The opinion of the court was delivered by: Richard P. Conaboy United States District Judge
Here we consider Petitioner Ricky Bryant's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2241 (Doc. 1). Petitioner, a District of Columbia offender currently incarcerated at the United States Penitentiary-Lewisburg ("USP-Lewisburg") in Lewisburg, Pennsylvania, filed the action on October 23, 2006, accompanied by a request to proceed in forma pauperis (Doc. 2) and brief in support of the Petition (Doc. 3). On October 25, 2006, the Court directed service on Respondent (Doc. 5), and Respondent filed his response on November 16, 2006, (Doc. 11-1). Petitioner filed a reply on December 21, 2006, (Doc. 12).*fn1
In his Petition, Petitioner identifies five grounds on which he asserts he is being held unlawfully. (Doc. 1.) Each of the identified grounds relates to Petitioner's assertion the United States Parole Commission improperly applied amended parole guidelines to a District of Columbia offender in violation of the Ex Post Facto Clause of the United States Constitution. As will be discussed below, because we find Petitioner has not met his burden of establishing an Ex Post Facto Clause violation, we will dismiss this Petition.
Petitioner is serving an aggregate term of thirty years to life for felony murder while armed, armed robbery and burglary -crimes committed in 1979 and 1980. (Doc. 11-1 at 1, Ex. 1.) He was convicted in the District of Columbia Superior Court (id.) and is within the jurisdiction of the United States Parole Commission ("Commission") pursuant to the National Capital Revitalization and Self-Government Act of 1997,*fn2 which transferred authority for D.C. Code offenders to the Commission and abolished the D.C. Parole Board.
Although Petitioner became eligible to be considered for parole on June 30, 2002, the Commission did not conduct the initial parole hearing until July 3, 2003. (Doc. 11-1 at 2.) The delay reportedly was due to difficulty obtaining a copy of Petitioner's pre-sentence report on his felony murder conviction. (Id. n.2.)
At the initial hearing, the Commission determined a parole guideline range under 28 C.F.R. § 2.80 which yielded an aggregate range of 394-446 months. (Doc. 11-1 at 2-3.) Considering Petitioner's offenses of conviction, his two previous offenses (including forcible rape and armed robbery) and his nine disciplinary infractions he had committed while confined, the Commission determined Petitioner had a "base point score guideline range" of 72-96 months, to which was added 270-270 months (months required to be served to parole eligibility date), and 52-80 months (disciplinary guideline range). (Doc. 11-1 at 2-3; Ex. 2.) The Commission denied parole and set a reconsideration hearing in July 2008 - a sixty-month set-off period. (Doc. 11-1 at 3.)
Petitioner filed this habeas action on October 23, 2006, asserting five grounds for relief. (Doc. 1.) The following are the grounds identified: 1) the United States Parole Commission's guidelines are laws for purposes of parole as applied to District of Columbia offenders; 2) the United States Parole Commission improperly postponed Petitioner's parole eligibility/release date beyond the guideline range in violation of the Ex Post Facto Clause of the United States Constitution by relying on a 1987 amendment to the Sentencing Reform Act ("SRA") which authorized upward departures not allowed when Petitioner committed his crimes in 1979-1980; 3) Petitioner was impermissibly disadvantaged by the Parole Commission's application of 1987 amendments to the SRA because the original § 235(b)(3) required that parole release dates be set within the guideline range; 4) the United States Parole Commission failed to follow the regulatory framework for parole decisions of the District of Columbia Board of Parole when it recalculated his eligibility to 394-446 months; and 5) the United States Parole Commission violated federal law and tainted Petitioner's initial parole eligibility hearing by using stale disciplinary reports to calculate his Total Point Score. (Doc. 1.)
In his supporting brief, Petitioner supplements his Ground Four claim regarding the Commission's failure to follow the appropriate regulatory framework with the assertion that the Commission violated the Ex Post Facto clause when it determined that his next parole hearing would be sixty months from the July 2003 hearing, rather than the one year set-off customary under the D.C. guidelines. (Doc. 3 at 5.)
In his reply brief, Petitioner makes the additional argument he is impermissibly disadvantaged because the federal parole regulations are primarily concerned with punishment where the District of Columbia's former regulations factored evidence of post incarceration rehabilitation into the parole determination. (Doc. 12 at 6.)
Finally, Plaintiff avers the Commission is motivated to amend the guidelines in ways that disadvantage D.C. Code offenders because the viability of the Commission depends on extending D.C. Code offenders' sentences. (Doc. 3 at 8; Doc. 12 at 8.)
