UNITED STATES DISTRICT COURT                            
                   DISTRICT OF MINNESOTA                                

SCOTT WILLIAM FAUL,                Case No. 22-CV-2993 (MJD/JFD)        

              Petitioner,                                               

v.                                  ORDER and REPORT AND                
                                      RECOMMENDATION                    
MICHAEL LEJEUNE, Warden,                                                

              Respondent.                                               

SCOTT WILLIAM FAUL,                Case No. 23-CV-1337 (MJD/JFD)        

              Petitioner,                                               

v.                                                                      

MARK W. KING, Warden,                                                   

              Respondent.                                               


   This matter is before the Court on Petitioner Scott William Faul’s petitions for writs 
of habeas corpus, in which he argues he is being held in violation of the Constitution and 
the laws of the United States and should be immediately released. (Dkt. No. 1 in 22-CV-
2993 (MJD/JFD); Dkt. No. 1 in 23-CV-1337 (MJD/JFD).) In his first petition, Mr. Faul 
claims that his release date has been calculated incorrectly under 

(d). (Pet. 
8, Dkt. No. 1 in 22-CV-2993 (MJD/JFD).) In his second petition, Mr. Faul challenges the 
United States Parole Commission’s (“the Commission”) denial of his parole, claiming that 
the decision lacked a rational basis, infringed on his First Amendment rights, and was based 
on an unconstitutionally vague statute, 

(d). (Pet. 6, Dkt. No. 1 in 23-CV-
1337 (MJD/JFD).) Mr. Faul also requests appointment of counsel (Dkt. No. 21 in 23-CV-
1337 (MJD/JFD)) and a temporary restraining order prohibiting his transfer from FCI 
Sandstone  (Dkt.  No.  17  in  22-CV-2993  (MJD/JFD);  Dkt.  No.  19  in  23-CV-1337 

(MJD/JFD)). For the reasons that follow, the Court recommends that the petitions and the 
motion for a temporary restraining order be denied and denies the motion to appoint 
counsel as moot.                                                          
  I.  FACTUAL BACKGROUND                                                
   Mr. Faul participated in a 1983 shootout in Medina, North Dakota in which Deputy 

U.S.  Marshals  Kenneth  Muir  and  Robert  Cheshire  were  killed  and  three  other  law 
enforcement officers were wounded. A jury convicted Mr. Faul of two counts of second-
degree murder, four counts of assaulting U.S. Marshals and officers assisting them, one 
count of conspiring to assault, and one count of harboring a fugitive. United States v. Faul, 

, 1207–08 (8th Cir. 1984). The shootout happened when the U.S. Marshals 

tried to arrest Gordon Kahl—a tax protester and member of the extremist group Posse 
Comitatus—for violating the terms of the probationary sentence he was serving after being 
convicted of failing to file income taxes. 

; 

 (Lay, C.J., dissenting). 
Mr. Faul was traveling with Gordon Kahl, Mr. Kahl’s son Yorie Kahl, and others when the 
group stopped at a roadblock set up by the U.S. Marshals. 

. Mr. Faul and the 
younger Mr. Kahl got out of the car in which they were riding and pointed their mini-14 

rifles at the officers. 

 No one fired. 

 A few minutes into the standoff, Mr. Faul ran 
towards a nearby mobile home, pursued by a Deputy U.S. Marshal. 

 Just before shooting 
started, the Deputy U.S. Marshal ordered Mr. Faul to throw down his weapon. 

 Instead 
of complying, Mr. Faul ran to the corner of the mobile home and fired at least six shots. 
Id.; Faul v. Wilson, No. 15-CV-1541, 

 at *3 (D. Minn. Jan. 5, 2016). After 
the last shots were fired, Mr. Faul rushed to the injured Yorie Kahl, aimed his own rifle at 

a fleeing deputy sheriff, then helped Yorie Kahl escape. United States v. Faul, 748 F.2d at 
1209–10. Mr. Faul surrendered the next day. 

 Mr. Faul maintains he was an innocent 
bystander in what he calls the “deep tragedy of the Medina killings,” and describes the 
Marshals’ stop of him and his companions as an “ambush.” (Pet. 2, Dkt. No. 1-1 in 23-CV-
1337.)                                                                    

   The judge in his criminal case sentenced Mr. Faul to serve two life sentences 
concurrently for the murders. 

 The judge imposed four concurrent ten-year sentences for 
the assault, to be served consecutive to the life sentences. 

 For the conspiracy and 
harboring crimes, he added two concurrent five-year terms, to be served consecutive to 
both the life and ten-year terms, making the total length of Mr. Faul’s sentence life plus 15 

years. 

 He began serving this sentence on June 24, 1983. (Decl. of Scott Faul, Ex. M at 
38, Dkt. No. 1-2 in 23-CV-1337.) The Eighth Circuit Court of Appeals affirmed his 
conviction, and the United States Supreme Court denied his petition for certiorari. United 
States v. Faul, 

 (8th Cir. 1984), cert denied, 

 (1985).  
   The cases before the Court are Mr. Faul’s seventh and eighth habeas petitions. See 

Faul v. Wilson, No. 15-CV-1541 (PJS/TNL), 

 at *2–3, aff’d, 

 at *1 (Jan. 5, 2016) (cataloguing the first five cases—Faul I through Faul V—in 
detail); United States v. Faul (Faul VI) 3:83-CR-16, 

 at *3 (denying Mr. 
Faul’s request for a sentence reduction, construing some of his claims as habeas claims 
under 

, and dismissing the action).                       
   The cases currently before the Court are Faul v. Lejeune (Faul VII), 22-CV-2993 

(MJD/JFD) and Faul v. King (Faul VIII), 23-CV-1337 (MJD/JFD). Faul VII is a petition 
for a writ of habeas corpus under § 2241 that challenges the calculation of Mr. Faul’s 
sentence under 

(d). (Pet. 1, 6, Dkt. No. 1.) Faul VIII is another § 2241 
petition in which Mr. Faul challenges the U.S. Parole Commission’s decision not to grant 
him parole, arguing that the decision violated his due process rights because it lacked a 

rational basis, punished him for exercising his First Amendment rights, and was based on 
an impermissibly vague statute. (Pet. 1, 6–8, Dkt. No. 1.) On September 5, 2023, Mr. Faul 
filed a motion for a temporary restraining order that would prohibit BOP from transferring 
him out of the District of Minnesota until these cases had resolved. (Dkt. No. 17 in 22-CV-
2993; Dkt. No. 19 in 23-CV-1337.) Two days later, Mr. Faul filed a motion to appoint 

counsel in Faul VIII, but not Faul VII. (Dkt. No. 21 in 23-CV-1337.)      
 II.  HABEAS CORPUS PETITIONS                                           

   In Faul VII Mr. Faul challenges how the Commission calculated his date of parole 
eligibility and in Faul VIII he challenges the constitutionality of the United States Parole 
Board’s decision to deny him parole. The Court does not need to decide how to calculate 
Mr. Faul’s parole eligibility date, because under both Mr. Faul’s method and Respondent’s 
method of calculating, Mr. Faul is entitled to parole consideration. However, that means 
only that Mr. Faul is entitled to be considered for parole, not that he is entitled, after that 
consideration,  to  be  granted  parole.  The  unanswered  question—whether  Mr.  Faul  is 
entitled to parole—is the question raised by his constitutional challenge to the Parole 
Board’s decision in Faul VIII. The Court finds that the decision to deny Mr. Faul parole at 
his most recent hearing was constitutional.                               

        A. Faul  VII  Explores  the  Competing  Constructions  of  

(d).                                                    
   Mr. Faul claims that he is entitled to immediate release from confinement because 
he has served 30 years of his life term, which he argues is all that the law requires. (Pet. 
11–12, Dkt. No. 1 in 22-CV-2993.) The undersigned need not decide whether Mr. Faul’s 
reading, or the competing reading adopted by several federal courts, is correct. This is 
because Mr. Faul has served enough time to be eligible for consideration of parole under 
either Mr. Faul’s reading or the reading of those courts. But the statute also prohibits the 

U.S. Parole Commission from releasing a person when there is “a reasonable probability 
that he will commit any Federal, State, or local crime.” The Commission found that Mr. 
Faul met this criterion—and Mr. Faul challenges that finding in Faul VIII—so any dispute 
about the portion of the statute that determines timing of Mr. Faul’s eligibility for parole is 
beside the point and therefore moot.                                      
              i.  Applicable Law                                        

   Mr. Faul is an “old law” prisoner—someone sentenced after the Parole Commission 
and Reorganization Act of 1976 established the modern parole system but before the 
Sentencing Reform Act of 1984 discarded that system in favor of sentencing guidelines. 
(Pet.  1.);  See  Mistretta  v.  United  States,  

,  363–67  (1989)  (providing 
background on the Sentencing Reform Act). While the Sentencing Reform Act repealed 
federal parole statutes as of the date of the Act’s enactment, those statutes remained in 
force for prisoners who committed their crimes before November 1, 1987. See 

(b)(1)(A), 

, 2032 (1984); 

(b), 136 

Stat 4459, 5232 (2022) (extending U.S. Parole Commission’s existence until Nov. 1, 2023); 
Edmundson v. Turner, 

, 512 n.2 (8th Cir. 1992); Von Kahl v. Segal, 

 (7th Cir. 2021); Hackley v. Bledsoe, 

 (3d Cir. 2009). There 
are two potential routes to parole for old law prisoners who, like Mr. Faul, are sentenced 
to a life term. 

; 

(d); Dufur v. U.S. Parole Comm’n, 

 (11th Cir. 2018). The first path is discretionary parole: once a prisoner 
has served ten years of their life sentence, they are eligible for parole. 

. 
The Commission then uses its discretion to release, or continue holding, the eligible 
prisoner. 

(a) (listing criteria for the Commission to consider before 
granting  parole);  Dufur,  

.  The  Commission  may  deny  parole 

“notwithstanding the guidelines” set forth at 

(a) if it determines there is 
“good cause” to do so and explains its decision in writing to the prisoner. 

(c). The second path is called, somewhat misleadingly, “mandatory” parole. Dufur, 

 (“This case presents the question whether mandatory parole in the 
federal prison system is mandatory. It is not.”) The statute providing for “mandatory” 

parole reads as follows:                                                  
   Any prisoner, serving a sentence of five years or longer, who is not earlier 
   released under this section or any other applicable provision of law, shall be 
   released on parole after having served two-thirds of each consecutive term 
   or terms, or after serving thirty years of each consecutive term or terms of 
   more than forty-five years including any life term, whichever is earlier: 
   Provided, however, That the Commission shall not release such 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.                                      

(d). The parties disagree about how this statute applies to Mr. Faul, 
specifically when Mr. Faul was eligible for “mandatory” parole.           
              ii.  Analysis                                             
   The parties disagree as to whether Mr. Faul must serve thirty years or forty years 
before being eligible for parole consideration. As with any statutory interpretation dispute, 
the Court begins with the text of the statute itself. Groff v. DeJoy, 

 (2023). 
The statute requires the Commission to parole a petitioner who has “served two-thirds of 
each consecutive term or terms,” or who has served “thirty years of each consecutive term 
or terms of more than forty-five years including any life term, whichever is earlier.” 

(d). But the statute explicitly prohibits the Commission from releasing any 
prisoner who it “determines . . . has seriously or frequently violated institution rules and 
regulations” or if it finds “there is a reasonable probability” that the prisoner “will commit 
any Federal, State, or local crime.” 

                                  
   Mr. Faul claims that the text of the statute entitles him to release after he serves two 

thirds of each of his consecutive sentences or thirty years on his life sentences, whichever 
is earlier (Pet. 11.) He reasons that “two-thirds of a life sentence is still life,” so the first 
prong of the disjunction would have him serve life in prison. (Id.) In contrast, the second 
prong of the disjunction only requires him to serve thirty years: if he has to serve “thirty 
years of each consecutive term in excess of forty-five years,” and he is serving only one 
term of imprisonment of over 45 years (the two murder sentences running concurrently), 
then he only needs to serve 30 years under the second prong. (Id. at 11–12.) Since 30 years 
is less than life in prison, Mr. Faul believes the second prong of the disjunction applies to 

this case and he concludes that because he has served well over 30 years in prison, he is 
entitled to immediate release. (Id. at 11.)                               
   Respondent argues that the statute makes clear that a life term is treated like a 45-
year term for the purposes of 

. (Resp. 12, Dkt. No. 10.) In other words, 
Respondent does not read the statute to be a disjunction, but rather one rule: prisoners “shall 

be released on parole after having served two-thirds of each consecutive term or terms,” 
with the phrase “each consecutive term or terms” modified by the caveat that “serving 
thirty years of each consecutive term or terms of more than forty-five years including any 
life term,” is sufficiently long to become parole-eligible. Shaw v. Young, No. 5:16-CV-33 
(RWS), 

, at *2 (E.D. Tex. June 22, 2018) (repeating the respondent’s 

argument  in  that  case).  Respondent  concludes  that  Mr.  Faul  was  only  eligible  for 
mandatory parole after he served two thirds of his life term (30 out of 45 years), plus two 
thirds of his combined ten and five-year consecutive sentences (an additional ten years, 
since ten is two thirds of 15), or a total of 40 years. (Resp. 11.) Mr. Faul critiques this 
reading, arguing that it makes surplusage out of the “whichever is earlier” language. (Pet. 

13.)                                                                      
   The weight of authority on this question favors Respondent’s reading. See, e.g., Von 
Kahl v. Segal, 

, 989–90 (7th Cir. 2021); Hackley v. Bledsoe, 

 (3d Cir. 2009); Shaw v. Young, No. 5:16-CV-33 (RWS), 

, at *3 
(E.D. Tex. June 22, 2018). Most notably, the Seventh Circuit rejected Faul’s reading in the 
case of his co-defendant, Yorie Kahl, who received the same sentence. Von Kahl, 

 (“This leads to the question whether the Bureau has read § 4206(d) correctly, and it 

has.”) The Kahl court construed the statute as equating an indeterminate life term with a 
determinate 45-year term, but still requiring prisoners to serve “serve two-thirds or thirty 
years of ‘each consecutive term or terms.’” Id. Because Yorie Kahl was serving three 
consecutive terms of imprisonment—life imprisonment, followed by a consecutive ten 
years, followed by a consecutive five years—it concluded Kahl would not be eligible for 

parole until he served 40 years. Id. To find otherwise would effectively erase Mr. Kahl’s 
ten- and fifteen-year sentences when the statute itself “calls for the aggregation of limits 
‘under each consecutive term or terms,’” an outcome the Seventh Circuit found illogical. 
Id. Other courts share the Seventh Circuit’s reading. See, e.g., Hackley, 

 (rejecting argument that petitioner was eligible for mandatory parole after 30 years and 

finding  “he  is  only  eligible  for  mandatory  parole  after  serving  two-thirds  of  each 
component of his federal sentence”); Amaro v. Rios, No. 1:11-CV-234 (SKO/HC), 

, at *5 (E.D. Cal. Feb. 5, 2014); Buffalo v. Ives, No. EDCV 15-248-JLS (AJW), 

, at *3 (C.D. Cal. July 29, 2015), R&R adopted, No. EDCV 15-248 
(JLS/AJW), 

 (C.D. Cal. Oct. 21, 2015), aff’d sub nom. Buffalo v. Shinn, 

No. 16-55358, 

 (9th Cir. Mar. 2, 2017).                    
   For two reasons, the Court need not decide whether Petitioner or Respondent is 
reading the statute correctly. First, whether Mr. Faul must serve thirty years or forty years 
to be eligible to be considered for parole, as of February 2023 he had served forty years. 
Second, even if the Court were to agree that Mr. Faul was eligible for parole consideration 
ten years ago, it still could not grant Mr. Faul the relief he seeks. The “mandatory parole 
statute” explicitly prohibits the Commission from releasing any prisoner if “there is a 

reasonable probability” that the prisoner “will commit any Federal, State, or local crime.” 

