Veronza L. Bowers, Jr. v. United States Parole Commission, Warden , 760 F.3d 1177 ( 2014 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-16560
________________________
D.C. Docket No. 1:08-cv-02095-JOF
VERONZA L. BOWERS, JR.,
Petitioner - Appellant,
versus
UNITED STATES PAROLE COMMISSION,
WARDEN,
Respondents - Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(July 9, 2014)
ON PETITION FOR REHEARING
Before WILSON and DUBINA, Circuit Judges, and MIDDLEBROOKS, * District
Judge.
*
Honorable Donald M. Middlebrooks, United States District Judge for the Southern
District of Florida, sitting by designation.
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WILSON, Circuit Judge:
Upon reconsideration of this appeal, we vacate our prior opinion, issued on
March 14, 2014 and published at 745 F.3d 1127, and substitute the following in its
place.
Veronza L. Bowers, who is serving a life sentence for the 1973 murder of a
United States Park Ranger, appeals the district court’s denial of his motions for
discovery and leave to amend his petition for a writ of habeas corpus, as well as the
district court’s determination that the United States Parole Commission did not
violate the mandate handed down by this court in Bowers v. Keller, 651 F.3d 1277
(11th Cir. 2011) (per curiam). Because the district court took an overly narrow
view of our mandate, we conclude that the district court abused its discretion in
denying Bowers’s motions for discovery and leave to amend.
I.
On May 17, 2005, Bowers received a Notice of Action from the Parole
Commission, notifying him that he had been granted mandatory parole,1 effective
1
We use the term “mandatory parole” in accordance with the Parole Commission’s
regulations. See 28 C.F.R. § 2.53. The Parole Commission and Reorganization Act (Parole
Act), Pub. L. No. 94-233, § 2, 90 Stat. 219 (1976) (formerly codified at 18 U.S.C. §§ 4201–18)
(repealed 1984; see 18 U.S.C. §§ 4201–18 note concerning effective date of repeal), entitles a
prisoner who has served thirty years of a life sentence to mandatory parole unless the Parole
Commission makes certain findings. See 18 U.S.C. § 4206(d). Specifically, “the Commission
shall not release [a] prisoner if it determines that he has seriously or frequently violated
institution rules and regulations or that there is a reasonable probability that he will commit any
Federal, State, or local crime.” Id.
2
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June 21, 2005. 2 Prior to the parole date, Parole Commissioner Deborah Spagnoli,
acting on her own, sent a fourteen-page memorandum to the Attorney General’s
office discussing whether the Attorney General should, pursuant to 18 U.S.C. §
4215(c), request that the Parole Commission review its decision to grant Bowers
mandatory parole. The Attorney General made such a request, and, on June 14,
2005, the Parole Commission voted to reopen Bowers’s case.
The Parole Commission met on October 6, 2005, after receiving comments
from both the Attorney General and Bowers, and voted to deny mandatory parole.
The Parole Commission unanimously agreed that an escape attempt made by
Bowers in 1979 constituted a serious violation of institution rules, thus precluding
the Parole Commission from granting mandatory parole. See 18 U.S.C. § 4206(d).
Additionally, a majority of the Parole Commission determined that Bowers was
“likely to commit a crime in the future” based on its belief that the murder
committed by Bowers “was motivated by [his] attitude towards and hatred for the
United States Government, its employees, and its law enforcement” and that
Bowers still held those feelings.
2
On January 24, 2005, the Parole Commission granted Bowers mandatory parole
effective February 21, 2005. However, on February 17, 2005, the Parole Commission voted to
reopen Bowers’s case for a special reconsideration hearing under 28 C.F.R. § 2.28(f) based on a
“good faith belief” that newly acquired information would “lead to a different decision with
regard to release.” Two Hearing Examiners conducted the special reconsideration hearing and
recommended to the Parole Commission that Bowers be released on mandatory parole. The
issue came before the Parole Commission in May 2005 and resulted in a 2-2 split decision. The
Parole Commission’s General Counsel concluded that the split vote entitled Bowers to release.
On May 13, 2005, the Parole Commission granted mandatory parole effective June 21, 2005.
3
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After the Parole Commission made its decision, Bowers learned of
Commissioner Spagnoli’s memorandum and filed a petition for a writ of habeas
corpus in the Northern District of Georgia, challenging the Parole Commission’s
decisions to re-open his case, first on February 17, 2005, under 28 C.F.R. § 2.28(f)
and again on June 14, 2005, under 28 C.F.R. § 2.27. Bowers contended, inter alia,
that (1) Commissioner Spagnoli’s actions were improper and (2) the Parole
Commission’s October 2005 reconsideration of Bowers’s parole was affected by
political pressure from the Attorney General. The district court denied Bowers’s
petition, noting that the Parole Commission never lacked “jurisdiction or authority
to revise its decision to grant or deny [Bowers’s] parole.”
