United States District Court, D. Colorado
ORDER DENYING WRIT OF HABEAS CORPUS
LEWIS T. BABCOCK, UNITED STATES SENIOR DISTRICT JUDGE.
This matter is before the Court on the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 1) and the supplemental claims (ECF No. 15) (together the “Amended Application”) filed pro se by Applicant Stephan Moorer, an inmate at the United States Penitentiary, Florence ADX, in Florence, Colorado. Applicant’s claims challenge the denial of his parole in 2014 and 2015. Respondents filed a Response (ECF No. 12) and Supplemental Response (ECF No. 23) (together “the Answer”). Applicant also filed a “Declaration in Response to Doc. 23" (ECF No. 24) (“the Reply”).
Because Applicant is proceeding pro se, the Court must construe his pleadings liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam). The Court, however, cannot act as advocate for a pro se litigant. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The Court has determined that it can resolve the Amended Application without a hearing. 28 U.S.C. § 2243; see also Jeter v. Keohane, 739 F.2d 257 n.1 (7th Cir. 1984) (“An evidentiary hearing is not necessary when the facts essential to consideration of the constitutional issue are already before the court.”). Upon careful review of the materials supplied by the parties, the Court finds that the Amended Application should be DENIED and the case DISMISSED for the reasons discussed below.
Applicant is serving a thirty-year sentence in prison pursuant to a conviction in the Superior Court of the District of Columbia for carrying a pistol without a license and unarmed manslaughter that was committed on September 10, 1997. (ECF No. 12-1 at 2). Although Applicant was sentenced by a D.C. court under the D.C. Code, he was transferred to the custody of the United States Bureau of Prisons (“the BOP”) to serve his sentence pursuant to the National Capital Revitalization and Self-Government Improvement Act of 1997 (“the Revitalization Act”), Pub. L. No. 105-33, § 11231(a)(1), 111 Stat. 712, 745, D.C. Code § 24-131(a). The Revitalization Act also transferred paroling authority from the D.C. Board of Parole to the United States Parole Commission (“the Commission”). Id., § 11231©. Applicant is projected to be released on June 1, 2029 via mandatory parole. (ECF No. 12-1 at 2).
In the initial Application filed December 11, 2014, Applicant asserts five claims for relief challenging the Commission’s denial of parole based on the April 2, 2014 parole reconsideration hearing and the May 2, 2014 Notice of Action, which was corrected by the December 23, 2014 Notice of Action. Applicant specifically claims that:
• the Commission incorrectly applied parole guidelines concerning his “negative institutional misconduct” (claim one);
• the Commission failed to specify what unusual circumstances warranted a departure from parole guidelines (claim two);
• the Commission incorrectly applied parole guidelines concerning his positive program achievement (claim three); and
• the Commission failed to mention two disputed incident reports for criminal mail abuse (IR 2267819 and IR 2307191) (claims four and five).
(See ECF No. 1 at 2-9).
On April 9, 2015, Applicant filed a “Motion to Supplement Initial Application” (ECF No. 15). The Court granted Applicant’s request to supplement the initial application and deemed the Application to be amended, such that it now includes the following claims:
• the Court should substitute the Parole Commission as respondent instead of Isaac Fulwood, Jr. (claim six);
• the hearing examiner wrongfully recommended denial of parole at Applicant’s March 31, 2015 parole reconsideration hearing based on two incident reports that “(1) were disposed of after consideration at previous parole reconsideration hearings; (2) occurred 36 months ago, and (3) are illegally determined to be criminal conduct” (claim seven);
• Applicant’s warden wrongfully denied him access to a notary public for his March 31, 2015 parole reconsideration hearing (claim eight); and
• the Commission destroyed the audio recording of Applicant’s April 2, 2014 parole reconsideration hearing (claim nine).
(ECF No. 15 at 2-8).
As relief, Applicant seeks expungement of the incident reports for criminal mail abuse (IR 2267819 and IR 2307191), “production of the April, 2014 parole reconsideration hearing, and production of the March 31, 2015 parole reconsideration hearing, ” and his immediate release on parole. (See ECF No. 1 at 11; ECF No. 15 at 8).
II. Standard of Review
A habeas proceeding under 28 U.S.C. § 2241 is "an attack by a person in custody upon the legality of that custody, and . . . the traditional function of the writ is to secure release from illegal custody." McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 811 (10th Cir. 1997) (quoting Preiser v. Rodriguez, 411 U.S. 475, 484 (1973)). On a habeas application challenging the denial of parole by the Commission, review of the Commission’s decision is narrow. See Peltier v. Booker, 348 F.3d 888, 892 (10th Cir. 2003). The appropriate standard of review “is whether the decision is arbitrary and capricious action or is an abuse of discretion.” Dye v. U.S. Parole Comm’n, 558 F.2d 1376, 1378 (10th Cir. 1977) (per curiam); see also Gometz v. U.S. Parole Comm’n, 294 F.3d 1256, 1260 (10th Cir. 2002) (“We will not disturb a decision by the Parole Commission ‘unless there is a clear showing of arbitrary and capricious action or an abuse of discretion.’”) (internal citation omitted). “The inquiry is not whether the Commission’s decision is supported by the preponderance of the evidence, or even by substantial evidence; the inquiry is only whether there is a rational basis in the record for the Commission’s conclusions embodied in its statement of reasons.” Gometz, 294 F.3d at 1260 (internal quotation marks omitted). The Court does “not reweigh evidence, make credibility determinations, or substitute [its] judgment for the Commission’s.” Id. Moreover, “it is not the function of courts to review the Board’s discretion in denying parole or to repass on the credibility of reports received by the Board in making its determination.” Dye, 558 F.2d at 1378.
