                                                                          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      This order and judgment is not binding precedent, except under the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Act (“YCA”), 18 U.S.C. § 5010(c) (repealed 1984), for his participation in the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)).

                                            -2-
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

                                            -3-
      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

                                           -4-
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).

                                          -5-
       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


                                            -6-
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...)

                                           -7-
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.

                                         -8-
