The opinion of the court was delivered by: Chief Judge Kane
Petitioner Corey Hargrow is a District of Columbia offender currently confined at the United States Penitentiary at Allenwood ("USP-Allenwood"), Pennsylvania. He filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging actions of the United States Parole Commission ("USPC"). He contends that in considering him for parole, the USPC violated both the Ex Post Facto clause and the Due Process clause of the United States Constitution. Respondent is Jonathan Minor, warden of USP-Allenwood. As relief, he requests an immediate parole hearing in accordance with the regulations in place when he committed his D.C. code crimes. For the reasons that follow, the petition will be denied.
On July 16, 1990, Petitioner was sentenced to 48 years imprisonment by the District of Columbia Superior Court for assault with intent to kill while armed, and carrying a pistol without a license. (Doc. 9, Ex. 1.) On September 14, 2000, the USPC conducted an initial parole hearing.*fn1 At the hearing the parole guidelines found at 28 C.F.R. § 2.80 (2000) were applied, and Petitioner assigned a base point score of 7 plus 1 point for negative institutional behavior and minus 1 point for "ordinary program achievement," yielding a total point score of 7 points. This score indicated that parole should be denied and a rehearing scheduled. Accordingly, parole was denied. (Id., Ex. 3.) Although the guidelines indicated that a rehearing should be scheduled in 18-24 months, the USPC departed from this range, ordering a rehearing in October of 2005, following service of 60 months. The following reasons were provided for the departure:
You are a more serious risk than indicated by your Base Point Score in that the attempted murder you committed was the attempted assassination of two victims simultaneously, indicating that you have the characteristics of a professional killer. You are therefore a significantly more dangerous individual than the ordinary offender with your Base Point Score.
Petitioner received a reconsideration hearing on October 25, 2005. (Doc. 9, Ex. 4.) At this hearing, the USPC applied amended and supplemented regulations which called for the calculation of a "Total Guideline Range" and the granting of a presumptive parole date up to 36 months from the hearing date.*fn2 Petitioner's base point score of 7 points from the prior hearing was carried over and correlated with a base guideline range of 54-72 months. Added to this range was 125-125 months to parole eligibility date, as well as 18-24 months for disciplinary infractions before the prior hearing. Based upon the foregoing, Petitioner had a total range of 197-221 months to be served prior to release on parole. (Id., Ex. 5.) The USPC also considered Petitioner's program achievement before and since the prior hearing and found it not to be "superior." A range of 0-0 months was also assessed for disciplinary conduct since Petitioner's prior hearing. It was ordered that Petitioner be released on parole after service of 220 months - - a presumptive parole date of June 5, 2008, conditioned upon good behavior while in custody. The USPC's decision was within the guideline range.
In the instant habeas action, Petitioner raises the following arguments: (1) the USPC violated the Ex Post Facto clause of the United States Constitution when it retroactively applied new guidelines in his case rather than District of Columbia parole guidelines in effect when he committed his offense; (2) the USPC's exercise of discretion under the new guidelines focus on punishment whereas the District of Columbia's former regulations considered evidence of post-incarceration rehabilitation into the parole determination; and (3) the USPC acted arbitrarily when it departed from the rehearing guideline after his first hearing.
A. Ex Post Facto Violations
The Court first rejects any contention by Petitioner that the mere transfer of his case to the Parole Commission effects an ex post facto violation. Petitioner was sentenced in the D.C. Superior Court in July of 1990. His initial parole hearing was conducted on September 14, 2000. Effective August 5, 1998, pursuant to the provisions of the National Capital Revitalization and Self-Government Improvement Act of 1997 ("Revitalization Act"), Public Law No. 105-33, § 11231(a)(1), 111 Stat. 712, 745, jurisdiction to make parole decisions for D.C. Code offenders was transferred to the United States Parole Commission. Any contention by Petitioner that he should not fall under the jurisdiction of the USPC because he was originally held under the D.C. Board's authority is unfounded. Even prior to the enactment of the Revitalization Act, Petitioner could have been subject to the jurisdiction of the Commission. As a District of Columbia offender, he could have been transferred to a federal facility at any time. The Commission has always had the "same authority and power" and "jurisdiction" as the D.C. Board over District of Columbia violators transferred to federal facilities. Morgan v. District of Columbia, 618 F. Supp. 754, 755-56 (D.D.C. 1985). Thus, any assertion is incorrect that the transfer of parole decision authority from the D.C. Board to the Commission via the Revitalization Act violates his ex post facto rights by subjecting him to an alternate decision maker.
Next, the Court addresses Petitioner's major ex post facto claim, that the USPC's application of its parole guidelines, rather than those of the D.C. Board, unconstitutionally altered the conditions affecting his parole eligibility resulting in his "lingering in prison longer." Petitioner argues that the Commission retroactively applied the new guideline system which allegedly focuses exclusively on pre-incarceration factors, and does not take into account post-incarceration achievements.
The guidelines of the D.C. Board ("1987 guidelines") in effect from 1987 to 1998 required calculation of a "Total Point Score" based on the inmate's Salient Factor Score and additional risk points, the total number indicating the risk level presented by the inmate. A Total Point Score of 2 or less at the initial hearing ordinarily meant that parole would be granted. If the Total Point Score was 3 or more, parole would be denied and the inmate continued for a rehearing. At the rehearing, a score of 3 would indicate that parole should be granted. Because points were subtracted from the Total Point Score at rehearings for positive prison programming, an inmate with a high Total Point Score could work his score down after one or more rehearings. In cases where parole was denied, the ordinary rehearing would be in one (1) year. See Ellis v. District of Columbia, 84 F.3d 1413, 14150-17 (D.C. Cir. 1996).
The D.C. Board had discretion to override the guidelines and deny parole notwithstanding a favorable Total Pont Score and to order a longer period of time to a rehearing than one year. As explained in Ellis, ". . . under the regulations, a prisoner with a low total point score shall be granted parole unless the Board, in the exercise of its ...