The opinion of the court was delivered by: Judge Caputo
The Petitioner, Ronald Cambrel, proceeding pro se, brings this action pursuant to 28 U.S.C. § 2241 for habeas relief. Petitioner is an inmate at the United States Penitentiary in Lewisburg, Pennsylvania, a facility of the Federal Bureau of Prisons (BOP). Petitioner was sentenced to a term of twenty (20) years to life in the District of Columbia Superior Court after pleading guilty to first degree murder. The Petition challenges the repeated refusals of the District of Columbia Board of Parole (DC Board) and the United States Parole Commission (Parole Commission) to grant him parole even though recommended by the DC parole guidelines. He argues that the Parole Commission continues to consider impermissible factors for the purpose of manufacturing a finding of "unusual circumstances" to deny him parole.
Respondents filed a Response to the Petition (doc. 7), and Petitioner has filed a Traverse (doc. 10). Also pending before the Court are two motions to supplement the petition (docs. 7 and 14). According to the Petitioner, neither submission changes "the substance of [his] initial arguments; instead the supplement[s] merely suppl[y] additional evidence to support [his] claims that the Commission violated Federal law by failing to apply the District of Columbia Parole Statues, Regulations, Guidelines, Rules, Policies, Practices and Customs." (See Docs. 12 and 14.) For the reasons set forth below, the Petition will be denied as will the motions to supplement.
Challenges by a petitioner in federal custody concerning parole decisions go to the execution of a sentence and are properly brought against petitioner's custodian under 28 U.S.C. § 2241. See Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 241-42 (3d Cir. 2005)(§ 2241 allows federal prisoner to challenge the execution of sentence, such as the denial of parole).
It is well-settled that "there is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence." Greenholtz v. Inmate of Nebraska Penal & Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979); see also Ellis v. District of Columbia, 84 F.3d 1413 (D.C. Cir. 1996)(DC parole statute and regulations do not create any liberty interest in parole). Even though a convict has no liberty interest in parole release protected by the Due Process Clause, a fundamental due process right to be free from "capricious decision making" protects parole applicants from being denied parole for "arbitrary or constitutionally impermissible reasons." Block v. Potter, 631 F.2d 233, 236 (3d Cir. 1980).
Pursuant to 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, D.C. Code § 24-131(a), the DC Board was abolished, and the Parole Commission assumed jurisdiction over parole decisions for District of Columbia offenders. The Parole Commission is vested with discretion to determine a District of Columbia prisoner's eligibility for parole. See United States v. Addonizio, 422 U.S. 178, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979); Muhammad v. Mendez, 200 F. Supp.2d 466 (M.D. Pa. 2002); McRae v. Hyman, 667 A.3d 1356 (D.C. 1995)(holding that the District of Columbia's parole scheme confers discretion to grant or deny parole, and the scoring system creates no liberty interest overriding the exercise of that discretion). The district court's review of such a decision is "not whether the [decision of the] Board is supported by the preponderance of the evidence, or even by substantial evidence; the inquiry is only whether there is a rational basis in the record for the Board's conclusions embodied in its statement of reasons." Zannino, 531 F.2d 687, 691(3d Cir. 1976); see also Furnari v. Warden, Allenwood Fed. Correctional Inst., 218 F.3d 250, 254 (3d Cir. 2000). "To this end, 'the Commission may not base its judgment as to parole on an inaccurate factual predicate.'" Id. (citing Campell v. United States Parole Comm'n., 704 F.2d 106, 109 (3d Cir. 1983)). However, in making its decision, the Parole Commission may consider hearsay, counts of an indictment that has been dismissed, and information in a separate dismissed indictment. See Campbell, 704 F.2d 109-110 (collecting cases).
The appropriate remedy when the Parole Commission exceeds its discretion is to remand the matter to the agency for further proceedings consistent with the court's opinion. See Mickens-Thomas v. Vaughn, 355 F.3d 294, 309-10 (3d Cir. 2004)(citing Bridge v. United States Parole Commission, 981 F.2d 97, 105 (3d Cir. 1992)).