Bowers appealed, and we reviewed the actions taken by the Parole
Commission, noting that we would not reverse the Parole Commission’s decisions
“unless [they] involve[d] flagrant, unwarranted, or unauthorized action that
constitutes an abuse of the Commission’s discretion.” Keller, 651 F.3d at 1291
(internal quotation marks omitted). In our decision dated August 26, 2011, we
recounted Commissioner Spagnoli’s conduct and the subsequent unusual
circumstances of the Attorney General’s request for reconsideration. See id. at
1286-90.
As to the Attorney General’s influence, we noted that “[a]t the end of May
2005, the Office of the Deputy Attorney General requested information about
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Bowers’ case” and later inquired whether it would be appropriate for one of the
Commissioners to explain her vote. Id. at 1287. Although the Parole
Commission’s Chief of Staff responded that it would be inappropriate for the
Attorney General to ask a Commissioner to explain her vote, the Attorney General
nonetheless requested reconsideration of the Parole Commission’s May 2005
decision to give the commissioners “the opportunity to clarify their positions on
whether to grant or deny parole to Bowers.” Id.
Our opinion in Keller observed that the Attorney General’s request was
unprecedented in the Parole Commission’s 30-year history and that, therefore, the
Parole Commission had to first “develop procedures to handle the Attorney
General’s request.” Id. The Parole Commission provided “the Department of
Justice with a draft set of rules and procedures for deciding the Attorney General’s
petition.” Id. at 1287. In turn, “the Department of Justice provided comments as to
how its appeal should be handled.” Id. at 1288.
Our opinion also noted that the Parole Commission considered Bowers’s
case in a “closed” meeting in October 2005. Id. at 1288. An assistant general
counsel to the Parole Commission “orally presented the case, stating he was the
person who would know the facts of this case better than anybody because [he]
defended it several times in federal court and ha[d]been working closely with the
5
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Attorney General’s Office back and forth regarding this review.” Id. at 1288. The
Parole Commission then decided to deny Bowers’s request for parole. Id.
Our Keller opinion acknowledged Bowers’s contentions that the “October
2005 decision was tainted by political pressure and the actions of Commissioner
Spagnoli.” Id. at 1290. We granted relief only as to Bowers’s claim related to the
actions of Commissioner Spagnoli and “affirm[ed] the district court’s denial of
habeas relief as to Bowers’ remaining claims.” Id. at 1296.
As to Commissioner Spagnoli, we found that the Parole Commission’s June
14 decision was “impermissibly tainted by Commissioner Spagnoli’s unauthorized
actions revealing her bias.” 3 Id. at 1295 (internal quotation marks omitted). These
actions “violated the Parole Act’s mandate that the Parole Commission function as
an independent agency” in the Department of Justice and “impermissibly taint[ed]
the Parole Commission’s decision to reopen.” Id. at 1293; see also 18 U.S.C. §
4202 (establishing the Parole Commission as an independent agency in the
Department of Justice).
Because Spagnoli did not act “as an independent and neutral decision-maker
at the time of the Parole Commission’s June 14, 2005 decision,” Keller, 651 F.3d
3
These actions included Commissioner Spagnoli’s memorandum, which the magistrate
judge below described “as a polemic against the decision to parole,” as well as multiple
communications with Department of Justice officials regarding the Bowers case. Keller, 651
F.3d at 1294–95 (internal quotation marks omitted). We determined that the actions indicated
that Commissioner Spagnoli “inappropriately assumed the role of advocate against Bowers and
functioned as an adversary to the prisoner.” Id. at 1295 (internal quotation marks omitted).
6
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at 1293, we vacated that decision and directed the district court to “return this case
to the Parole Commission in its posture as of May 17, 2005,” id. at 1295. We
instructed the Parole Commission to “immediately review Bowers’[s] case to
determine whether any further action is necessary or authorized,” and directed the
district court to grant Bowers’s petition “[u]nless the Parole Commission initiate[d]
proceedings within sixty (60) days.” Id. at 1296. Further, we noted that there was
no evidence indicating that the Parole Commission, as it is currently constituted,4
would necessarily violate its own rules or the Parole Act or that Bowers would not
“receive a fair and impartial hearing” if the Parole Commission decided to take
further action. Id. And, as noted above, we “affirm[ed] the district court’s denial
of habeas relief as to Bowers’ remaining claims.” Id.
