” if it is not received by the Commission

before the release decision that is to be revisited); Goble v. Matthews, 814 F.2d

1104, 1108 (6th Cir. 1987) (stating information may be “new” if it was in the

parole file but inadvertently overlooked at the time of the release decision). We

conclude “new and significant adverse information” is broad enough to include a

letter from a registered victim indicating her desire to provide information related

to the § 4206(d) factors.

The registered victim’s February 17, 2005, letter was “new” in that it was

not received by the Commission before Bowers’ December 21, 2004, mandatory

parole hearing. See Lewis, 949 F.2d at 328. The letter was also “significant” as

evidenced by the Parole Act’s mandate that the Commission “shall consider, if

available and relevant: . . . a statement . . . by any victim of the offense for which

the prisoner is imprisoned . . . .” 18 U.S.C. § 4207(5) (emphasis added). The

registered victim was unable to provide information pursuant to 18 U.S.C. § 4207

at Bowers’ original mandatory parole hearing due to lack of notice. Further, the

letter was “significant” because the information proffered by the registered victim

35
was relevant to the § 4206(d) factors. Because the letter constituted “new and

significant adverse information” as contemplated by 28 C.F.R. § 2.28(f), we

conclude the Parole Commission acted within its statutory and regulatory authority

when it reopened Bowers’ case on February 17, 2005, to permit consideration of

the registered victim’s information.

B. The Parole Commission’s June 14, 2005, reopening

We next consider the lawfulness of the Parole Commission’s decision to

reopen Bowers’ case on June 14, 2005, to reconsider the Parole Commission’s

May 2005 evenly-split original jurisdiction decision that resulted in the grant of

mandatory parole. We focus on the actions of Commissioner Spagnoli

surrounding the decision to reconsider Bowers’ case, and conclude she violated

the Parole Act’s mandate that the Parole Commission function as an independent

agency, impermissibly tainting the Parole Commission’s decision to reopen.

Congress established the Parole Commission “as an independent agency in

the Department of Justice.” 18 U.S.C. § 4202. The legislative history indicates

Congress intended “that parole decisionmaking be independent of, and not

governed by, the investigative and prosecutorial functions of the Department of

Justice.” S. Rep. No. 94-648, at 21 (1976) (Conf. Rep.). The Parole

Commission’s “decision-making machinery is independent so as to guard against

36
influence in case decisions.” S. Rep. No. 94-369, at 20 (1975); see also Dye v.

United States Parole Comm’n, 558 F.2d 1376, 1378 (10th Cir. 1977) (noting the

emphasis in the Parole Act “is on increasing procedural safeguards in reducing

arbitrary decision-making”).

The Parole Act also “preserves the independence and integrity of the U.S.

Parole Commission by providing the Attorney General (and through the Attorney

General, the prosecutorial arm of the Department of Justice) with a formal

procedure for making objection to any parole release or denial ordered by a

Commissioner.” Paroling, Recommitting, and Supervising Federal Prisoners:

Procedures for Attorney General Requests to Review Parole Decisions, 59 Fed.

Reg. 40257–08 (Aug. 8, 1994). The Parole Commission explicitly recognized the

application of this independence principle to Bowers’ case, noting it would not be

in the Commission’s best interests to explain itself to the Attorney General

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.”

Here, the actions of Commissioner Spagnoli demonstrate she was not acting

as an independent and neutral decision-maker at the time of the Parole

Commission’s June 14, 2005, decision to reconsider its evenly-split original

37
jurisdiction decision. Commissioner Spagnoli prepared a 14-page “Memorandum

for the Deputy Attorney General” on June 1, 2005, without the knowledge or

consent of the other Parole Commissioners. Spagnoli Memorandum, R10, Exh.

71. The Parole Commission does not dispute that the memorandum was in fact

sent to and received by a Deputy Attorney General within the Department of

Justice. Although Commissioner Spagnoli’s memorandum was entitled

“Memorandum for the Deputy Attorney General,” it did not list a specific

recipient. The specific recipient is not relevant to the bias of Commissioner

Spagnoli; the existence of the memorandum, which the Parole Commission does

not dispute was sent to and found in the files of the Department of Justice, is

sufficient to establish Commissioner Spagnoli’s bias against Bowers.

