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BLAIR-BEY v. ASHCROFT

September 27, 2005.

CLARENCE E. BLAIR-BEY, Plaintiff
v.
JOHN ASHCROFT, et al. Defendants.



The opinion of the court was delivered by: THOMAS VANASKIE, Chief Judge

MEMORANDUM

I. Introduction.

On March 19, 2004, Clarence E. Blair-Bey ("Blair-Bey"), an inmate formerly housed at the Allenwood United States Penitentiary, White Deer, Pennsylvania, filed this action pursuant to 28 U.S.C. § 1331, asserting Freedom of Information Act, Privacy Act and other claims surrounding the United States Parole Commission's decision to deny him parole and set his rehearing date in September 2007. Plaintiff proceeds pro se and in forma pauperis.

  Plaintiff essentially asserts the following claims in his Complaint: (1) violation of the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and Privacy Act, 5 U.S.C. § 552a with respect to records produced and not produced by the Parole Commision; (2) violations of applicable law governing the parole decisionmaking process; and (3) an ex post facto violation because the Parole Commission deferred parole beyond the time he would have had to serve under parole guidelines and beyond the scheduled date for the expiration of the Commission. (Dkt. Entry 1.) Blair-Bey seeks injunctive and monetary relief for the alleged FOIA and Privacy Act violations He also requests injunctive relief in the form of a new parole hearing as a remedy for the alleged violations of parole decisionmaking regulations and procedures. (Id.)

  Named as Defendants are the U.S. Department of Justice; the Parole Commission; former Attorney General John Ashcroft; Commission Chairman Edward F. Reilly, Jr.; and Commission employees Stephen J. Husk, Shelley Witenstein, Margaux G. Jablonski, Deborah H. Dudley, Pamela A. Posch, and Rockne J. Chicknell. He also purports to sue "John and Jane Doe, employees of the U.S. Parole Commission. . . ." (Complaint, Dkt. Entry 1, at 2.)

  On November 1, 2004, a Motion to Dismiss, or in the alternative, for Summary Judgment, was filed on behalf of all Defendants with the exception of Jablonski, Dudley and John and Jane Doe, who have not been served with process. (Dkt. Entry 32.) In conjunction with their motion Defendants filed a statement of fact, supporting brief and exhibits. (Dkt. Entries 35 and 36.) Defendants contend Blair-Bey's FOIA claim should be dismissed as moot as he received a list of the Commission's members and hearing examiners in September of 2004. Likewise, they assert Plaintiff fails to state a claim under the Privacy Act and is not entitled to monetary damages. Defendants argue that the remainder of Blair-Bey's action sounds in habeas, precluding the relief requested. Alternatively, they argue that Plaintiff's claims lack substantial merit. Plaintiff did not proffer a formal brief in opposition to Defendants' motion, or file a response to Defendants' Statement of Facts. However, on November 19, 2005, Plaintiff did file a Motion for Partial Summary Judgment (Dkt. Entry 39), in which he cites to Defendants' filings and arguments.*fn1 On December 16, 2004, Blair-Bey filed a 22-page brief, responding to Defendants' arguments and asserting that he is entitled to judgment in his favor on the liability of Defendants. (Dkt. Entry 45.)

  Having carefully considered the parties' submissions, I find that Blair-Bey's FOIA claim is moot, his Privacy Act claim is meritless, and his challenges to the parole decisionmaking process and decision to set his parole hearing date in September of 2007 also lack merit. Accordingly, Defendants' Summary Judgment Motion will be granted.

  II. Background.*fn2

  Blair-Bey has been litigating adverse parole determinations in the federal court system for over a decade. This present action concerns the latest adverse decision, reached in May of 2003. The pertinent background leading up to the latest denial of parole was set out in Blair-Bey v. Mendez, Civ. A. No. 3:CV-02-0052, slip op. at 2-9 (M.D. Pa. April 7, 2003), cert. of appealability denied, No. 03-2414 (3d Cir. March 4, 2004), and, without references to the record of the earlier case, is restated here:

  Blair-Bey had a very troubled youth. See Blair-Bey v. Quick, 151 F.3d 1036, 1037-38 (D.C. Cir. 1998) ("Blair-Bey I".) By the age of 15, he had committed a number of serious crimes, including rape, receiving stolen property, and destruction of property. In 1975, at the age of sixteen, while on escape from a juvenile detention facility where he had been incarcerated for rape, Blair-Bey committed a murder. On February 13, 1976, Blair-Bey was sentenced by the District of Columbia Superior Court to ten years to life for murder in the second degree. Blair-Bey is currently serving this sentence.