On September 29, 2011, the Parole Commission informed Bowers that it
would be reviewing the record to determine whether to hold a re-vote of Bowers’s
case. The Parole Commission stated that it would be reviewing materials from
before and after May 2005 and set an October 14, 2011 deadline for submitting
new materials. Instead of waiting until after the deadline to conduct the record
review, the Parole Commission, without giving notice or explanation, conducted
4
In 2005, the Parole Commission consisted of Chairman Edward F. Reilly, Jr., Cranston
J. Mitchell, Patricia K. Cushwa, Isaac Fulwood, Jr., and Deborah A. Spagnoli. Commissioners
Spagnoli and Reilly have since resigned, leaving Commissioners Mitchell, Cushwa, Fulwood,
and J. Patricia Wilson Smoot as the members of the Parole Commission.
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the record review on October 4, 2011, and decided to re-vote Bowers’s case. 5 The
Parole Commission re-voted on December 8, 2011, and denied mandatory parole
based on a finding that Bowers “seriously violated prison rules” by attempting to
escape in 1979.
After exhausting his administrative appeals, Bowers moved for discovery 6
and leave to amend his petition for habeas corpus.7 The district court denied
5
Bowers notes that the “expedited action . . . coincided with the Senate’s consideration”
of a bill extending the life of the Parole Commission. The Sentencing Reform Act of 1984,
Pub. L. No. 98–473, ch. 2, 98 Stat. 1837 (1984) (codified as amended at 18 U.S.C. § 3551 et
seq., 28 U.S.C. § 991 et seq.), abolished the Parole Commission, but provided for a transition
period in which the Parole Commission would continue to function. Keller, 651 F.3d at 1281
n.6. That period has since been continuously extended. See Judicial Improvements Act of 1990,
Pub. L. No. 101–650, § 316, 104 Stat. 5089 (1990) (extending from 1992 to 1997); Parole
Commission Phaseout Act of 1996, Pub. L. No. 104–232, § 2(a), 110 Stat. 3055 (1996)
(extending from 1997 to 2002); 21st Century Department of Justice Appropriations
Authorization Act, Pub. L. No. 107–273, § 11017(a), 116 Stat. 1758 (2002) (extending from
2002 to 2005); United States Parole Commission Extension and Sentencing Commission
Authority Act of 2005, Pub. L. No. 109–76, §2, 119 Stat. 2035 (2005) (extending from 2005 to
2008); United States Parole Commission Extension Act of 2008, Pub. L. No. 110–312, §2, 122
Stat. 3013 (2008) (extending from 2008 to 2011); United States Parole Commission Extension
Act of 2011, Pub. L. No. 112–44, §2, 125 Stat. 532 (2011) (extending from 2011 to 2013);
United States Parole Commission Extension Act of 2013, Pub. L. No. 113–47, § 2, 127 Stat. 572
2013 (extending from 2013 to 2018). Bowers suggests that these periodic congressional votes
reauthorizing the Parole Commission’s continued existence make the Parole Commission
uniquely susceptible to pressure from members of Congress. Previously, Bowers alleged that the
Parole Commission was contacted in 2005 by a member of a Senator’s staff, who specifically
asked about Bowers’s case and said that the Senator may put a hold on the bill reauthorizing the
Parole Commission. Here, Bowers points to the Parole Commission’s October 4, 2011 action,
which occurred a mere two days before the Senate vote to pass the United States Parole
Commission Extension Act of 2011, and suggests that the Parole Commission has been
improperly influenced.
6
Bowers requests discovery into the following issues: (1) “The materials considered by
the Commission in connection with its ‘re-vote’ and whether those materials were received pre-
or post-remand; [(2)] The steps the Commission took (if any) to purge the taint of Commissioner
Spagnoli’s actions on the agency and the undue influence of the DOJ; [(3)] The contacts and
pressures placed on the Commission by other people and organizations outside of the agency
relating to its ‘re-vote’; [(4)] The extent to which any members of Congress contacted the agency
8
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Bowers’s motion for discovery, noting that our mandate did not “authorize[],
instruct[], or suggest . . . that any additional discovery concerning ex-
Commissioner Spagnoli’s activities would be necessary or prudent” and that we
had not granted Bowers any relief based on his claims that the Parole Commission
was subject to political pressure. Further, the district court denied the motion for
leave to amend and considered only “whether the procedure utilized by the Parole
Commission was authorized by the Parole Act and the Parole Commission’s rules
and regulations.” Finally, the district court held that the Parole Commission did
not violate the Parole Act or any of the Parole Commission’s rules or regulations.
