United States Court of Appeals,

Fifth Circuit.

No. 92-8333

Summary Calendar.

Noble Lee SIMPSON, Petitioner-Appellant,

v.

Carlos ORTIZ, Warden FCI, Bastrop, U.S. Parole Comm., et al., Respondents-Appellees.

July 16, 1993.

Appeals from the United States District Court for the Western District of Texas.

Before KING, DAVIS and WIENER, Circuit Judges.

PER CURIAM.

Noble Lee Simpso n, 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 appea ls 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 busines s o f 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 earli er priso n t erm. In 1987, Simpson was indicted for and

convicted of participat ing in co nspiracies 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 pr esumpt ive parole eligibility date—the date based only upon his first

conviction—was M ay 11, 1987. When the parole commission learned of his escape conviction in1 As stated in the magistrate judge's report and recommendation, this court has acknowledged

that Simpson played more than a peripheral role in the conspiracy. See United States v. Simpson,

901 F.2d 1223, 1228-9 (5th Cir.1990). Specifically, Simpson originally planned to be part of the

flight crew but, because he believed the plane used by the conspirators was not safe, he refused to

fly on it and then became a member of the ground crew. Id. Moreover, Simpson apparently

directed some of the ground crew operations. Id.

2 The conspirators' flight crew was forced to make an abortive landing in Maraquita, Columbia,

where they were arrested. 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 Paro le 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 catego ry 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 presenten ce report (PSI) as to hi s 1987 convi cti on 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

the he was simply a me mber of a ground crew, the examiners determined that Simpson held a

specialized role as an airplane mechanic. 1 Nevertheless, based on Simpson's limited role and the fact

t hat t he cocaine conspiracy to import illegal drugs from Mexico to the United States was never

completed, 2 the hearing examiners recommended that Simpson be released after serving 152 months.

They a lso recommended that, because he had superior adjustment and work records, Simpson begiven twenty-four months of program achievement credit; this would have resulted in Simpso n

serving 128 months and, in light of the 91 months he had already served , wo uld 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 t he 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

achievement s were no t 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

t o 28 U.S.C. § 2241, in which he named the United States Parole Commission and C arlos 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

s ummary judgment on behalf of the respondents. The magistrate judge recommended t hat

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. §§ 2241-2243; (c)

whether the Parole Commission's use of its 1990 rules and guidelines violated the ex post f acto

clause; and (d) whether the Parole Commission violated the doctrine of separation of po wers by

establishing parole eligibility guidelines which exceed those established by Congress.

A

Simpson's first assertion on appeal is that the district court erred by considering "incredible"evidence which should have been rejected under the preponderance of the evidence standard and that,

by relying on this evidence, the court reached erroneous conclusions. In considering similar

challenges, we have held that the Parole Commission has "absolute discretion concerning matters of

parole" and "may use all relevant, available information in making parole determinations." M addox

v. U.S. Parole Commission, 821 F.2d 997, 999 (5th Cir.1987). In fact, we have stated that "[t]he

Commission may take into account any substantial information available to it in est ablishing the

prisoner's offense severity rating, salient factor sc o re, and any aggravating or mitigating

circumstances, provided the prisoner is apprised of the information and afforded an opportuni ty to

respond." I

d. (internal quotati ons omitted and emphasis added). Accordingly, we approach Parole

Commission conclusions with extreme deference, reviewing them only to determine "whether there

is "some evidence' in the record to support the Commission's decision." M addox, 821 F.2d at 1000

(citation omitted).

Simpson asserts that the Parole Commission and district court erred by concluding that this

court affirmed his underlying cocaine conviction. According to Simpson, he "was tried and convicted

fo r t hree conspiracies; t wo were for marijuana and [t]he third was [for] cocaine. [T]he two

marijuana conspiracies were affirmed on appeal. The third (cocaine) was not." In short, Simpson

is mi st aken: Simpson was convicted of participating in a conspiracy to distribute marijuana (the

"Granbury conspiracy") and in a conspiracy to distribute cocaine (the "Maraquita conspiracy"), and

this court affirme d both of his convi cti ons. S ee Simpson, 901 F.2d at 1225-26. Simpson also

challenges the dist rict court's reliance on our determination that "[t]he evidence overwhelmingly

indicate[s] that he was more than a minor player in both conspiracies, if not indeed a major player."