III. Relevant Statutory Background
At the time of Applicant’s offenses in 1997, parole determinations for D.C. Code offenders, like Applicant, were made by the D.C. Board of Parole pursuant to regulations published in 1987. (See ECF No. 12-12, D.C. Mun. Regs. tit. 28, §§ 100 et. seq. (1987) (repealed Aug. 5, 2000)) (hereinafter “the 1987 Guidelines”). The 1987 Guidelines utilized a series of “pre and post-incarceration factors which enable[d] the Board to exercise its discretion” to determine whether parole candidates were suitable for parole. (Id. at 15-20, the 1987 Guidelines §§ 204.1 - 204.22). Specifically, after consideration of six pre-incarceration factors, the D.C. Board of Parole calculated a parole candidate’s baseline number of points “(base point score”) that provided 0 for low risk, 1 for fair risk, 2 for moderate risk, and 3 for high risk. (Id. at 18, the 1987 Guidelines § 204.17); see also Sellmon v. Reilly, 551 F.Supp.2d 66, 70 (D.D.C. 2008) (describing in detail how the 1987 Guidelines operate).
The D.C. Board of Parole then adjusted the base point score into the total point score or point assignment grid score (hereinafter the “grid score”) after consideration of one additional pre-incarceration factor (adding one point if the parole candidate’s offense involved violence, weapons, or drug trafficking), and two post-incarceration factors (adding one point for negative institutional behavior and subtracting one point for program achievement). (See ECF No. 12-12 at 18-19, the 1987 Guidelines § 204.18); see also Sellmon, 551 F.Supp.2d at 70-71. The 1987 Guidelines indicated that parole should be granted (with varying levels of supervision) in parole reconsideration proceedings if the grid score was between 0 and 3, or denied if the grid score was between 4 and 5. (Id. at 20, the 1987 Guidelines § 204.21). The 1987 Guidelines, however, provided the D.C. Board of Parole with discretion to deny parole to prisoners deemed suitable by the grid score where the parole candidate was “a greater risk for parole than reflected by his or her total point score, ” and the Board specified in writing what applicable factors it followed in deciding that a departure from the guidelines was warranted. (Id., the 1987 Guidelines § 204.22); see also Sellmon, 551 F.Supp.2d at 71 (recognizing that the Parole Board could depart from the action indicated by the guidelines by referencing an applicable aggravating or mitigating factor); Ellis v. Dist. of Columbia, 84 F.3d 1413, 1415 (D.C. Cir. 1996) (“[Under the statutory law of parole in D.C., ] even if a prisoner established everything the statute required, the Board of Parole still had discretion to deny parole.”).
The D.C. Board of Parole clarified and expanded the 1987 Guidelines through policy statements in 1991, 1992, and 1995. (See e.g., ECF No. 12-13, 1991 Policy Guideline; ECF No. 12-14, 1995 Policy Guideline). The 1991 Policy Guideline defined terms appearing in the 1987 Guidelines. For example, in order to add a point for “negative institutional behavior” in parole reconsideration proceedings, the prisoner had to acquire either “(1) One Class I Offense. . .; OR (2) Two Class II Offenses” after “the preceding release consideration on the sentence.” (ECF No. 12-13 at 2); see also Sellmon, 551 F.Supp.2d at 71. Moreover, the 1991 Policy Guideline “added and defined three additional ‘unusual circumstances’ that would justify a departure from the action indicated by the [grid score], ” including “repeated or extremely serious negative institutional behavior.” (ECF No. 12-13 at 7-8); Sellmon, 551 F.Supp.2d at 72.
The 1995 Policy Guideline, which superseded the 1991 Policy Guideline, revised the factors that would support a departure from the action recommended by the grid score. (See ECF No. 12-14). For example, the 1995 Policy Guideline spoke only of “serious negative institutional behavior” as a factor that would support a departure and defined the term as “documented criminal conduct or breach of institutional rules, the severity, frequency, or recent occurrence of which indicates that subject is not ready to remain crime-free in the community.” (Id. at 3). Moreover, “[u]nlike the 1991 Policy [Guideline], which provided a three-year limitation period, the 1995 Policy [Guideline] allowed for the consideration of infractions that had occurred at any time during incarceration.” Goodall v. Billingsley, No. 11Civ.5603(RA), 2013 WL 3343658, at *5-7 (S.D.N.Y. June 28, 2013) (unpublished).
