United States District Court, Middle District of Pennsylvania
Demarco Marshall, an inmate formerly confined in United States Penitentiary, Allenwood, Pennsylvania, filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.Marshall "contends the DC Parole Commission violated his Constitutional Rights pursuant to the Ex Post Facto Clause of the Constitution." (Doc. 10, amended petition). Specifically, he "asserts that the Parole Commission violated his Constitutional protection afforded through the Ex Post Facto Clause by using his overall behavior while in custody to determine his suitability for parole." Id. Marshall believes that "by doing so, the Ex Post Facto Clause was violated by 'usurping the 1991 DC Parole Guidelines' which states that the Board shall not consider any infraction that occurred more than 3 years prior to the hearing date, except where disciplinary infractions arose to the level of murder, manslaughter, armed robbery or first degree murder." Id. He claims that "but for the DC Parole Commissions errors and violations, he would have received a 1 year set off, where during that 1 year he would have met the requirements of sustained programming achievement and positive institutional behavior which would have led him being eligible for the possibility of parole." Id. Petitioner seeks "this Court to vacate the DC Parole Commission's denial, granting him an immediate remedial hearing nunc pro tunc, for a determination of immediate release and summary judgment pursuant to Rule 56.1." Id.
The petition is ripe for disposition, and for the reasons set forth below, will be denied.
Marshall was sentenced by the District of Columbia Superior Court on October 3, 1994, to a life term of imprisonment for second degree murder while armed, possession of a firearm during a crime of violence, and carrying a pistol without a license. (Doc. 13-1 at 4, Sentence Monitoring Computation Data). He completed the twenty-year minimum term of his sentence and became eligible for parole on November 29, 2010. Id. at 5.
On July 22, 2010, the United States Parole Commission (USPC) conducted Marshall's initial parole hearing (Doc. 13-1 at 12, Hearing Summary). Using the 1987 parole guidelines of the District of Columbia Board of Parole, the USPC assessed his Initial Grid Score as three points, a score that indicates that parole should be denied at the initial consideration. Id. at 14. The USPC denied parole, and ordered a reconsideration hearing in thirty-six (36) months. (Doc. 13-1 at 22, Notice of Action).
The decision that Marshall serve thirty-six (36) months rather than twelve (12) months at his reconsideration hearing represented a departure from the rehearing schedule, which calls for rehearings in twelve (12) months in the ordinary case. See Id. The USPC provided the following reasons for departing from that schedule:
The guidelines for the time to rehearing indicate that your next hearing should be scheduled within 12 months. A departure from these guidelines is found warranted because the Commission finds at this time that you would not obey the law if released, and that your release would endanger the public. You are a more serious risk than shown by your rehearing guideline because you need additional programming to remain crime free in the community. The Commission notes that your progress towards obtaining your GED diploma is currently unsatisfactory and given your limited education, the Commission finds this will adversely affect community stability factors. Additionally, the Commission notes that you have not taken any psychological or counseling-type programs to address the underlying causes for your criminal conduct. The Commission finds that these types of programs are necessary for you to remain crime free in the community. The suggested programs include Anger Management, Stress Management, Victim Impact, Challenge Program and completion of your GED. Additionally, the Commission finds that you have had opportunity but little effort to engage in productive programming. The Commission notes that you have been in custody for more than 16 years and you have only completed 52 hours of programming (most of it sports and fitness-type classes). Although you have completed more than 600 hours of course work towards obtaining your GED, you voluntarily withdrew from the program in 2003 and have made little to no additional efforts to reengage since that time. Lastly, the Commission finds that you have a history of serious negative institutional adjustment. Although your disciplinary infractions do not specifically fall within the definition of serious negative institutional adjustment as defined in the DC Board of Parole 1991 policy guidelines, the Commission does have the discretion to look at your overall behavior in custody in determining your overall risk and suitability for parole. As such, the Commission finds that you have displayed a pattern of aggressive and high risk behavior since 2002, which includes Refusing a Drug Test in February 2007, Disruptive Conduct (High) in August 2006 and more recently on 5/22/2008, Destruction of Property in December of 2005, Fighting in August, 2005 and more recently on 2/22/2008, Assault in May, 2005, Fighting and Assault in April, 2003, and Possessing a Dangerous Weapon in November of 2002. The Commission finds that this pattern of aggressive and assaultive behavior demonstrates that you are not ready to remain crime free in the community.
On June 11, 2012, Marshall filed the instant pro se petition in which he seeks a "an immediate remedial hearing, nunc pro tunc, for a determination of immediate release" applying the 1991 guidelines. (Doc. 10, petition).
The District of Columbia Board of Parole promulgated parole regulations for use in 1985. Those parole regulations were not published formally in the District of Columbia Municipal Register until 1987 (the "1987 guideline"). Effective August 5, 1998, jurisdiction to make parole decisions for D.C. Code offenders was transferred to the USPC pursuant to D.C. Code § 24-13(a). The USPC promulgated parole policy guidelines to implement its new duties. See 28 C.F.R. § 2.80, 63 Fed. Reg. 39172 (July 21, 1998). These parole policy guidelines were later amended in 2000. See 65 Fed. Reg. 45885 (July 26, 2000).
However, in 2006, several D.C. offenders, including Tony R. Sellmon, filed an action in the United States District Court for the District of Columbia, challenging the application of the USPC's guidelines to them. All of the litigants had been convicted and sentenced at various times before August 5, 1998. In May 2008, the District Court held that application of the USPC's regulations to those D.C. offenders who had committed their offenses during the time period that the D.C. Board's guidelines were in effect (i.e., March 4, 1985 to August 4, 1998), violated the Ex Post Facto clause of the U.S. Constitution. See Sellmon v. Reilly, 551 F.Supp.2d 66 (D. D.C. 2008), recon. denied. 561 F.Supp.2d 46 (D .D.C. 2008).
On July 17, 2009, the USPC published an interim rule to implement the Sellmon decision. See 74 Fed. Reg. 34688 (July 17, 2009). Under the Sellmon rule, as it was called, the USPC undertook to provide new parole hearings for D.C. Code offenders who had committed their crimes between March 4, 1985 and August 4, 1998, and ...