Id. at 1227. This conclusion is fully supported by witness testimony. See id. (including references

t o specific testimony). Because there is substantial evidence in the record to support the Paro le

Commission's conclusions which Simpson challenges, we find that his challenges are without merit.

See Maddox, 821 F.2d at 1000.

B

Simpson also asserts that the district court violated his statutory right to a speedy resolution3 See 28 U.S.C. §§ 2241-43.

4 To support his assertion that the district court has violated the timeliness requirement of

section 2243, Simpson relies upon the Eighth Circuit's opinion in Jones v. Shell, 572 F.2d 1278,

1280 (8th Cir.1978). Jones is readily distinguishable from the case before us, for the petitioner in

Jones challenged a fourteen-month delay which arose after the Eighth Circuit remanded his case

to the district court with specific instructions. Id. ("Busy court dockets cannot justify a 14-

month delay in processing this claim from the date of remand."). Moreover, the petitioner in

Jones brought a mandamus action to compel the district court to act in accordance with the

directive contained in the court of appeals' mandate. Simpson has not brought a mandamus action

in the case before us. of his habeas petition, 3 thereby denying him constitutional due process. Specifically, Simpson

contends that the district court failed to comply with the statutory requirement under section 2243

of Title 28 that it "forthwith award the writ or issue an order directing the respondent to show cause

why the writ should not be granted" and "summarily hear and determine the facts, and dispose of the

matter as law and justice require."

The show cause order in the case before us was issued just twenty-one days after Simpson's

petition was f

iled, and only eight days after the matter was referred to the magistrate judge.

Accordingly, the district court did comply with the statutory requirement that it forthwith issue the

writ or the show cause order. S ee 28 U.S.C. § 2243. As for Simpson's assertion that the district

court failed to "summarily hear and determine the facts, and dispose of the matter as law and justice

require[,]" the record indicates that there was a six-month delay between the filing of Simpson's

response to the government's motion to dismiss and the filing of the m agistrate j udge's report and

recommendation. However, this delay was caused by the administrative necessity of transferring

Simpson's case from one docket to another—not by neglect or indifference. 4 Cf. Ex parte Royall,

117 U.S. 241, 251, 6 S.Ct. 734, 740, 29 L.Ed. 868 (1886) ("The injuncti on to hear the case

summarily, and thereupon "to dispose of the party as law and justice require,' does not deprive the

court of discretion as to the time and mode in which it wi ll exert the powers conferred upon it.").

Moreover, we have expressly stated that, "[b]efore we wi ll issue [a writ of habeas corpus], the

petiti o ner must demonstrate that he has suffered some prejudice as a result of the alleged

constitutional violation...." Brow n v. Collins, 937 F.2d 175, 182 (5th Cir.1991); see also Clark v.

Maggio, 737 F.2d 471, 475-76 (5th Cir.1984) ("[W]e do not grant a writ of habeas corpus in every5 We note that Simpson's presumptive release date is January 27, 1996 and, even if he were

given the achievement credit which he was denied, Simpson's presumptive parole date would not

be until January 24, 1994. Because these dates have not yet arrived, it is clear that Simpson has

not been prejudiced in the sense that his period of incarceration has not been extended by the

district court's six-month delay.

6 The ex post facto clause prohibits laws that make the punishment for a crime more

burdensome than it was when the crime was committed. See Dobbert v. Florida, 432 U.S. 282,

292, 97 S.Ct. 2290, 2297, 53 L.Ed.2d 344 (1977). instance in which the state has failed to conform to constitutional requirements."), cert. denied, 470

U.S. 1055, 105 S.Ct. 1761, 84 L.Ed.2d 823 (1985). Because the delay in the case before us was not

unreasonable and Simpson has made absolutely no showing that he was in any way prejudiced by it, 5

we conclude that Simpson's section 2243 claim is without merit.

