                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0010n.06

                                           No. 08-5330
                                                                                          FILED
                                                                                       Jan 06, 2010
                          UNITED STATES COURT OF APPEALS                         LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT

AARON W. LEE,

       Petitioner-Appellant,

v.                                                     ON APPEAL FROM THE UNITED
                                                       STATES DISTRICT COURT FOR THE
HECTOR A. RIOS, JR., WARDEN,                           EASTERN DISTRICT OF KENTUCKY

       Respondent-Appellee.

                                               /


BEFORE:        CLAY and GIBBONS, Circuit Judges, and STAMP, District Judge.*

       CLAY, Circuit Judge. Petitioner, Aaron W. Lee, appeals the district court’s denial of his

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. On appeal, Petitioner argues that

the decision of the United States Parole Commission (“Commission”) denying him parole was

invalid under the Commission’s regulations requiring that three commissioners sign the decision

when the decision differs in its recommendation from the hearing examiner’s decision by more than

six months. The district court concluded that a new parole proceeding was unnecessary under the

circumstances. For the reasons set forth below, we hereby REVERSE the judgment of the district

court and REMAND for proceedings consistent with this opinion.




       *
        The Honorable Frederick P. Stamp, Jr., United States District Judge for the Northern District
of West Virginia sitting by designation.

                                                   1
                                         BACKGROUND

       Petitioner was convicted of first degree murder and assault with a dangerous weapon and

sentenced to twenty-two years to life in prison, with a mandatory minimum sentence of twenty years.

Petitioner committed the offense on April 20, 1985, and received jail time credit toward his sentence

beginning on April 22, 1985. While in prison, Petitioner completed numerous vocational training

programs and received excellent work reports for his service as an orderly. On April 24, 2005,

Petitioner submitted a letter to the Commission requesting a reduction in his minimum sentence.

The Commission, in a letter dated August 9, 2005, denied his request, noting that, “[a]lthough [his]

program achievements are admirable, due to the violent nature of [his] crime, which resulted in the

death of the victim, the Commission is of the opinion that the minimum term imposed by the

sentencing court is necessary to achieve the appropriate punishment.” (Dist. Ct. R.E. 12 Ex. D.)

       Petitioner’s initial parole hearing took place on January 18, 2006. The hearing examiner

determined that the “total guideline range” was 250 to 268 months and that the guidelines

“accurately reflect the appropriate punishment for this crime.” (Dist. Ct. R.E. 12 Ex. E at 3.) The

hearing examiner recommended “parole at the top of the guidelines” as “appropriate for the crime

committed.” (Id.) The hearing examiner also noted that, because Petitioner “ha[d] been rewarded

for his prison program accomplishments with a Superior Program Achievement Award,” further

reduction for his good behavior in prison “would not be warranted.” (Id.) Accordingly, the hearing

examiner recommended that Petitioner “[c]ontinue to a presumptive parole on 8/24/07 after the

service of 268 months” and that a “departure from the guidelines at this consideration is not

warranted.” (Id.; Dist. Ct. R.E. 12 Ex. F at 4.)




                                                   2
       On January 18, 2006, the hearing examiner signed the recommendation. Later, on February

6, 2006, an executive hearing examiner signed the recommendation that Petitioner continue to a

presumptive parole of August 24, 2007. Below that recommendation, however, appears a different

recommendation: “Continue for a reconsideration hearing in 2-09 after service of 36 months from

your hearing date of 1-18-06.” (Dist. Ct. R.E. 12 Ex. G at 1.) Two members of the Commission

signed this recommendation, one on February 7, 2006, and another on February 8, 2006. In an

addendum to the hearing summary, a handwritten note stated that Petitioner was “a more serious

risk” than his Salient Factor Score indicated because of his use of drugs and alcohol at the time of

the crime, and because he committed premeditated murder. (Dist. Ct. R.E. 12 Ex. G at 2.)

        In its Notice of Action of February 9, 2006, the Commission issued its decision to deny

parole and stated that Petitioner’s total guideline range was 250 to 268 months. The Notice of

Action then concluded that, “[a]fter consideration of all factors and information presented, a decision

above the Total Guidelines Range is warranted because you are a more serious risk than indicated

by your Base Point Score.” (Dist. Ct. R.E. 12 Ex. H at 1.) In support of this finding, the

Commission again noted his alcohol and drug abuse and the premeditated nature of his crime.