On appeal, Bowers asks us to reverse the district court’s denial of the
motions for discovery and leave to amend, as well the district court’s decision that
the Parole Commission did not violate its own rules and regulations. For the
reasons set forth below, we hold that the district court abused its discretion by
denying Bowers’s motions for discovery and leave to amend. We affirm the
district court on all other grounds.
about Mr. Bowers’[s] case or placed any pressure on the agency during the recent reauthorization
process; and [(5)] The Commission’s basis for its decision to ‘re-vote,’ the basis for its
December 8, 2011 decision, and the standards and procedures the agency used.”
7
Bowers seeks to add claims alleging that the Parole Commission violated (1) the Due
Process Clause of the Fifth Amendment, (2) the Parole Act, (3) the Commission’s governing
rules and regulations, and (4) our mandate by deciding to re-vote the case on the basis of an
expanded record, conducting the re-vote on an even greater record, applying a new standard,
failing to act as a neutral, unbiased decision-maker, making arbitrary and result-oriented
decisions, and denying release on mandatory parole.
9
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II.
The denial of habeas corpus relief under 28 U.S.C. § 2241 is reviewed de
novo. Keller, 651 F.3d at 1291. We review a district court’s denial of a motion for
leave to amend for abuse of discretion. Thomas v. Farmville Mfg. Co., 705 F.2d
1307, 1307 (11th Cir. 1983) (per curiam). However, “[u]nless there is a substantial
reason to deny leave to amend, the discretion of the district court is not broad
enough to permit denial.” Thomas v. Town of Davie, 847 F.2d 771, 773 (11th Cir.
1988) (internal quotation marks omitted). We review the district court’s denial of
discovery for abuse of discretion. Arthur v. Allen, 452 F.3d 1234, 1243, modified
on reh’g, 459 F.3d 1310 (11th Cir. 2006) (per curiam).
III.
Unlike typical civil litigants, habeas petitioners are “not entitled to discovery
as a matter of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904, 117 S. Ct.
1793, 1796–97 (1997). It is within the discretion of the district court to grant
discovery upon a showing of good cause. Id. at 904, 117 S. Ct. at 1797 (quoting
Rule 6(a) of the Rules Governing Section 2254 Cases).8 “Good cause is
demonstrated where specific allegations show reason to believe that the petitioner
may, if the facts are fully developed, be able to demonstrate that he is entitled to
8
Although Bowers filed this petition for a writ of habeas corpus under § 2241, Rule 1(b)
of the Rules Governing Section 2254 Cases states: “The district court may apply any or all of
these rules to a habeas corpus petition not [within 28 U.S.C. § 2241].”
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relief.” Arthur, 459 F.3d at 1310–11 (internal quotation marks and alterations
omitted).
In denying Bowers’s motion for discovery, the district court did not consider
whether Bowers had demonstrated good cause. Instead, it interpreted the absence
of an instruction to conduct discovery in our mandate from Keller, see 651 F.3d at
1296, to mean that discovery would not be appropriate. Further, it found that
discovery into any potential political pressure placed on the Parole Commission
should be denied because we did not grant relief on those grounds despite the fact
that Bowers had made claims of such pressure before us. See id. at 1290. In doing
so, the district court abused its discretion by basing its decision on an incorrect
interpretation of our mandate. See Klay v. United Healthgroup, Inc., 376 F.3d
1092, 1096 (11th Cir. 2004) (“A district court may . . . abuse its discretion by
applying the law in an unreasonable or incorrect manner.”).
Our 2011 opinion in Keller granted relief based on the actions of
Commissioner Spagnoli. We then “affirm[ed] the district court’s denial of habeas
relief as to Bowers’ remaining claims,” 651 F.3d at 1296, including Bowers’s
political pressure claim based on the Attorney General’s influence on the
Commission’s October 2005 decision, see id. at 1290. We also rejected Bowers’s
argument that he would not receive fair proceedings on remand, stating that there
was “no evidence any of the current Parole Commissioners would act outside the
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confines of the Parole Act or the Parole Commission's rules and regulations.” Id.
at 1296. As such, our Keller mandate foreclosed any subsequent political-pressure
claim based on pre-October 2005 evidence of the Attorney General’s influence on
the Commission. See Transamerica Leasing, Inc. v. Institute of London
Underwriters, 430 F.3d 1326, 1331 (11th Cir. 2005) (explaining that the law of the
case doctrine precludes consideration of matters previously decided explicitly or
by necessary implication).
That said, “the law of the case doctrine cannot apply when the issue in
question was outside the scope of the prior appeal.” Id. at 1332. As a general
matter, the Parole Commission’s 2011 decision was outside the scope of the prior
appeal in this case.
