[00:00:00] Speaker 04:
Case number 18-5233, R2-D4, appellant versus United States Parole Commission.

[00:00:07] Speaker 04:
Ms.

[00:00:07] Speaker 04:
Flynn, amicus curiae, Ms.

[00:00:09] Speaker 04:
Yee for the appellee.

[00:00:12] Speaker 06:
Good morning.

[00:00:14] Speaker 06:
Court appointed amicus, you may proceed.

[00:00:19] Speaker 00:
Good morning, Your Honor, and may it please the court.

[00:00:22] Speaker 00:
Caroline Flynn as court appointed amicus for appellant, R2-D4.

[00:00:27] Speaker 00:
After Mr. DeFur had served 37 years in federal prison for crimes he committed in 1979, he was eligible for mandatory parole under the Parole Act.

[00:00:37] Speaker 00:
The commission nonetheless denied him parole release.

[00:00:41] Speaker 00:
There are no jurisdictional or other procedural obstacles to this court reaching the merits of that determination.

[00:00:46] Speaker 00:
And that determination is invalid on three independent reasons.

[00:00:54] Speaker 00:
First,

[00:00:55] Speaker 00:
First, the Commission partly grounded its decision on an erroneous finding that the government itself now refuses to defend.

[00:01:04] Speaker 00:
Second, the Commission contravened the mandatory parole statute by basing its finding that Mr. Deferrer is likely to commit a future violent crime based solely on the nature of his underlying 1979 offenses and his prior criminal history.

[00:01:18] Speaker 00:
And third, the commission's analysis entirely failed to take into account his outstanding California detainer, which undercuts a crucial factual premise for its finding that Mr defer poses a risk of violent crime to the community, if he is actually released, starting with the first issue.

[00:01:35] Speaker 00:
So the government makes no effort to defend the commission's finding that Mr. Defer's underlying offense, his escape attempt in 1979, itself constitutes a serious violation of institution rules, precluding his parole release.

[00:01:49] Speaker 00:
But that was one of the two pillars of the commission.

[00:01:53] Speaker 06:
Well, let's be clear, as I understand it, the decision we are reviewing relies not on that ground,

[00:02:03] Speaker 06:
but on what I'll describe as a second exception allowed in the statute.

[00:02:08] Speaker 06:
Do you agree?

[00:02:09] Speaker 00:
I don't agree, Your Honor.

[00:02:13] Speaker 00:
Why not?

[00:02:13] Speaker 06:
That's what the plain language of the statement says.

[00:02:17] Speaker 00:
So the commission did also make a finding that Mr. Defer is reasonably likely to commit a future crime, but in its final decision in his case, the notice of action on appeal at J-14, the commission added a second reason on appeal.

[00:02:33] Speaker 02:
It was not content to rest fully on- Excuse me for interrupting.

[00:02:37] Speaker 02:
In that statement, the commission styled that as one, the initial panel could have made, but not that

[00:02:47] Speaker 02:
it did or not that the that the national appellate panel was making.

[00:02:54] Speaker 02:
So it's it's a bit speculative now.

[00:02:59] Speaker 00:
I don't think so, your honor, but to clarify one thing, the same group of commissioners was voting on the initial decision and the second decision because his case is the original jurisdiction case.

[00:03:09] Speaker 00:
It's the same three people we assume in both instances.

[00:03:13] Speaker 00:
So it was really in the nature of a decision on reconsideration.

[00:03:16] Speaker 00:
It's noted, it's denoted as the final decision of the board.

[00:03:19] Speaker 00:
And, you know, I'm not sure the government's given a reason why in this reconsideration decision, the commission would have noted the second reason if it were not relying on it.

[00:03:29] Speaker 00:
And I'd also note that the district court appeared to read the decision the same way we do.

[00:03:34] Speaker 00:
The district court said that the commission concluded the second thing.

[00:03:38] Speaker 00:
It addressed the second reason, the serious violation of institution rules on the merits at J-46.

[00:03:44] Speaker 00:
And in Mr. Deffer's more recent case challenging a more recent parole denial, in summarizing what had occurred in the first mandatory parole hearing, the district court referred to the commission concluding both things.

[00:03:57] Speaker 06:
He is challenging the decision of July 25, 2016.

[00:04:06] Speaker 06:
Is that not correct?

[00:04:09] Speaker 00:
That was the initial decision, but the final decision from November 2016 at J-14 is what we understand to be.

[00:04:17] Speaker 00:
I mean, it incorporates the reasoning in the prior decision.

[00:04:20] Speaker 00:
We're not disputing that, but it is the commission's final word on why it was denying Mr. Defer parole.

[00:04:28] Speaker 06:
Well, he was under... Excuse me, Judge Randall.

[00:04:35] Speaker 06:
I just want to finish up.

[00:04:37] Speaker 06:
The reasons that the commission gives, all right, I just need to be clear.

[00:04:43] Speaker 06:
In that, it's responding to Mr. Defer, correct?

[00:04:55] Speaker 00:
Yes, it's responding to his appeal in which he raised grounds to call into question the commission's previous determination.

[00:05:05] Speaker 06:
And I just need to see where the commission says we are deciding on both grounds of the exception.

[00:05:18] Speaker 00:
Sure.

[00:05:19] Speaker 00:
So the final sentence of the second paragraph says, in addition, the commission could have found that you seriously violated institution rules by escaping October 14th, 1979.

[00:05:29] Speaker 06:
Could have found.

[00:05:32] Speaker 00:
Right.

[00:05:32] Speaker 06:
Why is that the same as we find or we have found or we did find?

[00:05:39] Speaker 00:
Because I can't think of any other purpose for the sentence being in the determination other than to add an additional finding to justify the denial of mandatory parole.

[00:05:49] Speaker 02:
And again, to be clear- Belt and suspenders, like, you know, if for some reason it's in the background, it's not like two legs that are needed to stand.

[00:05:57] Speaker 02:
It's, you know, one leg.

[00:05:59] Speaker 02:
And if the one leg that we offer doesn't work, there's another- We could find this, yeah.

[00:06:05] Speaker 02:
Independently available.

[00:06:08] Speaker 00:
Well, as I think Your Honor's question suggested, if the commission thought this were a valid reason, you know, I would anticipate that the government would be defending both of them here and offering the second one were this court to think that the reasonable probability of crime finding failed.

[00:06:23] Speaker 00:
I mean, I think that is the purpose of adding the second reason is to sort of bolster the first one.

[00:06:27] Speaker 00:
But because the commission made that choice to offer both.

[00:06:31] Speaker 01:
Is your point that you've said that several times because the government doesn't defend it, it must be invalid?

[00:06:38] Speaker 01:
That's utter nonsense.

[00:06:40] Speaker 01:
And I don't know what the fuss is all about here.

[00:06:43] Speaker 01:
The guy was under federal custody when he escaped.

[00:06:48] Speaker 01:
He was under custody for a federal offense.

[00:06:51] Speaker 01:
Isn't that right?

[00:06:53] Speaker 00:
The time that he spent in the county, the state county jail was credited towards his federal sentence, but he has a life.

[00:07:01] Speaker 01:
He was awaiting trial on a federal offense.

[00:07:04] Speaker 01:
And so, you know, your argument that that doesn't count under the parole rule under 4206, it seems to me to be totally frivolous.

[00:07:16] Speaker 01:
He was under, he was being incarcerated for a federal offense and he escaped.

