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Spy's 'Successive' Claim Unsuccessful

By Robyn Hagan Cain on November 30, 2012 | Last updated on March 21, 2019

In April 1984, James Harper pleaded guilty to one count of selling and delivering confidential materials relating to national security. In exchange for his cooperation, eight other counts were dropped.

Along with immunity provisions, the plea agreement included a section stating that if the U.S. determined Harper’s cooperation led to substantial value of benefit, it would ask that Harper be given credit or consideration in connection with any parole commission proceeding. The agreement also included a provision prohibiting the use of any of Harper’s post-arrest statements against him in any civil or administrative proceeding.

Harper was given a life sentence. He became eligible for parole in 1993 and, in 1994, a Pre-Hearing Assessment was prepared in anticipation of Harper's parole hearing. It included information contained in a post-sentence report (PSR) prepared in 1987 that recounted the actual damage caused by Harper's espionage activities.

Harper complained that the use of this "actual damage" information from the PSR was prohibited by his plea agreement. The Parole Commission held a hearing at which it disagreed with Harper's objection to the use of "actual damage" information; it recommended continuation to a 15-year reconsideration hearing in 2009.

The National Appeals Board affirmed in spite of finding that the "actual damage" information should not have been considered because it was prohibited by the plea agreement. The Ninth Circuit later affirmed that decision in a habeas appeal.

At Harper's 15-year reconsideration hearing in 2009, the hearing examiner recommended a presumptive parole date. The executive reviewer, however, disagreed because of aggravating factors related to Harper's espionage and a 2007 infraction for "Providing or Possessing Contraband in Prison."

Harper filed another habeas petition challenging the decision, asserting 12 claims.

The district court dismissed claims two through seven for being secondary and successive, finding that the Ninth Circuit had already ruled on the same claims in Harper's 1994 habeas petition. Harper claimed that the court erred because the Parole Commission's 2009 decision qualified as a "new judgment" consistent with the Supreme Court's holding in Magwood v. Patterson, which established that a prisoner's second habeas petition is not "second and successive" when challenging a new judgment.

The government argued that Magwood applies only when a new sentence was imposed as a result of a first successful habeas proceeding, and was inapplicable because Harper's first petition was denied.

The Tenth Circuit Court of Appeals found Harper's argument -- that Magwood's "new judgment" rule should apply to his habeas petition -- ultimately unavailing because the Magwood Court specifically declined to address or constrain the scope of habeas petitions challenging parole. Instead, the Supreme Court noted that its ruling did not constrain habeas corpus as applied to state prisoners challenging the execution of their sentences.

As no other court has applied Magwood habeas petitions challenging parole decisions, the Tenth Circuit concluded that the district court did not err when it found claims two through seven second or successive.

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