The opinion of the court was delivered by: Judge Rambo
Petitioner Norman Coleman-Bey, an inmate at the United States Penitentiary, Lewisburg, Pennsylvania ("USP Lewisburg"), commenced this action pro se by filing a petition for writ of habeas corpus pursuant to the provisions of 28 U.S.C. § 2241. Petitioner alleges that the United States Parole Commission ("Commission") failed to apply the District of Columbia parole regulations at his 2001 and 2005 parole hearings and that it engaged in impermissible double-counting when it used the same reasons to deny parole after both hearings. For the reasons set forth below, the petition will be denied.
On October 14, 1983, Coleman-Bey was sentenced by the District of Columbia Superior Court to a life term of imprisonment for assault with intent to commit rape. (See Doc. 9-2 at 4-6.) In July 1992, after the District of Columbia Board of Parole ("D.C. Board") considered Coleman-Bey for parole release, it issued an order denying parole and setting a hearing for July 13, 1994 to reconsider parole release. (See id. at 7.) Upon learning that the D.C. Board had denied parole, Coleman-Bey escaped from custody and remained in Escape Status through July 1995. (See id. at 13.) Following his return to custody, Coleman-Bey appeared before the D.C. Board on May 28, 1996, after which the Board issued an order denying parole and setting a hearing for April 3, 2000 to reconsider parole release. (See id. at 8, 13.)
Subsequently, jurisdiction over parole decisions for District of Columbia offenders was 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 Commission considered Coleman-Bey for parole release in 2000, and ordered his case continued "pending compliance with the May 28, 1996 Notice of Board Order issued by the D.C. Board of Parole requesting a psychological evaluation be completed prior to the April 2000 rehearing." (See Doc. 9-2 at 10.) On March 9, 2001, the District of Columbia Department of Corrections conducted a psychological evaluation of Coleman-Bey.*fn2 The psychological evaluator recommended that Coleman-Bey participate in an intensive Bureau of Prisons ("BOP") Sex Offender Program prior to consideration of his return to the community. Following the psychological evaluation, on August 8, 2001, the Commission issued a notice of action denying parole and continuing for a rehearing in June 2005. (See id. at 11.) The Commission stated the following reasons for its decision:
With adjustments reflecting your institutional record since your last hearing, your current Grid Score is 2. You continue to be scored under the 1987 guidelines of the D.C. Board of Parole. Those guidelines indicate that parole should be granted at this time. After consideration of all factors and information presented, a departure from the guidelines at this consideration is warranted because you are a more serious risk than indicated by your grid score in that you are a predatory sex offender as evidenced by you having committed multiple rapes in 1975 and after being paroled in 1978, within 8 months you committed another sex offense (rape and reduced to Assault and Battery). Following parole being revoked you were again paroled in July 1982, and within 3 months you committed another sex offense. This offense was unusually predatory in nature with your victim being abducted while standing on the street with you dragging her into an alley where you removed her clothing. The victim was able to break free from you and ran but you caught her and again tried to rape her. Only by the victim['s] screams was she able to attract assistance resulting in you running and breaking into a home.
In that you have such a strong propensity to assault females at random and in that you are viewed as a continuing threat to commit future sex offenses based on current psychological information, the Commission believes that you are in need of continued incarceration for as long as possible in order to keep you away from females in the community whom [sic] would otherwise be a[t] extreme risk if you were to be paroled.
On June 7, 2005, Coleman-Bey again was considered for parole release. The Commission issued a notice of action denying parole. (See id. at 16.) The reasons cited by the Commission in denying parole were the same as the reasons it cited in 2001, namely Coleman-Bey's history of sexual assaults on women, the likelihood of such conduct if he were to be released on parole, and the "unusually predatory nature" of the most recent attempted sexual assault." (See id.) A rehearing was scheduled for June 2006. (See id.) The outcome of that hearing is not known to the court.
Coleman-Bey filed his petition for writ of habeas corpus on August 29, 2005. (Doc. 1.) On September 29, 2005, service of his petition was directed. (Doc. 5.) On November 2, 2005, Respondents filed a response to the petition. (Doc. 9.) Coleman-Bey filed a traverse on November 22, 2005. (Doc. 11.) The petition then was ripe for review.
However, on December 8, 2005, Respondents filed a reply to Coleman-Bey's traverse. (Doc. 12.) Petitioner filed an objection on the basis that there is no authority within 28 U.S.C. § 2243 for a respondent to file an additional response to a habeas petition after a petitioner has filed a reply. (See Doc. 13 at 1-2.) Petitioner further contended that, to the extent Respondents' reply constituted an amendment to their response to the petition, they failed to obtain leave of court to amend as required by 28 U.S.C. § 2243. (See id.) By order dated June 21, 2007, the court granted Coleman-Bey's request to reject Respondents' reply to ...