[00:07:21] Speaker 01:
as somebody was killed and an officer was shot.

[00:07:26] Speaker 00:
He had not yet been sentenced on his federal offenses.

[00:07:29] Speaker 00:
And I think the purpose of this inquiry is to see whether, according to the congressional design, is to see whether the prisoner has been rehabilitated during his time of federal incarceration.

[00:07:40] Speaker 06:
Well, you say that, but that is not what the statute says.

[00:07:44] Speaker 06:
Rather, the statute says, here's the rule, and there's a presumption.

[00:07:50] Speaker 06:
All right, there are two exceptions.

[00:07:54] Speaker 06:
And to me, the fact that Congress said there's an exception or two exceptions and puts the decision on the exceptions in the commission suggests that Congress contemplated that there would be circumstances where despite the applicability of the presumption, there were reasons

[00:08:19] Speaker 06:
that the commission was not going to grant parole.

[00:08:27] Speaker 00:
But I think Congress would have envisioned that the commission would have focused its inquiry on the prisoner's actual decades of federal imprisonment, his rehabilitation in prison.

[00:08:37] Speaker 00:
Congress, even for life offenders, even for people who committed the most grave and serious crimes, Congress mandated that they be afforded a presumption of release.

[00:08:47] Speaker 06:
That statute would read, here's what happens after three quarters of the sentence, period.

[00:08:54] Speaker 06:
There's no role for anybody else.

[00:08:56] Speaker 06:
Congress has decided.

[00:08:57] Speaker 06:
All cases.

[00:09:00] Speaker 06:
And that's not what Congress wrote.

[00:09:02] Speaker 00:
No, but the, I mean Congress you compare the discretionary parole statute 4206A where the commission, where Congress told the commission to take into account the nature and circumstance of the offense, like here one of the offenses was that escape attempt where he was already convicted and given a one year sentence for that.

[00:09:19] Speaker 00:
And Congress also told the commission at the point of discretionary parole earlier in the point of in the prisoner sentence to take into account their criminal history.

[00:09:27] Speaker 00:
But those are not Congress did not tell the commission to focus on those things when it comes to mandatory parole.

[00:09:32] Speaker 00:
And we think that makes a lot of sense for us.

[00:09:34] Speaker 01:
I don't know that it makes.

[00:09:35] Speaker 01:
I don't know that it makes a lot of sense.

[00:09:37] Speaker 01:
Let me ask you if if the if the prisoner was a model prisoner and committed no infractions of the institution's rules during his 30 years of imprisonment, then under your theory, he has to be released.

[00:09:55] Speaker 01:
You can't consider the nature and circumstances of his offense.

[00:09:59] Speaker 01:
That's your theory, isn't it?

[00:10:02] Speaker 00:
Our position is that the parole commission cannot deny a prisoner mandatory parole based on circumstances that were present the day he was sentenced.

[00:10:10] Speaker 01:
So, yeah.

[00:10:11] Speaker 01:
So you read out this that would for anybody that doesn't violate the institution's rules during their 30 years incarceration, you read out the second part of the statute.

[00:10:25] Speaker 01:
They're automatically entitled to be released under your theory, but that ignores the second part.

[00:10:32] Speaker 01:
And a hypothetical would be that Adolf Hitler, if he had been captured and was a model prisoner for 30 years, you don't have to consider the fact that he was responsible for the murder of millions of people.

[00:10:47] Speaker 01:
That can't be the law.

[00:10:50] Speaker 00:
So I don't think our position reads out the second exception your honor, for instance, if a prisoner had shown no remorse or regret for the crimes that they committed.

[00:10:59] Speaker 00:
That's something the commission could take into account and finding that they still pose a reasonable risk or a reasonable probability of committing a future crime.

[00:11:06] Speaker 00:
That's not Mr defer he is consistently throughout many parole proceedings, express regret and remorse.

[00:11:13] Speaker 00:
He has, you know, it's goes beyond just a lack of prison infractions his case managers have said that he's been no management problem whatsoever.

[00:11:21] Speaker 00:
He's completed substantial, you know, programs and courses in prison.

[00:11:30] Speaker 00:
I don't think the inquiry collapses into a variety of factors the commission can take into account, so long as they are trained in some way on what has happened and what's transpired in the past 30 years or more of their federal.

[00:11:43] Speaker 06:
Even about it, that Congress could have written the statute as you have described it.

[00:11:49] Speaker 06:
But what I don't understand in your argument is why would Congress in this instance,

[00:11:57] Speaker 06:
create a totally different system without expressly saying so.

[00:12:05] Speaker 06:
In other words, all kinds of cases come before district court judges, and some are heinous offenses, and some to the average person may not appear such.

[00:12:17] Speaker 06:
But that doesn't indicate what the nature of a discretionary sentence within the maximum sentencing range

[00:12:28] Speaker 06:
is going to be.

[00:12:30] Speaker 06:
I guess that's what's troubling here.

[00:12:34] Speaker 06:
But your point more particularly is that, as I understand it, that he was sentenced for the crimes he committed.

[00:12:48] Speaker 06:
And that's the punishment.

[00:12:50] Speaker 06:
But now he's sentenced under a scheme that creates a presumption.

[00:12:54] Speaker 06:
And I guess the ultimate point is

[00:12:57] Speaker 06:
Your argument is, under the commission's approach, there is nothing this particular prisoner could do where the board would decide, unless it's just a membership change on the board with a completely different sentencing philosophy, that this particular prisoner could be released before he completes his full sentence.

[00:13:25] Speaker 00:
Yes, Your Honor, that's our position.

[00:13:27] Speaker 00:
But according to the commission, the die was cast before he was even sentenced on these offenses, notwithstanding Congress's judgment that even life offenders should have a fair shot and be eligible for mandatory parole after 30 years.

[00:13:40] Speaker 00:
And so Your Honor was describing how the kind of sentencing endeavor that district courts undertake today, that is in the nature of the discretionary parole.

[00:13:50] Speaker 00:
Discretionary parole has guidelines.

[00:13:52] Speaker 00:
You figure out the parolees' scores.

[00:13:55] Speaker 00:
You take into account their nature and circumstances, the nature and circumstances of the offense, the history and characteristics of the prisoner.

[00:14:01] Speaker 00:
But the commission did that in Mr. Defer's case, and that produced a range of 368 months.

[00:14:06] Speaker 00:
And they actually factored in the escape attempt three different times, as far as I can tell.

[00:14:10] Speaker 00:
This is at J-15, one of the hearings from his 2004, the determination from his 2004 hearing.

[00:14:18] Speaker 00:
And he served 368 months by year 31.

[00:14:22] Speaker 00:
So he's already served the entirety of what the commission previously thought he should be serving, taking into account how serious his original offenses were, taking into account the escape attempt from the King County jail.

[00:14:33] Speaker 00:
And we're now at the 40, you know, we're well past that point.

[00:14:36] Speaker 00:
He was eligible for mandatory parole at 30.

[00:14:39] Speaker 00:
This hearing took place in 2016 at 37 years.

[00:14:43] Speaker 00:
He's now been in prison for over 40 years.

[00:14:45] Speaker 02:
But to what extent is your argument, a statutory text argument.

[00:14:51] Speaker 02:
And to what extent is it sort of a failure to meet the minimum rationality requirement I gather under the Constitution.