(d). Therefore, a prisoner who is eligible for “mandatory parole” is not 
entitled to receive parole but is only eligible to receive parole. For this reason, Mr. Faul is 
incorrect when he claims that he was “paroled” from his life sentence by operation of law 
in February 2013, automatically started serving his remaining sentences, and has served 

his entire sentence when his good time credits are counted.1 (Pet. 13–14.) Reaching the 
time markers described in 

(d) creates a presumption that parole will be 
granted, but the U.S. Parole Commission reserves the right to deny parole if certain 
conditions apply. Dufur, 

 (“Here, the ‘shall . . . unless’ structure is 
clear, with the first half of the statute creating a presumption of release that can be 

overcome through the findings laid out in the second.”)                   
   The U.S. Parole Commission decided that Mr. Faul should not be released in part 
because he was likely to reoffend. (Faul Decl., Ex. J at 23, Dkt. No. 1-2.) Mr. Faul’s 
remaining arguments2 focus on this decision and whether it is legally sufficient to prohibit 
him from being paroled.                                                   


1 Mr. Faul claims that Respondent did not address this argument in its briefing, and thus 
conceded the point. (Pet.’s Reply 3, Dkt. No. 14.) While Respondent did not directly 
address this point, the plain text of the statute effectively refutes it.  

2 Mr. Faul argues that the Parole Commission’s decision is “legally insufficient to block” 
his “mandatory” parole for two reasons. First, he faults the Commission for determining 
        B. The U.S. Parole Commission’s Decision Is Valid and Petitioner Is Not 
          Entitled to Immediate Release in Faul VIII.                   
   Mr. Faul makes three challenges to the Commission’s decision. First, he claims that 
the decision violates his Fifth Amendment right to due process because it has no rational 
basis. (Pet. 6, Dkt. No. 1 in 23-CV-1337.) Second, he argues that the statute itself, as well 
as the Commission’s decision, violate his First Amendment right to free speech. (Id. at 6–

7.) Third, he claims  that the statutory provision that prevents the Commission from 
releasing prisoners when it finds “there is a reasonable probability” that they “will commit 
any Federal, State, or local crime” is so vague as to violate the Fifth Amendment’s Due 
Process  Clause.  (Id.  at  7.)  The  undersigned  is  unpersuaded  by  these  arguments  and 
recommends denying Mr. Faul’s habeas petition. The Court will first review the process 

the United States Parole Commission uses to grant or deny parole. Then, it will recount 
Mr. Faul’s journey through that process before addressing his three challenges to the Parole 
Commission’s decision and explaining why they fail.                       
              i.  Mr. Faul’s History with the United States Parole Commission  
   Prisoners sentenced to life imprisonment are first eligible for parole after they have 
served ten years of their sentence. 

(a); see also 

(a)(1) 


there was a “reasonable likelihood” that he would reoffend, when the statute requires a 
finding of a “reasonable probability” that he would reoffend. (Pet.’s Reply 5.) But this is a 
semantic distinction between two synonyms and the choice of one word or the other does 
not make a difference. Second, he criticizes the Commission’s decision as inconsistent with 
his PATTERN assessments, which have consistently shown he is at “minimum” risk of 
recidivism. (Id. at 6–7.) Because this argument goes to whether the Commission’s decision 
violated Mr. Faul’s right to due process under the Fifth Amendment, it is addressed 
alongside Mr. Faul’s other Due Process Clause arguments.                  
(delegating rulemaking power to the Commission). Nine months before a prisoner has 
served their ten years, an initial hearing is scheduled with a hearing examiner. 

(a); 

 (delegating authority to hearing examiners). A prisoner may be 

represented, as can any parties who oppose parole. 

(b). At the conclusion 
of the hearing the examiner makes a recommendation to the Commission on whether the 
prisoner  should  receive  parole.  

(c).  If  the  Commission  accepts  the 
recommendation, the prisoner receives parole. See 

.23–24 (outlining the 
structure of the review process). A prisoner dissatisfied with the Commission’s decision 

may appeal to the National Appeals Board, a panel of three commissioners that may affirm 
the initial decision, modify or reverse the decision, or order a new hearing. 

(c),  2.26(a)–(b). Otherwise, the decision of the Commission becomes final. 

(a). In cases that are appealed, the decision of the National Appeals Board is 
the final decision of the Commission. 

(c).                

   The Commission will not grant parole unless it is satisfied that the prisoner (1) “has 
substantially observed the rules of the institution or institutions in which he has been 
confined,” (2) that his parole would “not depreciate the seriousness of his offense or 
promote disrespect for the law,” and (3) that there is “a reasonable probability” that the 
prisoner would “live and remain at liberty without violating the law or the conditions of 

his parole.” 

; 

(a). The Commission considers a broad 
range of information when deciding whether these criteria are satisfied. See 

; 

 (listing the information the Commission “shall” consider). If the 
Commission does not grant parole, it will set a reconsideration hearing 15 years in the 
future, unless the prisoner’s “mandatory” parole date will occur before then, in which case 
the Commission will consider the prisoner for parole at that time. 

(b). The 
reconsideration hearings include a “full reassessment of the case,” just like an initial 

hearing. Prisoners sentenced to imprisonment for life receive interim reviews every two 
years following their initial hearing to “consider any significant developments” in their 
status since their last hearing. 

(a)(1)(ii); 

(b).  
   Mr.  Faul  had  his  initial  parole  hearing  in  December  2002.  (Decl.  of  Bernard 
Desrosiers, Ex. 2, Dkt. No. 15-2.) The hearing summary indicates that he admitted his 

involvement in the February 13, 1983 shootout and admitted returning fire after the 
shooting started that day. (Id. at 1.) He said “it was not his intention on that day to shoot 
any law enforcement officers.” (Id.) The hearing examiner acknowledged that Mr. Faul 
had adjusted well to prison life, done good work, and demonstrated “generally favorable 
conduct” in the first 19 years of his sentence. (Id. at 4.) He went on to say that Mr. Faul 

was less culpable than his co-defendants, but that Mr. Faul’s firing of his weapon was “an 
extreme act” and that he would need to serve more time before the Commission could be 
satisfied that he was held accountable for his participation in the shootout. (Id. at 5.) Mr. 
Faul’s appeal of this decision to the National Appeals Board was denied. (Desrosiers Decl. 
Ex. 4, Dkt. No. 15-4.)                                                    

   Mr. Faul had his reconsideration hearing in April 2018. (Desrosiers Decl. Ex. 9 at 
1.) According to the summary of that hearing, Mr. Faul said he acted in self defense on the 
day of the shootout, never intended to commit murder, and contested the legality of his 
convictions. (Id.) He attributed the event to the “atmosphere . . . created by President 
Reagan and Attorney General Meese,” who encouraged federal law enforcement agencies 
to be “more aggressive in apprehending criminals.” (Id. at 2.) In an aside, the hearing 
examiner reported that in a recent “letter to the Commission, the subject referred to the 

U.S. Marshals as ‘murderous thugs’ whom he says ‘attacked me that day without cause,’ 
under the authority of ‘Lucifer-worshiping’ Ronald Reagan and ‘his accomplice, Edwin 
Meese.’” (Id. at 2.) The Commission denied Mr. Faul parole because his offense was 
“highly aggravate[d],” he did not accept responsibility for his participation, he continued 
to challenge his convictions, and he had not participated in “any meaningful programming” 

to reduce his likelihood of recidivism or to change the behavior that led to his conviction. 
(Desrosiers Decl. Ex. 10 at 1.) The National Appeals Board denied Mr. Faul’s appeal. 
(Desrosiers Decl. Ex. 11 at 1.)                                           
   In July 2021, Mr. Faul had an interim hearing at which he “forcefully stated” that 
the Commission’s decisions were based on “false information,” not facts. (Desrosiers Decl. 

Ex. 14 at 1, Dkt. No. 15-14.) He claimed that the Commission did not adequately weigh 
his culpability as a person who returned fire only after being fired upon. (Id.) The examiner 
advised that disputes about the facts of his case were best presented to a court of law, rather 
than the Commission, and explained what information the Commission would consider. 
(Id.) Mr. Faul replied that he already knew the Commission would deny him parole at his 

“mandatory” parole hearing in 2023 and said he wanted to waive the interim hearing 
because he did not have family support present. (Id. at 2.)               
   Mr. Faul did have a “mandatory” parole consideration hearing in January 2023. 
(Desrosiers Decl. Ex. 21 at 8, Dkt. No. 15-21.) Mr. Faul made a statement at the hearing, 
saying he wanted to waive parole consideration because he should already have been 
released, and that he expected his lawsuit challenging his imprisonment would go all the 
way to the Supreme Court. (Id. at 9.) The hearing had been rescheduled twice (once in May 

2022 when Faul refused to participate and once in September when Faul requested a 
continuance, which was granted) so the Commission decided to hold the hearing anyway. 
(Id. at 10; Resp. at 9–10, Dkt. No. 14 (outlining sequence of events).) An Assistant United 
States Attorney for the District of North Dakota testified in opposition to Mr. Faul’s parole 
and drew the Commission’s attention to a 2020 court filing where Mr. Faul refused to 

accept responsibility for his crime and called into question the legitimacy of the courts, the 
U.S. Parole Commission, and the United States Attorney’s Office. (Desrosiers Decl. Ex. 
21 at 8.) The Office was concerned that Mr. Faul would not abide by the terms of parole 
and would not acknowledge the authority of the United States Probation Office. (Id.) It 
invited the Commission to judge Mr. Faul’s preparedness for parole based on his own 

words in the December 2020 filing.                                        
   This Court has reviewed that filing. In it, Mr. Faul writes:         
   •   “When I am released, I am going to retire to my farm near Harvey, North 
     Dakota, to continue exactly from the same point which I was at in 1983 before I 
     was unlawfully attacked by murderous thugs of the Ronald Reagan, William 

     French Smith, Edwin Meese squad of terrorists.” Petition for Compassionate 
     Release Pursuant to 

 at 3–4, Faul v. Bureau of Prisons, No. 
     3:83-CR-16 (Dkt. No. 2) (D.N.D. Dec. 7, 2020).                     
•  That the United States is a corporation, a “shameful creature” that “reeks of 
being a farce and a sham.” 

, and 7.                     

•  That the United States Attorney’s Office was “favor-accepting scum,” and he 
had no respect for it. 

.                                   
•   That both the judge presiding over his 1983 trial and a judge who dismissed one 
of his § 2255 petitions were “sham judges” who committed felonies under the 
“favor-promising thrall of Lucifer” and that he had “less than” no respect for 

them. Id. at 3, 5. See generally United States v. Faul, No. 3:83-CR-16, 

, at *1 (D.N.D. June 25, 2007) (describing the judges’ roles and Mr. 
Faul’s allegations against them).                                  
•  Mr. Faul wrote that “I was supposed to have been released by operation of law 
in  2013.  However,  dregs  in  the  Parole  Commission  and  in  the  Records 

Department(s)  of  the  BOP  have  unjustifiably  and  unlawfully  extended  my 
release date to 2023. When that date arrives, those biased scum will once again 
enlist some new lies, whatever they feel the whim to need, to deny release yet 
once again. They will do that because they are part of the deep state swamp, and 
have made promises of favoritism to their Lucifer-worshiping cohorts.” Petition 

for Compassionate Release Pursuant to 

 at 2, Faul v. Bureau of 
Prisons, No. 3:83-CR-16 (Dkt. No. 2) (D.N.D. Dec. 7, 2020).        
•   “The biased scum of the swamp sitting on the Commission simply proceed with 
a mindless parroting of the statute itself. They cannot help themselves—they 
     promised favoritism to their fellow swamp creatures. This is what scumbags do 
     when their fellow craft beckon.” 

.                         
   Returning to the hearing in January 2023, the Commission heard from multiple 

victims opposed to Mr. Faul’s release. (Desrosiers Decl. Ex. 21 at 9.) It learned that he had 
completed only 55 hours of programming during his almost 40 years of incarceration, 
having spent most of his time in the law library. (Id. at 10, 11.) His plan upon release was 
to “be a hobo” and go back to farming. (Id.) The examiner concluded that Mr. Faul’s 
statements made it “clear he still holds the same beliefs he did when he committed his 

offenses” and while it was not a crime to have such beliefs, they led him to “participate in 
the murder of multiple federal law enforcement officers.” (Id. at 8, 11.) The examiner noted 
with concern that Mr. Faul had not completed risk-related programming, had no remorse 
for the killings, and his feelings about the illegitimacy of government power suggested 
there was “no reason to believe he would abide by the limitations of his parole.” (Id. at 11.) 

The decision of the Commission read as follows:                           
   After consideration of all factors and information presented, at this time, the 
   Commission  is  denying  your  release  under  the  standards  at  

(d) for the following reasons: The Commission has determined that 
   there is a reasonable likelihood that you will commit any Federal, State or 
   local crime. You were part of a violent anti-government group responsible 
   for the murder and serious injury of several federal law enforcement officers. 
   You continue to deny your crimes, claim yourself and your conspirators are 
   the  victims,  and  deny  the  legitimacy  of  the  U.S.  Government,  law 
   enforcement, and the judiciary. Your own words show that you would not 
   obey  the  requirements  of  your  release.  You  have  not  completed  any 
   programming to address your rehabilitation such as victim impact or criminal 
   thinking  and  have  shown  no  interest  in  completing  such  programming, 
   further emphasizing that you see no issues with your history of violence and 
   have no intention of improving your thoughts and behaviors.          
(Desrosiers Decl. Ex. 22, Dkt. No. 15-22.) The National Appeals Board denied Mr. 
Faul’s appeal of the decision. (Desrosiers Decl. Ex. 23, Dkt. No. 15-23.) 
              ii.  Standard of Review of Commission Decisions           

   Congress vested the power to grant or deny parole in the Commission, which is part 
of the executive branch, and the courts have limited power to review the Commission’s 
decisions. United States v. Addonizio, 

, (1979); Langella v. Anderson, 

 (8th Cir. 2010); Edwards v. United States, 

 (8th Cir. 
1978)  (explaining  that  three  branches  of  government  share  the  responsibility  of 

determining when prisoners are released); 

 (establishing the Commission 
as “an independent agency in the Department of Justice”). Courts cannot review the 
“ultimate substantive decisions granting or denying parole,” but they can consider whether 
the Commission “acted outside its statutory limits” or in violation of the Constitution in its 
decision-making process. Jones v. U.S. Bureau of Prisons, 

, 1183–84 (8th 

Cir.  1990)  (holding  same  and  distinguishing  prior  case  law  applying  “arbitrary  and 
capricious” standard3 as written without the benefit of a jurisdiction analysis); Green v. 
Castillo, 

 (8th Cir. 2015). “A Parole Commission decision is substantive, 
and hence unreviewable, if it involves the exercise of judgment among a range of possible 


3 At least one jurist believed the Eighth Circuit was wrong to discard the “arbitrary and 
capricious” standard because earlier panel opinions had implicitly considered the scope of 
jurisdiction in these cases and adopted “arbitrary and capricious” as the standard. Green v. 
Castillo, 

, 907 n.3 (8th Cir. 2015) (citing Edmundson v. Turner, 

 (8th Cir. 1992) (Heaney, C.J., dissenting)). On his view, the Eighth Circuit was not at 
liberty to set aside its prior decisions and apply a new standard of review. 