The Parole Commission did not become aware of Commissioner Spagnoli’s

memorandum until September of 2007, after the Office of Information and Privacy

of the Department of Justice referred the memorandum following a Freedom of

Information Act request from another party. The subject of Commissioner

Spagnoli’s memorandum was “Issues relating to whether or not the Attorney

General should appeal the Parole Commission’s [d]ecision to grant mandatory

parole to Veronza Bowers.” Spagnoli Memorandum, R10, Exh. 71 at 1. The

Parole Commission concedes this memorandum, which it does not dispute was

38
found in the files of the Department of Justice, “creates the appearance that

[Commissioner Spagnoli] may have not exercised impartial judgment in voting on

the Attorney General’s request to review the parole decision for Bowers.” We

agree.

As the magistrate judge noted, Commissioner Spagnoli’s memorandum can

“be characterized as a polemic against the decision to parole.” The memorandum

described Bowers in negative terms and omitted all favorable information. For

instance, in the memorandum, Commissioner Spagnoli cited selective portions of a

December 2004 forensic evaluation of Bowers that she interpreted as “highly

relevant to a determination that [Bowers] has a reasonable possibility of

committing future crimes.” Spagnoli Memorandum, R10, Exh. 71 at 7. The

memorandum failed to include the forensic evaluation’s positive conclusion that

“should [Bowers] be granted parole, [he] would in all likelihood continue to

engage in a lifestyle that is respectful of himself and others.” R1, Exh. 27 at 10.

In addition, the memorandum included a criminal charge of aiding and abetting an

assault that the Ninth Circuit Court of Appeals had considered and instructed the

“[Parole] Commission to disregard . . . because [Bowers’] due process rights were

violated—not because he didn’t commit the act.” Spagnoli Memorandum, R10,

Exh. 71 at 9. Commissioner Spagnoli’s memorandum provided this information

39
so that the Attorney General could “make sure that we make specific findings as to

each and every angle that exists statutorily and legally to potentially keep this

defendant in prison.” Id.

In preparing this “Memorandum for the Deputy Attorney General”

presenting “potential appeal issues,” Commissioner Spagnoli departed from her

statutory role of a neutral decision-maker as a Parole Commissioner and took on

an advocate’s role of seeking a particular outcome. See Dye, 558 F.2d at 1378

(“The Commission does not function as an adversary to the prisoner.”). Moreover,

she attempted to enlist the aid of the Department of Justice, by way of the Attorney

General, to achieve her desired outcome.17 Commissioner Spagnoli’s “secret

memorandum” violated the Parole Act’s mandate that the Parole Commission

function “as an independent agency in the Department of Justice.” 18 U.S.C.

§ 4202; see also Brennan v. Occupational Safety and Health Review Comm’n, 502

F.2d 30, 32 (5th Cir. 1974) (noting an agency “is no more than a creature of

17
Although the memorandum purported not to “reach a conclusion with regard to
whether the Attorney General should appeal the case,” the memorandum presented a request for
reconsideration as a win-win situation for the Attorney General—if the Parole Commission were
to affirm its decision after review, “the Attorney General did everything he could to prevent
[Bowers’ release] from happening,” and if the Parole Commission reverses its decision, “the
Attorney General gets credit for protecting the public from a dangerous criminal.”

40
Congress and, as such, may proceed only in conformity with its congressional

grant of authority”).18

Commissioner Spagnoli’s inappropriate actions were not limited to the June

1, 2005, memorandum. She also initiated communications regarding the Bowers

case with several other Department of Justice officials. For instance, on May 24,

2005, she contacted an Office of Intergovernmental and Public Liaison official,

offering to walk her through the Bowers case. Commissioner Spagnoli also

contacted several other Department of Justice officials, including those within the

Office of Legal Counsel and the Office for Victims of Crime. After the Attorney

General’s petition for reconsideration of the original jurisdiction decision was

granted, Commissioner Spagnoli contacted Edward McNally, the Department of

Justice’s “point person” on the Bowers appeal, stating:

I need to talk to you ASAP about the appeal issue, I stopped by your
office this am but your door was locked. I have talked to Kyle, Steve
B. and Wendell Taylor . . . Please call me as soon as you get a chance.

This e-mail prompted a series of communications with Mr. McNally, which

included Commissioner Spagnoli sharing both a proposed rule and internal

Commission e-mails. These communications culminated in an e-mail sent from

18
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
close of business on September 30, 1981.

41
Commissioner Spagnoli to Mr. McNally on October 6, 2005, the date the Parole

Commission agreed to deny Bowers’ mandatory parole. The e-mail was succinct:

“Victory.”