[00:15:02] Speaker 02:
So the statutory argument I take you to be making is

[00:15:06] Speaker 02:
Somebody's sentenced to life with the possibility of parole.

[00:15:12] Speaker 02:
And at the time of sentencing, the choice to give that sentence rather than life without possibility indicates that the pre-sentencing conduct is not alone a reason to foreclose parole.

[00:15:32] Speaker 02:
And so that's an and that in the discretionary parole factors, the nature of the offense is explicitly to be considered and not so in the mandatory parole.

[00:15:50] Speaker 02:
Could you just spell out for me, how much are you making a statutory text argument and how much are you making more of a rationality argument?

[00:15:58] Speaker 00:
So in this respect with this argument, we're arguing both that it was so irrational as to be fundamentally unfair in violation of the due process clause, but also arguing that the commission did exceed the scope of its discretion under 4206D.

[00:16:12] Speaker 00:
And so, you know, to clarify, we are not arguing that

[00:16:15] Speaker 00:
Congress completely prohibited the commission from considering the underlying offenses, and you know the prisoners history but get when you look at the statutory scheme or Congress told the commission to focus on that and I'm sorry.

[00:16:29] Speaker 02:
Are you arguing that it is prohibited from relying on the offense, the offense is known at the time of sentencing.

[00:16:37] Speaker 02:
Alone does the statute prohibit that or you're not arguing that I am arguing that your honor sorry if I was unclear at so but that it may consider them in combination with other information.

[00:16:47] Speaker 00:
If the commission has a basis, a rational basis to find that the prisoner is likely to commit or reasonably probable to commit a future crime that turns in part on something that has taken place during the 30 years preceding the mandatory parole hearing, that is permissible.

[00:17:05] Speaker 00:
What is not permissible is to deny mandatory parole based on, you know, predominantly here on the nature of the underlying offenses,

[00:17:13] Speaker 00:
and, you know, factors that were present before he even received the mandatory parole sentence.

[00:17:19] Speaker 02:
But I mean, one, but not exclusively.

[00:17:21] Speaker 02:
I'm a little bit confused again, because the commission didn't rely exclusively on the nature of the offense.

[00:17:30] Speaker 02:
They also looked at conduct while incarcerated.

[00:17:33] Speaker 02:
No.

[00:17:34] Speaker 00:
Not in making it's not making the commission's finding that he was reasonably probable.

[00:17:40] Speaker 00:
Well, actually, no, not in making either finding the commission did not rely on anything that took place during his incarceration.

[00:17:46] Speaker 00:
The attempted prison escape was before, you know, he was sentenced for that.

[00:17:50] Speaker 00:
He was convicted on that.

[00:17:51] Speaker 00:
That happened before he started serving his federal sentence.

[00:17:55] Speaker 01:
That was after he was that was after he he was convicted in federal court that he escaped.

[00:18:02] Speaker 01:
Right.

[00:18:03] Speaker 00:
It was after he was convicted.

[00:18:04] Speaker 00:
It was before he was sentenced.

[00:18:05] Speaker 00:
Yes, Your Honor.

[00:18:06] Speaker 02:
Well, it did refer to that Mr. Dufour had completed substantial programming and mentioned some programs.

[00:18:16] Speaker 02:
So it sort of was saying, yes, we're taking into account that you were an attractable and pretty good prisoner, but not the kind of extraordinary

[00:18:30] Speaker 02:
Mother Teresa, that we would have to be given the gravity of your offenses.

[00:18:37] Speaker 02:
I mean, why can't we, why don't we have to read it that way, given the level of deference we afford to the commission?

[00:18:43] Speaker 00:
As I understand the commission's reasoning, there was nothing that happened during Mr. DeFur's incarceration that cut in favor of finding teacher dangerousness.

[00:18:54] Speaker 00:
It all cut the other way, as well as-

[00:18:57] Speaker 02:
It didn't you said you can consider the crime, the offenses on which the census based, but just not exclusively and I'm, I guess I'm probing your characterization of the initial decision as exclusively relying because there's.

[00:19:12] Speaker 02:
You know, there's negative, which is these very violent multiple murders and escapes.

[00:19:18] Speaker 02:
That's the negative.

[00:19:19] Speaker 02:
And on the plus side, the commission does consider you've done some, you know, you've dug yourself part way out, but just not all the way out of the presumption of dangerousness.

[00:19:32] Speaker 02:
And so that's so it is considering not in a not in a negative way, but in a not positive enough way.

[00:19:39] Speaker 02:
what happened during his period of incarceration.

[00:19:42] Speaker 02:
Why isn't that the way we have to read this under the differential standard?

[00:19:46] Speaker 00:
Well, because I'm not sure what Mr. For could have done to offset the commission's reasoning about his prior crimes.

[00:19:54] Speaker 00:
I mean, here he had not committed any act.

[00:19:56] Speaker 00:
It's undisputed.

[00:19:57] Speaker 00:
He'd never committed any act of violence during the entirety of his time in a federal institution.

[00:20:01] Speaker 00:
And he'd had a completely spotless record of any infractions, you know, whatsoever for the previous 15 years and so I guess I don't think it's enough to say the commission considered his current incarceration record and said well all that is good, but maybe it's not quite enough.

[00:20:17] Speaker 00:
There has to be something that happened that actually cuts in favor of saying no, we think this person is still reasonably probable.

[00:20:24] Speaker 00:
It's reasonably probably he's going to commit a crime.

[00:20:26] Speaker 00:
But also just to maybe spend a moment on this, the commission specifically found he's reasonably probable to commit a violent crime if released.

[00:20:35] Speaker 00:
That was part of the commission's reasoning.

[00:20:37] Speaker 00:
They said he was a racist community.

[00:20:39] Speaker 02:
And he's going to California.

[00:20:42] Speaker 02:
But the federal system has to assume that it doesn't have any control over what happens in California.

[00:20:50] Speaker 02:
California doesn't really seem to have updated its thinking in that it considers him still on escape status.

[00:20:56] Speaker 02:
So it doesn't seem irrational for the federal government to think, you know, there's some chance that California would release him.

[00:21:04] Speaker 02:
And so we're going to take that as our premise.

[00:21:07] Speaker 02:
Well, first, I'm taking your position would be well, at least it has to discuss that it has to discuss it.

[00:21:13] Speaker 00:
And that's not just my position.

[00:21:14] Speaker 00:
It's in the statute at four to six feet, which requires the commission to explain its reasons for denying parole with particularity in writing to the prisoner.

[00:21:23] Speaker 00:
But also to talk about the chances of release.

[00:21:26] Speaker 00:
So, again, the commission did not show even an awareness of this issue, let alone sort of suggest why it thought release was unlikely.

[00:21:32] Speaker 00:
But here, Mr. Mr. Defer is not currently eligible for parole in California, as far as I can tell.

[00:21:38] Speaker 01:
What what is the remainder of his sentence in California?

[00:21:42] Speaker 01:
He has two life sentences, two life sentences in California.

[00:21:46] Speaker 01:
I guess the only reason he wasn't executed is because when he committed the offenses, the Supreme Court had yet to reinstate the death penalty.

[00:21:57] Speaker 01:
That was 1976, 75.

[00:22:01] Speaker 01:
When he committed the offenses about them, didn't he?

[00:22:04] Speaker 00:
When he was 18 years old.

[00:22:05] Speaker 00:
Yes, your honor.

[00:22:06] Speaker 00:
Yeah.