 In any event, 
this Court finds nothing arbitrary and capricious in the Commission’s decision in this case. 

                                                                       
choices or options.” Wajda v. United States, 

 (8th Cir. 1995) (internal 
quotations and citations omitted). Courts will not consider the process the Commission 
uses to uncover evidence or how it weighs that evidence. Langella, 

. The 

only question courts need to ask is whether the decision was supported by a rational basis. 
See, e.g., Dufur v. U.S. Parole Comm’n, 

 (D.C. Cir. 2022); Gambino 
v. Morris, 

 (3d Cir. 1998); Walrath v. Getty, 

 (7th Cir. 
1995).                                                                    
             iii.  The United States Parole Commission’s Decision Did Not 
                  Violate Mr. Faul’s Fifth Amendment Rights.            
   Mr. Faul alleges that the Commission violated the Due Process clause of the Fifth 
Amendment to the Constitution, which prevents the government from depriving people of 

their liberty without due process of law. U.S. Const. amend. V. Fifth Amendment liberty 
interests come from either the Constitution or a federal statute. United States v. Johnson, 

 (8th Cir. 2013). The Supreme Court has held that the Constitution does 
not provide a right to parole. Greenholtz v. Neb. Penal Inmates, 

 (1979). 
However, a federal statute can create a protected, if limited, liberty interest in parole. Evans 
v.  Dillahunty,  

  (8th  Cir. 1981)  (“[T]he  more  complete  lesson  of 

Greenholtz is that, though there is no inherent right to parole, a limited right to parole may 
be provided by applicable statutes.”) In Dillahunty, the Eighth Circuit recognized that 

(a) gave eligible prisoners an “expectancy of parole” warranting due process 
protections, because it used mandatory language and limited agency discretion, just as the 
statute in Greenholtz did. Id.; Solomon v. Elsea, 

 (7th Cir. 1982). In 
Greenholtz, the Supreme Court analyzed the following statute:             
   Whenever the Board of Parole considers the release of a committed offender 
   who is eligible for release on parole, it shall order his release unless it is of 
   the  opinion  that his  release  should be deferred  because:  (a)  There  is  a 
   substantial risk that he will not conform to the conditions of parole; (b) His 
   release would depreciate the seriousness of his crime or promote disrespect 
   for  law;  (c)  His  release  would  have  a  substantially  adverse  effect  on 
   institutional discipline; or (d) His continued correctional treatment, medical 
   care, or vocational or other training in the facility will substantially enhance 
   his capacity to lead a law-abiding life when released at a later date.  

442 U.S. at 11. The Court found that the language created a presumption that parole would 
be granted so long as none of the four enumerated concerns were present. (Id.) That is the 
same structure as 

(d), which provides a presumption of release tempered 
with possible obstacles. 

(d) (“Any prisoner, serving a sentence of five 
years or longer . . . shall be released on parole after . . . Provided, however, That the 
Commission shall not release such prisoner if . . . .”). See Shahid v. Crawford, 

 (5th Cir. 1979) (acknowledging without deciding that § 4206(d)’s language could 
create a protected liberty interest). Thus, as the Supreme Court did in Greenholtz and the 
Eighth Circuit did in Dillahunty, this Court finds that Mr. Faul has adequately alleged a 
protected liberty interest in parole and therefore the process by which a decision is made 
whether to grant or deny him parole must conform to due process.          
   Mr. Faul argues that the Commission’s decision to deny him parole violated his 
right to due process because it had no rational basis. (Pet. 8.) He claims there is no reason 
to expect a 70-year-old family man and former farmer to reoffend after 40 years of 
incarceration.  (Id.)  He  contrasts  the  Commission’s  recent  decision  citing  his  risk  of 
recidivism with the statements of his 2002 hearing examiner about his low likelihood of 
recidivism, his consistently minimal PATTERN4 scores, and his case manager’s opinion 
that nothing in his case file suggested a security risk. (Id. at 8–9.) In his view, the 

Commission’s decision ignores that he is a model prisoner who has worked throughout his 
incarceration and completed all the programming assigned to him. (Id. at 9–10.) The fact 
that he maintains his innocence and has some anti-government views is irrelevant, in his 
opinion, because he promises to comply with the law regardless of his views, as he has 
done  in  prison.  (Id.)  For  example,  he  argues  that  filing  documents  with  this  Court 

requesting relief demonstrates his respect for the federal courts. (Pet. 15.)  
   Respondent argues that the Commission’s decision did have a rational basis—three 
of them, in fact—and urges the Court not to substitute its judgement in an area reserved for 
the discretion of the Commission. (Id.) The Commission first relied on the seriousness of 
the underlying criminal conduct, which resulted in multiple injuries and the deaths of two 

federal law enforcement officers. (Resp. 16.) Second, the Commission considered Mr. 
Faul’s continued assertions that he was attacked by “murderous thugs” in February 1983, 
wrongfully convicted and imprisoned by “sham judges,” and remains in prison because of 
the “biased scum” on the Commission. (Id. at 17.) Respondent argues that the Commission 
properly wondered whether Mr. Faul would submit to federal authority on parole given 



4 The PATTERN (Prisoner Assessment Tool Targeting Estimated Risks and Needs) is a 
recidivism prediction tool used by the BOP which categorizes offenders as being at 
minimum  risk,  low  risk,  medium  risk,  or  high  risk  of  recidivism.  PATTERN  Risk 
Assessment, Fed. Bureau  of Prisons, https://www.bop.gov/inmates/fsa/pattern.jsp  (last 
visited Nov. 2, 2023).                                                    
these beliefs. (Id.) Third, Mr. Faul failed to take part in programming that would address 
criminal thinking and behavior, suggesting to the Commission that he believed he did 
nothing wrong and was likely to offend again. (Id.)                       

   After reviewing the record—with the limited standard of review in mind—the Court 
will not disturb the Commission’s decision because it was supported by a rational basis. 
The Commission was allowed to consider the severity of Mr. Faul’s action of firing on law 
enforcement officers in a shootout that killed or wounded several people. See 

(a) (prohibiting release if it would “depreciate the seriousness of the offense”); 

Green, 

 (upholding Commission’s decision that considered the violence of 
underlying offense); Parker v. Corrothers, 

 (8th Cir. 1984) (upholding 
state parole board decision and noting, “the Board may determine that the serious nature 
of the inmate’s offense requires that a longer term be served before parole release.”) The 
Commission was further required to consider whether Mr. Faul posed a risk of reoffending 

on parole and it was entitled to consider evidence about that risk, including his statements 
and minimal programming history. 

(d); 

; Green v. 
Castillo, 

 (8th Cir. 2015) (holding Commission could consider prisoner’s 
“acceptance of responsibility”); Coleman v. U.S. Parole Comm’n, 

, 912 
(3d Cir. 2018) (holding Commission could consider prisoner’s “inability or unwillingness 

to accept the wrongfulness of his previous conduct”). It considered the evidence after a 
hearing where Mr. Faul was invited, but declined, to give his perspective. The Court cannot 
now reweigh the evidence simply because Mr. Faul believes that the Commission made a 
poor decision. It can only review whether the decision was irrational, or “so arbitrary and 
capricious as to amount to a violation of due process.” Green, 

; Langella, 

. For the reasons set forth above, it was not.             
              iv.  Neither  

  Nor  The  United  States  Parole 
                  Commission’s  Decision  Violated  Mr.  Faul’s  First  
                  Amendment Rights.                                     
   Mr. Faul next argues that the Commission’s decision (and the statute on which it 
was based) violates his First Amendment rights because it allows the Commission to 
lengthen  his  imprisonment  for  merely  disliking  the  government.  (Pet.  11.)  The 
Commission, he believes, is denying him parole because he participated in protected First 

Amendment activities such as petitioning the government for a redress of grievances or 
expressing political views. (Id.; Reply at 11 (“[W]e do not force people to die in prison for 
criticizing the government.”))                                            
   Respondent argues that the Commission may consider a person’s own statements 
when  evaluating  the  likelihood  that  they  will  reoffend  on  parole.  (Resp.  19.)  The 

Commission was, in its view, allowed to consider Mr. Faul’s “efforts to cast himself as the 
true victim, coupled with the general disdain he showed for the law” in making the 
probability-of-reoffense determination under 

(d). (Id.) Because the statute 
required the Commission to assess the likelihood that Mr. Faul would reoffend, Respondent 
says the Commission had to consider Mr. Faul’s beliefs and whether they would lead him 
to future criminal conduct. (Id. at 21.) This use of Mr. Faul’s speech was in service to the 

legitimate penal goal of reducing recidivism. (Id.) Respondent also suggests that using Mr. 
Faul’s statements in this way did not violate Mr. Faul’s rights for the additional reason that 
prisoners’ First Amendment rights are more limited than those of non-prisoners because of 
the need to achieve the security and penal goals of the prison system. (Id. at 20.) Mr. Faul 
retorts that his actions on February 13, 1983 were rooted in self-defense, not political 
ideology. (Reply 12, 13.) He claims that today, as in 1983, his views might be “distasteful 

to some, but they are purely peaceful.” (Id. at 11.)5                     
   

(d)  required  the  Commission  to  evaluate  Mr.  Faul’s  risk  of 
recidivism, and it was rational for it to consider Mr. Faul’s statements in deciding whether 
he would be successful on parole. Mr. Faul’s stated disrespect for devil-worshipping “sham 
judges,” his disdain for the United States government, and his conclusion that the U.S. 

Marshals who attempted to serve an arrest warrant on Gordon Kahl on February 13, 1984 
were “murderous thugs” leads one to question if Mr. Faul would even accept the authority 
of the parole authorities. It was rational for the Commission to be concerned. See Dunne v. 
Jusino, No. 2:20-CV-04504 (MWF/JC), 

, at *7 (C.D. Cal. Dec. 23, 
2020), R&R adopted, 

 (C.D. Cal. Mar. 29, 2021), aff’d, No. 21-55507, 

 (9th Cir. Apr. 5, 2023) (“Certainly, the Commission acted within reason 

5  Mr.  Faul  requests  an  evidentiary  hearing  “to  the  extent  the  Court  reaches  the 
government’s assertions that [he] has (or has ever had ) violent anti-government beliefs” 
or that those beliefs had anything to do with the events of February 13, 1983. (Reply 20.) 
An evidentiary hearing would serve no purpose because this Court cannot supplement or 
re-weigh the evidence that was before the Commission. See Langella, 

. 
Even if the Court were to hold an evidentiary hearing on the factual dispute between the 
parties about whether Mr. Faul has violent anti-government beliefs, it could not force the 
Commission to accept its findings because Congress delegated the parole decision to the 
Commission, not the Courts. Cf. Hawkins v. Outlaw, No. 2:09-CV-00112 (BRW/JJ), 

, at *1 (E.D. Ark. Apr. 20, 2011), aff’d, 

 (8th Cir. 2012) (“In 
essence Petitioner is asking for relief that this court cannot give. . . . Even if an evidentiary 
hearing was held and it was determined that Petitioner’s PSR was incorrect this court would 
not have the authority under § 2241 to reduce his sentence.”)             
in considering petitioner’s associations and speech as they related to his . . . pattern of 
violent behavior which related to his associations and beliefs, and his likelihood of future 
violent behavior.”); Evans v. Norwood, No. 104-CV-5640 (AWI/JMD/HC), 

, at *5 (E.D. Cal. June 9, 2008), R&R adopted, 

 (E.D. Cal. Aug. 
4, 2008) (“The Commission’s statements, when viewed in context, show that its decisions 
were based not on Petitioner’s beliefs or associations, but rather on his violent actions 
which were relevant in determining whether his release would jeopardize the public 
welfare.”)                                                                

   The fact that what concerned the Commission was Mr. Faul’s speech does not, by 
itself, turn his denial of parole into a constitutional violation. Mr. Faul is not in prison for 
his beliefs, but for second degree murder, assault on federal officers, conspiracy, and 
harboring a fugitive. Until he is released he retains those First Amendment rights “that are 
not inconsistent with his status as a prisoner or with the legitimate penological objectives 

of the corrections system.” Pell v. Procunier, 

 (1974) (noting that one 
such objective is protecting the public from offenders while they work to rehabilitate 
themselves). The Commission, acting as an arm of the corrections system, pursuant to 
statute, considered Mr. Faul’s statements when assessing his likelihood of success on 
release. If the Commission was prohibited from considering Mr. Faul’s own speech in its 

analysis, a legitimate penological goal of the Commission would be frustrated. Thus, to the 
extent that Mr. Faul argues he has a First Amendment right to speak and not have that 
speech be considered by the Parole Commission, he is wrong.               
              v.  

(d)’s Recidivism Clause Is Not Void for 
                  Vagueness.                                            
   Mr. Faul’s final argument is that the clause of 

(d) that prohibits the 
Parole Commission from releasing a prisoner when it is reasonably probable that they will 
commit a crime is void for vagueness. The text, again, reads: “[t]he Commission shall not 
release such prisoner if it determines that . . . there is a reasonable probability that he will 

commit any Federal, State, or local crime.” 

(d). Mr. Faul claims this 
passage does not provide prisoners fair notice of the behaviors they must do (or refrain 
from doing) to avoid a finding that they are likely to reoffend, so it is void on its face. (Pet. 
12.) Respondent counters that the void for vagueness doctrine does not even apply to 

(d) because it is not a criminal statute that prohibits conduct, but a statute 

that provides—and limits—the power of the Parole Commission to release prisoners. 
(Resp. 22.) Respondent encourages the Court not to reward Mr. Faul’s “attempts to 
shoehorn a doctrine primarily directed at criminal statutes [in]to a parole release statute.” 
(Id. at 24.)                                                              
   “A statute is unconstitutionally vague if it fails to provide a person of ordinary 
intelligence fair notice of what is prohibited or is so standardless that it authorizes or 

encourages seriously discriminatory enforcement.” Adam & Eve Jonesboro, LLC v. Perrin, 

 (8th Cir. 2019) (internal quotations omitted) (quoting F.C.C. v. Fox 
Television Stations, Inc., 

 (2012)). The void for vagueness doctrine 
applies mostly—but not exclusively—to criminal statutes because the penalties in those 
cases are severe and courts do not wish to punish people criminally when they were not 
given adequate notice of what the law prohibited in the first place. United States v. Davis, 

 (2019); Vill. of Hoffman Ests. v. Flipside, Hoffman Ests., Inc., 

, 498–99 (1982) (“The Court has also expressed greater tolerance of enactments 

with civil rather than criminal penalties because the consequences of imprecision are 
qualitatively less severe.”); U.S. Civ. Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, AFL-
CIO, 

, (1973) (applying doctrine to a non-criminal statute). Respondent 
is correct in saying that a statute delegating power to an executive agency and imposing 
limits on its use does not generate the same concerns as a statute prohibiting criminal 

conduct and affixing penalties, but the context of this particular statute is criminal in the 
sense that it relates to the duration of sentencing for criminal behavior. If Mr. Faul fails in 
his challenge to the statute, he will remain in prison until the Parole Commission sees fit 
to release him or a court orders it to do so. Because Mr. Faul’s continued detention is at 
stake, the Court finds that the void for vagueness doctrine is applicable here. Cf. Sessions 

v. Dimaya, 

 (2018) (applying the doctrine in construing a criminal 
statute referenced in statute regarding immigration hearings).            
   Courts analyze vagueness challenges as applied to a particular case, unless the 
statute implicates First Amendment rights, in which case they analyze the statute on its 
face and as applied to the challenger. United States v. Flynn, 

 (8th Cir. 