Petitioner's habeas petition is primarily based on his assertion that the Commission's application of various guidelines and a 1987 amendment to § 235(b)(3) of the Sentencing Reform Act violate the Ex Post Facto Clause of the United States Constitution because he is a District of Columbia code offender entitled to have allegedly less stringent D.C. guidelines applied to him regarding his eligibility for parole. (Docs. 1, 3, 12.)
Petitioner first argues the Commission's parole guidelines are Ex Post Facto laws for purposes of parole under the "old D.C. law." (Doc. 1 para. 9(a).) For the reasons discussed below, we do not decide this issue, but will assume for the purpose of discussion that the guidelines are "laws" in the context of the analysis of whether a violation of the Ex Post Facto Clause has occurred in this case.
The Ex Post Facto Clause prohibits "laws that retroactively alter the definition of crimes or increase the punishment for criminal acts." California Dep't of Corrections v. Morales, 514 U.S. 499, 504 (1995). Thus, the initial inquiry is whether the parole guidelines at issue here are "laws" for ex post facto purposes.
The guidelines in question were promulgated pursuant to the National Capital Revitalization and Self-Government Improvement Act of 1997 ("Revitalization Act") which gave the Commission the authority to make parole decisions for D.C. Code offenders. See Franklin v. District of Columbia, 163 F.3d 625, 632 (D.C. Cir. 1998). The decisions were to be governed by the rules of the D.C. Parole Board, but the Revitalization Act also gave the Commission the "exclusive authority to amend or supplement any regulation interpreting or implementing the parole laws of the District of Columbia." Revitalization Act § 11231(a)(1). Pursuant to this authority, the Commission developed its own guidelines for making parole decisions for D.C. Code offenders which are codified at 28 C.F.R. § 2.80.*fn3
The Third Circuit Court of Appeals addressed the question of whether the Commission's guidelines were "laws" for ex post facto purposes in U.S. ex rel. Forman v. McCall, 709 F.2d 852 (3d Cir. 1983).*fn4 Forman held that parole guidelines could constitute "laws" within the meaning of the Ex Post Facto Clause if they are applied without substantial flexibility. Id. at 862. The court further held that the substantial flexibility question - the manner in which the Commission applied its guidelines - was a question of fact to be determined by the district court: "the district court will be free to rely upon statistics, affidavits, testimony, and other evidentiary sources." Id.
Here Petitioner urges us to consider the guidelines in question laws for ex post facto purposes. (Doc. 3 at 3.) Respondent asserts statistical evidence demonstrates the Commission is applying the guidelines with substantial flexibility so they should not be considered laws. (Doc. 11-1 at 12.)
Here the evidence of record is not sufficient to undertake the statistical evaluation required by Forman. Rather than require Respondent to file additional submissions in support of his claim that the guidelines are not "laws" in the present context, for the sake of judicial efficiency we will assume arguendo the guidelines in question are laws for ex post facto purposes.
B. Ex Post Facto Standard
The two-prong test used to determine whether a law violates the Ex Post Facto Clause is whether it 1) involves a change in law which has a retrospective effect and 2) whether the law creates a sufficient risk of increasing the measure of punishment attached to the covered crimes. Richardson v. Pa. Board of Probation and Parole, 423 F.3d 282, 287-88 (3d Cir. 2005) (citing Weaver v. Graham, 450 U.S. 24, 29 (1981); Calif. Dep't of Corr. v. Morales, 514 U.S. 499, 509 (1995)). "[A] 'speculative or attenuated possibility . . . of increasing the measure of punishment' is not enough." Richardson, 423 F.3d at 288 (citing Morales, 514 U.S. at 509). The prisoner carries the ultimate burden of establishing that the measure of punishment itself has changed and the law, as applied to his own sentence, creates a significant risk of increasing his punishment. Id. (citing Garner v. Jones, 529 U.S. 244, 255 (2000), Morales, 514 U.S. at 510 n.6).
Respondent does not argue the guidelines were not applied to Petitioner retrospectively. Therefore, the question is whether Petitioner has shown the guidelines applied to him sufficiently increased the measure of his punishment.
To make this determination, we must first decide the comparators: we know from the record what guidelines the Commission employed in considering Petitioner's parole eligibility,*fn5 but to decide the second prong of the ex post facto inquiry we must look at which D.C. rules should be used as ...