[00:22:07] Speaker 00:
But he so as you know, again, I'm not speaking as his counsel here, but as his amicus, it does not appear that he's currently eligible for parole.

[00:22:14] Speaker 00:
And we cite a Stanford Law School study at page 46 of our brief that looks at the population of people in California serving life sentences.

[00:22:24] Speaker 00:
And they found during the period they studied that only

[00:22:27] Speaker 00:
something like 18% of California prisoners serving life sentence were voted to get parole from the California board, and only 6% of offenders who were murderers actually got out due to the governor's veto.

[00:22:41] Speaker 01:
Out of those people that were released, out of the 18%, how many committed violent crimes after their release?

[00:22:51] Speaker 00:
So the study looks at all California lifers who were released and found that less than 1% even recidivated, recidivated committing any kind of crime.

[00:23:00] Speaker 00:
And none of those people committed another life crime.

[00:23:04] Speaker 02:
Let me circle back for a moment, Ms.

[00:23:06] Speaker 02:
Flynn, and ask you about, so at the time of sentencing, I take part of your argument to be that in a way, affording this

[00:23:18] Speaker 02:
person the possibility of parole, there was a judgment made at the threshold that the conduct that had taken place so far was not disqualifying and that we should sort of rest in part on that.

[00:23:32] Speaker 02:
And the commission didn't honor that.

[00:23:35] Speaker 02:
But at the time, was there, were there ways

[00:23:40] Speaker 02:
or provisions for life without parole?

[00:23:43] Speaker 02:
Would that be something the district judge has to do in a discretionary manner?

[00:23:46] Speaker 02:
Or was there a murder statute under which you could get life without parole?

[00:23:52] Speaker 02:
I looked and it just seemed like this is a generally applicable sentencing provision, not something where the district judge really deliberately said, I'm affording an opportunity of parole here.

[00:24:08] Speaker 02:
That wasn't a very clear question, but do you,

[00:24:10] Speaker 00:
No, no, no.

[00:24:11] Speaker 00:
My understanding is that the presumption comes from Congress, from Congress's rule that prisoners, that life sentence prisoners are granted a chance at mandatory parole after 30 years.

[00:24:25] Speaker 00:
If I understand your honor's question.

[00:24:26] Speaker 01:
Why is this, when you say presumption, that's a rather ambiguous word in the law.

[00:24:33] Speaker 01:
You don't mean there's an evidentiary presumption.

[00:24:35] Speaker 01:
I don't see that there.

[00:24:37] Speaker 01:
What do you mean by presumption?

[00:24:39] Speaker 01:
The statute says if you do X 30 years, then you're eligible for parole unless such and so.

[00:24:47] Speaker 01:
Where does it get you by calling this a presumption?

[00:24:53] Speaker 01:
It seems to me, analytically, it doesn't matter at all.

[00:24:58] Speaker 00:
Well, to start with the question of where I'm getting that from, that comes from the commission's determination in Mr. Defer's case.

[00:25:04] Speaker 00:
It uses the word presumption.

[00:25:06] Speaker 00:
The commission itself calls this mandatory parole in a Supreme Court ad denizio case that both sides cite.

[00:25:13] Speaker 00:
The Supreme Court cites 460 as a circumstance.

[00:25:17] Speaker 01:
Yeah, you can call it.

[00:25:18] Speaker 01:
That's not my question.

[00:25:19] Speaker 01:
You can call it whatever you want to call it.

[00:25:21] Speaker 01:
But I don't know how how analytically that factors in or helps you.

[00:25:27] Speaker 01:
If the individual committed a bunch of offenses while incarcerated, he's not going to get parole.

[00:25:34] Speaker 01:
And if the commission finds that he's likely to commit more offenses, he's not going to get parole.

[00:25:41] Speaker 01:
So how's the presumption help you at all?

[00:25:45] Speaker 00:
Well, I think it reflects an understanding that, you know, reflected in the statutory text itself, that there is, you know, the text says the prisoner shall be released unless one of these two more limited findings is made.

[00:25:58] Speaker 00:
Like, for instance, the commission couldn't say we think it'll depreciate the seriousness of the offense and deny mandatory parole on that basis.

[00:26:05] Speaker 00:
And so again, in the Adonisio case, the Supreme Court referred to this as a limitation on the commission's discretion as compared to discretionary parole.

[00:26:15] Speaker 00:
And so in a circumstance, the Supreme Court also referred to as a circumstance where parole is mandated by statute.

[00:26:23] Speaker 00:
So we, you know, we use presumption in the sense of the default is released unless one of these two specific findings are made.

[00:26:32] Speaker 00:
And then that's underlaid by the due process clause where there has to be a rational.

[00:26:36] Speaker 01:
I understand that, you know, that's a fair argument, but I don't know where

[00:26:40] Speaker 01:
why presumption gets in here.

[00:26:42] Speaker 01:
It just seems to me the office skate the issue before us.

[00:26:48] Speaker 02:
I thought that, Ms.

[00:26:49] Speaker 02:
Flynn, you were relying really principally and all the other authorities also rely on the on 4206D reference to shall be released, provided, however, shall not if.

[00:27:02] Speaker 02:
And the shall not if are limited, as you say, to serious and frequent violation of institutional rules and regulations or reasonable probability of committing a crime.

[00:27:13] Speaker 02:
And so the shall be released is the presumption.

[00:27:17] Speaker 02:
And those two exceptions are the ways to overcome what the statute frames as a presumption.

[00:27:22] Speaker 02:
That's what I take to be your... Yes.

[00:27:27] Speaker 01:
How do you square your argument with 4207?

[00:27:32] Speaker 00:
So in that provision, the Congress told the commission to consider various factors, if available and relevant.

[00:27:39] Speaker 00:
And so not everything in that list is relevant to a mandatory parole determination for instance you know I think

[00:27:47] Speaker 00:
As I mentioned before, discretionary parole, the commission can take into account whether releasing the defendant early will depreciate the seriousness of the offense.

[00:27:57] Speaker 00:
And a victim impact statement, I think, would be very relevant to that kind of determination.

[00:28:00] Speaker 00:
I'm not sure a victim impact statement is very relevant to a determination of how Mr. Defer has been rehabilitated.

[00:28:07] Speaker 01:
So that's the burden of your argument to say that the nature of the offense is not relevant

[00:28:13] Speaker 01:
to consideration of whether the individual will commit another violent offense.

[00:28:19] Speaker 01:
That seems to me to be irrational.

[00:28:22] Speaker 00:
So let me clarify, your honor.

[00:28:24] Speaker 00:
I'm not, we are not taking the position that the commission is entirely precluded.

[00:28:28] Speaker 00:
We're just saying to the extent the government is arguing that 4207 shows this is necessarily something that should be a big part of the inquiry.

[00:28:36] Speaker 00:
We don't think it shows that because the provision is sort of saying take into account this list of things if relevant to the inquiry.

[00:28:43] Speaker 00:
So I guess I should say, I don't think 4207 really answers the questions we're talking about here one way or the other.

[00:28:56] Speaker 06:
So no challenge to the statute in one sense, just its application to Mr. Defer.

[00:29:07] Speaker 00:
Our position is that the commission exceeded the scope of its discretion under 4206D, that it also violated 4206B by failing to take into account the California detainer and explain its reasoning on that point.

