The opinion of the court was delivered by: Hon. John E. Jones III
THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:
Petitioner Eddie Wilson ("Petitioner" or "Wilson"), an inmate presently confined at the United States Penitentiary - Hazelton ("USP Hazelton") in Bruceton Mills, West Virginia, initiated this action by filing a pro se Petition for Writ of Habeas Corpus under the provisions of 28 U.S.C. § 2241. (Doc. 1.) Named as Respondents are the United States Parole Commission ("Parole Commission") and Jonathan Miner, the Warden of the Allenwood United States Penitentiary ("USP Allenwood") in White Deer, Pennsylvania.*fn1
Pro bono counsel subsequently entered an appearance on behalf of Wilson, and after obtaining leave of court, filed an Amended Petition. (Doc. 19.) The Amended Petition challenges the Parole Commission's July 7, 2004 and April 21, 2005 decisions to deny Wilson parole. (Id.) Specifically, Wilson argues that the Parole Commission's failure to set a presumptive release date constitutes a violation of the Ex Post Facto Clause and that the denials of parole were sufficiently capricious, arbitrary, and vindictive to deny him due process of law. (Id. at 9-17.) Respondents have filed a Response to the Petition (Doc. 7), a Supplemental Response*fn2 (Doc. 11), and a Supplemental Response to the Amended Petition (Doc. 15). Accordingly, the Amended Petition is ripe for review. For the reasons set forth below, the Amended Petition will be denied.
On October 5, 1976, Wilson entered a guilty plea in the Superior Court for the District of Columbia to thirty-six (36) felony counts. (See Doc. 19 at 3.) On January 31, 1977, Wilson was sentenced on first degree murder and armed robbery charges to an aggregate sentence of twenty-eight (28) years to life imprisonment. (See id. at 4; Doc. 7-2 at 3, Sentence Monitoring Computation Data.) The Amended Petition adds that Wilson subsequently was sentenced to concurrent sentences on the remaining thirty-four (34) counts of kidnapping, robbery, and burglary and/or rape. (See Doc. 19 at 3.)
While serving his District of Columbia sentence at the Lorton Reformatory in Virginia, which was then the District's long-term correctional facility, Wilson was charged with possession with intent to distribute Pentazocin and possession of a knife. (See id. at 5.) Following a jury trial in the United States District Court for the Eastern District of Virginia, Wilson was found guilty of the drug offense and not guilty of the weapons charge. (See id.) On October 16, 1987, Wilson was sentenced to a term of imprisonment of three (3) years to run consecutive to his District of Columbia sentences. (See id.; Doc. 13-7, Judgment and Probation/Commitment Order.)
In January 2001, Wilson successfully challenged the decision by the Bureau of Prisons ("BOP") to have his 1987 federal sentence lodged as a detainer to be served only after he had completed his District of Columbia sentences. (See Doc. 19 at 5.) By letter dated January 23, 2001, Wilson was notified that the BOP had reversed its decision, and that "The three year sentence is aggregated with your D.C. Code [sentences] as originally computed and your eligibility date is October 29, 2000." (Doc. 1 at 19, 1/23/01 Letter.) Accordingly, Wilson became eligible for parole.
Pursuant to the National Capital Revitalization and Self-Government Improvement Act of 1997 ("Revitalization Act"), jurisdiction over parole decisions for District of Columbia offenders like Wilson was transferred from the District of Columbia Parole Board to the Parole Commission. See 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 Parole Commission to follow D.C. parole law and regulations, but also gave it "exclusive authority to amend or supplement any regulation interpreting or implementing" District of Columbia parole laws. See D.C. Code § 24-131 (formerly §24-1231). However, the Commission must follow the applicable District of Columbia statute, D.C. Code § 24-404(a), which requires it to assess whether a District of Columbia offender is suitable for parole release by considering, inter alia, whether he is capable of living in the community without committing new crimes and without jeopardizing the public welfare.
The Parole Commission exercised its authority by expanding the "total point score" calculation that is contained in the 1987 District of Columbia Board of Parole guidelines. See 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 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, 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 Wilson's initial parole hearing on May 9, 2001, and his subsequent reconsideration hearings, an expanded version of the "total point score" calculation had been adopted by the Commission in the Guidelines for District of Columbia Offenders. See 28 C.F.R. § 2.80. The Commission is required to apply these Guidelines at an initial hearing and at subsequent rehearings. See 28 C.F.R. § 2.80(a)(1), (b). The Commission also is required to assess whether a District of Columbia offender is suitable for parole release by considering, inter alia, whether he is capable of living in the community without committing new crimes and without jeopardizing the public welfare. D.C. Code § 24-404(a).
At the time of the July 7, 2004 and April 21, 2005 parole decisions that Wilson challenges here, the version of the guidelines in effect at 28 C.F.R. § 2.80 (2003) allowed the Commission, under unusual circumstances, to grant or deny parole notwithstanding the guidelines. See 28 C.F.R. § 2.80(n)(2003). Unusual circumstances are defined as "case-specific factors that are not fully taken into account ...