United States District Court, D. Colorado
CLINTON T. ELDRIDGE, Applicant,
J. OLIVER, Warden, and U.S. PAROLE COMMISSION, Respondents.
ORDER DENYING APPLICATION FOR WRIT OF HABEAS
S. Krieger, Chief United States District Judge
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).
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.
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).
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. §
• Applicant was denied the right to administrative
(ECF No. 1 at 2-16).
relief, Applicant seeks a parole rehearing or his release on
parole. (Id. at 5).
STANDARD OF REVIEW
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.
PAROLE REGULATIONS AND GUIDELINES
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
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.
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)).
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, ...