[00:29:20] Speaker 00:
But also that in this instance, the commission's reasoning in denying Mr. Defer parole was so irrational as to be fundamentally unfair in violation of the due process clause.

[00:29:29] Speaker 06:
So your brief, I thought your brief talked about- It seems to me your focus has been on the fact that

[00:29:37] Speaker 06:
It really doesn't matter who this person is or what he's done.

[00:29:44] Speaker 06:
He's entitled to be released unless he did something after he was sentenced for the federal offenses he is currently sentenced that in the commission's judgment precludes his release.

[00:30:03] Speaker 06:
And yet that ignores, it seems to me, what

[00:30:07] Speaker 06:
Congress was generally aware of is that all kinds of different people get sentenced to life imprisonment.

[00:30:17] Speaker 06:
And some are for very serious offenses.

[00:30:21] Speaker 06:
Some are for repeated serious offenses, as in this case, even after arrested, even after in federal custody.

[00:30:36] Speaker 06:
And this man was totally reckless as to human life when someone stood in his way of what he wanted to accomplish.

[00:30:51] Speaker 06:
So given the scope of the population as it were, to me, Congress could come up with a rational situation

[00:31:04] Speaker 06:
and statutory scheme that says, well, it's up to the commission.

[00:31:11] Speaker 06:
If they think this guy ought to get out, even though he has this terrible record, so be it.

[00:31:20] Speaker 06:
But on the other hand, if we don't think he should, so be it.

[00:31:24] Speaker 06:
And since the statute can be read in a rational way,

[00:31:33] Speaker 06:
Don't you think Congress had to say more specifically, which it didn't, that these pre-sentencing considerations shall not be taken into account?

[00:31:53] Speaker 06:
I mean, you've read that into this, but it's not there.

[00:32:00] Speaker 06:
That's what I'm getting at.

[00:32:04] Speaker 00:
Yes, Your Honor.

[00:32:04] Speaker 00:
So, our position is looking at 4206 as a whole comparing 4206A which again specifically talks about these things, and 4206D which does not, and which says the prisoner shall be released unless one of these two specific findings are made, not just jeopardize the public welfare but a reasonable probability of future crime.

[00:32:24] Speaker 00:
And again, we're not saying that Congress totally precluded consideration of the.

[00:32:30] Speaker 06:
I understand that, but you're asking us to read a single section of a statute where Congress is deemed to have ignored what it said in one subsection.

[00:32:45] Speaker 06:
And I'm not sure I know where that theory of statutory interpretation comes from when Congress hadn't made it clear

[00:32:54] Speaker 06:
that what we said in subsection A is not to be considered when acting under subsection D. That's all I'm getting.

[00:33:05] Speaker 00:
Sure, but I'm not sure why Congress would have bothered to specify that the Commission should be taking into account the nature and circumstances of the offense in A, and then not mention that in D. Well, because they'd already mentioned it once.

[00:33:19] Speaker 00:
But it's an entirely different inquiry, Your Honor.

[00:33:21] Speaker 06:
I know, but it doesn't say these factors are not to be considered.

[00:33:27] Speaker 06:
That's all I'm getting at.

[00:33:29] Speaker 00:
Right, and I think, you know, another way to think about it, Your Honor, is, you know, we're talking about a system of parole, the, you know, the idea of which is to encourage good behavior while in prison, to encourage rehabilitation.

[00:33:42] Speaker 00:
And if you create a system where those kinds of, you know, where you don't encourage that at all because the die can be cast before the person is even- Of course, that is a problem of institutional management.

[00:33:55] Speaker 06:
But that's a different issue.

[00:33:57] Speaker 00:
But we think that clear purpose behind this regime should inform the reading as well and for the commission to be able to sort of.

[00:34:04] Speaker 06:
I gave you examples, it seems to me, of why Congress would want to have this provision.

[00:34:13] Speaker 06:
And yet understand that there are going to be some people who just never will get out.

[00:34:21] Speaker 00:
But I think in, you know, in the circumstance of a, you know, an offender who commits truly terrible crimes, but then there have for there to be nothing that is still points in that direction during their incarceration.

[00:34:33] Speaker 00:
Again, you know, here, Mr. For has expressed remorse and regret for his crimes.

[00:34:38] Speaker 00:
He's taken responsibility for them.

[00:34:40] Speaker 06:
This is not a petty larceny.

[00:34:43] Speaker 06:
This is where people were killed repeatedly.

[00:34:50] Speaker 00:
Right, but between, you know, when Mr. DeFur was 20 or between the ages of 18 and 25 years old.

[00:34:55] Speaker 06:
And in the meantime, he served a substantial period of incarceration, which the criminology literature says that this is sort of- And we would have to read the statute in a manner that says that, as you argue, that the commission had exceeded its authority.

[00:35:16] Speaker 00:
Yes, or violated it.

[00:35:19] Speaker 06:
Well, I think you've got a hard argument there, but the authority seems to be less difficult for you in one way.

[00:35:29] Speaker 02:
The due process is a procedural reason-giving or a substantive, what's the character of your due process claim?

[00:35:40] Speaker 00:
So Mr. Ferrer raised multiple due process claims.

[00:35:44] Speaker 00:
In this respect, the district court understood this claim to be grounded in the equal protection component of the due process clause.

[00:35:52] Speaker 00:
This court has indicated that this test, the one we've laid out about,

[00:35:56] Speaker 00:
could actually stem from the substantive due process clause.

[00:36:00] Speaker 00:
But I think at the end of the day, you know, the cases we point to the Ford v. Massaron case, the Johnson v. District of Columbia, they use the standard, they don't first ask whether or not the prisoner has a liberty interest in parole.

[00:36:15] Speaker 00:
So that's why you know we followed that inquiry in our briefing, but that said the district court here did find that Mr defer has a protected liberty interest in parole under the mandatory parole statute, other circuits have found that with respect to both discretionary and mandatory parole in the context of the statutory scheme.

[00:36:33] Speaker 00:
We think that's entirely correct.

[00:36:35] Speaker 00:
I think to answer your question more directly, I'm not sure it matters which component it stems from, but the test this court has established is a baseline of the government can't act so irrationally as to be fundamentally unfair in offering its reasons for taking action in this space.

[00:36:54] Speaker 02:
And the fundamental unfairness just very succinctly that you would point us to is

[00:37:01] Speaker 00:
that he was denied mandatory parole based on solely on the nature of his underlying offenses of conviction and his pre-offense criminal history.

[00:37:12] Speaker 00:
So circumstances that were baked in before he was even sentenced and the commission was unable to point to anything during the, at this point now over 40 years of his federal incarceration.

[00:37:30] Speaker 05:
All right, why don't we hear from the government?

[00:37:32] Speaker 05:
We'll give you a few minutes on rebuttal.

[00:37:34] Speaker 05:
Thank you, Your Honor.

[00:37:38] Speaker 04:
Good morning.

[00:37:38] Speaker 04:
May it please the court?

[00:37:40] Speaker 04:
My name is Marcia Yee, and I appear on behalf of the FLE, the United States Parole Commission.

[00:37:46] Speaker 04:
I actually intended to address the question, the first question that the court had asked for briefing on, but since we have

[00:37:56] Speaker 04:
focused so far on Amicus's point about the two different decisions.

[00:38:05] Speaker 04:
I do want to point out that the two relevant sentences in the notice of action on appeal, which appears at J-14, are

[00:38:22] Speaker 04:
those last two sentences.