C

Next, Simpson asserts that the Parole Commission erred at his second Parole hearing by

applying its 1990 rules and guidelines, thereby violating its own rule that it will only apply guidelines

in effect during a prisoner's first parole hearing. Simpson assert s in a summary fashion that the

Commission's application of its 1990 guidelines "substantially diminish[ed] or eliminat[ed] [his]

eligibility for parole[,]" thereby violating the ex post facto clause. 6

The Parole Commission determines a prisoner's suitability for parole, not his eligibilit y, for

the latter is determined by the leng th of one's sentence. S ee 18 U.S.C. §§ 4205(a) (eligibilit y for

parole), 4206(a) (suitability for parole). Specifically, pursuant to section 4205(a), Simpson became

eligible for parole after serving one-third of his sentence. As for Simpson's suitability for parole, the

Parole Commission may not grant parole unless it, based

upon consid e ration of the nature and circumstances of the offense and the history and

characteristics of the prisoner, determines: (1) that rel ease woul

d not depreciate the

seriousness of his offense or prom ote disrespect for the law; and (2) that release would not

jeopardize the public welfare.

18 U.S.C. § 4206(a). In sum, as we stated in S troud v. United States Parole Commission, 668 F.2d

843, 847 (5th Cir.1982), "parole is not a right, but rather only an expectation that may be granted by

the Commission."

Although Simpson has not presented his ex post facto assertion to this court with specificity,7 Id. at 558.

8 See supra Part II.C. we have addressed what appears to be a very similar challenge in S heary v. United States Parole

Commission, 822 F.2d 556, 558 (5th Cir.1987). In S heary, we explained that the guidelines in 28

C.F.R. § 2.20 are the means by which the Parole Commission determines a prisoner's suitability for

parole once he is eligible to be paroled, while a prisoner's eligibility for parole "is determined by the

sentence imposed by the trial court ." 7 More importantly , we acknowledged that "no Court of

Appeals has held that the parole guidelines are laws, and thus can violate the ex post facto clause."

Id. Moreover, Simpson's assertion is even weaker than the challenge we defused in S heary, for

Simpson escaped subsequent to his first parole h earing and committed a more serious offense.

Accordingly, we find that Simpson's assertion that the Parole Commission's application of its 1990

guidelines at his second parole hearing violated the ex post facto clause is without merit.

D

Simpson's final challenge is that the Parole Commission violated the doctrine of separation

of powers by establishing parole eligibilit y guidelines which exceed those established by Congress.

Specifically, Simpson asserts that "[t]he Parole Commission administratively set minimum guidelines

for everyone that were twenty-months higher than one-third the statutory maximum sentence[,]" and

that this constitutes a violation of the doctrine of separation of powers.

As stated above, 8 the Parole Commission determines a prisoner's suitability for parole, not

his eligibility, and Congress has vested the Parole Commission with the authority to "grant or deny

an application or recommendation to paro le any eligible prisoner." 18 U.S.C. § 4203(b)(1); s ee

Stroud, 668 F.2d at 847 ("[P]arole is not a right, but rather only an expectation that may be granted

by the Commission."). Although we have not directly addressed the precise issue now before us, the

Third Circuit has held that Congress did not impermissibly delegate its legislative authority when it

authorized the Parole Commission to develop guidelines for determining a prisoner's suitability for

parole. S ee Geraghty v. U.S. Parole Comm'n, 719 F.2d 1199, 1212-13 (3d Cir.1983), cert. denied,

465 U.S. 1103, 104 S.Ct. 160 2, 80 L.Ed.2d 133 (1984). Similarly, we have held that the ParoleCommission guidelines do not unconstitutionally impinge the judiciary's sentencing function. P age

v. U.S. Parole Comm'n, 651 F.2d 1083, 1085 (5th Cir. Unit A July 1981). The basis for these

decisions is that, to delegate a leg islative function, "Congress need only lay down an "intelligible

principle' to which the agency must conform[,]" and "[t]he standards Congress has given to t he

Commission amply satisfy this requirement." G eraghty, 719 F.2d at 1213. Relying upon our holding

in Page and the Third Circuit's holding in Geraghty, we conclude that Simpson's separation of powers

challenge to the Commission's discretion to establish suitability for parole is without merit.

III

For the foregoing reasons, we conclude that Simpson has failed to raise a meritorious claim

and, therefore, that no rational trier of fact, based upon the record as a whole, could find in his favor.

See F ED .R.C IV .P. 56; Amoco Production Co. v. Horw ell Energy, Inc., 969 F.2d 146, 147-48 (5th

Cir.1992). Accordingly, we AFFIRM the district court's grant o f summary judgment in favor of

respondents.