The opinion of the court was delivered by: Yvette Kane, Chief Judge Middle District of Pennsylvania
Petitioner Thomas R. Jones filed the instant petition for writ of habeas corpus action pursuant to 28 U.S.C. § 2241 on January 25, 2006. At the time he filed this action, Petitioner was confined at the Allenwood Low Security Correctional Institution in White Deer, Pennsylvania.*fn1 Named as Respondents are Troy Williamson, the Warden at LSCI-Allenwood and the United States Parole Commission ("Commission"). Petitioner claims the Commission failed to abide by its regulation at 28 C.F.R. § 2.19(c) when it did not give him notice of the aggravating factors it would consider in departing from the guideline range. He contends that the Commission departed from the guideline range without justifiable reason and acted arbitrary and capricious. He further claims that the Commission impermissibly used the same criteria to exceed the guideline range on two separate occasions. For the reasons that follow, the Court finds the petition to be without merit.
Petitioner was sentenced to eight (8) to twenty-four (24) years of imprisonment for second degree murder on August 13, 1997, by the District of Columbia Superior Court. Jurisdiction over Petitioner, as a D.C. offender, was thereafter transferred to the United States Parole Commission.*fn2 On April 4, 2000, he received an initial parole hearing from the Commission. The Initial Hearing Summary reveals that Petitioner received a point score under the applicable regulations as 5 points, a score not allowing parole at that time.*fn3 See 28 C.F.R. § 2.80 (2000). The Examiner found no reason to go outside the guidelines, that Petitioner had rehearing guidelines of 18-24 months, and recommended a rehearing take place after 20 months. As such, the Examiner recommended that parole be denied and Petitioner continued for rehearing in August of 2002, twenty (20) months from his parole eligibility of December 11, 2000. (Doc. 10, Response, Ex. 2.) A Notice of Action was issued by the Commission on May 4, 2000, ordering that parole be denied and Petitioner continued for a rehearing in December 2005, after service of 60 months from his parole eligibility date of December 11, 2000. This was a departure from the 18-24 month rehearing guidelines. The Commission set forth the following explanation for the departure:
After consideration of all factors and information presented, a departure from the rehearing guidelines at this consideration is warranted for the following reason: You are a more serious risk than indicated by your base point score in that the instant murder involved an exceptionally cruel killing of the victim by taking him unaware as he stood by his car in conversation with others. You proceeded to shoot him at least 6 times, indicating that his murder was a deliberate assassination. At your parole hearing, you falsely claimed that you shot the victim in self defense when he pulled a gun on you. Your lack of remorse, refusal to accept responsibility for this crime, and contempt for the evidence upon which you were convicted, warrants the conclusion that your participation in prison programming would not be a meaningful indicant of you [sic] rehabilitation. (Doc. 10, Ex. 3 at 2.)
On June 9, 2005, a rehearing was conducted by the Commission.*fn4 (Doc. 10, Ex. 4, Hearing Summary.) At the hearing, Petitioner's Total Guideline Range under 28 C.F.R. § 2.80 was computed by the Hearing Examiner. Pursuant to § 2.80, the salient factor score is computed under § 2.20 and then converted into a Base Point Score, taking into account the degree of violence in the current and prior offenses, and whether the current offense involved "high level violence" and/or resulted in the death of the victim. See § 2.80 (c)-(f). Petitioner's salient factor score was computed as 3 points, due to a finding that he had one prior commitment of more than thirty days. (Id.) This converted to a Base Point Score of 8 points.
Petitioner's Base Point Score of 8 points correlates to a Base Guideline Range of 72-96 months. ( See § 2.80(h).) Added to this base range by the Hearing Examiner was 71-71, the months to be served to parole eligibility (see § 2.80(i)), and 0-2 months for a disciplinary infraction Petitioner incurred since his last hearing (see §2.80(j)). Subtracted from the guideline range was 8 months for Petitioner's superior program achievement since the last hearing. Based on the foregoing calculations, Petitioner had a Total Guideline Range of 135-161 months.*fn5 The Examiner recommended a rehearing rather than parole, based on the information contained in the Notice of Action dated May 4, 2000, as a reason to exceed the rehearing guidelines. (Doc. 10, Ex. 4 at 4.) Petitioner had been in confinement as a result of his current offense behavior for a total of 125 months as of June 18, 2005. This recommendation was adopted by the Commission in a Notice of Action dated July 8, 2005, wherein parole was denied and Petitioner continued to a 3 year rehearing in June of 2008, after service of 36 months. (Doc. 10, Ex. 5.)
On November 16, 2005, the Commission issued a Notice of Action reopening Petitioner's case pursuant to 28 C.F.R. § 2.28(a) based upon the receipt of new and significant information. It was discovered through correspondence received from Petitioner's counsel that Petitioner neither had a prison commitment of more than 30 days prior to the date he committed his current offense nor was on probation at the time of his current offense. (Doc. 10, Ex. 6.) As such, his salient factor score was modified from 3 to 6, with a resulting reduction in Petitioner's Total Guideline Range from 143-167 months to 99-113 months. (Doc. 10, Ex. 7, Notice of Action dated 11/16/05.) No change was ordered by the Commission in its previous decision to continue Petitioner to a 3 year rehearing in June of 2008, which now represented a departure from the guidelines. The Commission provided the following reasons for the departure:
The gravity of the current offense is deemed sufficient to warrant an upward departure from the guidelines and a denial of parole for the following reasons: The murder you committed was in response to a drug transaction which had gone poorly. The Commission does not accept your version of events in which you state you had nothing to do with the drug matter and that you acted in self-defense when the victim pulled a gun on you. The instant murder involved an exceptionally cruel killing of the victim by taking him unaware as he stood by his car in conversation with others. You proceeded to shoot him at least 6 times, indicating that this murder was a deliberate assassination. Your lack of remorse, refusal to accept responsibility for this crime, and contempt for the evidence upon which you were convicted, warrants the conclusion that your participation in prison programming and your service of sentence within the guideline range, would not be a meaningful indicant of your rehabilitation.
(Id.) Petitioner thereafter filed the instant habeas petition on January 25, 2006, challenging actions of the Parole Commission.
A. Commission's Failure to Provide Notice of Departure from Guidelines
Petitioner first contends that the Commission violated its regulation at 28 C.F.R. § 2.19(c) when it failed during his rehearing of June 9, 2005, to provide him notice of the factors it would consider in departing from the guidelines. Pursuant to § 2.19(c) aggravating or mitigating circumstances may be taken into consideration by the Commission provided the prisoner is apprised of the information and afforded an opportunity to respond. Petitioner challenges the Commission's action in following the recommendation of the Examiner because during the June 9, 2005 rehearing, rehearing as opposed to parole was recommended based upon information contained in the Notice of Action dated May 4, 2000 as a ...