[00:38:24] Speaker 04:
And to shortcut this, even were the court to assume for the purposes of argument that the notice of action on appeal is the decision under review, the text of that notice shows that the commission denied parole on one prom.

[00:38:40] Speaker 04:
In addition, the commission could have found that you seriously violated institution rules by escaping on October 14th, 1979 is

[00:38:52] Speaker 04:
essentially dicta.

[00:38:54] Speaker 04:
It's a suggestion to future commission panels or commissioners that there's an additional reason that the commission could deny parole.

[00:39:06] Speaker 04:
If we were sort of analogizing to our more familiar context of a federal district court's decision represented by the notice of action and the notice of action on appeal being represented by an appellate court's decision,

[00:39:22] Speaker 04:
We can see that the National Appeals Board did not say that we are modifying or we are adding this additional ground.

[00:39:33] Speaker 04:
It merely says affirm the previous decision.

[00:39:39] Speaker 04:
If I could turn to the question.

[00:39:42] Speaker 02:
Let me just focus you on one question that's important to me, which is, as Ms.

[00:39:47] Speaker 02:
Flynn argued, the mandatory parole establishes a presumption as of the time of sentence.

[00:39:56] Speaker 02:
And here, the clear implication, taking the statute and the facts together, is even given the heinousness, violence,

[00:40:07] Speaker 02:
character of the crimes of commission, this individual was sentenced to life with the possibility of parole.

[00:40:17] Speaker 02:
And yet it appears the commission in determining the possibility of future crime looked exclusively to things that, as Miss Flynn put it, were baked in when the sentence was granted with possibility of parole.

[00:40:35] Speaker 02:
And there just seems to be a basic conflict.

[00:40:40] Speaker 02:
between those two positions in a way it's almost as if the carrot is held out for this individual.

[00:40:47] Speaker 02:
And after he behaved well in prison for 37 years with the prospect of the mandatory parole finally occurring that the commission has taken that away from him.

[00:41:04] Speaker 02:
And it just doesn't seem what Congress intended.

[00:41:12] Speaker 04:
Well, I think that sometimes a sentence of up to life in prison means life in prison.

[00:41:20] Speaker 04:
And that is actually what the commission decided here.

[00:41:24] Speaker 04:
And that decision is only reviewed for a rational basis.

[00:41:28] Speaker 04:
The commission has wide discretion based on its considerable experience to conclude

[00:41:34] Speaker 04:
that based on the original offenses of murdering a non-duty law enforcement officer and having previously committed these two state law murders for which he was convicted and sentenced, and from which he escaped from that sentence.

[00:41:54] Speaker 04:
And during that escape, he committed this murder of a non-duty law enforcement officer.

[00:42:00] Speaker 04:
And while he

[00:42:02] Speaker 02:
We do know the facts, and they are, as you emphasize, extraordinary.

[00:42:08] Speaker 02:
These are not, as Judge Rogers put it, these are not petty offenses.

[00:42:14] Speaker 02:
We all start from that baseline.

[00:42:17] Speaker 02:
The question really is, doesn't the statute in providing that a sentence meted out with the possibility of parole, the statute basically

[00:42:28] Speaker 02:
assumes and probably building on the kinds of social science research that Miss Flynn's brief or the intuition, at least to that extent, that Miss Flynn's brief points to, even the worst of the worst,

[00:42:42] Speaker 02:
If sentenced to have the possibility of parole, we're going to assume somebody who's 67 is not the same person as when he was 18.

[00:42:50] Speaker 02:
I mean, his cortex has developed.

[00:42:53] Speaker 02:
He's had a long time to think about it.

[00:42:57] Speaker 02:
And unless we have further reason

[00:43:01] Speaker 02:
in the provided, however, you know, deny, unless we have further reason, the facts known at the time of giving a sentence with the possibility of parole are not enough.

[00:43:14] Speaker 02:
And I guess I want to know conceptually, what is your answer to that?

[00:43:17] Speaker 02:
So you have to, to some extent, accept my premise that, you know, what else is it that this is promising that the commission pointed to?

[00:43:36] Speaker 04:
Well, the commission didn't specifically mention it, but there.

[00:43:44] Speaker 04:
The implication that he hasn't had any prison infraction during the last 15 years doesn't mean that there were zero.

[00:43:55] Speaker 04:
infractions or zero violations of the prison rules.

[00:44:01] Speaker 04:
This just happens to be what the decision specifically mentioned.

[00:44:06] Speaker 02:
We review the decision.

[00:44:08] Speaker 02:
We don't look behind that.

[00:44:11] Speaker 02:
Right.

[00:44:11] Speaker 02:
And so we accept the reasons the commission gave.

[00:44:14] Speaker 02:
And the question is the adequacy of those reasons.

[00:44:18] Speaker 02:
And obviously, if we were to find faults, we would be sending back to the commission, and they could point to other things.

[00:44:24] Speaker 02:
But here, the commission has basically said, look, this crime was so bad that this is really life without the possibility of parole, which just seems to, I mean, arguably, as Ms.

[00:44:36] Speaker 02:
Flynn points out, flies in the face of what the statute provides.

[00:44:42] Speaker 02:
So I'm interested in your help in responding to that.

[00:44:48] Speaker 04:
Well, if my friend were correct in her interpretation, the statute would have been written differently.

[00:44:55] Speaker 04:
I'm referring to section 4207, which specifies all the factors that the commission may consider in making parole decisions.

[00:45:06] Speaker 04:
For example, I am aware that the DC Board of Parole was required to consider more recent history

[00:45:17] Speaker 04:
or put greater emphasis on more recent behavior by a prisoner in considering whether to grant parole.

[00:45:28] Speaker 04:
That is not the statute we're dealing with here.

[00:45:32] Speaker 02:
But Ms.

[00:45:33] Speaker 02:
Flynn's response to that was that those factors apply across A, B, C, as the discretionary parole, as well as potentially mandatory, and that it's conditioned by as relevant, and I take her position to be those are explicitly relevant to the discretionary parole, but the limitations in the two factors that rebut the presumption in mandatory parole

[00:46:02] Speaker 02:
render some of those not relevant in under D. I disagree with that interpretation.

[00:46:10] Speaker 04:
4207 specifies the factors that the commission is required to consider for all parole decisions.

[00:46:20] Speaker 04:
I don't think it is a fair reading to say that because 4206A mentions specific factors that you read out those factors when you deal with 4206D.

[00:46:34] Speaker 01:
I go back.

[00:46:36] Speaker 01:
I don't need your permission.

[00:46:38] Speaker 01:
I want to go back to the question whether we ought to be even adjudicating this case.

[00:46:44] Speaker 01:
Your position is that you raised the government raised the question of venue and transfer because this was in essence a habeas corpus action, which I don't think is

[00:46:59] Speaker 01:
in dispute.

[00:47:01] Speaker 01:
And also you suggest that what the defendant was or what the inmate was doing here was forum shopping because he had filed a habeas action in California and that was denied.

[00:47:17] Speaker 01:
So I have a couple of questions that stemmed from that.

[00:47:21] Speaker 01:
Number one, where is he now incarcerated?

[00:47:27] Speaker 04:
He's incarcerated at an institution in California.

[00:47:30] Speaker 04:
I don't remember which one.

[00:47:33] Speaker 02:
So he's no longer in West Virginia.

[00:47:35] Speaker 02:
I thought it was in West Virginia.

