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Jennings v. Hogsten

January 22, 2008

ERNEST JENNINGS, PETITIONER,
v.
WARDEN K. HOGSTEN, RESPONDENT.



The opinion of the court was delivered by: Thomas I. Vanaskie United States District Judge

(Judge Vanaskie)

MEMORANDUM

I. Introduction

Petitioner, Ernest Jennings, an inmate confined at the Allenwood Federal Correctional Institution ("FCI-Allenwood"), in White Deer, Pennsylvania, commenced this action by filing a Petition for a Writ of Habeas Corpus (Dkt. Entry 1-2) pursuant to 28 U.S.C. § 2241. Petitioner, proceeding pro se, challenges the denial of parole by the United States Parole Commission ("Commission"). Respondent filed a Response (Dkt. Entry 6) to the Petition. Petitioner had the option of filing a reply, but did not do so. Accordingly, the matter is ripe for disposition. For the reasons set forth below, the Petition will be denied.

II. Background

On May 11, 1993, Petitioner was sentenced by the District of Columbia Superior Court to a prison term of ten years to life for possession of a firearm during a crime of violence and for second degree murder. (Dkt. Entry 1-2 at 2.) His parole eligibility date was August 4, 2000. (Dkt. Entry 6, Exhibit 1.) An initial parole hearing was held on September 28, 1998, and rehearings were held on October 13, 2000, October 29, 2002, and October 26, 2005. Petitioner makes the following claims in his Petition: (1) the Commission improperly changed his guideline range at each parole hearing; (2) the Commission improperly considered the nature of his crime to justify a departure from the guideline range; and (3) Petitioner was denied the right to appeal each of the Commission's decisions. (Dkt. Entry 1-2 at 5.)

Jurisdiction over parole decisions for District of Columbia offenders has been transferred from the District of Columbia Parole Board to the Commission. See National Capital Revitalization and Self-Government Improvement Act of 1997 ("Revitalization Act"), Pub. L. No. 105-33, § 11231(a)(1), 111 Stat. 712, 745 (effective August 5, 1998); D.C. Code § 24-131 (2001). The Revitalization Act requires the Commission to follow D.C. parole law and regulations, but also gave it "exclusive authority to amend or supplement any regulation interpreting or implementing" D.C. parole laws. See D.C. Code § 24-131 (formerly §24-1231).

Pursuant to its authority, the Commission expanded the "total point score" calculation that is contained in the 1987 D.C. Board of Parole guidelines. 28 C.F.R. § 2.80. Under the 1987 guidelines, each prisoner was assigned a score, which was used as a guide to determine whether an inmate should be paroled or held in prison for a rehearing. This score was calculated by adding or subtracting points for preand post- incarceration factors, including whether the prisoner's current conviction "involved violence against a person." Ellis v. District of Columbia, 84 F.3d 1413, 1416 (D.C. Cir. 1996). The Board, however, had discretion to grant or deny parole notwithstanding the result recommended by the scoring system.

The 1987 guidelines were in effect until August 5, 1998. At the time of Petitioner's initial parole hearing on September 25, 1998 and his rehearing on October 13, 2000, an expanded version of the "total point score" calculation had been adopted by the Commission. See 28 C.F.R. § 2.80 (1999). This revised scoring system calculated a "salient factor score" for purposes of determining risk of recidivism. The salient factor score was then incorporated into a scoring system that took into consideration not only the risk of recidivism, but also such matters as current or prior violence and death of the victim. See Reynolds v. Williamson, No. 3:04-CV-2396, 2005 WL 3050154, at *1 (M.D. Pa. Nov. 14, 2005).

In connection with Petitioner's initial hearing on September 28, 1998, the Commission calculated Petitioner's salient factor score as 5, indicative of only a "fair" risk for parole, and a total score of eight (8) points, indicating that parole should be denied and a rehearing conducted within 18 to 24 months, meaning the additional time to be served prior to reconsideration for parole. (Dkt. Entry 6, Exhibit 3.) The Commission denied parole and ordered a rehearing in December 2000.

Petitioner's rehearing occurred on October 13, 2000. (Dkt. Entry 6, Exhibit 4). At the rehearing, the Commission calculated his total score as six (6) points, which reflected a deduction of two (2) points for superior program achievement. (Id., Exhibits 4, 5.) The Commission found his rehearing guideline range to be 18 to 24 months, denied parole, and ordered a rehearing in October 2002, after 24 months. (Id., Exhibit 5.)

The next rehearing occurred on October 29, 2002. (Dkt. Entry 6, Exhibit 6.) Prior to this rehearing, the regulations concerning parole of D.C. offenders were changed to require the Commission to calculate the "total guideline range" of months to be served prior to release on parole. See 28 C.F.R. § 2.80 (2003)(rule change effective September 13, 2002). The revised regulation was made applicable to inmates such as Petitioner who had been denied parole under the former rule. 28 C.F.R. § 2.80(a)(5). Thus, in connection with the October 29, 2002 hearing, the Commission followed the new system.

The revised rule still used a salient factor score to assess the parole risk plus a scoring system to assess the seriousness of the offense and the offender's background. 28 C.F.R. § 2.80(c)-(f). This scoring system results in a "base guideline range," which is to be added to the months the offender must serve before being eligible for parole. 28 C.F.R. § 2.80(i). Adjustments to the aggregate guideline range are then made to reflect the offender's prison record. 28 C.F.R. § 2.80(j) & (k). The calculations produce a guideline range of imprisonment to be served prior to release on parole. 28 C.F.R. § 2.80(m).

Applying the new rule to Jennings left his base score of 8 unchanged. (Dkt. Entry 6, Exhibit 6.) The Commission went to the next step in the calculation, which was to determine the base guideline range from the table set forth at 28 C.F.R. § 2.80(h), which in this case was 72 to 96 months. (Dkt. Entry 6, Exhibit 7 at 2.) The Commission then added 98 months to the minimum and maximum number of months in the base guideline range, 98 months being the number of months Jennings was required to serve before being eligible for parole. 28 C.F.R. § 2.80(i) & (l). The Commission then added to the minimum and maximum months in the guideline range the minimum and maximum months in the applicable guideline range for Jennings's disciplinary infractions -- 0 to 8 months. 28 C.F.R. § 2.80(j). Next, the Commission subtracted 18 to 24 months from the minimum and maximum, respectively, for superior program achievement. 28 C.F.R. § 2.80(k). The resulting ...


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