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Simpson v. Ortiz

decided as corrected: July 16, 1993.

NOBLE LEE SIMPSON, PETITIONER-APPELLANT,
v.
CARLOS ORTIZ, WARDEN FCI, BASTROP, U.S. PAROLE COMM., ET AL., RESPONDENTS-APPELLEES.



Appeals from the United States District Court for the Western District of Texas. D.C. DOCKET NUMBER A-91-CV-381. JUDGE Sam Sparks

Before King, Davis and Wiener, Circuit Judges.

Author: Per Curiam

Per Curiam.

Noble Lee Simpson, a federal prisoner proceeding pro se, brought this habeas action to challenge a parole commission determination and obtain a writ of habeas corpus. The district court granted summary judgment in favor of respondents, and Simpson appeals from that judgment. Finding that there is no genuine issue for trial, we affirm.

I

Noble Lee Simpson was convicted in 1982 for conspiracy to possess with intent to distribute methaqualone. He was sentenced to an aggregate fifteen-year term of imprisonment, to be followed by a ten-year special parole term. While serving this sentence, Simpson escaped in 1984 and returned to the business of drug smuggling. He was apprehended in 1985, pled guilty to willfully escaping from a federal prison in violation of 18 U.S.C. § 751(a), and was sentenced to a term of six months to be served consecutively to his earlier prison term. In 1987, Simpson was indicted for and convicted of participating in conspiracies to import and distribute marijuana and cocaine while a fugitive; he was sentenced to an aggregate term of forty years in prison, to be followed by a six-year special parole term.

Simpson's original presumptive parole eligibility date--the date based only upon his first conviction--was May 11, 1987. When the parole commission learned of his escape conviction in March 1987, it ordered that Simpson's case be reopened. In June 1987, because of Simpson's 1987 conspiracy convictions and his new forty-year sentence, the Parole Commission issued a notice of action rescinding his May 11, 1987 presumptive parole date.

In October 1990, Simpson applied for a parole hearing to determine his release date. A prehearing assessment was prepared in November 1990. The reviewer addressed Simpson's escape and conspiracy convictions and, noting that Simpson had escaped from custody and was involved in a conspiracy to import more than 15 kilograms of cocaine and more than 50 kilograms of marijuana, tentatively raised his offense behavior to category eight severity under the Sentencing Guidelines. The reviewer ultimately estimated Simpson's Guideline range at 150 months.

Simpson's parole hearing was held in December 1990, and the examiners discussed his three offenses. Simpson admitted his culpability regarding his 1982 conviction for conspiracy to possess methaqualone with intent to distribute, and he presented reasons for his escape. He also denied the magnitude of the culpability outlined in his presentence report (PSI) as to his 1987 conviction for participating in marijuana and cocaine conspiracies, asserting that he was merely a member of one of the conspirators' ground crews. Nevertheless, the examiners rated Simpson's cocaine offense as being of category eight severity under the Sentencing Guidelines because he had participated in a conspiracy to import more than 18.75 kilograms of ungraded cocaine. Moreover, despite Simpson's assertion that he was simply a member of a ground crew, the examiners determined that Simpson held a specialized role as an airplane mechanic.*fn1 Nevertheless, based on Simpson's limited role and the fact that the cocaine conspiracy to import illegal drugs from Mexico to the United States was never completed,*fn2 the hearing examiners recommended that Simpson be released after serving 152 months. They also recommended that, because he had superior adjustment and work records, Simpson be given twenty-four months of program achievement credit; this would have resulted in Simpson serving 128 months and, in light of the 91 months he had already served, would have given him a presumptive parole date of January 24, 1994.

The regional commissioner, believing the seriousness of Simpson's offenses outweighed his institutional achievements, disagreed with the hearing examiners' recommendation. He determined that Simpson should serve the full 152 months, which resulted in a presumptive parole date of January 24, 1996. Simpson then appealed the regional commissioner's decision to the National Appeals Board, which found that Simpson's role in the conspiracy was not peripheral and that his institutional achievements were not sufficient to warrant a more lenient decision. Accordingly, the National Appeals Board affirmed the Regional Commissioner's decision.

Simpson challenged the decision of the National Appeals Board by filing a petition pursuant to 28 U.S.C. § 2241, in which he named the United States Parole Commission and Carlos Ortiz, warden of the Bastrop Federal Corrections Institution, as respondents. The matter was referred to a magistrate Judge, and the government then moved to dismiss the action or, in the alternative, for summary judgment on behalf of the respondents. The magistrate Judge recommended that respondents' motion for summary judgment be granted, and the district court adopted that recommendation. Simpson now appeals from the district court's grant of summary judgment in favor of respondents.

II

Simpson raises the following challenges to the district court's determination: (a) whether the district court applied the proper standard of review; (b) whether, by delaying the resolution of this action for thirteen months, the magistrate Judge failed to comply with 28 U.S.C. ยงยง 2241-2243; (c) whether the Parole Commission's use of its 1990 rules and guidelines violated the ex post facto clause; and (d) whether the Parole Commission violated the ...


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