[00:47:38] Speaker 01:
He was transferred, I thought.

[00:47:44] Speaker 04:
He's in Mendota, California.

[00:47:47] Speaker 01:
So he's in California now.

[00:47:49] Speaker 01:
If the second the second

[00:47:59] Speaker 05:
Ray, we lost you.

[00:48:03] Speaker 06:
Your audio and frozen.

[00:48:06] Speaker 06:
Anne, can you help out here?

[00:48:11] Speaker 06:
The deputy clerk?

[00:48:14] Speaker 04:
I am going to reach out to Judge Randolph.

[00:48:17] Speaker 01:
Thank you.

[00:48:19] Speaker 01:
Can you hear me now?

[00:48:20] Speaker 06:
Yes.

[00:48:21] Speaker 06:
Thank you.

[00:48:22] Speaker 06:
I don't know what happened.

[00:48:26] Speaker 01:
I was in the middle of a question.

[00:48:28] Speaker 06:
I'm just trying to give you back your time, Ray.

[00:48:31] Speaker 01:
Oh, thank you.

[00:48:37] Speaker 01:
Hello.

[00:48:39] Speaker 06:
Anne?

[00:48:40] Speaker 05:
Yes, I have fixed the timer.

[00:48:43] Speaker 06:
Great.

[00:48:43] Speaker 06:
Thank you very much.

[00:48:44] Speaker 01:
OK, thanks, Judy.

[00:48:47] Speaker 01:
So what I was saying is, let's put aside the question for the moment about whether

[00:48:52] Speaker 01:
the venue and the habeas and so on and so forth is a jurisdictional matter.

[00:48:59] Speaker 01:
Why isn't it so, number one, that we have supervisory authority?

[00:49:06] Speaker 01:
And it seems to me that there's a potential here that if we allow this case to go forward, then it's hard to see why any other case brought against the parole commission by a prisoner anywhere in the United States could not be filed in the District of Columbia.

[00:49:25] Speaker 01:
And so in the exercise of our supervisory power,

[00:49:30] Speaker 01:
Let's suppose that we could do that.

[00:49:32] Speaker 01:
And what we could do is remand to the district court with instructions to, and this is why I asked the first question, to transfer the case to the proper venue.

[00:49:44] Speaker 01:
Now, and the question then would be, where is that?

[00:49:47] Speaker 01:
Is that West Virginia or is that California?

[00:49:52] Speaker 04:
I believe that under the court's precedent, the place of incarceration at the time the inmate was located is the proper venue for.

[00:50:06] Speaker 06:
At the time the inmate what filed his original complaint or the district court complaint.

[00:50:19] Speaker 04:
I looked at where he was incarcerated at the time he filed his district court complaint.

[00:50:28] Speaker 01:
So that would be West Virginia here?

[00:50:30] Speaker 04:
Yes.

[00:50:38] Speaker 01:
OK.

[00:50:38] Speaker 01:
That's fine.

[00:50:39] Speaker 01:
I'm finished.

[00:50:42] Speaker 06:
I want to be clear.

[00:50:42] Speaker 06:
Any reason you did not make the motion to dismiss the part of the joint appendix?

[00:50:51] Speaker 04:
I believe technically the motion to dismiss as part of the record below and need not be included in the joint appendix.

[00:51:01] Speaker 04:
And that's because it's part of the record before the court, even without our consent, including it.

[00:51:10] Speaker 06:
Maybe the government might consider for convenience of the court, if it's going to argue it raised certain issues in its motion to dismiss, it could include that motion in the joint appendix.

[00:51:23] Speaker 04:
I see your point.

[00:51:25] Speaker 04:
I would be happy to.

[00:51:26] Speaker 06:
So the district court took all that into account and said, well, those were passing references, right?

[00:51:33] Speaker 04:
Yes, essentially.

[00:51:40] Speaker 06:
And why was that what?

[00:51:44] Speaker 06:
Error as a matter of law or error as a matter of fact?

[00:51:50] Speaker 04:
It could be construed as both.

[00:51:53] Speaker 04:
I mean, the motion did actually cite Davis, which is the opinion of the court that established the operative

[00:52:08] Speaker 04:
habeas channeling rule for federal prisoners.

[00:52:11] Speaker 04:
And I would say that it could have been raised or it could have been argued in a better way.

[00:52:22] Speaker 04:
It could have been in a standalone section as opposed to in the due process section.

[00:52:27] Speaker 04:
But we did raise this argument.

[00:52:33] Speaker 02:
Although not not in the not in the district court, it was disavowed and not in the motion for reconsideration in the district court and not in the summary of firmance papers, but only after that waiver and or forfeiture only in the red brief here.

[00:52:53] Speaker 04:
Right.

[00:52:54] Speaker 04:
But a question of subject matter jurisdiction can never be waived or forfeited.

[00:53:00] Speaker 02:
But it's not the district court held that it's not a question of subject matter jurisdiction.

[00:53:04] Speaker 04:
Right.

[00:53:05] Speaker 04:
And we are challenging that part of his decision upon prompting from the court.

[00:53:19] Speaker 05:
So if we hadn't asked you about it, you wouldn't raise it.

[00:53:24] Speaker 04:
Well, we believe we would prevail on the merits as we did below.

[00:53:30] Speaker 05:
That's not the thrust of Judge Randolph's question.

[00:53:39] Speaker 05:
I'm sorry.

[00:53:39] Speaker 05:
Who knows?

[00:53:40] Speaker 06:
You may prevail on the merits still.

[00:53:42] Speaker 06:
But his point is, in the exercise of supervisory authority, send it to the proper venue, namely West Virginia.

[00:53:57] Speaker 04:
Uh, well, actually, if I may also offer that the district court made an alternative finding that he would not transfer this case.

[00:54:07] Speaker 04:
Um, right.

[00:54:09] Speaker 04:
And, uh, district on the merits.

[00:54:15] Speaker 04:
Right.

[00:54:15] Speaker 04:
But he could also have chosen to do so, uh, for other reasons, um, including that.

[00:54:26] Speaker 04:
He wouldn't have done it, but now that we've raised Guerra, he could do it simply because the parole commission is not a proper respondent.

[00:54:37] Speaker 02:
Proper respondent would be the warden, but the warden wouldn't have the authority to direct the parole commission to act differently.

[00:54:42] Speaker 02:
Would it?

[00:54:49] Speaker 04:
No, but.

[00:54:51] Speaker 02:
That's the relief he's seeking.

[00:54:52] Speaker 02:
And so you're saying that relief is unavailable because he can only sue the warden, the immediate custodian.

[00:54:58] Speaker 02:
And that immediate custodian does not have authority over the actions of the parole commission.

[00:55:06] Speaker 04:
Well, the warden would have to effectuate instructions from the parole commission if the parole commission had said release him.

[00:55:14] Speaker 01:
The warden has authority to release him.

[00:55:17] Speaker 01:
And if the court determines that the parole commission

[00:55:21] Speaker 01:
heard, then the warden has the authority to release the individual.

[00:55:26] Speaker 01:
That's the point of it.

[00:55:29] Speaker 06:
So I just wanted to be clear on one thing and it was raised and I thought Amicus answered, namely that this is not where the federal district court judge who sentenced this man, sentenced him to life with a possibility of parole.

[00:55:46] Speaker 06:
He just sentenced him to life.

