                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-8-2005

Warren v. US Parole Comm
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4485




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     NO. 04-4485
                                   ________________

                                 MORRIS J. WARREN,
                                                 Appellant,

                                            v.

                      UNITED STATES PAROLE COMMISSION
                      ____________________________________

                    On Appeal From the United States District Court
                       For the Middle District of Pennsylvania
                             (D.C. Civ. No. 03-cv-00624)
                      District Judge: Honorable Edwin M. Kosik
                            __________________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                     July 5, 2005

            Before: RENDELL, AMBRO AND FUENTES, CIRCUIT JUDGES


                                  (Filed August 8, 2005)
                                   _________________

                                      OPINION
                                  _________________


PER CURIAM

       Appellant Morris J. Warren was arrested while on parole in 1973. On December

18, 1973, the Superior Court for the District of Columbia sentenced him to 15 years to life

for several counts of sexual assault while armed, and kidnapping. The court ordered that
this sentence run consecutively to any parole violation sentence. On July 19, 1983,

Warren was resentenced on these same charges to a term of imprisonment of 10 years to

life, and a consecutive term of imprisonment of five to fifteen years, for, once again, an

aggregate term of imprisonment of fifteen years to life. The State of Maryland has lodged

a detainer against Warren for service of a concurrent life sentence plus 25 years imposed

upon convictions for aiding and abetting murder, assault with intent to maim, and

attempted robbery, to which he will be released if paroled from his D.C. sentence.

              Warren, an inmate at the United States Penitentiary in Lewisburg,

Pennsylvania (“USP-Lewisburg”), filed a petition for writ of habeas corpus pursuant to

28 U.S.C. § 2241 in United States District Court for the Middle District of Pennsylvania.

He contended that the United States Parole Commission’s failure to obtain a

psychological assessment of future dangerousness rendered its decision to deny him

parole arbitrary and capricious.

       Warren was first considered for parole by the District of Columbia Board of Parole

in May 1995. He received a point score of “four” under the 1987 District of Columbia

parole guidelines, a score which indicated that parole should be denied, and in fact it was

denied. Warren subsequently was transferred to the jurisdiction of the United States

Parole Commission. In a decision dated June 15, 2000, the Parole Commission, applying

the 1987 D.C. guidelines, assigned him a score of 3 points, which ordinarily would mean

that he would be granted parole. However, the Parole Commission decided to depart



                                             2
from the guidelines on the basis of Warren’s having committed three violent crimes while

on parole, and on the basis of the Maryland convictions. The Parole Commission

believed that Warren posed a serious risk to the community, and requested that the D.C.

Department of Corrections or Bureau of Prisons conduct a psychological evaluation of

Warren’s future dangerousness. A reconsideration hearing was scheduled for April

2003.

        This psychological evaluation did not take place. On March 11, 2003, the Parole

Commission again computed Warren’s point score as “three,” and again denied parole,

citing as the reason for departing from the guidelines the serious risk posed by Warren, as

determined by the three violent crimes committed while on parole and the Maryland

convictions. Again a request was made for the Bureau of Prisons to conduct a

psychological evaluation of Warren’s future dangerousness.

        In the meantime, Warren filed an administrative grievance with the Bureau of

Prisons, asking for the psychological evaluation/risk assessment to be conducted. Warden

D. Scott Dodrill rejected the grievance, explaining that Bureau of Prisons psychologists

are not required by statute to predict future dangerousness, an assessment that requires

specially trained psychologists. Moreover, the Parole Commission may grant or deny

parole on the basis of its scoring system without regard to an independent dangerousness

assessment.1

   1
    Insofar as the parties are familiar with the exact text of Warden Dodrill’s response,
we will not set it forth here.

                                             3
       The Magistrate Judge filed a Report and Recommendation, in which he

recommended that the habeas petition be denied, because the Parole Commission’s June

2000 and March 2003 decisions denying parole to Warren were not arbitrary and

capricious. The Magistrate Judge also warned Warren about his many habeas petitions

and the possible applicability of the abuse of the writ doctrine.