2020); Nooner v. Norris, 

 (8th Cir. 2005). Because Mr. Faul has alleged 
a violation of his First Amendment rights, the Court will evaluate whether the statute is 
unconstitutionally vague both facially and as applied.                    
                              a.  Facial Challenge                      
   Mr. Faul argues that 

(d) allows the Parole Commission unfettered 
discretion to arbitrarily hold inmates without giving them clear notice of what behavior 

would prove to the Commission that the inmates were  ready for release.6 (Pet. 12.) 
Respondent argues that the statute is clear because “scores of federal district courts and 
multiple United States Courts of Appeals” have applied it without questioning its clarity or 
workability. (Resp. 25.) It also points out that courts are expected to apply interpretations 
of statutes that support, rather than undermine, their constitutionality. (Id.) 

   The prohibition on releasing a prisoner if the Commission “determines that . . . there 
is a reasonable probability that he will commit any Federal, State, or local crime” is not 
void for vagueness on its face. 

(d). Mr. Faul does not point the Court to a 
dispute amongst the courts as to how to interpret this statute or the statute that outlines the 
factors the Commission should consider in making the determination. See Johnson v. 

United States, 

 (noting there was “pervasive disagreement” in the courts 
“about the nature of the inquiry” under the challenged statute and “the kinds of factors one 
is supposed to consider). The fact that a law is broad does not necessarily mean that it is 
“ambiguous, much less unconstitutionally vague.” Calzone v. Summers, 

 
(8th Cir. 2019). The plain text of this law does not prohibit any prisoner’s conduct, but 



6 In his facial challenge, Mr. Faul compares the language at issue with an old parole statute 
in the state of New York, which was eventually amended. Cicero v. Olgiati, 

 (S.D.N.Y. 1976). But Cicero is inapposite because it did not find that the statute 
at issue was impermissibly vague; it denied a motion to dismiss the void for vagueness 
challenge on the limited record before the court at the time. 

 at 1094–95. 
requires the Parole Commission to evaluate whether a prisoner is reasonably likely to 
commit  a  crime.  

.  The  Commission  will  consider  facility  reports, 
presentence reports, criminal records, recommendations from the sentencing judge, victim 

statements, health examinations, and other criteria it finds relevant. 

. The 
statute gives prisoners notice that any indication they are likely to commit a crime in the 
future might be used against them in the Commission’s proceedings.        
                              b.  “As Applied” Challenge                
   As it relates to his case, Mr. Faul argues that nothing in the statute put him on notice 

that he had to have a certain view of the government or a certain number of programming 
hours above those which he was assigned to avoid the Commission finding him a risk of 
recidivism, despite his consistently minimal PATTERN score. (Id.) Further, he argues that 
the text provides no standard by which to measure a prisoner’s probability of re-offense, 
so it is “purely arbitrary” and thus void on its face. (Id.) In his case, Faul claims the 

flexibility of the text allowed the Commission to deny him “mandatory” parole using 
recidivism risk as a pretext for their real reason for keeping him in prison: the fact that he 
was present when the tragedy occurred. (Id. at 13.)                       
   Respondent argues that the Commission’s application of the statute to Faul’s case 
did not result in discriminatory enforcement but was a reasoned exercise of its discretion 
after considering the specific factors enumerated in 

. (Resp. 14.) In 

Respondent’s view, the fact that Congress told the Commission which factors to consider 
in making a parole determination shows that the statute is the very opposite of standardless 
or inviting arbitrary enforcement. (Id. 14–15.)                           
   Faul replies that if the statute allows him to be lumped into the same group of people 
as the petitioners in Dufur and Green, the statute is so broad as to be meaningless. (Id. 15–
16.) He distinguishes himself from the petitioner in Dufur by noting that he never tried to 

escape prison and never killed anyone in prison; he also distinguishes himself from the 
petitioner in Greene who had an “extensive history of assaulting women with knives.” (Id. 
at 16.) In Mr. Faul’s view, these petitioners were much more likely than him to reoffend, 
but the law unjustly treated them the same, so the law must be invalid. (Id.) 
   The Court accepts that Mr. Faul has not attempted a prison escape or demonstrated 

an “extensive” history of assaulting others. But Mr. Faul is like Mr. Dufur in that they both 
assaulted and killed law enforcement officers, an especially serious crime. Dufur, 

. He is like Mr. Green in that he has not taken responsibility for his role in 
the murders for which he is serving his life sentence. Green, 807 F.3d at 907–08. As 
explained above, the Commission was entitled to consider the underlying facts of Mr. 

Faul’s case and his view of what happened on February 13, 1983. 

 
(requiring the Commission to consider presentence investigation reports and information 
submitted by the prisoner, if relevant.) While Mr. Faul may not see himself as similar to 
Messrs. Dufur and Green, the Parole Commission saw similarities in their cases that bore 
on their likelihood to reoffend in the community, as the statute empowered it to do. While 

the statute is broad in its delegation of discretion to the Commission, it is not unbounded, 
and is valid both facially and as applied to Mr. Faul.                    
III.  MOTION FOR TEMPORARY RESTRAINING ORDER                            
   On September 1, 2023, Mr. Faul learned that he was going to be transferred to 
another prison outside of this District because he recently turned 70. (Emergency Mot. 2–

3, Dkt. No. 17 in 22-CV-2993 (MJD/JFD); Dkt. No. 19 in 23-CV-1337 (MJD/JFD).) Mr. 
Faul filed an Emergency Motion to Prevent Transfer Pending Ruling on 

, 
which the Court received on September 5. (Emergency Mot. 1–2.) He asked the Court to 
prevent his transfer to another prison, which he believed was scheduled to take place on 
the morning of September 6. (Id. at 2.) Mr. Faul argued that a transfer in his case would 

threaten this Court’s jurisdiction over his petitions, because the proper respondent in a 
habeas case is the person who has physical custody of the petitioner. (Id. at 3.) Even if this 
Court retained jurisdiction over his case, Mr. Faul argued that the transfer would cause 
delays, would make any evidentiary hearing required more costly, and would separate him 
from his legal materials for possibly months. (Id. at 3.) The Court denied Mr. Faul’s request 

for expedited review and ordered briefing on the motion. (Dkt. No. 20.) Respondent 
opposed the motion for a temporary restraining order because BOP’s placement decisions 
are not reviewable by the Courts. (Resp. Opp’n Emergency Mot. 2–3, Dkt. No. 23 (quoting 

(b)).)                                                    
   Mr. Faul was transferred on September 6 to a federal transfer center in Oklahoma 
City (Resp. Opp’n 1), then to a federal corrections institution in Milan, Michigan where he 

now lives (Dkt. No. 24). Because the transfer has already occurred, the undersigned 
recommends that the motion for a temporary restraining order barring transfer be denied 
as moot. Even if the transfer had not taken place, the Court could still not order the relief 
requested; the BOPs placement decisions are unreviewable. 

(b) (BOP’s 
“designation of a place of imprisonment . . . is not reviewable by any court.”); United States 
v. Vang, No. 16-CR-277 (DWF/KMM), 

, at *2 (D. Minn. Aug. 13, 2020) 

(“Courts have consistently held that placement questions are not reviewable.”).  
   Mr. Faul’s motion does raise the question of whether this Court retains jurisdiction 
over the case now that Mr. Faul is no longer being held in the District of Minnesota. There 
has been some disagreement on this question in our District. Compare Vaughn v. Marques, 
No. 18-CV-1266 (JRT/HB), 

, at *3–4 (D. Minn. May 15, 2019), R&R 

adopted, 

 (D. Minn. June 14, 2019) (holding transfer did not deprive the 
Court of jurisdiction when briefing was complete at the time BOP transferred the prisoner 
and the Respondent did not challenge jurisdiction) and Eubanks v. Wilson, No. 15-CV-
2677 (PJS/DTS), 

, at *2 (D. Minn. May 1, 2017), R&R adopted, 

 (D. Minn. May 25, 2017) (finding jurisdiction remained after transfer and 

even if it did not, Respondent had waived the issue) with Ybarra v. Kallis, No. 21-CV-1396 
(DSD/TNL), 

, at *3 (D. Minn. Sept. 28, 2022), R&R adopted, 

 (D. Minn. Oct. 25, 2022) (finding transfer deprived the court of jurisdiction 
because it could not order a warden in another district to release the petitioner if he was 
successful).                                                              

   The undersigned is satisfied that the Court retained jurisdiction even after Mr. Faul’s 
transfer. Weeks v. Wyrick, 

 (8th Cir. 1981) (“Once the custodian is 
properly served, subsequent transfer of the petitioner does not cause a loss of habeas corpus 
jurisdiction in the original district.”); Simon v. Cruz, No. 08-CV-4804 (MJD/JJ), 

, at *1 (D. Minn. May 29, 2009) (Davis, J.), aff’d, 

 (8th Cir. 
2010) (“Although Petitioner is no longer incarcerated in the District of Minnesota, his 
current habeas corpus petition can still be properly adjudicated here because he was 

confined in this District when the petition was filed.”); Elkins v. Holinka, No. 06-CV-0335 
(PJS/FLN), 

, at *1 (D. Minn. Jan. 26, 2007) (Schiltz, J.) (reaching the 
same conclusion). Mr. Faul correctly filed his habeas petitions in this District while he was 
confined here, properly named the wardens who had custody of him as subjects of the suit, 
fully briefed his petitions, but was then transferred to another BOP facility through no fault 

of his own. These facts are identical to those in Vaughn v. Marques, where the court 
concluded it retained jurisdiction, noting that the bulk of case law, and the equities, favored 
this outcome. 

, at *3–4. The Court reaches the same result in this case. 
Further, Respondent has not moved to challenge the Court’s jurisdiction, despite Mr. Faul 
specifically raising the issue, so they could be considered to have waived this issue. 

; Redding, 

, at *5; see also Brian R. Means, Federal Habeas Manual 
§ 1.100 (2023). For this reason, the undersigned addressed the merits of the underlying 
petitions.                                                                
IV.  MOTION TO APPOINT COUNSEL                                          
   The final motion to address is Mr. Faul’s motion to appoint counsel. On September 
7, one day after Mr. Faul believed he would be transferred to another prison—and after his 

two petitions were fully briefed—the Court received a motion to appoint counsel for him 
in Faul VIII, his later-filed habeas case. (Pet.’s Mot. Appoint Counsel, Dkt. No. 21.) He 
seeks counsel because he considers the “old law” issues in the case complex but cannot 
afford to hire a lawyer with the requisite experience to handle them. (Id. at 1.) Mr. Faul 
argued that counsel would help complete the record in this case by interviewing corrections 
officers at FCI Sandstone who want to support his application for parole, but can only do 

so if they are interviewed by counsel for a prisoner. (Id. at 2.) Counsel would also assist 
Mr. Faul during his transfer, when he would lose access to his legal materials. (Id. at 2.) 
The Respondent took no position on the motion.                            
   The Sixth Amendment right to counsel does not extend to habeas proceedings, 
which are civil in nature. McCall v. Benson, 

 (8th Cir. 1997); Hoggard 

v. Purkett, 

 (8th Cir. 1994). However, courts may appoint7 counsel for 
habeas petitioners when the interests of justice require it, such as when the court orders an 
evidentiary hearing. Hoggard, 

. In other cases, whether to appoint counsel 
in a case is at the discretion of the district court. 

 In exercising that discretion, courts will 
consider “the factual and legal complexity of the case, and the petitioner’s ability both to 

investigate and to articulate his claims without court appointed counsel.” McCall v. Benson, 

 (8th Cir. 1997). Appointments are rarely granted. Kidd v. Fikes, No. 20-
CV-287 (SRN/TNL), 

, at *2 (D. Minn. Dec. 7, 2020).         



7  “Appoint”  counsel  is  not  exactly  the  correct  term.  More  accurately,  

(e)(1) allows courts to request that counsel represent a pro se litigant and 18 
U.S.C. § 3006A(a)(2)(b)  permits  the  Court  to  provide  counsel  to  an  indigent  habeas 
petitioner when “the interests of justice so require.” But “no statute permits the Court here 
to appoint counsel—that is, to require an attorney to represent Petitioner under the coercive 
threat of sanctions.” Anderson v. Janssen, No. 17-CV-4480 (WMW/FLN), 

, at *1–2 (D. Minn. Apr. 23, 2018).                               
   Because the undersigned recommends denying these petitions on the merits, Mr. 
Faul’s request for counsel is moot. Even if it were not, the undersigned would not appoint 
counsel. Mr. Faul made his request after briefing was concluded and the Court sees no need 

for an evidentiary hearing to rule on the merits, both because the issues presented by this 
habeas case are fairly straightforward and also because, as noted above, this Court cannot 
re-weigh the evidence presented to the Commission. Thus, it is unclear what help counsel 
could be to Mr. Faul, who in any event has proven himself to be an articulate and 
sophisticated pro se litigant. The motion to appoint counsel is denied.   

   Accordingly,  based  on  all  the  files,  records,  and  proceedings  herein,  IT  IS 
HEREBY RECOMMENDED that:                                                  
1.  Mr. Faul’s Petition for Habeas Corpus (Dkt. No. 1 in 22-CV-2993 (MJD/JFD)) be 

   DENIED.                                                              
2.  Mr. Faul’s Petition for Habeas Corpus (Dkt. No. 1 in 23-CV-1337 (MJD/JFD)) be 
   DENIED.                                                              
3.  Mr. Faul’s Motions for a Temporary Restraining Order (Dkt. No. 17 in 22-CV-
   2993 (MJD/JFD); Dkt. No. 19 in 23-CV-1337 (MJD/JFD)) be DENIED.      

   Further, it is HEREBY ORDERED that:                                  
4.  Mr. Faul’s Motion to Appoint Counsel (Dkt. No. 21 in 22-CV-2993 (MJD/JFD)) 
   is DENIED.                                                           
Date: March 25, 2024            s/ John F. Docherty                     
                                JOHN F. DOCHERTY                        
                                United States Magistrate Judge          


                           NOTICE                                       
Filing Objections: This Report and Recommendation is not an order or judgment of the 
District Court and is therefore not appealable directly to the Eighth Circuit Court of 
Appeals.  Under  Local  Rule  72.2(b)(1),  “a  party  may  file  and  serve  specific  written 
objections to a magistrate judge’s proposed finding and recommendations within 14 days 
after being served a copy” of the Report and Recommendation.              
A party may respond to those objections within 14 days after being served a copy of the 
objections. See Local Rule 72.2(b)(2). All objections and responses must comply with the 
word or line limits set forth in Local Rule 72.2(c).                      

