Summary
finding that, as to guidelines that came into effect after the Parole Commission became responsible for the parole determinations for D.C. Code offenders, the "broad grant of discretion does not confer a liberty interest"
Summary of this case from Roy v. FulwoodOpinion
Civil Action No. 01-277 (JMF)
March 25, 2002
MEMORANDUM OPINION
This petitioner for a writ of habeas corpus is serving a sentence of 8 to 24 years following his 1994 conviction in the District of Columbia Superior Court for manslaughter and possession of a firearm during a crime of violence.
Pursuant to section 11231 of the National Capital Revitalization and Self Government Improvement Act of 1997, Pub.L. 105-33, 111 Stat. 712, the United States Parole Commission ("Commission") now has sole authority to grant parole for all District of Columbia Code prisoners who are serving sentences for felony offenders. 28 C.F.R. § 2.70 et seq. (2000). On March 29, 1999, petitioner had his parole hearing at the Maximum Security Facility at Lorton, Virginia. While he admitted killing his victim, he insisted that the victim pulled a gun, although he had no explanation for why no gun was ever found near his victim. Based on factors such as prior convictions for crimes of violence, violence in the current offense, the death of the victim in the current offense, and behavior while incarcerated, petitioner received a Base Point Score and a Total Point Score of 9. According to the parole guidelines, this score would make him ineligible for parole but eligible for a rehearing in 22 to 28 months. 28 C.F.R. § 2.80(h),(j) (1999). Accordingly, the Commission denied parole, but instead of scheduling a rehearing in the 22-28-month time frame according to the guidelines, chose to delay the rehearing until 60 months from his eligibility date.
Reference is made to the 1999 edition of the regulations because they were in effect as of March 1999, when the initial parole hearing occurred.
In its written report, the Commission concluded:
With your Base Point Score of 9 the rehearing guidelines indicate that you should be scheduled for a rehearing within 22-28 months from your parole eligibility date. After consideration of all factors and information presented, a departure from the rehearing guidelines at this consideration is warranted for the following reasons: You are a more serious risk than indicated by your Base Point Score in that you have prior convictions for armed robbery and assault. Your present offense involved what witnesses described as a cold blooded killing of another with no apparent provocation on the part of the victim. Also, your record or prison misconduct reports include numerous incidents of threatening behavior toward prison staff.
Notice of Action, Opposition, Exh. D.
Petitioner now protests that the Commission has exceeded the guidelines and "double-counted" many of the factors used to determine the Base Point Score. He also claims not to be guilty of the conduct that was the subject of incident reports from the prisons where he had been incarcerated.
Petitioner may press his claims only if the Commission's guidelines create a liberty interest under the due process clause. The Commission cites numerous cases holding that no such interest exists. Ellis v. District of Columbia, 84 F.3d 1413, 1418 (D.C. Cir. 1996); Brandon v. D.C. Board of Parole, 823 F.2d 644, 647 (D.C. Cir. 1987); Hall v. Henderson, 672 A.2d 1047 (D.C. 1996); Jones v. Braxton, 647 A.2d 1116 (D.C. 1994). All of these cases, however, are based on the old parole regime for D.C. Code prisoners, governed by the D.C. Board of Parole and its own regulations. As already indicated, however, the United States Parole Commission now has jurisdiction over D.C. Code prisoners and conducts parole hearings according to its own regulations and guidelines.
A government only creates a constitutionally protected liberty interest in the award of parole by requiring that parole be granted upon the occurrence of certain events or the making of certain findings. Compare Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1 (1979) and Board of Pardons v. Allen, 482 U.S. 369, 376 (1987), with Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 463 (1989) and Connecticut Board of Pardons v. Dumchat, 452 U.S. 458, 464 (1981). But cf. Sandin v. Conner, 515 U.S. 472 (1995) (calling into question the current status of Greenholtz and its progeny). If there is no such requirement and the decision to parole is committed to the discretion of the Parole Board or Commission, no liberty interest is created; there is, after all, no constitutional entitlement to release upon parole before the expiration of one's sentence. Greenholtz.
The regulations provide for certain circumstances in which the Commission is authorized to make "[d]ecisions outside the guidelines":
(m) Decisions outside the guidelines — All offenders.
(1) The Commission may, in unusual circumstances, waive the Salient Factor Score and the pre- and post-incarceration factors set forth in this section to grant or deny parole to a parole candidate notwithstanding the guidelines, or to schedule a reconsideration hearing at a time different from that indicated in paragraph (j) of this section. Unusual circumstances are case-specific factors that are not fully taken into account in the guidelines, and that are relevant to the grant or denial of parole. In such cases, the Commission shall specify in the notice of action the specific factors that it relied on in departing from the applicable guideline or guideline range.28 C.F.R. § 2.80(m).
Subsection 2.80(m)(2) goes on to enumerate several factors that "may warrant a decision above and below the guidelines" but cautions that the enumeration of these factors is not intended to be exhaustive.
This broad grant of discretion does not confer a liberty interest. The regulation, for example, cannot possibly be read to require that the parolee is entitled to reconsideration within 22 to 28 months unless certain conditions are met. To the contrary, it commits the determination of the next date for reconsideration to the Parole Commission's discretion and enumerates some, but not all, of the factors that may be used to guide that discretion. It therefore must be said of the Parole Commission's new regulations what was said of the Parole Board's predecessor regulations:
Blair-Bey does point to a set of guidelines established by the Parole Board to guide its set-off decisions. The guidelines do not appear in the record; they are, however, quoted extensively in the D.C. Court of Appeals' Hall v. Henderson opinion, 672 A.2d 1047 (1996), which also involved a challenge by a D.C. inmate to a five-year set-off. n10. The guidelines list a series of "aggravating" and "mitigating" factors for the Board to consider in making set-off decisions. The D.C. Court of Appeals observed that the guidelines do require the DCBOP to have "some" basis for deviating from the normal set-off period. Nevertheless, the court found that the guidelines do not create a liberty interest, because they do not limit which factors the DCBOP can consider, or how to weigh them. Id. at 1054. We agree that so discretionary and open-ended a document cannot be construed to give rise to a liberty interest.Blair-Bey v. Quick, 151 F.3d 1036, 1047-48 (D.C. Cir. 1998).
Finally, as the recent decision in Duckett v. Quick, No. 00-7261 (D.C. Cir. March 15, 2002) teaches, even if a liberty interest arises, "the procedures required before a person may be deprived of his constitutional right to liberty are derived not from the regulation but from the Constitution itself." Slip op. at 6. Any claim that the Parole Commission failed to follow its own regulations fails. Id. at 7. The only claim petitioner could make would be that the Constitution by its own force required that the Commission follow certain procedures before it set off his reconsideration date. But the Commission heard from petitioner at his hearing and premised its ultimate conclusion on the statements of witnesses in a case where he pled guilty, his prior convictions-matters of public record, and prison misconduct reports. He cannot seriously be contending that the Parole Commission's reliance on such information created such a risk of error that its use in itself violated the due process clause. To the contrary, it would be hard to understand how the Parole Commission could fulfill its responsibilities if it could not rely on such information. See Greenholz, 442 U.S. at 16 (consideration of inmate's file, including record while confined, and interview with parolee satisfies due process).
An order denying Petitioner's Writ of Habeas Corpus Filing accompanies this memorandum.
ORDER
In accordance with the above memorandum opinion, it is, hereby,
ORDERED that petitioner's Writ of Habeas Corpus Filing [#1] is DENIED.