[00:55:49] Speaker 06:
And that

[00:55:50] Speaker 06:
this possibility of release before completion of his sentence arises from the statute here, not from what the district court sentencing judge did.

[00:56:06] Speaker 06:
I just want to be clear about that.

[00:56:09] Speaker 04:
I actually have no way of knowing one way or the other.

[00:56:12] Speaker 06:
Of course you do.

[00:56:14] Speaker 06:
You can look at what the district court did and said.

[00:56:17] Speaker 04:
Well, these records are quite old.

[00:56:20] Speaker 04:
I tried looking for them in Westlaw.

[00:56:23] Speaker 04:
I tried looking in Court Link and they're not readily accessible.

[00:56:31] Speaker 06:
They are not unavailable.

[00:56:34] Speaker 04:
Is that correct?

[00:56:36] Speaker 04:
Right, but it would be rather onerous to get them.

[00:56:39] Speaker 04:
We could get them if the courts are required, of course.

[00:56:42] Speaker 06:
Well, I'm just trying to figure out what this case is really about.

[00:56:45] Speaker 06:
It's not where the original sentencing judge, and I'm trying to get the answer, thought, despite everything he'd done, the possibility of parole was down the road.

[00:56:57] Speaker 06:
Because if this is just arising from the statute, then it seems to me these are all considerations that the commission might have taken into account.

[00:57:09] Speaker 02:
In that vein, Ms.

[00:57:10] Speaker 02:
Yee, I'm sorry, Judy.

[00:57:12] Speaker 02:
No, go ahead.

[00:57:13] Speaker 02:
In that vein, Ms.

[00:57:14] Speaker 02:
Yee, just to clarify, and we covered this ground a little bit, but it would just help me to crystallize your position.

[00:57:20] Speaker 02:
Under the statute, someone who, as Mr. Jaffer, was not categorically sentenced to life without parole, he was not sentenced to death, in order to be denied mandatory parole, he has to somehow manifest

[00:57:39] Speaker 02:
a disqualifying probability that he will commit any crime.

[00:57:44] Speaker 02:
And in addition to the nature of the underlying offenses, what would you rely, or what do you believe the commission permissibly relied on to show that Mr. DeFour did manifest such a disqualifying probability that he would commit any crime?

[00:58:15] Speaker 04:
It's the, he murdered a third individual and then he tried to escape while he was being held and before he was sentenced.

[00:58:27] Speaker 02:
These are- Is there nothing in the post-sentencing conduct after the moment of being sentenced with the possibility of parole?

[00:58:38] Speaker 02:
Is there nothing, you know, shortfall or infraction

[00:58:45] Speaker 02:
that you believe the commission relied on that manifested the disqualifying probability that he would commit any crime.

[00:58:57] Speaker 04:
As I alluded to earlier, the record before the court does not include his complete history.

[00:59:07] Speaker 02:
No, but I'm asking about what the commission relied on.

[00:59:09] Speaker 04:
Right.

[00:59:12] Speaker 04:
From what I can tell, even though the commission acknowledged his good behavior, such as completing various programming, they concluded that it was based on his past history as outlined.

[00:59:32] Speaker 02:
So the good behavior was not enough.

[00:59:35] Speaker 04:
That's right.

[00:59:36] Speaker 02:
There was some good behavior, but it was not good enough to outweigh.

[00:59:42] Speaker 02:
And that's what they relied on.

[00:59:43] Speaker 04:
Right.

[00:59:44] Speaker 04:
And that's actually what the decision itself states.

[00:59:48] Speaker 04:
That's the second paragraph of J-13.

[01:00:04] Speaker 06:
All right.

[01:00:05] Speaker 06:
Thank you.

[01:00:05] Speaker 06:
Let's hear from Amicus for a couple of minutes.

[01:00:11] Speaker 00:
Thank you, Your Honor.

[01:00:13] Speaker 00:
Three points if I can manage them.

[01:00:15] Speaker 00:
So, you know, as we just discussed, the government has not been able to point to anything in the commission's express statement of reasons for why I denied Mr. Deferred mandatory parole that, you know, stemmed from his actual period of imprisonment.

[01:00:30] Speaker 00:
You know, Council referred to, maybe it didn't include his complete history, I'm not sure what that is a reference to but of course we're limited to the reasons the commission actually gave and it's determination that's 4206 B. And, you know, Judge Randolph suggested that there might be forum shopping going on here and that this could lead to all these cases being filed in the District of Columbia.

[01:00:52] Speaker 00:
It was within the government's power to keep that from happening, it could have raised improper venue, it could have raised the immediate custodian rule, it you know demonstrated some awareness of those concepts but chose not to raise them and then told the district court quote to ignore venue, probably because it wanted to get a 12b6 termination on the merits.

[01:01:10] Speaker 00:
The venue issue, the custodian issue are not issues of subject matter jurisdiction.

[01:01:16] Speaker 00:
This court has said that in Ramsey and Chapman Bay and Fletcher.

[01:01:20] Speaker 00:
They are forfeitable, they are waivable.

[01:01:23] Speaker 00:
But as for whether a transfer is appropriate, speaking as amicus, I don't see why transfer wouldn't be appropriate in this case, given the venue issues.

[01:01:32] Speaker 00:
I don't know that it makes sense to send it back to West Virginia where he's no longer in custody.

[01:01:38] Speaker 00:
He's currently in a medium security facility in Mendota, California.

[01:01:42] Speaker 00:
The warden in West Virginia has no control over him at this point.

[01:01:46] Speaker 00:
And I believe the precedent that council might have been referring to is circumstances where

[01:01:52] Speaker 00:
somebody's transferred, but there's still somebody within the jurisdiction with power to carry out the judgment.

[01:01:59] Speaker 00:
Here we already have that with the parole commission who has participated in this case fully, never objected on the basis of being the improper respondent.

[01:02:07] Speaker 00:
So, you know, we think it was proper for the district court to reach the merits here, but we also think a transfer to another place where the commission could execute the judgment would be appropriate as well.

[01:02:19] Speaker 00:
And then just I see I'm past my you say to execute the judgment, what you want is a new hearing.

[01:02:30] Speaker 00:
Yes, Your Honor, Mr. DeFernis complaint requested a new hearing.

[01:02:33] Speaker 06:
So it's not execute the judgment, is it really?

[01:02:37] Speaker 00:
Um, you know, it could be deemed a conditional release on habeas district courts I think have handled this issue differently either send it back for a new hearing while retaining jurisdiction or issue the writ with a conditional order of release of a hearings not conducted within a certain amount of time.

[01:02:51] Speaker 00:
I think these are questions.

[01:02:53] Speaker 00:
I mean again we're just at the motion to this message I think these are questions that might be best addressed to the district court but all Mr defer is asking for is a new hearing.

[01:03:02] Speaker 00:
at which the issues we've been talking about can be addressed and the commission stays within the bounds of its discretion under 4-2-0-60 and the due process clause.

[01:03:15] Speaker 06:
Did you get all three points in there?

[01:03:17] Speaker 06:
I got two.

[01:03:18] Speaker 06:
I believe I did, Your Honor.

[01:03:24] Speaker 06:
Fine, if you got them in, that's all.

[01:03:26] Speaker 06:
I want to be sure.

[01:03:27] Speaker 06:
Okay.

[01:03:29] Speaker 00:
Thank you, Your Honor.

[01:03:29] Speaker 06:
We will take the case under advisement.