The opinion of the court was delivered by: Thomas I. Vanaskie United States District Judge
On June 5, 2007, Plaintiff Reginald S. Puifory, an inmate confined at the United States Penitentiary at Lewisburg, Pennsylvania, brought this civil rights action under 42 U.S.C. § 1983 in the United States District Court for the District of Columbia. Named as Defendants in the 78-paragraph complaint were the Chairman and four Commissioners of the United States Parole Commission ("Commission") in their official capacities.*fn1 Plaintiff, proceeding pro se, challenges the Commission's denial of parole on the ground that Defendants wrongly applied the Commission's 2000 guidelines at his parole hearings rather than the guidelines of the defunct District of Columbia Board of Parole ("Board") that were in effect when he committed the murder for which he is presently incarcerated.
Specifically, Plaintiff contends that the retroactive application of the 2000 guidelines results in a significant risk of prolonging his sentence beyond that which "would have resulted under the guidelines in effect when [he] was convicted." (Compl., Dkt. Entry 1, ¶ 69.)*fn2 Count I of Plaintiff's Complaint asserts that Defendants' application of the 2000 guidelines violated the Ex Post Facto Clause of Article I of the United States Constitution. Count II contends that failure to accord Plaintiff credit for satisfactory completion of institutional programs after Plaintiff's first parole hearing violated his due process rights. (Id., ¶¶ 69, 78.)
The Hon. Royce C. Lamberth, now Chief Judge of the District of Columbia District Court, granted Defendants' motion to dismiss the action to the extent that it contested venue, and transferred the action to this Court by Order dated April 17, 2008.*fn3 (Dkt. Entry 23.) At the time of the transfer of this action, there was pending Defendants' motion to dismiss for failure to state a claim upon which relief may be granted, or alternatively, for summary judgment. (Dkt. Entry 7 & Dkt. Entry 8.) The motion has been fully briefed. Because the holding of Brown v. Williamson, No. 06-3703, 2009 WL 205626 (3d Cir. Jan. 29, 2009) (non-precedential), recognizing the viability of an ex post facto claim under facts materially indistinguishable from those presented here, is persuasive, albeit not controlling, Defendants' motion will be denied.*fn4
On March 10, 1978, Plaintiff was sentenced to his current term of twenty-five (25) years to life for felony murder while armed and burglary while armed. (Compl., Dkt. Entry 1, ¶ 12.) Plaintiff's current sentence arose from a homicide that occurred on August 29, 1977. On that day, Plaintiff engaged in an argument with the victim that became physical. After leaving the scene of the argument to retrieve a shotgun from his home, Plaintiff returned and shot the victim. (Def.'s Mtn. Dismiss, Ex. 2, Commission's Notice of Action ("NOA") dated Aug. 9. 2007, Dkt. Entry 7-3, at 15.)
Notably, the homicide for which Plaintiff is currently incarcerated occurred within nine months of Plaintiff's release on parole arising from an earlier homicide on April 6, 1975. In the 1975 homicide, Plaintiff stabbed the victim because he made threatening moves towards Plaintiff and his cousin, who had been involved in a relationship with the victim. Plaintiff was sentenced to three years for manslaughter. (Defs.' Mtn. Dismiss, Ex. 1, Commission's NOA dated Dec. 26, 2000, Dkt. Entry 7-2, at 6.)
At the time of Plaintiff's second homicide conviction, jurisdiction over parole decisions for D.C. Code violators was vested in the Board. In 1998, however, jurisdiction over parole decisions for D.C. offenders was transferred from the Board to the Commission through the 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 required the Commission to follow D.C. parole law and regulations, but it also gave the Commission "exclusive authority to amend or supplement any regulation interpreting or implementing" D.C. parole laws. See D.C. Code § 24-131 (formerly § 24-1231).
At the time that Plaintiff committed the murder for which he is now imprisoned, the Board's consideration of parole was governed by six factors. As explained by our Court of Appeals in Brown:
The first two criteria related to the underlying offense and the offender's prior criminal history. §§ 105.19(a), (b). Another criterion related to the offender's "institutional experience." § 105.1(e). The other criteria related to: the "[p]ersonal and social history of the offender, including such factors as his family situation, educational development, socialization, marital history, employment history, use of leisure time and prior military experience, if any," § 105.1(c); the offender's "physical and emotional health and/or problems which may have played a role in [his] socialization process, and efforts made to overcome any such problems," § 105.1(d); and the "[c]ommunity resources available to assist the offender with regard to his needs and problems," § 105.1(f). 2009 WL 205626, at *5.
In 1987, the Board published point-based guidelines to channel its exercise of discretion in deciding whether to award parole. Under the 1987 guidelines, each prisoner was assigned a Total Point Score ("TPS") that was used as a guide to determine whether an inmate should be paroled or held in prison for a rehearing. The TPS, however, did not result in a recommendation of the total time to be served before an offender should be paroled; it only resulted in a determination as to when the offender should be paroled or have another parole hearing. The TPS was calculated by adding or subtracting points for pre- and 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, retained discretion to grant or deny parole notwithstanding the result recommended by the TPS. Id. at 1419 (explaining that "under the regulations, a prisoner with a low total point score shall be granted parole unless the Board, in the exercise of its discretion, believes there is some other reason for not granting him parole").
Effective August 5, 1998, the Commission adopted an expanded version of the TPS calculation pursuant to its "amend and supplement" authority. See 28 C.F.R. § 2.80 (1999). This revised scoring system calculated a Salient Factor Score ("SFS") for purposes of determining the risk of recidivism. The SFS was then used in formulating the inmate's Base Point Score ("BPS"), which took into consideration not only the risk of recidivism as indicated by the SFS, but also such matters as current or prior violence and death of the victim, i.e., accountability for the crime itself. See Reynolds v. Williamson, No. 3:04-CV-2396, 2005 WL 3050154, at *1 (M.D. Pa. Nov. 14, 2005) (Nealon, J.). Finally, the BPS was adjusted according to an inmate's institutional record to arrive at the TPS.*fn5 Ultimately, the TPS was the numerical guideline by which parole was suggested or discouraged, though the ...