  In 1980, at the age of 21, while incarcerated on his first murder conviction, Blair-Bey killed another inmate by stabbing him in the back with a knife after the victim confronted him the day earlier requesting the return of a sweater, allegedly stolen from the decedent by Blair-Bey. After pleading guilty to second degree murder in the United States District Court for the Eastern District of Virginia, Blair-Bey was sentenced to a consecutive term of ten years to life. He was then transferred to a federal facility to begin serving his federal sentence.

  The United States Parole Commission ("Commission") held Petitioner's initial parole hearing in 1991. Because Blair-Bey was serving a combined D.C. and federal sentence, or a "mixed sentence," pursuant to 28 C.F.R. § 2.65, the Commission first determined an amount of time to be served on the federal sentence, and then specified a date on which the D.C. parole guidelines would be applied. The Commission decided that the District of Columbia guidelines would be applicable as of October 15, 1991, after Blair-Bey had served 200 months for his federal offense.

  Upon completion of his federal sentence, Blair-Bey was transferred to a D.C. prison. In October 1993, a Commission Examiner, "apparently in error," conducted a parole hearing, denied parole and set a rehearing date in 24 months, or in September of 1995. Blair-Bey I, 151 F.3d at 1038. Before the Commission formally adopted these recommendations, the Commission and the D.C. Board of Parole ("Board") determined that the Board, and not the Commission, had jurisdiction over Blair-Bey. Id. The Board then conducted a de novo initial parole hearing, applying regulations that were promulgated in 1987. Finding Blair-Bey ineligible for parole under the 1987 regulations, the Board denied parole and set a rehearing date of October 29, 1998, five years from the initial Board parole hearing. Id. The Board, unlike the Commission, considered Petitioner's "numerous juvenile offenses in making its calculations." Id. The Board also considered his "extremely serious negative institutional behavior" and noted that, for the same reasons, the five-year set-off*fn3 was outside of the usual twelve month set-off. Id.

  Blair-Bey then filed "a habeas corpus petition in the D.C. Superior Court claiming the [Board] acted illegally in denying him parole and establishing the five-year set-off." Id. The D.C. Superior Court dismissed the petition sua sponte, and the D.C. Court of Appeals summarily affirmed.

  Blair-Bey then filed a § 2241 petition in federal district court, claiming that the denial of parole lacked a rational basis and that application of the 1987 regulations violated the ex post facto clause of the United States Constitution, Art. I, § 10. The petition was again summarily dismissed based on lack of both jurisdiction and substantive merit. Blair-Bey I, 151 at 1038. Blair-Bey appealed the dismissal. The Circuit Court of Appeals, after dispensing with the jurisdictional bar, addressed the merits of the two claims raised by Blair-Bey. The appeals court held that the D.C. parole guidelines "did not create a liberty interest, because they do not limit which factors the [Board] can consider, or how to weigh them." Id. at 1047-48. Thus, the Board's identification of "some" basis for deviating from the normal twelve month set-off period, and assigning a five year set-off for Blair-Bey, did not violate due process. As to the ex post facto claim, the court ruled that Blair-Bey should be afforded the opportunity to establish a factual foundation for his assertion that the 1987 regulations served to increase the punishment for his 1976 murder. Id. at 1049-50. The appellate court, on October 16, 1998, declined to reconsider its direction to remand the matter for consideration of the ex post facto issue. 159 F.3d 591 (D.C. Cir. 1998).

  In August of 1998, while the petition for rehearing was still pending with the Court of Appeals, Blair-Bey received a parole review hearing. Although it was the Board that had made the decision at issue in the Court of Appeals' ruling, it was the Commission that conducted the review hearing.*fn4 Using the D.C. 1987 parole guidelines, Commission Hearing Examiner Charles Lyons gave Petitioner a "point assigned grid score," or "PAGS," of 2, but adjusted this number by one after considering Blair-Bey's "positive program adjustment and participation," giving him an adjusted PAGS of 1, "which indicates parole could be granted." But the Hearing Examiner did not recommend parole, finding Blair-Bey "is a more serious risk ...


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