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DUCKETT v. U. S. PAROLE COMMN.

May 28, 1992

PHILLIP E. DUCKETT, Petitioner
v.
U. S. PAROLE COMMISSION, WARDEN BREANNON, USP Lewisburg, Respondents



The opinion of the court was delivered by: WILLIAM W. CALDWELL

 I. Introduction.

 Phillip E. Duckett, an inmate at FCI-Lewisburg, Pennsylvania, has filed a pro se petition for a writ of habeas corpus, challenging the decision of the United States Parole Commission (Commission) in December of 1991 to deny him parole and to continue him for a parole hearing in October of 1992.

 II.Background.

 Some background on the District of Columbia parole system is appropriate before moving to the specifics of Duckett's case and his challenge to the Commission's decision in regard to his parole.

 The District of Columbia uses a "point assignment grid" to establish parole eligibility. The grid combines a salient factor score (SFS), a numerical value which in turn is assigned a category for degree of risk of "low," "fair," "moderate," or "high," with points assigned for certain pre and post-incarceration factors.

 The salient factor score is calculated by using the same factors considered in determining a salient factor score under the federal parole guidelines. See 28 C.F.R. § 2.20 (1991) (federal guidelines). The SFS considers the number of prior convictions the potential parolee has.

 The pre-incarceration factors include a "type of risk assessment" which takes into account three broad categories of risk. The first category, the one at issue in the instant case, is for "violence" and considers whether the current offense involved a felony in which the prisoner caused or threatened to cause death or serious bodily injury or whether he has two or more previous convictions for a crime of that character. The remaining categories under "type of risk" are for current or past offenses involving "weapons" and "drug trafficking." Even if more than one of these inquiries is answered in the positive, the prisoner is still only assigned a under "type of risk."

 There are two post-incarceration factors. One, the "institutional adjustment" factor, is concerned with "serious disciplinary infractions" and the second, the "institutional program participation" factor, is concerned with achievement in prison programs and work assignments. The score here is either a plus or minus 1.

 28 D.C.M.R. § 204.1 provides that the Board shall use these criteria "to exercise its discretion" to determine whether a prisoner should be paroled "when, and only when, release is not incompatible with the safety of the community. Any parole release decision falling outside the numerically determined guideline shall be explained by reference to the specific aggravating or mitigating factors as stated in Appendices 2-1 and 2-2."

 28 D.C.M.R. § 204.21 provides that at parole rehearings, "the Board shall take the total point score from the initial hearing and adjust that score according to the institutional record of the candidate since the last hearing pursuant to Appendix 2-2." If the total points are 3 or less, parole is to be granted "with highest level or supervision required." Id.

 28 D.C.M.R. § 204.22 further provides that:

 The Board may, in unusual circumstances, waive the SFS and the pre and post incarceration factors set forth in this chapter to grant or deny parole to a parole candidate. In that case, the Board shall specify in writing those factors which it used to depart from the strict application of the provisions of this chapter.

 The discretion to parole is grounded in statutory authority. D.C. Code § 2-204 provides, in relevant part, as follows:

 (a) Whenever it shall appear to the Board of Parole that there is a reasonable probability that a prisoner will live and remain at liberty without violating the law, that his release is not incompatible with the welfare of society, and that he has served the minimum sentence imposed or the prescribed portion of his sentence, as the case may be, the Board may authorize his ...


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