III. Relevant Statutory Background
In 1985, the DC Board promulgated a set of parole regulations. Those regulations were not formally published in the District of Columbia Municipal Register until 1987 (the 1987 guidelines). See D.C. Mun. Regs, tit. 28 (28 DCMR), §§ 100 et seq. (1987)(repealed 2000). Under the 1987 guidelines, after a DC Code offender served his minimum sentence, he was eligible for parole consideration. 28 DCMR § 200.1 (1987). Once eligible for parole, the DC Board was authorized to consider the offender's suitability for release on parole: [w]henever it shall appear to the [DC Board] that there is a reasonable probability that a prisoner will live and remain at liberty without violating the law, that his release is not incompatible with the welfare of society, and that he has served the minimum sentence imposed or the prescribed portion of his sentence, as the case may be, ... upon such terms and conditions as the Board shall from time to time prescribe.
The 1987 guidelines of the DC Board set forth a scoring system for use in deciding whether to grant or deny parole. See 28 D.C.M.R. § 204.1 (1987); Sellmon v. Reilly, 551 F.Supp.2d 66, 69-73 (D.D.C. 2008); Ellis v. District of Columbia, 84 F.3d 1413, 1415-17 (D.C. Cir. 1996). Under these guidelines, "even if the prisoner established everything the statute required, the Board of Parole still had discretion to deny parole." Ellis, 84 F.3d 1415.
In sum, the District's parole system is grounded in the exercise of discretion by the Board, with a numerical system to aid in the exercise of that discretion. The numerical system is not a rigid formula, however, because the Board is not required to either grant or deny parole based upon the score attained ... [T]he Board [has] authority, in unusual cases, to ignore the results of the scoring system and either grant or deny parole in the individual case, conditioned upon the Board's setting forth in writing those factors it relied on in departing from the result indicated by the scoring system. Therefore, because the statute and regulations vest in the Board substantial discretion in granting or denying parole ... they lack the mandatory character which the Supreme Court has found essential to claim that a regime of parole gives rise to a liberty interest.
McRae v. Hyman, 667 A.2d 1356, 1360-61 (D.C. 1995)(internal quotations and citations omitted).
Initially, each parole applicant is assigned a salient factor score (SFS) which serves as "one factor" in determining parole eligibility by assisting in determining the risk of releasing the prisoner. Ellis, 84 F.3d 1415-16; 28 DCMR § 204.2 (1987). Six categories are then evaluated, and given a numerical value which when combined range from 0 - 10. Id. at p. 1416.*fn1 The DC Board then "modifies a prisoner's risk category by adding or subtracting points for pre and post-incarcerations factors."
Ellis, 84 F.3d at 1416. Points are added if: (1) "[t]he prisoner's current conviction involved violence against a person, the use of a dangerous weapon, or drug distribution; or if the prisoner has two or more previous convictions for these types of crimes;" or (2) "the prisoner has committed serious disciplinary infractions." Id.; 28 DCMR § 204.18(a)-(h). A point is subtracted if the prisoner "has demonstrated sustained achievement in prison programs, industries or work assignments." Id.; 28 DCMR § 204.18(i). The application of these factors yields the offender's total point score (TPS) which can range from 0 - 5. Id. at 1416; 28 DCMR §§ 204.19.
In the case of an adult offender, a TPS of 0, 1, or 2 indicates that parole may be granted after the initial hearing, and a score of 3 or more indicates that parole should be denied and a rehearing scheduled. See 28 DCMR §§ 204.19. In subsequent hearings, the DC Board begins with the total point score from the previous hearing. See 28 D.C.M. R. § 204.21 (1987). This score is either increased or decreased in one point increments depending on the prisoner's program achievement and institutional adjustment. See Ellis, 84 F.3d at 1416. At rehearings, adult offenders with a point score between 0 and 3 "shall be granted parole" while those with TPS of 4 or 5 "shall be denied" parole. Id.; 28 DCMR § 204.21 (1987) Regardless of the convict's point score, "the regulations permit the Board to deviate from the parole determination suggested by the guidelines 'in unusual circumstances'". Ellis, 84 F.3d at 1416.
The Board may, in unusual circumstances, waive the SFS and the pre and post incarceration factors set forth in this chapter to grant or deny parole to a parole candidate. In that case, the Board shall specify in writing those factors which it used to depart from the strict application of the provisions of this chapter.
28 DCMR § 204.22 (1987). The DC Board identified a non-exhaustive list of "factors countervailing a recommendation to grant parole" to be considered at an offender's initial and reconsideration hearings:
* the offender has had repeated failures under parole supervision;
* the instant offense(s) involve(s) on-going criminal behavior;
* the offender has a lengthy history of criminally-related alcohol abuse;
* the offender has a history of repetitive, sophisticated criminal behavior;
* the offender has an unusually extensive or serious prior record, including at least ...