The opinion of the court was delivered by: Judge Conner
Petitioner Kevin L. McGill ("McGill"), an inmate incarcerated at the Federal Correctional Institution at Schuylkill ("FCI-Schuylkill"), Pennsylvania, filed the instant petition for writ of habeas corpus on July 20, 2009, challenging a decision of the United States Parole Commission ("USPC" or "parole commission") to revoke his parole, not afford him credit for any time he spent on parole, and continue imprisonment until the expiration of his District of Columbia ("D.C.") sentence.*fn1 (Doc. 1, at 12.). Specifically, he alleges that the USPC offended the Ex Post Facto clause in determining his eligibility for reparole when they applied USPC guidelines rather than the District of Columbia Board of Parole ("D.C. Board") 1987 guidelines applicable to reparole. For the reasons set forth below, the petition will be granted to the extent that the USPC will be directed to hold a new hearing utilizing the 1987 District of Columbia Municipal Regulations ("D.C. Regulations") applicable to reparole.
Following a conviction of Murder II While Armed in violation of District of Columbia Code §§ 22-2403 and 22-3202, McGill was sentenced by the Superior Court for the District of Columbia on May 23, 1996, to a five to fifteen-year term of imprisonment. (Doc. 13-2, at 4.) McGill's initial parole consideration hearing took place on August 5, 1998. (Doc. 16-2, at 4.) Parole was denied at that time. (Id. at 6.)
Effective August 5, 1998, the District of Columbia Board of Parole was abolished and its jurisdiction over parole decisions for D.C. Code felons was transferred to the USPC. See National Capital Revitalization and Self-Government Improvement Act, Pub.L. No. 105-33, § 11231, 111 Stat. 712, 745-46 (codified at D.C. Code § 24-131). Upon assuming the D.C. Board's jurisdiction, the USPC began a process of revising the regulations for determining D.C. Code offenders' suitability for parole. See Sellmon v. Reilly, 551 F. Supp.2d 66 at 72-73 (D. D.C. 2008) (discussing revisions). The revisions were codified at 28 C.F.R. §§ 2.70-2.107 in 2000 (2000 Regulations). The 2000 Regulations specify that they are applicable to any D.C. Code offender, such as McGill, whose first parole hearing would occur after August 4, 1998. See 28 C.F.R. § 2.80(a)(5).
On December 6, 2002, McGill was mandatorily paroled and was to remain under the supervision of the USPC until July 20, 2008. (Doc. 13-2, at 5.) However, while on parole, he committed new criminal conduct which resulted in the issuance of a parole violator warrant dated June 6, 2007, charging that he violated the terms of his supervised release as follows: "Charge No. 1 - Failure to Report to Supervising Officer as Directed; Charge No. 2 - Law Violation - Assault; Charge No. 3 - Law Violation - Violation of Civil Protection Order." (Id. at 6, 7.) On August 2, 2007, he pled guilty to one count of simple assault and two counts of violating a civil protection order. (Doc. 1, at 11.) The warrant was supplemented on August 9, 2007, to reflect that McGill was convicted of simple assault and violation of a civil protection order and sentenced to serve three consecutive thirty-day Misdemeanor sentences upon his release from USPC incarceration. (Id. at 8.)
His revocation hearing that was held on August 13, 2007, resulted in two different recommendations. (Doc. 13-2, at 9.) The hearing examiner recommended that parole be revoked, that none of the time spent on parole be credited, but that he be paroled effective 11/30/2007, to the consecutive misdemeanor sentences, which would require him to serve a total of eight months with drug and mental health aftercare. (Id. at 12.) The Executive Reviewer recommended the following:
Revoke parole. None of the Time Spent on Parole Shall be Credited. Continue to Expiration with the Special Drug Aftercare Condition. You are a more serious risk than indicated by your salient factor score and reparole guidelines in that you were originally convicted of a violent offense, Murder II while armed. While on supervision your were convicted of Simple Assault as it regarded an arrest on 6/4/07.
Prior to this event, it has been alleged that you assaulted the same victim (police report dated 3/8/06) and a Civil Protection Order had been issued. You have also been convicted of violation of the Civil Protection Order (2 Counts).
The Community Supervision Officer reported, and the Commission concurs, that you are aware of your deeply entrenched and lifelong problem with abusive behavior but you fail to make a commitment to change your behavior while in the community on supervision. Thus, this failure and inability to change resulted in 3 domestic violence arrests, 6/2/06 Threats to Do Bodily Harm, 3/8/06 Simple Assault, and 6/4/07, Simple Assault, which resulted in a conviction.
You are considered a threat to the community and a more serious risk than indicated by your salient factor score and guidelines. (Id. at 12-13.) A notice of action was issued on September 5, 2007, notifying McGill that as a result of the hearing, his parole was revoked, none of the time spent on parole would be credited, and he would continue to be imprisoned until the expiration of his sentence. (Doc. 13-2, at 14.) The rationale for this decision was as follows:
Your parole violation behavior has been rated as criminal conduct of Category Two severity because it involved Simple Assault. Your salient factor score is 6. [ ] As of 09-03-2007, you have been in confinement as a result of your violation behavior for a total of 3 month(s). Guidelines established by the Commission indicate a customary range of 0-10 months to be served before release. After review of all relevant factors and information, a decision above the guidelines is warranted because you are a more serious risk than indicated by your salient factor score and reparole guidelines in that you were originally convicted of Simple Assault as it regarded an arrest on 6/4/07.
Prior to this event, it had been alleged that you assaulted the same victim (police report dated 3/8/06) and a Civil Protection Order had been issued. You have also been convicted of violation of a Civil Protection Order (2 Counts).
The Community Supervision Officer reported, and the Commission concurs, that you are aware of your deeply entrenched and lifelong problem with abusive behavior but you fail to make a commitment to change your behavior while in the community and on supervision. Thus, this failure and inability to change resulted in 3 domestic violence arrests, 6/2/06 Threats to Do ...