       Warren filed objections, in which he reiterated his allegation that he was being

denied parole for a reason he could not control – the failure of the BOP to conduct a

psychological evaluation – and he noted that parole had again been denied to him by the

Parole Commission on May 4, 2004. He also alleged that the Magistrate Judge was

vindictive and biased.

       In an order entered on November 9, 2004, the District Court adopted the Report

and Recommendation. The Court addressed Warren’s objections and dismissed them,

concluding that the BOP could not be forced to conduct a psychological evaluation of

future dangerousness, the Parole Commission’s decision to deny parole was rational even

in the absence of an evaluation, and there was no evidence that the Magistrate Judge was

vindictive or biased. The District Court declined to consider Warren’s ex post facto

argument, concluding that it was essentially the same argument considered and rejected in

Warren v. Dodrill, D.C. Civ. No. 02-cv-02254. Like the Magistrate Judge, the District

Court warned Warren about abusing the writ by not including all of his habeas claims in

one petition. Warrens appeals.



                                              4
       We will affirm.2 A court’s role in reviewing decisions by the United States Parole

Commission on an application for a writ of habeas corpus is limited. See Gambino v.

Morris, 134 F.3d 156, 160 (3d Cir. 1998). The appropriate standard of review is only

whether there is a rational basis in the record for the Commission's conclusions embodied

in its statement of reasons. Id. (citing Zannino v. Arnold, 531 F.2d 687, 691 (3d

Cir.1976)). However, the court must ensure that the Commission’s decision is not

arbitrary and capricious, nor based on impermissible considerations. Id.

       The propriety of the District Court’s and Magistrate Judge’s conclusions

concerning the rationality of the Parole Commission’s June 2000 and March 2003

decisions to deny parole, and the absence of any authority for compelling the Bureau of

Prisons to conduct a future dangerousness assessment, is clear. We also reject as

meritless Warren’s argument that the Magistrate Judge was vindictive and biased. In

addition, the District Court properly declined to consider Warren’s ex post facto

argument. Warren’s argument concerning the rationality of the Parole Commission’s

May 11, 2004 decision presents a somewhat closer question, but, ultimately, we are

persuaded that the Parole Commission’s decision was rational and not based on

   2
     As a District of Columbia prisoner Warren needs a certificate of appealability to
proceed, see Madley v. U.S. Parole Comm’n, 278 F.3d 1306, 1309 (D.C. Cir. 2002) (D.C.
prisoner is state prisoner for purposes of federal habeas corpus statute); Coady v. Vaughn,
251 F.3d 480, 486 (3d Cir. 2001) (state prisoner in custody pursuant to judgment of state
court must rely on 28 U.S.C. § 2254 to bring claims challenging execution of his
sentence); 28 U.S.C. § 2253(c)(1)(A) (certificate of appealability required to proceed with
appeal where continued detention resulted initially from state court judgment), and we
hereby grant it.

                                             5
impermissible considerations.

       On May 11, 2004, the Parole Commission computed Warren’s point score as

“two,” and still it denied parole under the 1987 D.C. guidelines. However, the Parole

Commission once again cited as the reason for departing from the guidelines the serious

risk posed by Warren, as determined by the three violent crimes committed while on

parole and the Maryland convictions. This statement of reasons finds a basis in the record

and is not arbitrary and capricious. Additional reasons appear for denying parole, such as

that Warren lacked remorse and had failed to participate in treatment programs, but they

do not undermine the rational basis for the decision.

       We will affirm the order of the District Court dismissing the habeas petition.3




   3
     Judge Ambro dissents, as he believes that the Parole Commission’s reasons for
denying parole keep shifting as Mr. Warren’s “score” goes down. Though he expresses
no view on the merits of Mr. Warren’s claims, he would remand for the District Court to
take a closer look at his arguments.