                UNITED STATES DISTRICT COURT                            
                   DISTRICT OF MINNESOTA                                

SCOTT WILLIAM FAUL,                Case No. 22-CV-2993 (MJD/JFD)        

              Petitioner,                                               

v.                                  ORDER and REPORT AND                
                                      RECOMMENDATION                    
MICHAEL LEJEUNE, Warden,                                                

              Respondent.                                               

SCOTT WILLIAM FAUL,                Case No. 23-CV-1337 (MJD/JFD)        

              Petitioner,                                               

v.                                                                      

MARK W. KING, Warden,                                                   

              Respondent.                                               


   This matter is before the Court on Petitioner Scott William Faul’s petitions for writs 
of habeas corpus, in which he argues he is being held in violation of the Constitution and 
the laws of the United States and should be immediately released. (Dkt. No. 1 in 22-CV-
2993 (MJD/JFD); Dkt. No. 1 in 23-CV-1337 (MJD/JFD).) In his first petition, Mr. Faul 
claims that his release date has been calculated incorrectly under 

(d). (Pet. 
8, Dkt. No. 1 in 22-CV-2993 (MJD/JFD).) In his second petition, Mr. Faul challenges the 
United States Parole Commission’s (“the Commission”) denial of his parole, claiming that 
the decision lacked a rational basis, infringed on his First Amendment rights, and was based 
on an unconstitutionally vague statute, 

(d). (Pet. 6, Dkt. No. 1 in 23-CV-
1337 (MJD/JFD).) Mr. Faul also requests appointment of counsel (Dkt. No. 21 in 23-CV-
1337 (MJD/JFD)) and a temporary restraining order prohibiting his transfer from FCI 
Sandstone  (Dkt.  No.  17  in  22-CV-2993  (MJD/JFD);  Dkt.  No.  19  in  23-CV-1337 

(MJD/JFD)). For the reasons that follow, the Court recommends that the petitions and the 
motion for a temporary restraining order be denied and denies the motion to appoint 
counsel as moot.                                                          
  I.  FACTUAL BACKGROUND                                                
   Mr. Faul participated in a 1983 shootout in Medina, North Dakota in which Deputy 

U.S.  Marshals  Kenneth  Muir  and  Robert  Cheshire  were  killed  and  three  other  law 
enforcement officers were wounded. A jury convicted Mr. Faul of two counts of second-
degree murder, four counts of assaulting U.S. Marshals and officers assisting them, one 
count of conspiring to assault, and one count of harboring a fugitive. United States v. Faul, 

, 1207–08 (8th Cir. 1984). The shootout happened when the U.S. Marshals 

tried to arrest Gordon Kahl—a tax protester and member of the extremist group Posse 
Comitatus—for violating the terms of the probationary sentence he was serving after being 
convicted of failing to file income taxes. 

; 

 (Lay, C.J., dissenting). 
Mr. Faul was traveling with Gordon Kahl, Mr. Kahl’s son Yorie Kahl, and others when the 
group stopped at a roadblock set up by the U.S. Marshals. 

. Mr. Faul and the 
younger Mr. Kahl got out of the car in which they were riding and pointed their mini-14 

rifles at the officers. 

 No one fired. 

 A few minutes into the standoff, Mr. Faul ran 
towards a nearby mobile home, pursued by a Deputy U.S. Marshal. 

 Just before shooting 
started, the Deputy U.S. Marshal ordered Mr. Faul to throw down his weapon. 

 Instead 
of complying, Mr. Faul ran to the corner of the mobile home and fired at least six shots. 
Id.; Faul v. Wilson, No. 15-CV-1541, 

 at *3 (D. Minn. Jan. 5, 2016). After 
the last shots were fired, Mr. Faul rushed to the injured Yorie Kahl, aimed his own rifle at 

a fleeing deputy sheriff, then helped Yorie Kahl escape. United States v. Faul, 748 F.2d at 
1209–10. Mr. Faul surrendered the next day. 

 Mr. Faul maintains he was an innocent 
bystander in what he calls the “deep tragedy of the Medina killings,” and describes the 
Marshals’ stop of him and his companions as an “ambush.” (Pet. 2, Dkt. No. 1-1 in 23-CV-
1337.)                                                                    

   The judge in his criminal case sentenced Mr. Faul to serve two life sentences 
concurrently for the murders. 

 The judge imposed four concurrent ten-year sentences for 
the assault, to be served consecutive to the life sentences. 

 For the conspiracy and 
harboring crimes, he added two concurrent five-year terms, to be served consecutive to 
both the life and ten-year terms, making the total length of Mr. Faul’s sentence life plus 15 

years. 

 He began serving this sentence on June 24, 1983. (Decl. of Scott Faul, Ex. M at 
38, Dkt. No. 1-2 in 23-CV-1337.) The Eighth Circuit Court of Appeals affirmed his 
conviction, and the United States Supreme Court denied his petition for certiorari. United 
States v. Faul, 

 (8th Cir. 1984), cert denied, 

 (1985).  
   The cases before the Court are Mr. Faul’s seventh and eighth habeas petitions. See 

Faul v. Wilson, No. 15-CV-1541 (PJS/TNL), 

 at *2–3, aff’d, 

 at *1 (Jan. 5, 2016) (cataloguing the first five cases—Faul I through Faul V—in 
detail); United States v. Faul (Faul VI) 3:83-CR-16, 

 at *3 (denying Mr. 
Faul’s request for a sentence reduction, construing some of his claims as habeas claims 
under 

, and dismissing the action).                       
   The cases currently before the Court are Faul v. Lejeune (Faul VII), 22-CV-2993 

(MJD/JFD) and Faul v. King (Faul VIII), 23-CV-1337 (MJD/JFD). Faul VII is a petition 
for a writ of habeas corpus under § 2241 that challenges the calculation of Mr. Faul’s 
sentence under 

(d). (Pet. 1, 6, Dkt. No. 1.) Faul VIII is another § 2241 
petition in which Mr. Faul challenges the U.S. Parole Commission’s decision not to grant 
him parole, arguing that the decision violated his due process rights because it lacked a 

rational basis, punished him for exercising his First Amendment rights, and was based on 
an impermissibly vague statute. (Pet. 1, 6–8, Dkt. No. 1.) On September 5, 2023, Mr. Faul 
filed a motion for a temporary restraining order that would prohibit BOP from transferring 
him out of the District of Minnesota until these cases had resolved. (Dkt. No. 17 in 22-CV-
2993; Dkt. No. 19 in 23-CV-1337.) Two days later, Mr. Faul filed a motion to appoint 

counsel in Faul VIII, but not Faul VII. (Dkt. No. 21 in 23-CV-1337.)      
 II.  HABEAS CORPUS PETITIONS                                           

   In Faul VII Mr. Faul challenges how the Commission calculated his date of parole 
eligibility and in Faul VIII he challenges the constitutionality of the United States Parole 
Board’s decision to deny him parole. The Court does not need to decide how to calculate 
Mr. Faul’s parole eligibility date, because under both Mr. Faul’s method and Respondent’s 
method of calculating, Mr. Faul is entitled to parole consideration. However, that means 
only that Mr. Faul is entitled to be considered for parole, not that he is entitled, after that 
consideration,  to  be  granted  parole.  The  unanswered  question—whether  Mr.  Faul  is 
entitled to parole—is the question raised by his constitutional challenge to the Parole 
Board’s decision in Faul VIII. The Court finds that the decision to deny Mr. Faul parole at 
his most recent hearing was constitutional.                               

        A. Faul  VII  Explores  the  Competing  Constructions  of  

(d).                                                    
   Mr. Faul claims that he is entitled to immediate release from confinement because 
he has served 30 years of his life term, which he argues is all that the law requires. (Pet. 
11–12, Dkt. No. 1 in 22-CV-2993.) The undersigned need not decide whether Mr. Faul’s 
reading, or the competing reading adopted by several federal courts, is correct. This is 
because Mr. Faul has served enough time to be eligible for consideration of parole under 
either Mr. Faul’s reading or the reading of those courts. But the statute also prohibits the 

U.S. Parole Commission from releasing a person when there is “a reasonable probability 
that he will commit any Federal, State, or local crime.” The Commission found that Mr. 
Faul met this criterion—and Mr. Faul challenges that finding in Faul VIII—so any dispute 
about the portion of the statute that determines timing of Mr. Faul’s eligibility for parole is 
beside the point and therefore moot.                                      
              i.  Applicable Law                                        

   Mr. Faul is an “old law” prisoner—someone sentenced after the Parole Commission 
and Reorganization Act of 1976 established the modern parole system but before the 
Sentencing Reform Act of 1984 discarded that system in favor of sentencing guidelines. 
(Pet.  1.);  See  Mistretta  v.  United  States,  

,  363–67  (1989)  (providing 
background on the Sentencing Reform Act). While the Sentencing Reform Act repealed 
federal parole statutes as of the date of the Act’s enactment, those statutes remained in 
force for prisoners who committed their crimes before November 1, 1987. See 

(b)(1)(A), 

, 2032 (1984); 

(b), 136 

Stat 4459, 5232 (2022) (extending U.S. Parole Commission’s existence until Nov. 1, 2023); 
Edmundson v. Turner, 

, 512 n.2 (8th Cir. 1992); Von Kahl v. Segal, 

 (7th Cir. 2021); Hackley v. Bledsoe, 

 (3d Cir. 2009). There 
are two potential routes to parole for old law prisoners who, like Mr. Faul, are sentenced 
to a life term. 

; 

(d); Dufur v. U.S. Parole Comm’n, 

 (11th Cir. 2018). The first path is discretionary parole: once a prisoner 
has served ten years of their life sentence, they are eligible for parole. 

. 
The Commission then uses its discretion to release, or continue holding, the eligible 
prisoner. 

(a) (listing criteria for the Commission to consider before 
granting  parole);  Dufur,  

.  The  Commission  may  deny  parole 

“notwithstanding the guidelines” set forth at 

(a) if it determines there is 
“good cause” to do so and explains its decision in writing to the prisoner. 

(c). The second path is called, somewhat misleadingly, “mandatory” parole. Dufur, 

 (“This case presents the question whether mandatory parole in the 
federal prison system is mandatory. It is not.”) The statute providing for “mandatory” 

parole reads as follows:                                                  
   Any prisoner, serving a sentence of five years or longer, who is not earlier 
   released under this section or any other applicable provision of law, shall be 
   released on parole after having served two-thirds of each consecutive term 
   or terms, or after serving thirty years of each consecutive term or terms of 
   more than forty-five years including any life term, whichever is earlier: 
   Provided, however, That the Commission shall not release such 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.                                      

(d). The parties disagree about how this statute applies to Mr. Faul, 
specifically when Mr. Faul was eligible for “mandatory” parole.           
              ii.  Analysis                                             
   The parties disagree as to whether Mr. Faul must serve thirty years or forty years 
before being eligible for parole consideration. As with any statutory interpretation dispute, 
the Court begins with the text of the statute itself. Groff v. DeJoy, 

 (2023). 
The statute requires the Commission to parole a petitioner who has “served two-thirds of 
each consecutive term or terms,” or who has served “thirty years of each consecutive term 
or terms of more than forty-five years including any life term, whichever is earlier.” 

(d). But the statute explicitly prohibits the Commission from releasing any 
prisoner who it “determines . . . has seriously or frequently violated institution rules and 
regulations” or if it finds “there is a reasonable probability” that the prisoner “will commit 
any Federal, State, or local crime.” 

                                  
   Mr. Faul claims that the text of the statute entitles him to release after he serves two 

thirds of each of his consecutive sentences or thirty years on his life sentences, whichever 
is earlier (Pet. 11.) He reasons that “two-thirds of a life sentence is still life,” so the first 
prong of the disjunction would have him serve life in prison. (Id.) In contrast, the second 
prong of the disjunction only requires him to serve thirty years: if he has to serve “thirty 
years of each consecutive term in excess of forty-five years,” and he is serving only one 
term of imprisonment of over 45 years (the two murder sentences running concurrently), 
then he only needs to serve 30 years under the second prong. (Id. at 11–12.) Since 30 years 
is less than life in prison, Mr. Faul believes the second prong of the disjunction applies to 

this case and he concludes that because he has served well over 30 years in prison, he is 
entitled to immediate release. (Id. at 11.)                               
   Respondent argues that the statute makes clear that a life term is treated like a 45-
year term for the purposes of 

. (Resp. 12, Dkt. No. 10.) In other words, 
Respondent does not read the statute to be a disjunction, but rather one rule: prisoners “shall 

be released on parole after having served two-thirds of each consecutive term or terms,” 
with the phrase “each consecutive term or terms” modified by the caveat that “serving 
thirty years of each consecutive term or terms of more than forty-five years including any 
life term,” is sufficiently long to become parole-eligible. Shaw v. Young, No. 5:16-CV-33 
(RWS), 

, at *2 (E.D. Tex. June 22, 2018) (repeating the respondent’s 

argument  in  that  case).  Respondent  concludes  that  Mr.  Faul  was  only  eligible  for 
mandatory parole after he served two thirds of his life term (30 out of 45 years), plus two 
thirds of his combined ten and five-year consecutive sentences (an additional ten years, 
since ten is two thirds of 15), or a total of 40 years. (Resp. 11.) Mr. Faul critiques this 
reading, arguing that it makes surplusage out of the “whichever is earlier” language. (Pet. 

13.)                                                                      
   The weight of authority on this question favors Respondent’s reading. See, e.g., Von 
Kahl v. Segal, 

, 989–90 (7th Cir. 2021); Hackley v. Bledsoe, 

 (3d Cir. 2009); Shaw v. Young, No. 5:16-CV-33 (RWS), 

, at *3 
(E.D. Tex. June 22, 2018). Most notably, the Seventh Circuit rejected Faul’s reading in the 
case of his co-defendant, Yorie Kahl, who received the same sentence. Von Kahl, 

 (“This leads to the question whether the Bureau has read § 4206(d) correctly, and it 

has.”) The Kahl court construed the statute as equating an indeterminate life term with a 
determinate 45-year term, but still requiring prisoners to serve “serve two-thirds or thirty 
years of ‘each consecutive term or terms.’” Id. Because Yorie Kahl was serving three 
consecutive terms of imprisonment—life imprisonment, followed by a consecutive ten 
years, followed by a consecutive five years—it concluded Kahl would not be eligible for 

parole until he served 40 years. Id. To find otherwise would effectively erase Mr. Kahl’s 
ten- and fifteen-year sentences when the statute itself “calls for the aggregation of limits 
‘under each consecutive term or terms,’” an outcome the Seventh Circuit found illogical. 
Id. Other courts share the Seventh Circuit’s reading. See, e.g., Hackley, 

 (rejecting argument that petitioner was eligible for mandatory parole after 30 years and 

finding  “he  is  only  eligible  for  mandatory  parole  after  serving  two-thirds  of  each 
component of his federal sentence”); Amaro v. Rios, No. 1:11-CV-234 (SKO/HC), 

, at *5 (E.D. Cal. Feb. 5, 2014); Buffalo v. Ives, No. EDCV 15-248-JLS (AJW), 

, at *3 (C.D. Cal. July 29, 2015), R&R adopted, No. EDCV 15-248 
(JLS/AJW), 

 (C.D. Cal. Oct. 21, 2015), aff’d sub nom. Buffalo v. Shinn, 

No. 16-55358, 

 (9th Cir. Mar. 2, 2017).                    
   For two reasons, the Court need not decide whether Petitioner or Respondent is 
reading the statute correctly. First, whether Mr. Faul must serve thirty years or forty years 
to be eligible to be considered for parole, as of February 2023 he had served forty years. 
Second, even if the Court were to agree that Mr. Faul was eligible for parole consideration 
ten years ago, it still could not grant Mr. Faul the relief he seeks. The “mandatory parole 
statute” explicitly prohibits the Commission from releasing any prisoner if “there is a 

reasonable probability” that the prisoner “will commit any Federal, State, or local crime.” 