And, although we did not explicitly instruct the district court to determine
whether discovery would be necessary, the absence of such an instruction in the
Keller mandate should not be read to preclude discovery. We mandated that
Bowers’s case be returned to its posture as of May 17, 2005 because it was clear
that the Parole Commission, by virtue of Commissioner Spagnoli’s actions, had
failed to act independently and without bias. See Keller, 651 F.3d at 1295–96.
While our opinion noted that no evidence suggested that the current Parole
Commission would be unable to provide Bowers a “fair and impartial hearing,” id.
at 1296, it did not foreclose the possibility that subsequent evidence of any events
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after October 2005 could give rise to such a conclusion. Our mandate sought to
ensure that Bowers would receive his parole decision in the absence of bias. The
district court abused its discretion by reading our mandate so narrowly as to
preclude discovery into whether the Parole Commission acted independently and
without bias in reaching its 2011 decision denying parole. See United States v.
Mesa, 247 F.3d 1165, 1170 (11th Cir. 2001) (“The district court must implement
both the letter and spirit of the mandate, taking into consideration our opinion and
the circumstances it embraces.”).
To be sure, the district court was right to avoid addressing matters that were
outside the scope of our mandate. See United States v. Tamayo, 80 F.3d 1514,
1520 (11th Cir. 1996) (noting that a district court abuses its discretion by asserting
jurisdiction over issues not within the scope of a mandate from this court).
However, in doing so, the court took too narrow a view of our mandate’s scope and
abused its discretion by failing to give Bowers’s request for discovery fair
consideration.
Bowers alleges that external political pressure prevented the Parole
Commission from acting as an unbiased, independent agency when deciding his
case. He points to past allegations of political considerations influencing the
Parole Commission’s decisions, as well as the suspicious timing of the October 4,
2011 decision to re-vote. Given the unique history of bias and alleged political
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pressure in this case, we find that these allegations are more than “mere
speculation” and give us reason to believe that, with further discovery into post-
October 2005 political pressure on the Parole Commission from any source
Bowers may “be able to demonstrate that he is entitled to relief.” See Arthur, 459
F.3d at 1311 (internal quotation marks omitted). Therefore, Bowers should be
granted discovery on the impact that post-October 2005 political pressure may
have had on the Parole Commission’s 2011 decision.9 However, Bowers should
not be granted discovery on the influence on the Commission before October 2005
nor on the impact Commissioner Spagnoli’s bias may have had on the Parole
Commission as it stands now. 10
Rule 15(a) of the Federal Rules of Civil Procedure allows a party to amend
pleadings with leave from the court. Fed. R. Civ. P. 15(a)(2). Leave to amend
should be granted “when justice so requires.” Id. District courts have limited
9
See supra note 6. Issues 1, 3, 4, and 5 all clearly relate to the potential impact of
political pressure on the Parole Commission’s decision.
10
Bowers’s suggestion that the current Parole Commission was tainted by Commissioner
Spagnoli’s bias is pure speculation and relies on an overly broad interpretation of our mandate.
Unlike his claim that the Parole Commission did not act independently because it was under
political pressure, Bowers offers no evidence—besides an outcome that he deems undesirable—
showing that any members of the Parole Commission became biased against him as a result of
viewing documents created by Commissioner Spagnoli. These documents were central to our
decision in Keller because they showed that Commissioner Spagnoli “was not acting as an
independent and neutral decision-maker” at the time she was involved in deciding Bowers’s
case. 651 F.3d at 1293–95. These documents carry little weight here, however, because they do
not demonstrate any information about the beliefs or interests of the current Commissioners.
Accordingly, Bowers’s allegation that the current Commission was biased against him based on
viewing—not preparing—these documents is mere speculation and fails to show good cause for
discovery. See Arthur, 459 F.3d at 1311. Thus, on remand, the district court should not allow
discovery into issue 2. See supra note 6.
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discretion in denying leave to amend, and should grant a motion to amend
“[u]nless there [are] substantial reason[s] to deny” it. Espey v. Wainwright, 734
F.2d 748, 750 (11th Cir. 1984) (per curiam) (first alteration in original) (internal
quotation marks omitted).
As with its decision to deny discovery, the district court’s decision to deny
leave to amend was informed largely by its overly narrow interpretation of our
mandate. It also noted that Bowers’s habeas petition was already “long and
complicated.” Neither explanation amounts to a “substantial reason” for denying a
motion to amend. Accordingly, the court abused its discretion in denying leave to
amend.
IV.
For the foregoing reasons, we hold that the district court abused its
discretion in denying Bowers’s motions for discovery and leave to amend. We
reverse and remand for proceedings in accordance with this opinion. We affirm
the district court on all other grounds.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
15