Commissioner Spagnoli’s clandestine communications with the

Department of Justice also violated the Parole Act’s mandate that the Parole

Commission function “as an independent agency in the Department of Justice.”

18 U.S.C. § 4202; see Brennan, 502 F.3d at 32. Commissioner Spagnoli again

inappropriately assumed the role of advocate against Bowers and functioned “as

an adversary to the prisoner.” Dye, 558 F.2d at 1378.

Before the district court, the Parole Commission conceded that in this case,

a finding that Commissioner Spagnoli was biased “would so undermine the

integrity of the decision-making process that the decision must be vacated.”

Under the particular facts of this case, we agree that the decision of the Parole

Commission to reopen Bowers’ case was impermissibly tainted by Commissioner

Spagnoli’s “unauthorized action[s]” revealing her bias. Glumb, 891 F.2d at 873.

We thus vacate the Parole Commission’s June 14, 2005, order reopening Bowers’

case.

By vacating the June 14, 2005, order, we necessarily vacate the Parole

Commission’s October 6, 2005, original jurisdiction decision denying Bowers

42
mandatory parole.19 Bowers contends the appropriate remedy is to order him

immediately released on mandatory parole. This we will not do. See, e.g., Jones

v. United States Bureau of Prisons, 903 F.2d 1178, 1181 (8th Cir. 1990)

(“[N]either the district court nor this court has the right to correct the mistake by

ordering the prisoner released.”) (citation omitted); Luther v. Molina, 627 F.2d 71,

76 (7th Cir. 1980) (“[Parole] [r]elease, whether outright or on bail, would rarely be

necessary or appropriate.”). Rather, we direct the district court to return this case

to the Parole Commission in its posture as of May 17, 2005, the date of the last

Parole Commission action taken before Commissioner Spagnoli’s unlawful

actions.

As of May 17, 2005, the Parole Commission’s evenly-split original

jurisdiction decision was operative. In this posture, Bowers is entitled to

mandatory parole based on the May 2005 original jurisdiction decision unless the

Parole Commission takes further action pursuant to its rules and regulations.20

Upon return, the Parole Commission shall immediately review Bowers’ file to

determine ab initio whether any further action is necessary or authorized.

19
We express no opinion on the substantive merits of the Parole Commission’s October
6, 2005, decision.
20
We agree with the district court that the Parole Commission retains jurisdiction over
Bowers, at a minimum, until he is in fact released. See 18 U.S.C. § 4210 (describing the
jurisdiction of the Parole Commission).

43
 We express no opinion on the merits of either of the Parole Commission’s

May 2005 or October 2005 original jurisdiction decisions. Indeed, we are not

deciding that the Parole Commission is barred from reconsidering its May 2005

original jurisdiction decision.21 It is up to the Parole Commission, not this Court,

to decide what, if any, further action is warranted in Bowers’ case. All we hold is

that, if the Parole Commission decides to take further action, it must proceed in the

manner authorized by the Parole Act and the Parole Commission’s rules and

regulations. Finally, contrary to Bowers’ claim, we believe Bowers will receive a

fair and impartial hearing if any further action is, in fact, taken by the Parole

Commission. Commissioner Spagnoli resigned in 2007, and there is no evidence

any of the current Parole Commissioners would act outside the confines of the

Parole Act or the Parole Commission’s rules and regulations.

VI. CONCLUSION

For the foregoing reasons, we REVERSE the district court’s denial of

habeas relief on Bowers’ claim that the Parole Commission violated the Parole Act

by reopening his case on June 14, 2005, and REMAND to the district court with

instructions to remand this case to the Parole Commission in its posture as of

21
The Parole Commission recently revised its rules to permit the Parole Commission to
“re-vote on a case disposition to resolve a tie vote or other impasse in satisfying a voting
requirement of these rules.” 28 C.F.R. § 2.63(b)(3) (2011).

44
May 17, 2005. The Parole Commission shall immediately review Bowers’ case to

determine whether any further action is necessary or authorized. Unless the Parole

Commission initiates proceedings within sixty (60) days, the district court shall

grant Bowers’ petition for writ of habeas corpus and direct the Parole Commission

to begin release planning and implement the mandatory parole authorized and

required by 18 U.S.C. § 4206(d). We AFFIRM the district court’s denial of

habeas relief as to Bowers’ remaining claims.

REVERSED and REMANDED.

45