The opinion of the court was delivered by: Malachy E. Mannion United States Magistrate Judge
The pro se relator, a D.C. Code violator in the custody of the Federal Bureau of Prisons ("BOP") at the U.S. Penitentiary Canaan at Waymart, Pennsylvania, filed his petition under 28 U.S.C. § 2241 on May 8, 2006. He raises three claims relating to parole. First, he contends he was subjected to double jeopardy in violation of the Fifth Amendment to the U.S. Constitution when the U.S. Parole Commission ("Commission") summoned him to a parole revocation hearing after the D.C. Board of Parole ("Board") had already purportedly punished him at a parole revocation hearing.*fn1 Second, he contends he was denied due process of law in violation of the Fifth Amendment when the Board held his parole revocation hearing twenty-three months after his arrest while on parole. Finally, he contends he was subjected to an ex post facto violation of Article One of the U.S. Constitution when his reparole eligibility was calculated under the Commission's reparole guidelines instead of the Board's reparole guidelines.*fn2 (Doc. No. 1.)
On June 5, 2006, the respondent warden of the penitentiary responded to the petition, with the relator's pertinent record. He contends the relator's petition is meritless. First, he argues that double jeopardy does not apply to the denial or revocation of parole. Second, he argues the relator incorrectly dates his purportedly overdue hearing from his arrest on a criminal warrant instead of from the execution of the Board's parole violation warrant, which was only five months prior to the hearing. Finally, he argues that the Commission's revised reparole guidelines are not subject to the ex post facto clause. (Doc. No. 4.)
On June 19, 2006, the relator traversed the response and submitted exhibits in an effort to rebut the respondent's arguments. (Doc. Nos. 5 & 6.)
It is the respondent's third argument that leads to this order. The respondent bases his argument that the Commission's revised reparole guidelines do not violate the ex post facto clause on Allston v. Gaines, 158 F.Supp.2d 76, 83 (D.D.C. 2001). In Allston, the U.S. District Court for the District of Columbia held, in part, that the Commission's parole revocation guidelines applicable to D.C. Code offenders are not laws subject to the ex post facto clause. 158 F.Supp.2d at 84. In arriving at its conclusion, the court noted that "[m]ost circuits that have considered the question agree with this proposition." Id. at 81-82 & n.4 (collecting cases). It cited with approval the Seventh Circuit in Inglese v. United States Parole Comm'n, 768 F.2d 932, 936-37 (1985):
The power to exercise discretion indicates that the guidelines are merely guides, and not laws: guides may be discarded where circumstances require; laws may not. . . . The key to the finding that guidelines are guides merely, and not laws, is that the Parole Commission has a congressional mandate . . . to exercise discretion.
Id. at 82.*fn3 It also cited the Third Circuit's decision in United States ex rel. Forman v. McCall, 776 F.2d 1156, 1158 (3d Cir. 1985), in which our Circuit held that the Commission's parole guidelines applicable to U.S. Code offenders could "constitute 'laws' within the meaning of the ex post facto clause" if they were "applied without substantial flexibility." Id. The court, finding that the D.C. Circuit "has effectively endorsed a test similar to that employed by the Third Circuit," used the Third Circuit's statistical-analysis approach to determining whether the guidelines were laws and determined that the guidelines are not laws subject to ex post facto review. Id. at 82-83 (citing Blair-Bey v. Quick, 151 F.3d 1036, 1049 n.12 (D.C. Cir. 1998); Warren v. United States Parole Comm'n, 659 F.2d 183, 197 n.57 (D.C. Cir. 1981)).
On the basis of Allston, the respondent raises two arguments: "First, Allston holds, based on the statistical evidence, that the reparole guidelines do not substantially circumscribe the Commission's discretion. Second, Kyle has not, and indeed cannot, establish that he has been materially disadvantaged by the use of these guidelines." (Doc. No. 4 at 9 (citing Blair-Bey, 159 F.3d at 592).)
The court, however, has some concerns with the respondent's argument. The respondent states: "In Allston, the court decided the precise issue presented by Kyle: whether the Commission's use of the reparole guidelines found at 28 C.F.R. § 2.81(a) (referencing § 2.21) violated the Ex Post Facto Clause." (Doc. No. 4 at 7 (internal citation omitted).) However, this statement does not appear to be entirely accurate. The district court in Allston was confronted with a challenge to the Commission's parole revocation guidelines, not the reparole guidelines.
The distinction might be dismissed as harmless, if courts have found certain of the Commission's guidelines not subject to the ex post facto clause, then certainly other of the Commission's guidelines, which are within the same regulatory regime, similarly ought to be outside the clause's scope. But the D.C. Circuit's recent decision in Fletcher v. Reilly, 433 F.3d 867 (2006), raises doubts about the analysis, and case law underlying the district court's decision in Allston, and, consequently, the respondent's argument.
In Fletcher, a case whose facts are similar to the relator's, the court of appeals considered an ex post facto challenge by a D.C. Code offender to the Commission's use of reparole guidelines applicable to U.S. Code offenders instead of the Board's reparole guidelines applicable to D.C. Code offenders.*fn4 433 F.3d at 869.The circuit court reversed the district court, which had dismissed the petition on the grounds that, "'[a]lthough the question is unsettled, the weight of authority holds that parole guidelines and rules such as those at issue in this case, which simply provide guides for the exercise of discretion, do not constitute 'laws' ...