On August 5, 1997, the Revitalization Act abolished the D.C. Board of Parole and tasked the Commission with responsibility for making parole determinations “pursuant to the parole laws and regulations of the District of Columbia.” See Pub. L. No. 105-33, § 11231, 111 Stat. 712, 734-37 (codified at D.C. Code §§ 24-101 et seq. (2001 & Supp. 2005). Between 1998 and 2000, the Commission drafted new parole regulations and guidelines (hereinafter “the Commission Guidelines”) that it applied to any D.C. Code offender who received an initial parole hearing after August 5, 1998. See 28 C.F.R. § 2.20; see also Sellmon, 551 F.Supp.2d at 72. However, due to subsequent litigation raising ex post facto concerns, the Commission promulgated a rule in 2009 that application of the 1987 Guidelines applied to any offender who committed his crime between March 4, 1985 (the effective date of the 1987 Guidelines), and August 4, 1998 (the last day the D.C. Board of Parole exercised parole release authority) (hereinafter “the Sellmon Rule”). See 74 Fed. Reg. 34688 (July 17, 2009) (interim rule, effective August 17, 2009) and 28 C.F.R. § 2.80(o) (November 13, 2009) (final rule).
IV. Applicant’s Parole Hearing History
On February 20, 2007, the Commission conducted Applicant’s initial parole hearing under the Commission Guidelines. (See ECF No. 12-2). The hearing examiner recommended denial of parole and reconsideration in three years. (Id. at 5). The hearing examiner noted that Applicant’s “behavior in prison has been marked by a number of disciplinary actions for Fighting and Possession of Weapons and Assault.” (Id. at 4).
On March 5, 2007, the Commission issued its Notice of Action denying parole and continuing the matter to a reconsideration hearing in February 2010. (See ECF No. 12-3). Under the Commission Guidelines, the Commission determined that Applicant’s total guideline range (the total range of time the prisoner must presumptively serve before he is suitable for parole) was 149 to 197 months, which included consideration of twelve disciplinary infractions, three of which counted as new criminal conduct that were committed while Applicant was incarcerated. (Id. at 1, 3).
Applicant next appeared at his second parole hearing on January 5, 2010. (ECF No. 12-4). Following the Sellmon Rule, the hearing examiner reevaluated Applicant’s case pursuant to the 1987 Guidelines and determined that his base point score was 2, which included adding one point for negative institutional behavior based on the twelve disciplinary infractions that Applicant had incurred prior to his initial parole hearing in 2007. (Id. at 2). The hearing examiner further determined that Applicant’s current grid score was 2, which included adding one point for negative institutional behavior based on six additional disciplinary infractions acquired after Applicant’s initial parole hearing, and subtracting one point for positive program achievement. (Id. at 2-3). The hearing examiner specifically found that Applicant received two “Class One” disciplinary offenses for assault with serious injury and possession of a weapon. (Id.). The hearing examiner further noted that although Applicant “has a parolable Grid Score of 2 . . . due to his ongoing serious and negative institutional behavior, this examiner does not believe [Applicant] has shown that he is worthy of a parole date at this point.” (Id. at 3).
The Commission applied the 1987 Guidelines and followed the hearing examiner’s recommendations in its February 24, 2010 Notice of Action. (See ECF No. 12-5). The Commission explained that while Applicant’s grid score of 2 indicated that parole should be granted, a departure above the guidelines was warranted because “the Commission finds there is a reasonable probability you would not obey the law if released and your release would endanger the public safety.” (Id. at 1). The Commission specifically noted that Applicant “continued to engage in serious negative institutional behavior” and determined that Applicant’s disciplinary record consisted of the following: (I) eleven disciplinary infractions prior to Applicant’s initial parole hearing in 2007; (ii) five disciplinary infractions since the initial hearing; and (iii) three acts of possession of a dangerous weapon and two assaults with serious injury. (Id.). The Commission advised Applicant that he “must demonstrate a substantial period of incident free conduct prior to further parole consideration.” (Id.). A reconsideration hearing was scheduled in 24 months. (Id.).
On February 1, 2012, the Commission conducted Applicant’s third parole hearing. (See ECF No. 12-7). The hearing examiner listed three incidents of institutional misconduct committed by Applicant since the January 2010 parole hearing, which included a “Class 2" infraction for fighting in March 2010, a “Class 1" infraction for using marijuana in November 2010, and a “Class 2" infraction for phone abuse in October 2011. (Id. at 2-3). The hearing examiner added one point for negative institutional behavior based on these infractions. (Id.). Although Applicant’s grid score remained 2, which indicated parole under the 1987 Guidelines, the hearing examiner recommended denial of parole as well as reconsideration in 24 months because “[y]ou are a more serious risk than shown by your point score because you have engaged in serious negative institutional behavior.” (Id. at 3).
On March 12, 2012, the Commission issued its Notice of Action denying parole and continuing the matter for a reconsideration hearing in February 2014. (ECF No. 12-8). The Commission explained that while the 1987 Guidelines indicated that Applicant should be granted parole, a departure was warranted because of his serious negative institutional behavior, which indicated that Applicant was “not ready to obey the laws if paroled.” (Id. at 1). The Commission also determined that a departure from the guidelines for a rehearing within one year was warranted because “it believes the additional time in custody is ...