Petitioner appealed the Commission’s determination, which the Commission construed as a request

to reopen his case. The Commission denied the request.

       On April 11, 2007, Petitioner filed a pro se petition for a writ of habeas corpus pursuant to

28 U.S.C. § 2241. In a footnote in response to the petition, the Warden stated the following:

       In the process of preparing a response to the petition for a writ of habeas corpus, the
       Commission’s legal office discovered that an additional Commissioner’s vote had
       not been obtained before the Commission issued its decision [of February 9, 2006].
       Three Commissioners’ votes are required in this case because the Commission’s
       decision differed from the hearing examiner panel by more than 6 months. See 28


                                                  3
        C.F.R. § 2.74. This appears to have been an oversight and the additional vote was
        obtained on June 8, 2007, which ratified the decision appearing on the notice of
        action dated February 9, 2006.

(Resp. Br. at 5 n.2.)

        In his reply brief, Petitioner argued that the Commission illegally extended his incarceration

for more than one year by not obtaining the votes of three commissioners as mandated by 28 C.F.R.

§ 2.74(c). Petitioner also contended that this defect deprived the Commission of authority to deny

him parole. Although Petitioner raised this argument for the first time in his reply brief, the district

court, apparently in consideration of Petitioner’s pro se status, reached the merits.

        However, on February 28, 2008, the district court denied Lee’s habeas petition, finding that

a new parole proceeding would be unnecessary. The court reasoned that while the regulation

provides that three commissioner votes are necessary for a denial or grant of parole that varies from

the examiners’ recommendation by six months or more, it does not require that the votes be obtained

on the same date or from certain commissioners. See 28 C.F.R. § 2.74(c). The district court found

that a pattern of parole denials by an improper number of commissioners would be troublesome, but

that the instant record does not suggest any such pattern. The district court also found that the

Commission ratified its earlier decision with the third signature. According to the district court,

requiring the Commission to conduct a new parole proceeding to obtain three votes simultaneously

would not be a good use of resources. On March 18, 2008, Petitioner filed a notice of appeal. On

appeal, Petitioner only raises the issue of whether the Commission’s parole decision violated its

procedural regulations such that Petitioner is entitled to a new parole hearing.




                                                   4
                                          DISCUSSION

I. Standard of Review

       We review de novo a district court’s denial of a habeas corpus petition filed pursuant to 28

U.S.C. § 2241. Rosales-Garcia v. Holland, 322 F.3d 386, 401 (6th Cir. 2003) (en banc). “The

federal court’s scope of review over a decision by the Parole Commission is extremely limited.”

Hackett v. United States Parole Comm’n, 851 F.2d 127, 129 (6th Cir. 1987) (per curiam). Generally,

we apply a “limited abuse of discretion standard,” asking “only whether there is a rational basis” for

the decision. Id. at 129-30. Whether the Commission acted within its statutory and regulatory

authority, however, is a question of law that we review de novo. Kimberlin v. White, 7 F.3d 527, 533

(6th Cir. 1993); see also Garcia v. Neagle, 660 F.2d 983, 988 (4th Cir. 1981) (finding that, “even

where action is committed to absolute agency discretion by law [as with the Parole Commission],

courts have assumed the power to review allegations that an agency. . . failed to follow its own

regulations”).

II. Analysis

       Under 28 U.S.C. § 2241, a prisoner may challenge the execution of his sentence or the

manner in which his sentence is being served, but cannot challenge the conviction or sentence itself.

Ali v. Tenn. Bd. of Pardon & Paroles, 431 F.3d 896, 897 (6th Cir. 2005). This Court has noted that

a § 2241 petition is the proper means to challenge a decision relating to a prisoner’s parole. United

States v. Jalili, 925 F.2d 889, 893-94 (6th Cir. 1991).2


       2
        We note that a petitioner is required to be “in custody” to bring a challenge under 28 U.S.C.
§ 2241. See Preiser v. Rodriguez, 411 U.S. 475, 484, 93 S. Ct. 1827, 1833, 36 L. Ed. 2d 439 (1973).
However, “the term ‘custody’ . . .is not limited solely to physical confinement.” McVeigh v. Smith,
872 F.2d 725, 727 (6th Cir. 1989). Individuals on parole, probation, or bail may be considered “in
custody” under §§ 2241 and 2254. Id. (citing Jones v. Cunningham, 371 U.S. 236, 83 S. Ct. 373,