(d). Therefore, a prisoner who is eligible for “mandatory parole” is not 
entitled to receive parole but is only eligible to receive parole. For this reason, Mr. Faul is 
incorrect when he claims that he was “paroled” from his life sentence by operation of law 
in February 2013, automatically started serving his remaining sentences, and has served 

his entire sentence when his good time credits are counted.1 (Pet. 13–14.) Reaching the 
time markers described in 

(d) creates a presumption that parole will be 
granted, but the U.S. Parole Commission reserves the right to deny parole if certain 
conditions apply. Dufur, 

 (“Here, the ‘shall . . . unless’ structure is 
clear, with the first half of the statute creating a presumption of release that can be 

overcome through the findings laid out in the second.”)                   
   The U.S. Parole Commission decided that Mr. Faul should not be released in part 
because he was likely to reoffend. (Faul Decl., Ex. J at 23, Dkt. No. 1-2.) Mr. Faul’s 
remaining arguments2 focus on this decision and whether it is legally sufficient to prohibit 
him from being paroled.                                                   


1 Mr. Faul claims that Respondent did not address this argument in its briefing, and thus 
conceded the point. (Pet.’s Reply 3, Dkt. No. 14.) While Respondent did not directly 
address this point, the plain text of the statute effectively refutes it.  

2 Mr. Faul argues that the Parole Commission’s decision is “legally insufficient to block” 
his “mandatory” parole for two reasons. First, he faults the Commission for determining 
        B. The U.S. Parole Commission’s Decision Is Valid and Petitioner Is Not 
          Entitled to Immediate Release in Faul VIII.                   
   Mr. Faul makes three challenges to the Commission’s decision. First, he claims that 
the decision violates his Fifth Amendment right to due process because it has no rational 
basis. (Pet. 6, Dkt. No. 1 in 23-CV-1337.) Second, he argues that the statute itself, as well 
as the Commission’s decision, violate his First Amendment right to free speech. (Id. at 6–

7.) Third, he claims  that the statutory provision that prevents the Commission from 
releasing prisoners when it finds “there is a reasonable probability” that they “will commit 
any Federal, State, or local crime” is so vague as to violate the Fifth Amendment’s Due 
Process  Clause.  (Id.  at  7.)  The  undersigned  is  unpersuaded  by  these  arguments  and 
recommends denying Mr. Faul’s habeas petition. The Court will first review the process 

the United States Parole Commission uses to grant or deny parole. Then, it will recount 
Mr. Faul’s journey through that process before addressing his three challenges to the Parole 
Commission’s decision and explaining why they fail.                       
              i.  Mr. Faul’s History with the United States Parole Commission  
   Prisoners sentenced to life imprisonment are first eligible for parole after they have 
served ten years of their sentence. 

(a); see also 

(a)(1) 


there was a “reasonable likelihood” that he would reoffend, when the statute requires a 
finding of a “reasonable probability” that he would reoffend. (Pet.’s Reply 5.) But this is a 
semantic distinction between two synonyms and the choice of one word or the other does 
not make a difference. Second, he criticizes the Commission’s decision as inconsistent with 
his PATTERN assessments, which have consistently shown he is at “minimum” risk of 
recidivism. (Id. at 6–7.) Because this argument goes to whether the Commission’s decision 
violated Mr. Faul’s right to due process under the Fifth Amendment, it is addressed 
alongside Mr. Faul’s other Due Process Clause arguments.                  
(delegating rulemaking power to the Commission). Nine months before a prisoner has 
served their ten years, an initial hearing is scheduled with a hearing examiner. 

(a); 

 (delegating authority to hearing examiners). A prisoner may be 

represented, as can any parties who oppose parole. 

(b). At the conclusion 
of the hearing the examiner makes a recommendation to the Commission on whether the 
prisoner  should  receive  parole.  

(c).  If  the  Commission  accepts  the 
recommendation, the prisoner receives parole. See 

.23–24 (outlining the 
structure of the review process). A prisoner dissatisfied with the Commission’s decision 

may appeal to the National Appeals Board, a panel of three commissioners that may affirm 
the initial decision, modify or reverse the decision, or order a new hearing. 

(c),  2.26(a)–(b). Otherwise, the decision of the Commission becomes final. 

(a). In cases that are appealed, the decision of the National Appeals Board is 
the final decision of the Commission. 

(c).                

   The Commission will not grant parole unless it is satisfied that the prisoner (1) “has 
substantially observed the rules of the institution or institutions in which he has been 
confined,” (2) that his parole would “not depreciate the seriousness of his offense or 
promote disrespect for the law,” and (3) that there is “a reasonable probability” that the 
prisoner would “live and remain at liberty without violating the law or the conditions of 

his parole.” 

; 

(a). The Commission considers a broad 
range of information when deciding whether these criteria are satisfied. See 

; 

 (listing the information the Commission “shall” consider). If the 
Commission does not grant parole, it will set a reconsideration hearing 15 years in the 
future, unless the prisoner’s “mandatory” parole date will occur before then, in which case 
the Commission will consider the prisoner for parole at that time. 

(b). The 
reconsideration hearings include a “full reassessment of the case,” just like an initial 

hearing. Prisoners sentenced to imprisonment for life receive interim reviews every two 
years following their initial hearing to “consider any significant developments” in their 
status since their last hearing. 

(a)(1)(ii); 

(b).  
   Mr.  Faul  had  his  initial  parole  hearing  in  December  2002.  (Decl.  of  Bernard 
Desrosiers, Ex. 2, Dkt. No. 15-2.) The hearing summary indicates that he admitted his 

involvement in the February 13, 1983 shootout and admitted returning fire after the 
shooting started that day. (Id. at 1.) He said “it was not his intention on that day to shoot 
any law enforcement officers.” (Id.) The hearing examiner acknowledged that Mr. Faul 
had adjusted well to prison life, done good work, and demonstrated “generally favorable 
conduct” in the first 19 years of his sentence. (Id. at 4.) He went on to say that Mr. Faul 

was less culpable than his co-defendants, but that Mr. Faul’s firing of his weapon was “an 
extreme act” and that he would need to serve more time before the Commission could be 
satisfied that he was held accountable for his participation in the shootout. (Id. at 5.) Mr. 
Faul’s appeal of this decision to the National Appeals Board was denied. (Desrosiers Decl. 
Ex. 4, Dkt. No. 15-4.)                                                    

   Mr. Faul had his reconsideration hearing in April 2018. (Desrosiers Decl. Ex. 9 at 
1.) According to the summary of that hearing, Mr. Faul said he acted in self defense on the 
day of the shootout, never intended to commit murder, and contested the legality of his 
convictions. (Id.) He attributed the event to the “atmosphere . . . created by President 
Reagan and Attorney General Meese,” who encouraged federal law enforcement agencies 
to be “more aggressive in apprehending criminals.” (Id. at 2.) In an aside, the hearing 
examiner reported that in a recent “letter to the Commission, the subject referred to the 

U.S. Marshals as ‘murderous thugs’ whom he says ‘attacked me that day without cause,’ 
under the authority of ‘Lucifer-worshiping’ Ronald Reagan and ‘his accomplice, Edwin 
Meese.’” (Id. at 2.) The Commission denied Mr. Faul parole because his offense was 
“highly aggravate[d],” he did not accept responsibility for his participation, he continued 
to challenge his convictions, and he had not participated in “any meaningful programming” 

to reduce his likelihood of recidivism or to change the behavior that led to his conviction. 
(Desrosiers Decl. Ex. 10 at 1.) The National Appeals Board denied Mr. Faul’s appeal. 
(Desrosiers Decl. Ex. 11 at 1.)                                           
   In July 2021, Mr. Faul had an interim hearing at which he “forcefully stated” that 
the Commission’s decisions were based on “false information,” not facts. (Desrosiers Decl. 

Ex. 14 at 1, Dkt. No. 15-14.) He claimed that the Commission did not adequately weigh 
his culpability as a person who returned fire only after being fired upon. (Id.) The examiner 
advised that disputes about the facts of his case were best presented to a court of law, rather 
than the Commission, and explained what information the Commission would consider. 
(Id.) Mr. Faul replied that he already knew the Commission would deny him parole at his 

“mandatory” parole hearing in 2023 and said he wanted to waive the interim hearing 
because he did not have family support present. (Id. at 2.)               
   Mr. Faul did have a “mandatory” parole consideration hearing in January 2023. 
(Desrosiers Decl. Ex. 21 at 8, Dkt. No. 15-21.) Mr. Faul made a statement at the hearing, 
saying he wanted to waive parole consideration because he should already have been 
released, and that he expected his lawsuit challenging his imprisonment would go all the 
way to the Supreme Court. (Id. at 9.) The hearing had been rescheduled twice (once in May 

2022 when Faul refused to participate and once in September when Faul requested a 
continuance, which was granted) so the Commission decided to hold the hearing anyway. 
(Id. at 10; Resp. at 9–10, Dkt. No. 14 (outlining sequence of events).) An Assistant United 
States Attorney for the District of North Dakota testified in opposition to Mr. Faul’s parole 
and drew the Commission’s attention to a 2020 court filing where Mr. Faul refused to 

accept responsibility for his crime and called into question the legitimacy of the courts, the 
U.S. Parole Commission, and the United States Attorney’s Office. (Desrosiers Decl. Ex. 
21 at 8.) The Office was concerned that Mr. Faul would not abide by the terms of parole 
and would not acknowledge the authority of the United States Probation Office. (Id.) It 
invited the Commission to judge Mr. Faul’s preparedness for parole based on his own 

words in the December 2020 filing.                                        
   This Court has reviewed that filing. In it, Mr. Faul writes:         
   •   “When I am released, I am going to retire to my farm near Harvey, North 
     Dakota, to continue exactly from the same point which I was at in 1983 before I 
     was unlawfully attacked by murderous thugs of the Ronald Reagan, William 

     French Smith, Edwin Meese squad of terrorists.” Petition for Compassionate 
     Release Pursuant to 

 at 3–4, Faul v. Bureau of Prisons, No. 
     3:83-CR-16 (Dkt. No. 2) (D.N.D. Dec. 7, 2020).                     
•  That the United States is a corporation, a “shameful creature” that “reeks of 
being a farce and a sham.” 

, and 7.                     

•  That the United States Attorney’s Office was “favor-accepting scum,” and he 
had no respect for it. 

.                                   
•   That both the judge presiding over his 1983 trial and a judge who dismissed one 
of his § 2255 petitions were “sham judges” who committed felonies under the 
“favor-promising thrall of Lucifer” and that he had “less than” no respect for 

them. Id. at 3, 5. See generally United States v. Faul, No. 3:83-CR-16, 

, at *1 (D.N.D. June 25, 2007) (describing the judges’ roles and Mr. 
Faul’s allegations against them).                                  
•  Mr. Faul wrote that “I was supposed to have been released by operation of law 
in  2013.  However,  dregs  in  the  Parole  Commission  and  in  the  Records 

Department(s)  of  the  BOP  have  unjustifiably  and  unlawfully  extended  my 
release date to 2023. When that date arrives, those biased scum will once again 
enlist some new lies, whatever they feel the whim to need, to deny release yet 
once again. They will do that because they are part of the deep state swamp, and 
have made promises of favoritism to their Lucifer-worshiping cohorts.” Petition 

for Compassionate Release Pursuant to 

 at 2, Faul v. Bureau of 
Prisons, No. 3:83-CR-16 (Dkt. No. 2) (D.N.D. Dec. 7, 2020).        
•   “The biased scum of the swamp sitting on the Commission simply proceed with 
a mindless parroting of the statute itself. They cannot help themselves—they 
     promised favoritism to their fellow swamp creatures. This is what scumbags do 
     when their fellow craft beckon.” 

.                         
   Returning to the hearing in January 2023, the Commission heard from multiple 

victims opposed to Mr. Faul’s release. (Desrosiers Decl. Ex. 21 at 9.) It learned that he had 
completed only 55 hours of programming during his almost 40 years of incarceration, 
having spent most of his time in the law library. (Id. at 10, 11.) His plan upon release was 
to “be a hobo” and go back to farming. (Id.) The examiner concluded that Mr. Faul’s 
statements made it “clear he still holds the same beliefs he did when he committed his 

offenses” and while it was not a crime to have such beliefs, they led him to “participate in 
the murder of multiple federal law enforcement officers.” (Id. at 8, 11.) The examiner noted 
with concern that Mr. Faul had not completed risk-related programming, had no remorse 
for the killings, and his feelings about the illegitimacy of government power suggested 
there was “no reason to believe he would abide by the limitations of his parole.” (Id. at 11.) 

The decision of the Commission read as follows:                           
   After consideration of all factors and information presented, at this time, the 
   Commission  is  denying  your  release  under  the  standards  at  

(d) for the following reasons: The Commission has determined that 
   there is a reasonable likelihood that you will commit any Federal, State or 
   local crime. You were part of a violent anti-government group responsible 
   for the murder and serious injury of several federal law enforcement officers. 
   You continue to deny your crimes, claim yourself and your conspirators are 
   the  victims,  and  deny  the  legitimacy  of  the  U.S.  Government,  law 
   enforcement, and the judiciary. Your own words show that you would not 
   obey  the  requirements  of  your  release.  You  have  not  completed  any 
   programming to address your rehabilitation such as victim impact or criminal 
   thinking  and  have  shown  no  interest  in  completing  such  programming, 
   further emphasizing that you see no issues with your history of violence and 
   have no intention of improving your thoughts and behaviors.          
(Desrosiers Decl. Ex. 22, Dkt. No. 15-22.) The National Appeals Board denied Mr. 
Faul’s appeal of the decision. (Desrosiers Decl. Ex. 23, Dkt. No. 15-23.) 
              ii.  Standard of Review of Commission Decisions           

   Congress vested the power to grant or deny parole in the Commission, which is part 
of the executive branch, and the courts have limited power to review the Commission’s 
decisions. United States v. Addonizio, 

, (1979); Langella v. Anderson, 

 (8th Cir. 2010); Edwards v. United States, 

 (8th Cir. 
1978)  (explaining  that  three  branches  of  government  share  the  responsibility  of 

determining when prisoners are released); 

 (establishing the Commission 
as “an independent agency in the Department of Justice”). Courts cannot review the 
“ultimate substantive decisions granting or denying parole,” but they can consider whether 
the Commission “acted outside its statutory limits” or in violation of the Constitution in its 
decision-making process. Jones v. U.S. Bureau of Prisons, 

, 1183–84 (8th 

Cir.  1990)  (holding  same  and  distinguishing  prior  case  law  applying  “arbitrary  and 
capricious” standard3 as written without the benefit of a jurisdiction analysis); Green v. 
Castillo, 

 (8th Cir. 2015). “A Parole Commission decision is substantive, 
and hence unreviewable, if it involves the exercise of judgment among a range of possible 


3 At least one jurist believed the Eighth Circuit was wrong to discard the “arbitrary and 
capricious” standard because earlier panel opinions had implicitly considered the scope of 
jurisdiction in these cases and adopted “arbitrary and capricious” as the standard. Green v. 
Castillo, 

, 907 n.3 (8th Cir. 2015) (citing Edmundson v. Turner, 

 (8th Cir. 1992) (Heaney, C.J., dissenting)). On his view, the Eighth Circuit was not at 
liberty to set aside its prior decisions and apply a new standard of review. 

