879 F. Supp. 2d 60
D.D.C.2012Background
- Cole has been incarcerated since 1989 for voluntary manslaughter and seeks parole, challenging multiple denials.
- He contends the USPC used the 2000 Guidelines rather than the 1987 Regulations, creating an Ex Post Facto violation because of offense accountability considerations.
- Congress transferred parole responsibilities to the USPC in 1997, requiring it to apply DC parole laws to DC offenders; the 2000 Guidelines then replaced the 1987 Regulations for hearings after Aug. 5, 1998.
- Both the 1987 Regulations and 2000 Guidelines use an initial SFS to gauge parole suitability, but the 2000 Guidelines permit departures from the SFS for any basis not fully accounted for in the guidelines.
- Cole’s parole hearings: 1998 initial hearing and 1998 rehearing denied; 2004 rehearing denied for unusual cruelty; 2010 rehearing denial (expressly aligned with 1987 factors).
- Plaintiff also asserts the 2010 denial is arbitrary and capricious under the APA; the court holds APA review of parole decisions is unavailable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ex post facto applicability of 2000 Guidelines | Cole argues 2000 Guidelines were applied to him, increasing punishment. | Defendants claim they applied the 1987 Regulations, not the 2000 Guidelines. | No ex post facto violation; departures based on unusual cruelty were available under both regimes. |
| Effect of Appendix 2-1 vs Appendix 2-2 at rehearings | Appendix 2-1 factors cannot apply at rehearings; only Appendix 2-2 factors apply to rehearings. | Appendix 2-1 factors can apply to rehearings; law and practice permit broader consideration. | Appendix 2-1 factors apply to rehearings; denial based on unusual cruelty was proper under the 1987 Regulations. |
| APA reviewability of parole decisions | APA review should examine whether the 2010 decision was arbitrary and capricious. | Parole decisions are outside the APA's review scope; review is limited to statutory/regulatory/constitutional compliance. | Parole decisions are not subject to APA review; defendant's summary judgment granted on this basis. |
Key Cases Cited
- Phillips v. Fulwood, 616 F.3d 577 (D.C. Cir. 2010) (posture of Sellmon in ex post facto context and parole guideline application)
- Glascoe v. Bezy, 421 F.3d 543 (7th Cir. 2005) (departure from guidelines for unusual circumstance; ex post facto considerations)