United States District Court, M.D. Pennsylvania
ROBERT D. MARIANI, District Judge.
Petitioner William Haley ("Petitioner" or "Haley"), an inmate currently in the custody of the Federal Bureau of Prisons, initiated the above-captioned action by filing a Petition for Writ of Habeas Corpus. (Doc. 1). Petitioner asserts Respondents violated the Ex Post Facto Clause of the Constitution by granting him parole in 2010 rather than 2001, when, according to Haley, he was presumptively suitable for parole. (Doc. 22 at 4-5). Petitioner argues Respondents inappropriately applied the parole guidelines promulgated by the United States Parole Commission ("USPC" or "Commission") in 2000 ("2000 Guidelines"), 28 C.F.R. § 2.80 (2001), 65 Fed. Reg. 70663 (Nov. 27, 2000), rather than the regulations promulgated by the District of Columbia Board of Parole ("D.C. Parole Board"), D.C. Mun. Regs. tit. 28, §§ 100 et seq. (1987) (repealed Aug. 5, 2000), in 1987 ("1987 Regulations"). (Doc. 22 at 4-5). Presently before the Court is Magistrate Judge Carlson's Report and Recommendation ("R&R"), recommending that Haley's Petition be denied. (Doc. 48). Haley has filed Objections (Doc. 53), the parties have briefed the issues (Docs. 54-56), and the matter is now ripe for disposition. For the reasons set forth below, Haley's Petition will be denied.
A. Parole Practices for D.C. Offenders
Because Haley's claim is predicated upon differences between the 1987 Regulations and the 2000 Guidelines, it is appropriate for the Court to begin with adiscussion of those parole regimes. On August 5, 1998, jurisdiction over parole decisions for D.C. offenders was transferred from the D.C. Parole Board, which had used its 1987 Regulations, to the USPC. Sellmon v. Reilly, 551 F.Supp.2d 66, 69 (D.D.C. 2008) (citing D.C. Mun. Regs. tit. 28, §§ 100 et seq. (1987) (repealed Aug. 5, 2000)); see also Puifory v. Reilly, 2009 WL 839354, at *2 (M.D. Pa. 2009) (Vanaskie, J.). The National Capital Revitalization and Self-Government Improvement Act of 1997 ("Revitalization Act"), Pub. L. No. 105-33, § 11231(a)(1), 111 Stat. 712, 734-37 (codified at D.C. Code § 24-131 (2001)), abolished the D.C. Parole Board but required the USPC to continue to follow D.C. parole law and regulations. Puifory, 2009 WL 839354, at *2. However, the Revitalization Act accorded the USPC the "exclusive authority to amend or supplement any regulation interpreting or implementing' D.C. parole laws." Id. (quoting D.C. Code § 24-131). "Between 1998 and 2000, the USPC drafted new parole regulations and guidelines... that it applied to any offender who received an initial parole hearing after August 5, 1998." Sellmon, 551 F.Supp.2d at 72.
In 2008, the United States District Court for the District of Columbia ("D.C. Court") held in Sellmon v. Reilly "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 (Le., March 4, 1985 to August 4, 1998), violated the Ex Post Facto clause of the U.S. Constitution." Marshall v. Reiley, 2014 WL 6066163, at *2 (M.D. Pa. 2014) (citing Sellmon, 551 F.Supp.2d 66). In response, the USPC issued the "Sellmon Rule" which required the USPC "to provide new parole hearings for D.C. Code offenders who had committed their crimes between March 4, 1985 and August 4, 1998, and to use the 1987 guidelines of the D.C. Board in conducting those parole hearings." Id. (citing 74 Fed. Reg. 34688 (July 17, 2009)).
1. 1987 Regulations
In Sellmon, the D.C. Court discussed the 1987 Regulations and 2000 Guidelines in considerable detail. 551 F.Supp.2d at 68-73, 87-89. Under the 1987 Regulations, a D.C. Code offender became eligible for parole after serving his minimum sentence. Id. at 69. The 1987 Regulations drew a distinction between parole eligibility and suitability. Id. An inmate would first have to become eligible for parole before the D.C. Parole Board would consider whether he was suitable for parole. Id. An offender's parole ellgibility was prescribed by statute. Id. at 69 nA (citing Cosgrove v. Thornburgh, 703 F.Supp. 995, 997 (D.D.C. 1988)). An offender's suitability, in contrast, was determined by the D.C. Parole Board in accordance with the 1987 Regulations. Id.
