                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-9-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2640




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Recommended Citation
"Dare v. US Parole Comm" (2007). 2007 Decisions. Paper 1797.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1797


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                                                                          CLD-77
                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     No. 06-2640
                                    _____________

                                     JOHN DARE,
                                        Appellant

                                           v.

                     UNITED STATES PAROLE COMMISSION;
                            WARDEN, FCI MCKEAN
                                ____________

                    On Appeal From the United States District Court
                       For the Western District of Pennsylvania
                              (D.C. Civ. No. 05-cv-00257E)
                     District Judge: Honorable Sean J. McLaughlin
                                     ____________

                    Submitted on a Motion for Summary Affirmance
                                  December 15, 2006

               Before: RENDELL, SMITH and COWEN, Circuit Judges.

                                (Filed January 9, 2007)
                                  _______________

                              OPINION OF THE COURT
                                  _______________

PER CURIAM

      Appellant John Dare, a federal prisoner incarcerated at FCI-McKean in Bradford,

Pennsylvania, was sentenced by the District of Columbia Superior Court to a term of

imprisonment of 45 years for second degree murder on February 11, 1980. He was first
paroled by the District of Columbia Board of Parole in 1991. His parole was

subsequently revoked, and he was reparoled two more times. His most recent release on

parole from his current sentence was on May 11, 2003, and he was to remain under

supervision until July 13, 2033.

       After a hearing on October 16, 2004, the United States Parole Commission (“the

Commission”) revoked Dare’s parole by a Notice of Action dated January 3, 2005.1 The

Commission ordered that Dare serve nine months as a sanction for his failure to submit to

drug testing, failure to report to his supervising officer as directed, failure to report a

change in residence, and failure to report a change in employment. Dare was to remain in

custody until his reparole date of May 16, 2005.

       On or about April 25, 2005, the Bureau of Prisons (“BOP”) notified the

Commission that Dare had been unable to establish a suitable parole plan. In response to

this information, the Commission added to Dare’s case the requirement that he reside in a

Community Corrections Center (“CCC”) upon his release on parole. See 28 C.F.R. §

2.83(a) (“All grants of parole shall be conditioned on the development of a suitable

release plan and the approval of that plan by the Commission.”). Subsequently, the BOP

informed the Commission that it did not have sufficient time in which to find a CCC


  1
    Jurisdiction over D.C. Code offenders sentenced to parolable sentences, and over
District of Columbia parolees, was transferred to the U.S. Parole Commission pursuant to
the National Capital Revitalization and Self-Government Improvement Act of 1997,
Public Law No. 105-33, § 11231(a)(1), 111 Stat. 712, 745 (effective August 5, 1998).
See D.C. Code Ann.§ 24-131 (formerly § 24-1231).

                                               2
placement, and it requested that Dare’s release date be retarded. The Commission

ordered that Dare’s parole effective date be retarded by 60 days to July 16, 2005, as

permitted by 28 C.F.R. § 2.83(d) (“Commissioner may retard a parole date for purposes

of release planning for up to 120 days without a hearing.”).

       On July 13, 2005, the BOP informed the Commission that the Baltimore

Community Corrections Manager had denied Dare placement in a CCC due to his

criminal history, which included a sex offense. In response to this information, the

Commission retarded the parole effective date on July 15, 2005, and ordered a hearing to

consider a release plan. That hearing took place on October 18, 2005, and as a result of

it, the Commission, ultimately, on November 1, 2005, ordered that Dare be denied parole

pending approval of a suitable release plan. The hearing examiner made this

recommendation based on the practicalities, which were that Dare had been paroled on

three separate occasions unsuccessfully, and that, based on the sex offense, the majority

of Community Correction Centers now would not accept him, and the one facility that

would accept him denied him entry because of his history of escape.

       Meanwhile, on September 9, 2005, Dare filed a petition for writ of habeas corpus

under 28 U.S.C. § 2241 in United States District Court for the Western District of

Pennsylvania. Initially, he contended that the lack of a hearing violated his right to due

process, but, after the October 2005 hearing and November 2005 decision, Dare based his

claim for habeas relief on the alleged arbitrary and capricious denial of parole.



                                              3
Specifically, Dare claimed that use of his 1975 juvenile conviction for Carnal Knowledge

to deny him parole was arbitrary and capricious, because the conviction had been

dismissed. The Commission filed a response, clarifying that Dare had received a

suspended sentence for the Carnal Knowledge conviction and a term of probation, and

that, even if the conviction had been expunged (which was not clear), the Commission

could properly use the fact of the conviction in setting conditions for Dare’s release.

       The Magistrate Judge filed a Report and Recommendation, in which she agreed

that use of the fact of the Carnal Knowledge conviction in setting conditions for Dare’s

release was not arbitrary and capricious. An expungement, if it occurred, would not

affect the nonpublic record maintained by the Department of Justice, see United States v.

Campbell, 724 F.2d 812, 813 (9 th Cir. 1984) (trial court could consider prior Youth

Corrections Act drug conviction in imposing sentence for subsequent offense),2 and

courts have consistently recognized the Commission’s authority to use information

concerning dismissed charges, see, e.g., Maddox v. U.S. Parole Commission, 821 F.2d

997 (5 th Cir. 1987). In an order entered on May 3, 2006, the District Court denied the

habeas petition and adopted the Magistrate Judge’s Report and Recommendation as the

Opinion of the Court. Dare appealed, and the government has moved for summary

affirmance.




  2
   The Report and Recommendation mistakenly refers to this case as “United States v.
Richards.”

                                              4
       We will grant the government’s motion for summary affirmance, because it clearly

appears that no substantial question is presented by this appeal. 3 rd Cir. LAR 27.4 and

I.O.P. 10.6. Our 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, we

must ensure that the Commission’s decision is not arbitrary and capricious, nor based on

impermissible considerations. Id.

       The Commission may deny parole pending approval of a suitable release plan. See

28 C.F.R. § 2.83(d) (“If efforts to formulate an acceptable release plan prove futile ... the

Commission may deny parole if it finds that the release of the prisoner without a suitable

plan would fail to meet the criteria set forth in § 2.73.”). We have carefully reviewed the

record, and we conclude that the Commission’s decision requiring Dare to reside in a

Community Corrections Center upon his release on parole was not arbitrary and

capricious in view of Dare’s poor parole history. It is unfortunate that Dare’s prospects

for placement are more limited because of the 30 year-old juvenile sex offense, but the

Commission’s decision can hardly be said to be arbitrary and capricious where Dare’s

own history of escape is the reason why the one CCC potentially willing to accept him

will not. We note further that the decision to deny him parole is, by its own terms,



                                              5
temporary “pending approval of a suitable release plan.”

       We will grant the motion for summary affirmance and summarily affirm the order

of the District Court denying the habeas petition.




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