United States District Court, W.D. Virginia, Roanoke Division
MICHAEL F. URBANSKI, District Judge.
Mark Roberts, a federal prisoner proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner alleges that his most recent reparole hearing violated due process and the Ex Post Facto Clause of the United States Constitution. Respondent filed a motion for summary judgment, and Petitioner responded, making the matter ripe for disposition. After reviewing the record, the court grants Respondent's motion for summary judgment because Petitioner has not established that he is in custody in violation of federal law.
Petitioner is a District of Columbia parole violator serving a 120 month sentence imposed by the United States Parole Commission (the "Commission"). Petitioner alleges that the Commission violated the right to due process and the Constitution's Ex Post Facto clause when it did not apply the District of Columbia Parole Board's ("D.C. Board") 1987 guidelines to calculate his reparole date.
In 1978, the Superior Court of the District of Columbia sentenced Petitioner to life imprisonment for murder and bank robbery. While serving this sentence, Petitioner escaped from prison and committed another bank robbery for which he was convicted and sentenced.
The Commission paroled Petitioner on November 26, 2007. In July 2010, Petitioner was arrested for committing armed robbery and aggravated assault and battery in South Carolina. He was convicted of those crimes in February 2013 and was sentenced to serve eight years' incarceration concurrent with his federal sentence.
In May 2013, the Commission conducted a parole revocation hearing for Petitioner, and the hearing examiner determined that Petitioner had violated parole by committing the crimes in South Carolina. The examiner determined that the reparole guidelines called for a sentence between 36 to 48 months, but ultimately, the Commission revoked Petitioner's parole, forfeited all of the time spent on parole, and set his presumptive reparole date as July 27, 2020 after he served 120 months. The Commission explained why it imposed a 120 month sentence instead of between 36 to 48 months:
After review of all relevant factors and information, a decision above the guidelines is warranted because you are a more serious risk than indicated by the guidelines in that due to your history of violent behavior. Your prior record shows a conviction of 1st Degree Murder. While in custody, you escaped and committed a Bank Robbery. While you were on parole, you committed armed robbery of a U.S. Post Office while armed with a weapon, assaulting the victim. Your history of violence and violation behavior supports the above guideline decision.
Petitioner administratively appealed the Commission's decision without success.
Petitioner argues that the Commission had not premised its revocation decision on the District of Columbia guidelines in existence in 1987, in accordance with 28 C.F.R. § 2.80. Petitioner further argues that, when the Commission erroneously determined the new sentence, it significantly increased the practical length of his incarceration, thereby violating the Ex Post Facto Clause. Petitioner believes that he was prejudiced because 28 C.F.R. § 2.80 allegedly did not permit the Commission to consider his rehabilitative course work. Specifically, Petitioner cites his numerous rehabilitative classes completed before his parole release and, after his parole release, having never tested positive for illegal drugs and completing a financial program. Petitioner asks the court to order the Commission to hold a new hearing in accordance with the 1987 reparole guidelines.
Although the reparole hearing at issue occurred in -, Petitioner committed his initial crimes in 1977. Accordingly, it is the District of Columbia's parole guidelines and laws applicable in 1977 that govern his case, which are presently found at D.C. Code § 24-204(a) and § 24-206(a). Phillips v. Fulwood, 616 F.3d 577, 580 (D.C. Cir. 2010); see Kingsbury v. Fulwood, 902 F.Supp.2d 51, 57-58 (D.D.C. 2012) ("[A] plaintiff may invoke an ex post facto protection only on the basis of the parole regime that was in effect at the time he committed his offense[s]."). "Those regulations requir[ed] only that in exercising its discretion, the board consider a list of factors' like the inmate's offense, prior history of criminality, [and] institutional experience, ' and did not specify a way to translate the factors into a parole release date." Id. (citations omitted). Essentially, the D.C. Board enjoyed "almost unbridled" and "totally unfettered" discretion in its parole decisions. Sellmon v. Reilly, 551 F.Supp.2d 66, 86 n.15 (D.D.C. 2008) (hereinafter "Sellmon I"); Sellmon v. Reilly, 561 F.Supp.2d 46, 50 (D.D.C. 2008). The D.C. Board of Parole adopted guidelines later to channel its discretion, which were published and codified in 1987 (the "1987 Guidelines"). See Sellmon I, 551 F.Supp.2d at 69-71 (discussing the purpose and operation of the 1987 Guidelines).
The Commission assumed the responsibility of making parole release decisions for all eligible District of Columbia Code felony offenders on August 5, 1998, pursuant to the Revitalization Act and D.C. Code § 24-209. "Between 1998 and 2000, the [Commission] drafted new parole regulations and guidelines (the 2000 Guidelines') that it applied to any offender who received an initial parole hearing after August 5, 1998." Sellmon v. Reilly, 551 F.Supp.2d 66, 72 (D.D.C. 2008).
In light of the development of the "almost unbridled" and "totally unfettered" discretionary parole framework, the court finds that Petitioner does not have a direct constitutional liberty interest in parole and that the D.C. parole statutes do not create a liberty interest in either parole release or the establishment of a parole date. See Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1 (1979); Anyanwutaku v. Moore, 151 F.3d 1053, 1059, 331 U.S.App. D.C. 379 (D.C. Cir. 1998). Where there is no liberty interest in parole, "the procedures followed in making ...