The opinion of the court was delivered by: Judge Caldwell
The pro se petitioner, Steven M. Hunter, filed this action seeking habeas relief against the United States Parole Commission for denial of parole.*fn1 Petitioner is serving an aggregate term of imprisonment of ten years and four months to thirty-one years following his convictions in the Superior Court of the District of Columbia for first-degree burglary, assault with a dangerous weapon, and aggravated assault. In his petition, Hunter asserts a number of claims challenging his denial of parole, many of which he previously advanced both before this court, and other federal district courts.*fn2
However, when his successive and previously litigated issues are removed, the petition raises the following viable claims related to Hunter's most recent, July 2010, denial of parole: (1) the Commission engaged in impermissible "double-counting" when assessing his parole suitability; (2) the Commission erred in considering his BOP institutional misconducts in reaching its recent decision since those infractions were not adjudicated in accordance with District of Columbia procedures but instead under BOP policy; (3) the Commission abused its discretion by failing to follow the Hearing Examiner's recommendation of setting Petitioner's next parole hearing in eighteen months; and (4) the Commission abused its discretion by departing from the rehearing guidelines and extending Hunter's rehearing to thirty-six months when it had ordered a twelve-month setoff in 2009.*fn3
For the reasons set forth below, Hunter's petition will be denied.
A. Review of Parole Commission DC Parole Decisions 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)(District of Columbia parole statute and regulations do not create any liberty interest in parole). Nonetheless, even though a convict has no liberty interest in parole 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).
The Commission is vested with discretion to determine a District of Columbia convict's eligibility for parole. 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); Muhammad v. Mendez, 200 F. Supp. 2d 466 (M.D. Pa. 2002)(no liberty interest under the D.C. guidelines).
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. Corr. 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 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 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)).
C. Relevant Parole Regulatory Framework The Commission must determine the inmate's parole eligibility pursuant to the District of Columbia guidelines in place at the time the offense was committed. See Sellmon v. Reilly, 551 F. Supp. 2d 66 (D.D.C. 2008), although the Commission has the authority to depart from the guidelines. See Ellis, 84 F.3d at 1419-20 (holding that the D.C. Board had discretion to depart from guidelines); McRae, 667 A.2d at 1357 (same).
Hunter was sentenced in the Superior Court of the District of Columbia on February 1, 1996. See Doc. 31-1, Ex. 1, Sentence Monitoring Computation Data at p. 4.*fn4
As the Commission conducted his initial parole hearing on February 17, 2005, (Doc. 31-1, Ex. 3, Hearing Summary at p. 10), all Commission decisions regarding his parole must be made in reference to the D.C. guidelines in effect on August 4, 1998. See 28 C.F.R. §
2.80(a)(5). Accordingly, the 1987 D.C. guidelines*fn5 are to be applied to all Commission rehearing considerations involving Hunter.
The 1987 guidelines 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, 551 F. Supp. 2d at 69-73; Ellis, 84 F.3d at 1415-17. 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 at 1360-61 (internal quotations and citations omitted); see also Ellis, 84 F.3d at 1416. The D.C. Board identified a non-exhaustive list of "factors countervailing a recommendation to grant parole" to be considered when denying parole despite a low total point score:
* 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 five felony convictions;
* the instant offense(s) involve(s) unusual cruelty to victim(s);
* the offender has engaged in repeated or extremely serious negative ...