IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JOHN DARE, )

)

Petitioner, )

)

v. ) Civil Action No. 05-257E

) JUDGE SEAN McLAUGHLIN

UNITED STATES PAROLE ) MAGISTRATE JUDGE BAXTER

COMMISSION, et al., )

)

Respondents. )

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is respectfully recommended that the Petition for Writ of Habeas Corpus filed by a

federal prisoner be denied.

II. REPORT

This is a petition filed pursuant to 28 U.S.C. §2241 by John Dare who is a federal

prisoner serving a sentence of 45 years for murder. The sentence was imposed in 1980 by the District

of Columbia Superior Court.

Petitioner has been released on parole several times since his conviction, and the

present petition is a challenge to the latest action of the United States Parole Commission. The

Commission revoked Dare's parole on January 3, 2005, and Dare's reparole date was set at May 16,

2005. Dare, however, was still in federal custody as of the date of the last pleading filed in this matter

on March 23, 2006. It is this failure to release Dare on parole since May, 2005 which is the focus of

the instant §2241 petition.

A. Procedural history.

Dare initially asserted that his May 16, 2005, release date was changed without

affording him a hearing (Docket No. 2 at page 1), but his claim has changed during an exchange of

pleadings with the United States (See, Docket Nos. 9, 11, 13, 18 and 19). Dare was approved for

release in May, 2005, but the Commission decided to "retard" the date due to the failure to obtain a

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suitable release plan for Dare. The difficulty in obtaining such a release plan is that Dare is required

to be housed in a Community Corrections Center (CCC) placement upon release, but his 1973

conviction (as a minor) for a sex offense restricts him to only one possible placement in a facility

which accepts sex offenders. That facility has refused to place Dare since Dare escaped during his last

CCC placement (Department of Corrections. No. 13 at 6-7).

Dare's parole release date was again put off in July, 2005, for failure to locate a postrelease program which would accept him. He was afforded a hearing in October, 2005, at which time

the decision was made to retard his parole date until an acceptable release plan is developed, and a

rehearing was ordered for 30 days pursuant to §2.28 of the Commission's Procedure Manual. The

Commission had to amend its action on November 1, 2005, to reflect the fact that §2.28 is inapplicable

to D.C. offenders. The proper procedure where a D.C. offender is involved is to deny reparole until

such time as a the prisoner presents an acceptable release plan. 28 C.F.R. §2.83(d).

Now, in its latest iteration, Dare's claim is that he is being denied release due to the

Commission's improper use of a 1973 conviction under the District of Columbia's Youth Corrections

Act to deny Dare access to a Community Treatment Program (Department of Corrections No. 18).

Indeed, his status as a prior sex offender is premised upon this conviction, and that status does limit

his ability to locate a suitable post-incarceration placement. Dare maintains that his 1973 conviction

was or should have been expunged and, therefore, that he should have more options open to him in

terms of obtaining a CCC placement. The United States responds that the use of the 1973 conviction

is not improper since Dare has not established that the conviction was, actually, expunged

(Department of Corrections. No. 19). Dare, though, has now provided evidence that his 1973

conviction was "dismissed" by the D.C. Superior Court in August, 1973 (Exhibit to Department of

Corrections. No. 20), and moves to have the record expanded to include this evidence. Dare also has

filed a motion (Department of Corrections. No. 21) seeking to strike the United State's latest response

(Docket No. 19) on the basis that it was brought in bad faith. The Court will, by separate order, grant

the motion to supplement or expand the record, since the exhibits attached to Dare's motion are

relevant and admissible in this proceeding. The motion to strike the United State's response will be

denied.

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The final pleading filed in this case was an additional response by the United States

(Docket #22). It is argued therein that the letter indicating dismissal of the 1973 conviction is not

proof of expungement. Further, and more importantly, Respondent also argues that, even if expunged,

the fact of the 1973 conviction is information which the Parole Commission may properly consider

in setting conditions for Dare's release. I agree with this last statement and will, accordingly,

recommend that the instant petition be dismissed.

B. Applicable legal standard.

Initially, it should be noted that a petition pursuant to §2241 is the proper method for

challenging the actions of the United States Parole Commission. See, e.g., U.S. v. Kennedy, 851 F.2d

689, 691 & n. 4 (3d Cir.1988) (challenge to parole commission's execution of federal sentence

properly challenged under Section 2241). However, the standard of review of the Parole

Commission's determination is "extremely deferential." Furnari v. Warden, Allenwood Federal

Correctional Institution, 218 F.3d 250 (3d Cir.2000). The court must affirm the Parole Commission's

decision as long as 'there is a rational basis in the record for the [Parole Commission's] conclusions

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

Cir.1976)).

C. Petitioner's claims.

As noted above, petitioner has shifted and narrowed his claim over time. The only

claim he presently raises is that the Commission has improperly considered his 1973 conviction of

sexual assault which occurred when he was a minor. Dare asserts that this conviction was, or should

have been, expunged, and that the Commission may not consider it in making its parole determination.

Dare was convicted under the Federal Youth Corrections Act (FYCA). FYCA

convictions may be expunged by the Parole Commission pursuant to 18 U.S.C. §5021. However,

even where such an expungement occurs, this "does not affect the nonpublic record retained by the

Department of Justice." U.S. v. Richards , 724 F.2d 812 (9th Cir. 1984). Thus, information

concerning an expunged conviction may be used to prepare a presentence report, and may be relied

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upon by a sentencing court. Id. The power of the Parole Commission to consider information in a

presentence report is well-established. See, e.g., Coleman v. Honstead, 908 F.2d 906, 907 (11th Cir.

1990); Melvin v. Petrovsky, 720 F.2d 9, 11 (8th Cir. 1983); Kramer v. Jenkins, 803 F.2d 896 (7th

Cir.1986). Facts in a presentence report may be considered even though the information has not been

proven in an adversarial proceeding or otherwise established as reliable. Walker v. Prison Review

Board, 769 F.2d 396, 401 (7th Cir.1985). Courts have also consistently recognized the Commission's

authority to utilize information concerning dismissed charges. See Maddox v. U.S. Parole

Commission, 821 F.2d 997 (5th Cir.1987); Hackett v. U.S. Parole Commission, 835 F.2d 878 (6th

Cir.1987); Perry v. U.S. Parole Commission, 831 F.2d 811 (8th Cir.1987). The only limitation on the

Commission's ability to consider information is that its decision must be based on reason and the

inmate must be given access to the information with an opportunity to respond. Kramer, 803 F.2d at

901.

Therefore, even accepting as true Petitioner's claim that his 1973 youthful offender

conviction was expunged under applicable law, the Parole Commission acted within its power in

considering that conviction in any event. Thus, Petitioner's sole remaining claim lacks merit and he

is not entitled to habeas relief.

III. CONCLUSION

For the foregoing reasons, it is respectfully recommended that this Petition for Writ of

Habeas Corpus be denied.

In accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule

72.1.4(B) of the Local Rules for Magistrates, the parties are allowed ten (10) days from the date of

service to file objections to this report and recommendation. Any party opposing the objections shall

have seven (7) days from the date of service of objections to respond thereto. Failure to file timely

objections may constitute a waiver of any appellate rights.

S/ Susan Paradise Baxter 

SUSAN PARADISE BAXTER

CHIEF UNITED STATES MAGISTRATE JUDGE

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Dated: April 12, 2006

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