The 1987 Regulations erected an analytical framework that relied on four factors, two pre-incarceration factors, the degree and type of risk posed by an offender, and two post-incarceration factors, an offender's institutional adjustment and program participation. Id. at 70-71. The first and "primary" factor under the 1987 Regulations was the degree of risk an offender posed. Id. at 70. The D.C. Parole Board calculated this category based on a "Salient Factor Score ['SFS'], an actuarial risk assessment device that relies exclusively on information known at the time of incarceration." Id. (internal quotation marks omitted). Sellmon explained how an offender's SFS was calculated under the 1987 Regulations.
[T]he Board considered six pre-incarceration factors: (1) prior convictions and adjudications; (2) prior commitments of more than 30 days; (3) age at the commission of current offense; (4) recent commitment-free period; (5) status of prisoner at time of current offense; and (6) history of heroin or opiate dependence. The SFS placed the candidate into one of four risk categories (10-9 = low risk, 8-6 = fair risk, 5-4 = moderate risk, or 3-0 = high risk) from which the Board would determine a baseline number of points ("base point score") that provided 0 for low risk, 1 for fair risk, 2 for moderate risk, and 3 for high risk.
Id. (internal citations omitted).
After calculating an offender's base point score, the D.C. Parole Board would adjust it using the remaining three factors to arrive at atotal point score. Id. The second factor, the type of risk posed by the offender, permitted the Board to increase atotal point score by a maximum of one point if the parole candidate's current offense involved violence, weapons, or drug trafficking. Id. The third factor, the offender's institutional adjustment, was also an aggravating factor. Id. The Board could add one point to an offender's total point score for "negative institutional behavior" if it found that the inmate's institutional infractions adversely impacted his suitability for parole. Id. at 70-71. The fourth and final factor, an offender's program participation, was a mitigating factor that enabled offenders to receive a one-point reduction for "sustained achievement in the area of prison programs, industries, or work assignments while under confinement for the current offense." Id.; D.C. Mun. Reg. § 204.18(i).
After the D.C. Parole Board combined all of these factors, the total point score indicated whether an inmate was suitable for parole. Sellmon, 551 F.Supp.2d at 71. At an initial hearing, atotal point score of zero, one, or two created apresumption of suitability for parole, while ascore of three or higher resulted in a presumption against parole. D.C. Mun. Reg. § 204.19(aHd)). At a reconsideration hearing, the 1987 Regulations provided that parole should ordinarily be granted for atotal point score of zero to three but denied for a score of four or five. Id. at § 204.21.
Section 204.22 of the 1987 Regulations permitted the D.C. Parole Board, "in unusual circumstances, " to "depart from the strict application" of the Regulations.
In Appendix 2-1 of the 1987 Regulations, the D.C. Parole Board listed six pre-incarceration factors that, if applicable, demonstrated that the candidate was a greater risk for parole than reflected by his or her total point score: (1) the offender repeatedly failed under parole supervision; (2) the current offense involved ongoing criminal behavior; (3) the offender had a lengthy history of criminally related alcohol abuse; (4) the offender had a history of repetitive sophisticated criminal behavior; (5) the offender had an unusually serious prior record of at least five felony convictions; or (6) the offender's crime involved unusual cruelty to victims.
Sellmon, 551 F.Supp.2d at 71.
2. 1991 Policy Guideline
As Sellmon explained, the D.C. Parole Board adopted a policy guideline in 1991 ("1991 Policy Guideline") to elaborate on the terms used in the 1987 Regulations. Id. The 1991 Policy Guideline defined "negative institutional behavior" in the context of initial parole hearings and reconsideration hearings. (Pet'r's Ex. 2, Doc. 22-4, at 2). For initial hearings, negative institutional behavior was defined as: (1) n[o]ne Class I Offense for murder, manslaughter, kidnapping, armed robbery or first degree burglary at any time during the minimum sentence;" or (2) U[o]ne Class I Offense... during the 12 months preceding the hearing OR during the last half of the minimum sentence up to a period of three years, whichever is longer; OR (3) [t]wo Class II Offenses... during the 12 months preceding the hearing or during the last half of the minimum sentence up to a period of three years, whichever is longer." ( Id. ). For reconsideration hearings, negative institutional behavior was measured "since the preceding release consideration on the sentence[.]" (Id. (emphasis in original)).
The 1991 Policy Guideline also defined "sustained program or work assignment achievement." ( Id. at 3). During initial parole hearings, an offender would be found to have "sustained program or work assignment achievement" upon:
(1) Successful completion of one or two educational or vocational programs, or program levels, each of which enabled the offender to develop an academic or job-related skill, OR enabled the offender to progress to a higher level of difficulty or skill in the program area; OR
(2) Award of aGED... OR
(3) Successful completion of the requirements and award of an Associate's or Bachelor's degree; OR
(4) Successful completion of one or more short-term special needs programs, such as drug treatment or psychological counseling to address the offender's identified problems... OR
(5) Satisfactory participation in one or more work details for at least one-third of the ...