                                                  5
        Generally, the Parole Commission’s decision to grant or deny parole requires “the

concurrence of two Commissioners.” 28 C.F.R. § 2.74(c). However, “if the decision differs from

the decision recommended by the examiner panel by more than six months,” as it did in Petitioner’s

case, the regulations require “three Commissioner votes” to grant or deny parole. Id. In imposing

this heightened requirement, § 2.74(c) provides a mandatory procedural protection for potential

parolees where the Commission chooses to depart from the decision of the examiner panel, and

therefore confers a “substantial right” on parties appearing before the Parole Commission. See

Wilson v. Comm’r of Social Sec., 378 F.3d 541, 547 (6th Cir. 2004).

        On appeal, Petitioner argues that he is entitled to habeas relief under § 2241 because the

Commission’s 2006 decision to deny Petitioner’s parole had two–not three–commissioners’ votes,

which clearly violates the three commissioner requirement in 28 C.F.R. § 2.47(c). He further

contends that the regulation makes clear that the votes of three commissioners must be obtained at

the time the prisoner is denied parole. Finally, Petitioner argues that there is a reasonable possibility




9 L. Ed. 2d 285 (1963) (parole); Hensley v. Municipal Court, 411 U.S. 345, 349, 93 S. Ct. 1571,
1573, 36 L. Ed. 2d 294 (1973) (bail); United States v. Hopkins, 517 F.2d 420, 423-24 (3d Cir. 1975)
(probation)). The Supreme Court has instructed courts to determine whether a habeas corpus
petitioner is “in custody” for purposes of §§ 2241 and 2254 at the time the petitioner files his
application. Id. (citing Carafas v. LaVallee, 391 U.S. 234, 238, 88 S. Ct. 1556, 1559, 20 L. Ed. 2d
554 (1968); Sevier v. Turner, 742 F.2d 262, 268 (6th Cir.1984)). A petitioner’s release from custody
after filing an application may render his case moot, but it does not affect the threshold determination
of whether he was in custody. Id. (citing Sevier, 742 F.2d at 268-69). In the instant case, although
Petitioner was in custody at the time he filed his petition, and thus satisfied the in custody
requirement for purposes of § 2241, Petitioner was released from custody on August 14, 2009.
Furthermore, because Petitioner is required to serve life on parole, is subject to burdensome special
drug aftercare conditions during his supervision, and is required to participate in a Reentry and
Sanctions Center, it appears that the post-incarceration burdens imposed on Petitioner are sufficiently
onerous that his case is not rendered moot by Petitioner’s release from custody.

                                                   6
that the outcome would have been different had a third commissioner voted at the time of the denial,

rather than a year later.

        Although a federal court’s review of the Parole Commission’s actions is limited, this Court

has found it proper for federal courts to determine whether the Parole Commission’s violations of

its own regulations entitles a petitioner to habeas relief. See, e.g., Liberatore v. Story, 854 F.2d 830,

838 (6th Cir. 1988) (remanding to the district court to determine whether the Parole Commission

violated its regulations and whether such violation entitled the petitioner to habeas relief under §

2241); see also Marshall v. Lansing, 839 F.2d 933, 943 (3d Cir. 1988) (concluding that courts can

set aside agency action that fails to comply with the agency’s own regulations, and that the Supreme

Court has noted that a writ of habeas corpus will issue where a federal agency fails to comply with

its own regulations).

        Courts evaluating claims that an agency, such as the Parole Commission, failed to follow its

own regulations have found that such claims fall under the procedural due process guarantees. E.g.,

Marshall, 839 F.2d at 943 (“[P]rinciples of due process require an agency to follow its own

regulations.”). Petitioner has not specifically argued that the Parole Commission’s failure to comply

with § 2.47(c) constitutes a violation of his due process rights. Petitioner, however, is proceeding

pro se, and this Court follows “the general practice of liberally construing pro se prisoner’s filings.”

Spencer v. Bouchard, 449 F.3d 720, 726 (6th Cir. 2006) (citing McNeil v. United States, 508 U.S.