 In any event, 
this Court finds nothing arbitrary and capricious in the Commission’s decision in this case. 

                                                                       
choices or options.” Wajda v. United States, 

 (8th Cir. 1995) (internal 
quotations and citations omitted). Courts will not consider the process the Commission 
uses to uncover evidence or how it weighs that evidence. Langella, 

. The 

only question courts need to ask is whether the decision was supported by a rational basis. 
See, e.g., Dufur v. U.S. Parole Comm’n, 

 (D.C. Cir. 2022); Gambino 
v. Morris, 

 (3d Cir. 1998); Walrath v. Getty, 

 (7th Cir. 
1995).                                                                    
             iii.  The United States Parole Commission’s Decision Did Not 
                  Violate Mr. Faul’s Fifth Amendment Rights.            
   Mr. Faul alleges that the Commission violated the Due Process clause of the Fifth 
Amendment to the Constitution, which prevents the government from depriving people of 

their liberty without due process of law. U.S. Const. amend. V. Fifth Amendment liberty 
interests come from either the Constitution or a federal statute. United States v. Johnson, 

 (8th Cir. 2013). The Supreme Court has held that the Constitution does 
not provide a right to parole. Greenholtz v. Neb. Penal Inmates, 

 (1979). 
However, a federal statute can create a protected, if limited, liberty interest in parole. Evans 
v.  Dillahunty,  

  (8th  Cir. 1981)  (“[T]he  more  complete  lesson  of 

Greenholtz is that, though there is no inherent right to parole, a limited right to parole may 
be provided by applicable statutes.”) In Dillahunty, the Eighth Circuit recognized that 

(a) gave eligible prisoners an “expectancy of parole” warranting due process 
protections, because it used mandatory language and limited agency discretion, just as the 
statute in Greenholtz did. Id.; Solomon v. Elsea, 

 (7th Cir. 1982). In 
Greenholtz, the Supreme Court analyzed the following statute:             
   Whenever the Board of Parole considers the release of a committed offender 
   who is eligible for release on parole, it shall order his release unless it is of 
   the  opinion  that his  release  should be deferred  because:  (a)  There  is  a 
   substantial risk that he will not conform to the conditions of parole; (b) His 
   release would depreciate the seriousness of his crime or promote disrespect 
   for  law;  (c)  His  release  would  have  a  substantially  adverse  effect  on 
   institutional discipline; or (d) His continued correctional treatment, medical 
   care, or vocational or other training in the facility will substantially enhance 
   his capacity to lead a law-abiding life when released at a later date.  

442 U.S. at 11. The Court found that the language created a presumption that parole would 
be granted so long as none of the four enumerated concerns were present. (Id.) That is the 
same structure as 

(d), which provides a presumption of release tempered 
with possible obstacles. 

(d) (“Any prisoner, serving a sentence of five 
years or longer . . . shall be released on parole after . . . Provided, however, That the 
Commission shall not release such prisoner if . . . .”). See Shahid v. Crawford, 

 (5th Cir. 1979) (acknowledging without deciding that § 4206(d)’s language could 
create a protected liberty interest). Thus, as the Supreme Court did in Greenholtz and the 
Eighth Circuit did in Dillahunty, this Court finds that Mr. Faul has adequately alleged a 
protected liberty interest in parole and therefore the process by which a decision is made 
whether to grant or deny him parole must conform to due process.          
   Mr. Faul argues that the Commission’s decision to deny him parole violated his 
right to due process because it had no rational basis. (Pet. 8.) He claims there is no reason 
to expect a 70-year-old family man and former farmer to reoffend after 40 years of 
incarceration.  (Id.)  He  contrasts  the  Commission’s  recent  decision  citing  his  risk  of 
recidivism with the statements of his 2002 hearing examiner about his low likelihood of 
recidivism, his consistently minimal PATTERN4 scores, and his case manager’s opinion 
that nothing in his case file suggested a security risk. (Id. at 8–9.) In his view, the 

Commission’s decision ignores that he is a model prisoner who has worked throughout his 
incarceration and completed all the programming assigned to him. (Id. at 9–10.) The fact 
that he maintains his innocence and has some anti-government views is irrelevant, in his 
opinion, because he promises to comply with the law regardless of his views, as he has 
done  in  prison.  (Id.)  For  example,  he  argues  that  filing  documents  with  this  Court 

requesting relief demonstrates his respect for the federal courts. (Pet. 15.)  
   Respondent argues that the Commission’s decision did have a rational basis—three 
of them, in fact—and urges the Court not to substitute its judgement in an area reserved for 
the discretion of the Commission. (Id.) The Commission first relied on the seriousness of 
the underlying criminal conduct, which resulted in multiple injuries and the deaths of two 

federal law enforcement officers. (Resp. 16.) Second, the Commission considered Mr. 
Faul’s continued assertions that he was attacked by “murderous thugs” in February 1983, 
wrongfully convicted and imprisoned by “sham judges,” and remains in prison because of 
the “biased scum” on the Commission. (Id. at 17.) Respondent argues that the Commission 
properly wondered whether Mr. Faul would submit to federal authority on parole given 



4 The PATTERN (Prisoner Assessment Tool Targeting Estimated Risks and Needs) is a 
recidivism prediction tool used by the BOP which categorizes offenders as being at 
minimum  risk,  low  risk,  medium  risk,  or  high  risk  of  recidivism.  PATTERN  Risk 
Assessment, Fed. Bureau  of Prisons, https://www.bop.gov/inmates/fsa/pattern.jsp  (last 
visited Nov. 2, 2023).                                                    
these beliefs. (Id.) Third, Mr. Faul failed to take part in programming that would address 
criminal thinking and behavior, suggesting to the Commission that he believed he did 
nothing wrong and was likely to offend again. (Id.)                       

   After reviewing the record—with the limited standard of review in mind—the Court 
will not disturb the Commission’s decision because it was supported by a rational basis. 
The Commission was allowed to consider the severity of Mr. Faul’s action of firing on law 
enforcement officers in a shootout that killed or wounded several people. See 

(a) (prohibiting release if it would “depreciate the seriousness of the offense”); 

Green, 

 (upholding Commission’s decision that considered the violence of 
underlying offense); Parker v. Corrothers, 

 (8th Cir. 1984) (upholding 
state parole board decision and noting, “the Board may determine that the serious nature 
of the inmate’s offense requires that a longer term be served before parole release.”) The 
Commission was further required to consider whether Mr. Faul posed a risk of reoffending 

on parole and it was entitled to consider evidence about that risk, including his statements 
and minimal programming history. 

(d); 

; Green v. 
Castillo, 

 (8th Cir. 2015) (holding Commission could consider prisoner’s 
“acceptance of responsibility”); Coleman v. U.S. Parole Comm’n, 

, 912 
(3d Cir. 2018) (holding Commission could consider prisoner’s “inability or unwillingness 

to accept the wrongfulness of his previous conduct”). It considered the evidence after a 
hearing where Mr. Faul was invited, but declined, to give his perspective. The Court cannot 
now reweigh the evidence simply because Mr. Faul believes that the Commission made a 
poor decision. It can only review whether the decision was irrational, or “so arbitrary and 
capricious as to amount to a violation of due process.” Green, 

; Langella, 

. For the reasons set forth above, it was not.             
              iv.  Neither  

  Nor  The  United  States  Parole 
                  Commission’s  Decision  Violated  Mr.  Faul’s  First  
                  Amendment Rights.                                     
   Mr. Faul next argues that the Commission’s decision (and the statute on which it 
was based) violates his First Amendment rights because it allows the Commission to 
lengthen  his  imprisonment  for  merely  disliking  the  government.  (Pet.  11.)  The 
Commission, he believes, is denying him parole because he participated in protected First 

Amendment activities such as petitioning the government for a redress of grievances or 
expressing political views. (Id.; Reply at 11 (“[W]e do not force people to die in prison for 
criticizing the government.”))                                            
   Respondent argues that the Commission may consider a person’s own statements 
when  evaluating  the  likelihood  that  they  will  reoffend  on  parole.  (Resp.  19.)  The 

Commission was, in its view, allowed to consider Mr. Faul’s “efforts to cast himself as the 
true victim, coupled with the general disdain he showed for the law” in making the 
probability-of-reoffense determination under 

(d). (Id.) Because the statute 
required the Commission to assess the likelihood that Mr. Faul would reoffend, Respondent 
says the Commission had to consider Mr. Faul’s beliefs and whether they would lead him 
to future criminal conduct. (Id. at 21.) This use of Mr. Faul’s speech was in service to the 

legitimate penal goal of reducing recidivism. (Id.) Respondent also suggests that using Mr. 
Faul’s statements in this way did not violate Mr. Faul’s rights for the additional reason that 
prisoners’ First Amendment rights are more limited than those of non-prisoners because of 
the need to achieve the security and penal goals of the prison system. (Id. at 20.) Mr. Faul 
retorts that his actions on February 13, 1983 were rooted in self-defense, not political 
ideology. (Reply 12, 13.) He claims that today, as in 1983, his views might be “distasteful 

to some, but they are purely peaceful.” (Id. at 11.)5                     
   

(d)  required  the  Commission  to  evaluate  Mr.  Faul’s  risk  of 
recidivism, and it was rational for it to consider Mr. Faul’s statements in deciding whether 
he would be successful on parole. Mr. Faul’s stated disrespect for devil-worshipping “sham 
judges,” his disdain for the United States government, and his conclusion that the U.S. 

Marshals who attempted to serve an arrest warrant on Gordon Kahl on February 13, 1984 
were “murderous thugs” leads one to question if Mr. Faul would even accept the authority 
of the parole authorities. It was rational for the Commission to be concerned. See Dunne v. 
Jusino, No. 2:20-CV-04504 (MWF/JC), 

, at *7 (C.D. Cal. Dec. 23, 
2020), R&R adopted, 

 (C.D. Cal. Mar. 29, 2021), aff’d, No. 21-55507, 

 (9th Cir. Apr. 5, 2023) (“Certainly, the Commission acted within reason 

5  Mr.  Faul  requests  an  evidentiary  hearing  “to  the  extent  the  Court  reaches  the 
government’s assertions that [he] has (or has ever had ) violent anti-government beliefs” 
or that those beliefs had anything to do with the events of February 13, 1983. (Reply 20.) 
An evidentiary hearing would serve no purpose because this Court cannot supplement or 
re-weigh the evidence that was before the Commission. See Langella, 

. 
Even if the Court were to hold an evidentiary hearing on the factual dispute between the 
parties about whether Mr. Faul has violent anti-government beliefs, it could not force the 
Commission to accept its findings because Congress delegated the parole decision to the 
Commission, not the Courts. Cf. Hawkins v. Outlaw, No. 2:09-CV-00112 (BRW/JJ), 

, at *1 (E.D. Ark. Apr. 20, 2011), aff’d, 

 (8th Cir. 2012) (“In 
essence Petitioner is asking for relief that this court cannot give. . . . Even if an evidentiary 
hearing was held and it was determined that Petitioner’s PSR was incorrect this court would 
not have the authority under § 2241 to reduce his sentence.”)             
in considering petitioner’s associations and speech as they related to his . . . pattern of 
violent behavior which related to his associations and beliefs, and his likelihood of future 
violent behavior.”); Evans v. Norwood, No. 104-CV-5640 (AWI/JMD/HC), 

, at *5 (E.D. Cal. June 9, 2008), R&R adopted, 

 (E.D. Cal. Aug. 
4, 2008) (“The Commission’s statements, when viewed in context, show that its decisions 
were based not on Petitioner’s beliefs or associations, but rather on his violent actions 
which were relevant in determining whether his release would jeopardize the public 
welfare.”)                                                                

   The fact that what concerned the Commission was Mr. Faul’s speech does not, by 
itself, turn his denial of parole into a constitutional violation. Mr. Faul is not in prison for 
his beliefs, but for second degree murder, assault on federal officers, conspiracy, and 
harboring a fugitive. Until he is released he retains those First Amendment rights “that are 
not inconsistent with his status as a prisoner or with the legitimate penological objectives 

of the corrections system.” Pell v. Procunier, 

 (1974) (noting that one 
such objective is protecting the public from offenders while they work to rehabilitate 
themselves). The Commission, acting as an arm of the corrections system, pursuant to 
statute, considered Mr. Faul’s statements when assessing his likelihood of success on 
release. If the Commission was prohibited from considering Mr. Faul’s own speech in its 

analysis, a legitimate penological goal of the Commission would be frustrated. Thus, to the 
extent that Mr. Faul argues he has a First Amendment right to speak and not have that 
speech be considered by the Parole Commission, he is wrong.               
              v.  

(d)’s Recidivism Clause Is Not Void for 
                  Vagueness.                                            
   Mr. Faul’s final argument is that the clause of 

(d) that prohibits the 
Parole Commission from releasing a prisoner when it is reasonably probable that they will 
commit a crime is void for vagueness. The text, again, reads: “[t]he Commission shall not 
release such prisoner if it determines that . . . there is a reasonable probability that he will 

commit any Federal, State, or local crime.” 

(d). Mr. Faul claims this 
passage does not provide prisoners fair notice of the behaviors they must do (or refrain 
from doing) to avoid a finding that they are likely to reoffend, so it is void on its face. (Pet. 
12.) Respondent counters that the void for vagueness doctrine does not even apply to 

(d) because it is not a criminal statute that prohibits conduct, but a statute 

that provides—and limits—the power of the Parole Commission to release prisoners. 
(Resp. 22.) Respondent encourages the Court not to reward Mr. Faul’s “attempts to 
shoehorn a doctrine primarily directed at criminal statutes [in]to a parole release statute.” 
(Id. at 24.)                                                              
   “A statute is unconstitutionally vague if it fails to provide a person of ordinary 
intelligence fair notice of what is prohibited or is so standardless that it authorizes or 

encourages seriously discriminatory enforcement.” Adam & Eve Jonesboro, LLC v. Perrin, 

 (8th Cir. 2019) (internal quotations omitted) (quoting F.C.C. v. Fox 
Television Stations, Inc., 

 (2012)). The void for vagueness doctrine 
applies mostly—but not exclusively—to criminal statutes because the penalties in those 
cases are severe and courts do not wish to punish people criminally when they were not 
given adequate notice of what the law prohibited in the first place. United States v. Davis, 

 (2019); Vill. of Hoffman Ests. v. Flipside, Hoffman Ests., Inc., 

, 498–99 (1982) (“The Court has also expressed greater tolerance of enactments 

with civil rather than criminal penalties because the consequences of imprecision are 
qualitatively less severe.”); U.S. Civ. Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, AFL-
CIO, 

, (1973) (applying doctrine to a non-criminal statute). Respondent 
is correct in saying that a statute delegating power to an executive agency and imposing 
limits on its use does not generate the same concerns as a statute prohibiting criminal 

conduct and affixing penalties, but the context of this particular statute is criminal in the 
sense that it relates to the duration of sentencing for criminal behavior. If Mr. Faul fails in 
his challenge to the statute, he will remain in prison until the Parole Commission sees fit 
to release him or a court orders it to do so. Because Mr. Faul’s continued detention is at 
stake, the Court finds that the void for vagueness doctrine is applicable here. Cf. Sessions 

v. Dimaya, 

 (2018) (applying the doctrine in construing a criminal 
statute referenced in statute regarding immigration hearings).            
   Courts analyze vagueness challenges as applied to a particular case, unless the 
statute implicates First Amendment rights, in which case they analyze the statute on its 
face and as applied to the challenger. United States v. Flynn, 

 (8th Cir. 

