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Eldridge v. Oliver

United States District Court, D. Colorado

June 29, 2017

J. OLIVER, Warden, and U.S. PAROLE COMMISSION, Respondents.


          Marcia S. Krieger, Chief United States 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) filed pro se by Applicant Clinton T. Eldridge, an inmate at the United States Penitentiary, Administrative Maximum, in Florence, Colorado. Applicant challenges the denial of his parole in 2010, 2013, and 2016. Respondents filed a Response (ECF No. 28), and Applicant filed an “Answer to Respondent's Response to Writ of Habeas Corpus” (ECF No. 29) (“Reply”). Applicant also filed “Petitioner's Request the Court to Grant Permission to Supplement the Record” (ECF No. 30), “Motion for Leave to File a Clarification on the Issue of ‘Sex Offender Treatment Program'” (ECF No. 39), “Motion to Supplement the Record” (ECF No. 44), and “Emergency Motion for a Show Cause Order to Respondents” (ECF No. 49).

         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 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 Application should be DENIED and the case DISMISSED for the reasons discussed below.

         I. BACKGROUND

         In 1984, Applicant was convicted of eight felony counts, including rape and robbery, and was sentenced by the District of Columbia Superior Court to consecutive prison terms totaling 40 to 120 years. (ECF No. 28-2 at 1). 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 (“BOP”) to serve his sentence pursuant to the National Capital Revitalization and Self-Government Improvement Act of 1997 (“Revitalization Act”). See D.C. Code § 24-101. The Revitalization Act also transferred paroling authority from the District of Columbia Board of Parole (“Board”) to the United States Parole Commission (“Commission”). See D.C. Code § 24-131. Applicant became eligible to be considered for parole on November 9, 2010. (ECF No. 28-2 at 2).

         In this action, Applicant challenges the Commission's decisions denying him parole in 2010 (“claim one”), 2013 (“claim two”), and 2016 (“claim three”). Construing his allegations liberally, Applicant raises four claims:

• the Commission incorrectly applied parole guidelines concerning his positive program achievements;
• the Commission erred in denying parole based on Applicant's failure to participate in sex offender treatment that had not been recommended earlier or made available to him and is not required under parole guidelines;
• the Commission incorrectly relied on 18 U.S.C. § 4042; and
• Applicant was denied the right to administrative appeals.

(ECF No. 1 at 2-16).

         As relief, Applicant seeks a parole rehearing or his release on parole. (Id. at 5).


         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)). Judicial review of the Commission's parole 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 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 citation and 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 [Commission's] discretion in denying parole or to repass on the credibility of reports received by the [Commission] in making its determination.” Dye, 558 F.2d at 1378.


         At the time of Applicant's offenses, parole eligibility for prisoners sentenced under the D.C. Code was determined by the Board pursuant to regulations issued in 1972 (“the 1972 Regulations”). See Daniel v. Fulwood, 766 F.3d 57, 58 (D.C. Cir. 2014) (providing historical overview of parole regulations and guidelines for D.C. Code offenders). Under the 1972 Regulations a prisoner became eligible for parole after serving the minimum sentence imposed by the sentencing court. Id. Once eligible for parole, the Board would then determine whether the prisoner was suitable for parole by considering a set of factors that included, “‘[a]mong others, ' the nature of the prisoner's offense, his prior criminal history, his personal and social history, and his institutional experience (including behavior in prison, involvement in academic and vocational programs, etc.).” Id. at 58-59. The 1972 Regulations contained no prescribed method for “translat[ing] the factors into a parole release date.” Id. at 59 (citing Phillips v. Fulwood, 616 F.3d 577, 579 (D.C. Cir. 2010)). Thus, the Board “operated with nearly complete discretion.” Wilson v. Fullwood, 772 F.Supp.2d 246, 252 (D.D.C. 2011); see also Sellmon v. Reilly, 551 F.Supp.2d 66, 86 n.15 (D.D.C. 2008) (recognizing that the Board enjoyed “almost unbridled discretion” in its parole decisions because the 1972 Regulations “offered no guidance as to how these factors should be weighted in the decision.”).

         In 1987, the Board replaced the 1972 Regulations with new regulations creating a system of points related to offender history, offense characteristics, and behavior while in prison. See D.C. Mun. Regs. tit. 28, § 204 et. seq. (1987) (repealed Aug. 5, 2000) (“the 1987 Regulations”). The resulting point total determined whether parole would be granted, id. § 204.19, although the Board could depart from the point calculation in “unusual circumstances, ” id. § 204.22.

         On August 5, 1997, the Revitalization Act abolished the Board and tasked the Commission with responsibility for making parole determinations “pursuant to the parole laws and regulations of the District of Columbia.” D.C. Code § 24-131(a). In 2000, the Commission drafted new parole regulations and guidelines (“the 2000 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. § 2.80. The 2000 Guidelines established a different point-based system, which calculated a range of months beyond the time a prisoner is eligible for parole that must be served before he is regarded as suitable for parole. See Daniel, 766 F.3d at 59 (citing § 2.80(1)). The first step in this determination involves assigning points based on the prisoner's risk of recidivism, the presence of violence in his current or prior offenses, and whether the current offense involved the death of a victim or an otherwise high level of violence. Id. (citing § 2.80(c), (f)). The sum of these points, called the prisoner's “base point score, ” corresponds to a range of months to be served by the prisoner, called his “base guideline range.” Id. (citing § 2.80(f), (h)). That range of months is added to the number of months until the prisoner's parole eligibility date, and adjusted upward for “significant disciplinary infractions” and downward for “superior program achievement.” Id. (citing § 2.80(j)-(1)). This calculation at the initial parole hearing produces the prisoner's “total guideline range”-the range of time the prisoner must presumptively serve before he is considered suitable for parole. Id. (citing § 2.80(b), (1)). At subsequent reconsideration hearings, the Commission “[a]dd[s] together the ... Total Guideline Range from the previous hearing, and the ... guideline range for [any] disciplinary infractions since the previous hearing, ” and “[t]hen subtract[s] [any] award for superior program achievement.” Id. at 60 (citing § 2.80(m)). Although the Commission may “grant or deny parole to a prisoner notwithstanding the guidelines, ” it may do so only in “unusual circumstances.” Id. (citing § 2.80(n)(1)).

         In 2015, the Commission amended 28 C.F.R. § 2.80 to provide that the Commission must use the parole guidelines in the 1972 Regulations when reviewing parole applications filed by D.C. Code offenders who committed their offenses on or before March 3, 1985. See 80 Fed. Reg. 63115-01 (Oct. 19, 2015); 28 C.F.R. § 2.80(p). The Commission promulgated this new rule due to “developing case law that relates to parole guidelines and the Ex Post Facto Clause, ” and to be consistent with its decision to apply the parole guidelines in the 1987 Regulations to any D.C. Code offender who committed his offense between March 4, 1985 and August 4, 1998, i.e., the Sellmon rule. See 80 Fed. Reg. 63115-01 (Oct. 19, ...

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