106, 113 (1993)). Thus, this Court should construe his argument that he was “deprived . . . of the

fundamental fairness in the parole voting process” as an assertion that the Commission violated his

right to procedural due process. See Franklin v. Rose, 765 F.2d 82, 84-85 (6th Cir. 1985) (noting




                                                   7
that allegations in a pro se habeas petition are entitled to a liberal construction, including “active

interpretation” toward encompassing an allegation stating “federal relief”).

       Contrary to the district court’s finding, the Commission’s violations of its own regulations

warrant sending the case back to the Commission to conduct a new parole hearing. Courts have

required new parole hearings when the Commission did not comply with its own regulations in

issuing a decision. For example, the Commission withdrew a previously issued Notice of Action

and remanded for a reconsideration hearing when the decision failed to comply with 28 C.F.R. §

2.24(a), which requires concurring votes of two commissioners. See Hedin v. Thomas, No. 07 CV

1800, 2008 WL 2404943, at *1 (D. Or. June 6, 2008). Additionally, when the Commission violated

its own regulations by referring a case to a case administrator for additional review after a panel

issued two concurring examiner opinions, a district court concluded that the Parole Commission’s

violations of its own regulations warranted a new hearing. McCallum v. Reilley, No. 04 CV 142,

2007 WL 2455662, at *2-3, 9 (N.D. W.Va. Aug. 24, 2007).

       Furthermore, the Commission’s “correction” of its earlier omission does not excuse its failure

to comply with the regulation initially. One court has found that, even though the petitioner was

eventually told why his offense severity rating was “very high,” an explanation that came only after

he filed his petition for habeas corpus was “too late to serve the purpose of the Board’s own

regulations.” Grattan v. Sigler, 525 F.2d 329, 331 (9th Cir. 1975); see also Gambino v. E.W. Morris,

134 F.3d 156, 165, 167 (3d Cir. 1998) (Roth, J., concurring) (finding that the failure to provide

Gambino with an opportunity to rebut allegations of organized crime until after the hearing examiner

had ruled on Gambino’s parole eligibility constituted a violation of 28 C.F.R. § 2.53, and the fact




                                                  8
that the issue was discussed after the Examiner made his decision was not sufficient to prevent a

violation of 28 U.S.C. § 2.19(c)).

       Similarly, § 2.47(c) requires the Commission to obtain the votes of three concurring

commissioners if the Commission reaches a decision different from the one arrived at by the hearing

examiner, and the third signature over a year later did not substantially comply with § 2.47(c).

Although the Commission obtained the third vote, there is no evidence that the third commissioner

reviewed the hearing examiner’s decision or otherwise considered the case and agreed with the

Commission’s decision to deny parole. The Parole Commission did not perform further review of

the decision, and no subsequent group of three commissioners approved the decision to deny

Petitioner parole. See Scott v. Clark, 761 F.2d 1524, 1527 (11th Cir. 1985) (finding that while a

decision was not initially approved by two commissioners as required by the applicable regulations,

the approval of the National Appeals Board, which consists of three commissioners, “substantially

complied” with the requirements of § 2.24(a)). Furthermore, at least one court has found that

substantial compliance cannot excuse a deviation from regulations, even if there is de minimis harm.

Briggs v. United States Parole Comm’n, 736 F.2d 446, 450 (8th Cir. 1984).

       In addition, the district court’s use of the term “ratification” is improper in this context.

Although the Commission could ratify an act that was unauthorized originally, a ratification in this

context would require a group of three commissioners that—together—reviewed and agreed with

the decision to deny parole. In other words, one commissioner cannot ratify a previous act of two

commissioners when the regulation clearly requires the concurrence of three. Furthermore, this is

not a case where the Department of Justice, the agency from which the Commission derives its

authority, later interpreted the regulation to allow for the three commissioners to concur at separate


                                                  9
times. Cf. In re Marine Sulphur Queen, 460 F.2d 89 (2d Cir. 1972) (finding that, in a suit for

negligence, the Coast Guard’s approval of an interpretation expressed in a sub-agency’s rule

constituted a ratification of the sub-agency’s approval of “the arrangements for strength bulkheads”

and, as a result, the companies’ compliance with those arrangements was not negligent as a matter

of law).

        Finally, Petitioner was prejudiced by the Commission’s failure to follow its own regulations.