2020); Nooner v. Norris, 

 (8th Cir. 2005). Because Mr. Faul has alleged 
a violation of his First Amendment rights, the Court will evaluate whether the statute is 
unconstitutionally vague both facially and as applied.                    
                              a.  Facial Challenge                      
   Mr. Faul argues that 

(d) allows the Parole Commission unfettered 
discretion to arbitrarily hold inmates without giving them clear notice of what behavior 

would prove to the Commission that the inmates were  ready for release.6 (Pet. 12.) 
Respondent argues that the statute is clear because “scores of federal district courts and 
multiple United States Courts of Appeals” have applied it without questioning its clarity or 
workability. (Resp. 25.) It also points out that courts are expected to apply interpretations 
of statutes that support, rather than undermine, their constitutionality. (Id.) 

   The prohibition on releasing a prisoner if the Commission “determines that . . . there 
is a reasonable probability that he will commit any Federal, State, or local crime” is not 
void for vagueness on its face. 

(d). Mr. Faul does not point the Court to a 
dispute amongst the courts as to how to interpret this statute or the statute that outlines the 
factors the Commission should consider in making the determination. See Johnson v. 

United States, 

 (noting there was “pervasive disagreement” in the courts 
“about the nature of the inquiry” under the challenged statute and “the kinds of factors one 
is supposed to consider). The fact that a law is broad does not necessarily mean that it is 
“ambiguous, much less unconstitutionally vague.” Calzone v. Summers, 

 
(8th Cir. 2019). The plain text of this law does not prohibit any prisoner’s conduct, but 



6 In his facial challenge, Mr. Faul compares the language at issue with an old parole statute 
in the state of New York, which was eventually amended. Cicero v. Olgiati, 

 (S.D.N.Y. 1976). But Cicero is inapposite because it did not find that the statute 
at issue was impermissibly vague; it denied a motion to dismiss the void for vagueness 
challenge on the limited record before the court at the time. 

 at 1094–95. 
requires the Parole Commission to evaluate whether a prisoner is reasonably likely to 
commit  a  crime.  

.  The  Commission  will  consider  facility  reports, 
presentence reports, criminal records, recommendations from the sentencing judge, victim 

statements, health examinations, and other criteria it finds relevant. 

. The 
statute gives prisoners notice that any indication they are likely to commit a crime in the 
future might be used against them in the Commission’s proceedings.        
                              b.  “As Applied” Challenge                
   As it relates to his case, Mr. Faul argues that nothing in the statute put him on notice 

that he had to have a certain view of the government or a certain number of programming 
hours above those which he was assigned to avoid the Commission finding him a risk of 
recidivism, despite his consistently minimal PATTERN score. (Id.) Further, he argues that 
the text provides no standard by which to measure a prisoner’s probability of re-offense, 
so it is “purely arbitrary” and thus void on its face. (Id.) In his case, Faul claims the 

flexibility of the text allowed the Commission to deny him “mandatory” parole using 
recidivism risk as a pretext for their real reason for keeping him in prison: the fact that he 
was present when the tragedy occurred. (Id. at 13.)                       
   Respondent argues that the Commission’s application of the statute to Faul’s case 
did not result in discriminatory enforcement but was a reasoned exercise of its discretion 
after considering the specific factors enumerated in 

. (Resp. 14.) In 

Respondent’s view, the fact that Congress told the Commission which factors to consider 
in making a parole determination shows that the statute is the very opposite of standardless 
or inviting arbitrary enforcement. (Id. 14–15.)                           
   Faul replies that if the statute allows him to be lumped into the same group of people 
as the petitioners in Dufur and Green, the statute is so broad as to be meaningless. (Id. 15–
16.) He distinguishes himself from the petitioner in Dufur by noting that he never tried to 

escape prison and never killed anyone in prison; he also distinguishes himself from the 
petitioner in Greene who had an “extensive history of assaulting women with knives.” (Id. 
at 16.) In Mr. Faul’s view, these petitioners were much more likely than him to reoffend, 
but the law unjustly treated them the same, so the law must be invalid. (Id.) 
   The Court accepts that Mr. Faul has not attempted a prison escape or demonstrated 

an “extensive” history of assaulting others. But Mr. Faul is like Mr. Dufur in that they both 
assaulted and killed law enforcement officers, an especially serious crime. Dufur, 

. He is like Mr. Green in that he has not taken responsibility for his role in 
the murders for which he is serving his life sentence. Green, 807 F.3d at 907–08. As 
explained above, the Commission was entitled to consider the underlying facts of Mr. 

Faul’s case and his view of what happened on February 13, 1983. 

 
(requiring the Commission to consider presentence investigation reports and information 
submitted by the prisoner, if relevant.) While Mr. Faul may not see himself as similar to 
Messrs. Dufur and Green, the Parole Commission saw similarities in their cases that bore 
on their likelihood to reoffend in the community, as the statute empowered it to do. While 

the statute is broad in its delegation of discretion to the Commission, it is not unbounded, 
and is valid both facially and as applied to Mr. Faul.                    
III.  MOTION FOR TEMPORARY RESTRAINING ORDER                            
   On September 1, 2023, Mr. Faul learned that he was going to be transferred to 
another prison outside of this District because he recently turned 70. (Emergency Mot. 2–

3, Dkt. No. 17 in 22-CV-2993 (MJD/JFD); Dkt. No. 19 in 23-CV-1337 (MJD/JFD).) Mr. 
Faul filed an Emergency Motion to Prevent Transfer Pending Ruling on 

, 
which the Court received on September 5. (Emergency Mot. 1–2.) He asked the Court to 
prevent his transfer to another prison, which he believed was scheduled to take place on 
the morning of September 6. (Id. at 2.) Mr. Faul argued that a transfer in his case would 

threaten this Court’s jurisdiction over his petitions, because the proper respondent in a 
habeas case is the person who has physical custody of the petitioner. (Id. at 3.) Even if this 
Court retained jurisdiction over his case, Mr. Faul argued that the transfer would cause 
delays, would make any evidentiary hearing required more costly, and would separate him 
from his legal materials for possibly months. (Id. at 3.) The Court denied Mr. Faul’s request 

for expedited review and ordered briefing on the motion. (Dkt. No. 20.) Respondent 
opposed the motion for a temporary restraining order because BOP’s placement decisions 
are not reviewable by the Courts. (Resp. Opp’n Emergency Mot. 2–3, Dkt. No. 23 (quoting 

(b)).)                                                    
   Mr. Faul was transferred on September 6 to a federal transfer center in Oklahoma 
City (Resp. Opp’n 1), then to a federal corrections institution in Milan, Michigan where he 

now lives (Dkt. No. 24). Because the transfer has already occurred, the undersigned 
recommends that the motion for a temporary restraining order barring transfer be denied 
as moot. Even if the transfer had not taken place, the Court could still not order the relief 
requested; the BOPs placement decisions are unreviewable. 

(b) (BOP’s 
“designation of a place of imprisonment . . . is not reviewable by any court.”); United States 
v. Vang, No. 16-CR-277 (DWF/KMM), 

, at *2 (D. Minn. Aug. 13, 2020) 

(“Courts have consistently held that placement questions are not reviewable.”).  
   Mr. Faul’s motion does raise the question of whether this Court retains jurisdiction 
over the case now that Mr. Faul is no longer being held in the District of Minnesota. There 
has been some disagreement on this question in our District. Compare Vaughn v. Marques, 
No. 18-CV-1266 (JRT/HB), 

, at *3–4 (D. Minn. May 15, 2019), R&R 

adopted, 

 (D. Minn. June 14, 2019) (holding transfer did not deprive the 
Court of jurisdiction when briefing was complete at the time BOP transferred the prisoner 
and the Respondent did not challenge jurisdiction) and Eubanks v. Wilson, No. 15-CV-
2677 (PJS/DTS), 

, at *2 (D. Minn. May 1, 2017), R&R adopted, 

 (D. Minn. May 25, 2017) (finding jurisdiction remained after transfer and 

even if it did not, Respondent had waived the issue) with Ybarra v. Kallis, No. 21-CV-1396 
(DSD/TNL), 

, at *3 (D. Minn. Sept. 28, 2022), R&R adopted, 

 (D. Minn. Oct. 25, 2022) (finding transfer deprived the court of jurisdiction 
because it could not order a warden in another district to release the petitioner if he was 
successful).                                                              

   The undersigned is satisfied that the Court retained jurisdiction even after Mr. Faul’s 
transfer. Weeks v. Wyrick, 

 (8th Cir. 1981) (“Once the custodian is 
properly served, subsequent transfer of the petitioner does not cause a loss of habeas corpus 
jurisdiction in the original district.”); Simon v. Cruz, No. 08-CV-4804 (MJD/JJ), 

, at *1 (D. Minn. May 29, 2009) (Davis, J.), aff’d, 

 (8th Cir. 
2010) (“Although Petitioner is no longer incarcerated in the District of Minnesota, his 
current habeas corpus petition can still be properly adjudicated here because he was 

confined in this District when the petition was filed.”); Elkins v. Holinka, No. 06-CV-0335 
(PJS/FLN), 

, at *1 (D. Minn. Jan. 26, 2007) (Schiltz, J.) (reaching the 
same conclusion). Mr. Faul correctly filed his habeas petitions in this District while he was 
confined here, properly named the wardens who had custody of him as subjects of the suit, 
fully briefed his petitions, but was then transferred to another BOP facility through no fault 

of his own. These facts are identical to those in Vaughn v. Marques, where the court 
concluded it retained jurisdiction, noting that the bulk of case law, and the equities, favored 
this outcome. 

, at *3–4. The Court reaches the same result in this case. 
Further, Respondent has not moved to challenge the Court’s jurisdiction, despite Mr. Faul 
specifically raising the issue, so they could be considered to have waived this issue. 

; Redding, 

, at *5; see also Brian R. Means, Federal Habeas Manual 
§ 1.100 (2023). For this reason, the undersigned addressed the merits of the underlying 
petitions.                                                                
IV.  MOTION TO APPOINT COUNSEL                                          
   The final motion to address is Mr. Faul’s motion to appoint counsel. On September 
7, one day after Mr. Faul believed he would be transferred to another prison—and after his 

two petitions were fully briefed—the Court received a motion to appoint counsel for him 
in Faul VIII, his later-filed habeas case. (Pet.’s Mot. Appoint Counsel, Dkt. No. 21.) He 
seeks counsel because he considers the “old law” issues in the case complex but cannot 
afford to hire a lawyer with the requisite experience to handle them. (Id. at 1.) Mr. Faul 
argued that counsel would help complete the record in this case by interviewing corrections 
officers at FCI Sandstone who want to support his application for parole, but can only do 

so if they are interviewed by counsel for a prisoner. (Id. at 2.) Counsel would also assist 
Mr. Faul during his transfer, when he would lose access to his legal materials. (Id. at 2.) 
The Respondent took no position on the motion.                            
   The Sixth Amendment right to counsel does not extend to habeas proceedings, 
which are civil in nature. McCall v. Benson, 

 (8th Cir. 1997); Hoggard 

v. Purkett, 

 (8th Cir. 1994). However, courts may appoint7 counsel for 
habeas petitioners when the interests of justice require it, such as when the court orders an 
evidentiary hearing. Hoggard, 

. In other cases, whether to appoint counsel 
in a case is at the discretion of the district court. 

 In exercising that discretion, courts will 
consider “the factual and legal complexity of the case, and the petitioner’s ability both to 

investigate and to articulate his claims without court appointed counsel.” McCall v. Benson, 

 (8th Cir. 1997). Appointments are rarely granted. Kidd v. Fikes, No. 20-
CV-287 (SRN/TNL), 

, at *2 (D. Minn. Dec. 7, 2020).         



7  “Appoint”  counsel  is  not  exactly  the  correct  term.  More  accurately,  

(e)(1) allows courts to request that counsel represent a pro se litigant and 18 
U.S.C. § 3006A(a)(2)(b)  permits  the  Court  to  provide  counsel  to  an  indigent  habeas 
petitioner when “the interests of justice so require.” But “no statute permits the Court here 
to appoint counsel—that is, to require an attorney to represent Petitioner under the coercive 
threat of sanctions.” Anderson v. Janssen, No. 17-CV-4480 (WMW/FLN), 

, at *1–2 (D. Minn. Apr. 23, 2018).                               
   Because the undersigned recommends denying these petitions on the merits, Mr. 
Faul’s request for counsel is moot. Even if it were not, the undersigned would not appoint 
counsel. Mr. Faul made his request after briefing was concluded and the Court sees no need 

for an evidentiary hearing to rule on the merits, both because the issues presented by this 
habeas case are fairly straightforward and also because, as noted above, this Court cannot 
re-weigh the evidence presented to the Commission. Thus, it is unclear what help counsel 
could be to Mr. Faul, who in any event has proven himself to be an articulate and 
sophisticated pro se litigant. The motion to appoint counsel is denied.   

   Accordingly,  based  on  all  the  files,  records,  and  proceedings  herein,  IT  IS 
HEREBY RECOMMENDED that:                                                  
1.  Mr. Faul’s Petition for Habeas Corpus (Dkt. No. 1 in 22-CV-2993 (MJD/JFD)) be 

   DENIED.                                                              
2.  Mr. Faul’s Petition for Habeas Corpus (Dkt. No. 1 in 23-CV-1337 (MJD/JFD)) be 
   DENIED.                                                              
3.  Mr. Faul’s Motions for a Temporary Restraining Order (Dkt. No. 17 in 22-CV-
   2993 (MJD/JFD); Dkt. No. 19 in 23-CV-1337 (MJD/JFD)) be DENIED.      

   Further, it is HEREBY ORDERED that:                                  
4.  Mr. Faul’s Motion to Appoint Counsel (Dkt. No. 21 in 22-CV-2993 (MJD/JFD)) 
   is DENIED.                                                           
Date: March 25, 2024            s/ John F. Docherty                     
                                JOHN F. DOCHERTY                        
                                United States Magistrate Judge          


                           NOTICE                                       
Filing Objections: This Report and Recommendation is not an order or judgment of the 
District Court and is therefore not appealable directly to the Eighth Circuit Court of 
Appeals.  Under  Local  Rule  72.2(b)(1),  “a  party  may  file  and  serve  specific  written 
objections to a magistrate judge’s proposed finding and recommendations within 14 days 
after being served a copy” of the Report and Recommendation.              
A party may respond to those objections within 14 days after being served a copy of the 
objections. See Local Rule 72.2(b)(2). All objections and responses must comply with the 
word or line limits set forth in Local Rule 72.2(c).