United States Court of Appeals, District of Columbia Circuit
Edward J. X. Ford, Jr., Appellant
Charles Massarone, Commissioner of the United States Parole Commission, et al., Appellees
April 26, 2018
from the United States District Court for the District of
Columbia (No. 1:13-cv-02054)
Zachary C. Schauf, appointed by the court, argued the cause
and filed briefs as amicus curiae in support of appellant.
With him on the briefs was David W. DeBruin, appointed by the
J.X. Ford Jr., pro se, filed briefs for appellant.
C. Pfaffenroth, Assistant U.S. Attorney, argued the cause for
appellees. With him on the brief were Jessie K. Liu, U.S.
Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.
Fred E. Haynes and Alessio D. Evangelista, Assistant U.S.
Attorneys, entered appearances.
Before: Garland, Chief Judge, and Griffith and Srinivasan,
SRINIVASAN, CIRCUIT JUDGE.
Ford, Jr. is a federal prisoner serving several criminal
sentences, including one for murder in violation of federal
law and another for a separate murder in violation of D.C.
law. In 2013, Ford sued the members of the U.S. Parole
Commission, alleging (among other things) that the
Commissioners had unlawfully delayed his first hearing for
parole from his D.C. sentence.
once a D.C. offender has served the minimum term of his
court-imposed sentence, he is eligible for parole and has a
parole hearing at that time. The rule is different, though,
for the small number of offenders like Ford who are serving
sentences for both a D.C. crime and a federal crime committed
before federal parole was abolished. In that situation, if an
offender's eligibility for parole from his D.C. sentence
comes before his projected parole date on his federal
sentence, a federal regulation calls for delaying his first
D.C. parole hearing until shortly before his projected
federal parole date. The central question in this case is
whether the federal regulation's mandate to delay the
first D.C. parole hearing in that situation conflicts with
district court granted summary judgment to the Commissioners
on that claim as well as several others pressed by Ford. We
conclude that Ford's first D.C. parole hearing was
unlawfully delayed. We therefore reverse and remand for entry
of summary judgment in Ford's favor on that issue, but we
otherwise affirm the district court.
1980, Ford committed three murders in three jurisdictions in
the space of three months. Ford's final victim was an
inmate at a federal prison in Northern Virginia, whom Ford
broke into the facility to kill.
was first convicted of the prison murder and conspiracy to
commit that murder, both in violation of federal law. He
received concurrent sentences of life imprisonment for the
murder and 15 years for the conspiracy offense. Ford was next
convicted of murder while armed, kidnapping while armed, and
carrying a pistol without a license, all in violation of D.C.
law. He received a sentence of 20 years to life for the
murder, 10 years for the kidnapping, and an unspecified term
for the gun offense-all concurrent to each other, but
consecutive to his federal sentences.
currently serving his D.C. and federal sentences in federal
prison. If paroled, he will begin serving another life
sentence for a third murder he committed in Maryland.
1997, when the D.C. Board of Parole was abolished, the U.S.
Parole Commission has conducted parole proceedings for both
D.C. and federal offenders. See Daniel v. Fulwood,
766 F.3d 57, 59 (D.C. Cir. 2014). In December 2001, the
Commission held Ford's initial federal parole hearing.
Commission applied the federal parole guidelines and
determined that, barring disciplinary infractions in prison,
Ford would be paroled from his federal sentence on November
22, 2005. The Commission also concluded that Ford would
become eligible for parole from his D.C. sentence before his
projected parole date for his federal sentence. Applying the
federal regulation that governs the timing of D.C. parole
hearings for offenders serving both D.C. and federal
sentences, 28 C.F.R. § 2.65, the Commission set the
deadline for Ford's first D.C. parole hearing as July 22,
2005-four months before his projected federal parole date.
had his first D.C. parole hearing shortly after that date, on
August 10, 2005. He was denied parole. Since then, Ford has
had three rehearings-in October 2010, October 2012, and
February 2016-and has been denied parole each time. His next
rehearing is scheduled for February 2019.
2013, before Ford's most recent rehearing, he filed a pro
se complaint against the members of the Commission. Ford
raised claims under 42 U.S.C. § 1983, including a claim
that the Commissioners had violated the Ex Post Facto Clause
by delaying his first D.C. parole hearing until his projected
federal parole date (in 2005) instead of holding the hearing
as soon as he became eligible for parole from his D.C.
sentence (in 2000). The Commissioners argued in response that
they had properly applied 28 C.F.R. § 2.65(e) when
setting the date of Ford's first D.C. parole hearing.
district court agreed, and granted summary judgment to the
Commissioners on that issue and Ford's remaining claims.
Ford v. Massarone, 208 F.Supp.3d 91, 106, 108
(D.D.C. 2016). Ford appealed, and we appointed amicus counsel
to present arguments favoring Ford's position.
addressing the merits of the claims Ford has preserved, we
consider various threshold arguments advanced by the
Commissioners as to why we should decline to reach some or
all of Ford's claims. On the merits of the properly
preserved claims, we hold that the Commissioners unlawfully
delayed Ford's first D.C. parole hearing. We rule in the
Commissioners' favor on the remaining claims.
initial matter, the Commissioners argue that Ford's
action is barred by res judicata and by a federal statute
restricting second or successive habeas actions. The
Commissioners further contend that, insofar as Ford's
action can proceed, he ...