As Petitioner argues, it is possible that a third commissioner, who considered the case originally and

fully, might have reached a different conclusion, precluding the decision denying parole.

Furthermore, it is not the duty of this Court to speculate as to whether “a different outcome on

remand is []likely.” See Wilson, 378 F.3d at 546. Regardless of the probability that a third

commissioner deciding the issue at the same time would come to a different conclusion, the

Commission’s procedural violation “is not made harmless simply because [Petitioner] appears to

have . . . little chance of success . . .” Wilson, 378 F.3d at 546 (internal citations omitted). “To hold

otherwise, and to recognize substantial evidence as a defense to non-compliance with [the rule],

would afford the Commissioner the ability the violate the regulation with impunity and render the

protections promised therein illusory.” Id. See also Paulsen v. Daniels, 413 F.3d 999, 1006 (9th Cir.

2005) (concluding that the harmless error rule “is more readily abused [in the administrative context]

than in the civil or trial context,” and harmless error analysis “must therefore focus on the process

as well as the result”). Thus, the error in this case was not harmless.




                                                   10
                                        CONCLUSION

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

habeas corpus and REMAND with instructions that the district court vacate the United States Parole

Commission’s order denying Petitioner parole and order that Petitioner be afforded a new parole

hearing with three commissioners as provided by the Commission’s regulations.




                                               11
       FREDERICK P. STAMP, JR. District Judge, dissenting. The district court properly

denied petitioner-appellant Aaron W. Lee’s petition because the Commission’s later acquisition of

the third commissioner’s vote makes a new parole hearing a futile exercise. I agree with the majority

that § 2.74(c) confers a substantial right upon inmates who are being considered for release on

parole. Accordingly, the Commission lacks discretion to deviate from § 2.74(c), and as a general

matter, failure to comply would probably warrant granting habeas relief in the form of a new parole

hearing.

       Here, however, under the particular factual and procedural circumstances of this case, the

violation is harmless error. Lee did not raise the issue as a ground for habeas relief in his initial

petition. The violation was first brought to the district court’s attention in the Warden’s answer, by

which time the Commission had obtained the third vote. Although the third vote should not be

deemed to have ratified the Commission’s decision, the vote does indicate that a new parole hearing

would be futile. By statute, the Commission is limited to five members. See Parole Commission

and Reorganization Act, 18 U.S.C. § 4201 (1976), amended by the National Capital Revitalization

and Self-Government Improvement Act of 1997, Pub. L. No.105-33, § 11231 (1997).1 Thus, even

assuming that the Commission had the full complement of five members at the time of Lee’s parole

hearing,2 and assuming that the two members who did not vote would have voted in Lee’s favor,


       1
        Congress repealed 18 U.S.C. §§ 4201- 4218 in 1984, with an effective repeal date of
November 1, 1987. See Pub. L. 98-473, § 218, 98 Stat. 1837 (1984). The effective repeal date has
been extended several times, most recently to twenty-four years after November 1, 1987. See United
States Parole Commission Extension Act of 2008, Pub. L. No. 110-312, § 2, 122 Stat. 3013 (2008).
       2
          In 1993, the Commission consisted of only three commissioners. 68 Fed. Reg. 41,527-01.
Currently, the number of commissioners appears to have remained at three. See United States
Department of Justice http://www.usdoj.gov/uspc/executive.htm (identifying three commissioners)
(last visited December 17, 2009).

                                                 12
three commissioners’ votes had already been registered against him.             Consequently, it is

mathematically impossible for Lee to have obtained a different result on remand. In this particular

case, therefore, the later-obtained third vote provides sufficient indicia that the outcome of a new

parole hearing would have been the same, thereby rendering the prior violation harmless error.

       Further, Lee cannot demonstrate that he suffered substantial prejudice by the Commission’s

failure to comply with § 2.74(c). Lee argues that he was prejudiced because “there is a reasonable

possibility that the outcome would have been different had a third commissioner voted at that time

rather than one year later.” (Appellant Reply 2.) Aside from mere speculation about the possibility

of a different outcome, Lee offers nothing to show prejudice. Speculation that the outcome of his

parole hearing may have been different is insufficient to establish prejudice. See Baze v. Parker, 371

F.3d 310, 322 (6th Cir. 2004).

       For these reasons, I respectfully dissent.




                                                    13
