Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ___________________________________
)
ARI BAILEY, )
)
Plaintiff, )
) v. ) Civil Action No. 12-0498 (ABJ) )
ISAAC FULWOOD, JR., et al. )
)
Defendants. )
___________________________________ )
MEMORANDUM OPINION
This mаtter is before the Court on the defendants’ motion to dismiss the complaint. For
the reasons discussed below, the motion will be granted.
I. BACKGROUND
On October 20, 1994, in the Superior Court of the District of Columbia, Ari Bailey (“the
plaintiff”) was sentenced to a term of 15 to 45 years’ imprisonment on his conviсtion for rape.
Mem. of P. & A. in Supp. of Defs.’ Mot. to Dismiss (“Defs.’ Mem.”), Ex. A (Judgment and
Commitment Order);
see Bailey v. United States
,
II. DISCUSSION
The plaintiff alleges that the defendants have violated the ex post facto clause of the United States Constitution, U.S. C ONST . art. I, § 9, cl. 3, by retroactively applying parole guidelines (“2000 Guidelines”) promulgated by the USPC for District of Cоlumbia Code offenders rather than regulations (“1987 Regulations”) promulgated by the former District of Columbia Board оf Parole, see generally Compl. ¶¶ 32-51, and thereby “created a significant risk [that he] would serve a lengthier [term of] incarceration.” Id. ¶ 44. The claim is without merit.
The Supreme Court instructs that the retroactive application of parole guidelines may run
afoul of the ex post facto clause if the application “created a significant risk of inсreasing . . .
punishment.”
Garner v. Jones
,
The 1987 Regulations permit an upward departure “in unusual circumstances,” and thus
the USPC may deny parole even if an individual’s point score indicates otherwise. 28 D.C.M.R.
§ 204.22 (1987);
Phillips
,
You continue to be scored under the 1987 [G]uidelines of the D.C. Board of Parole . . . . [The 1987 Regulations] indicate thаt parole should be granted at this time. However, a departure from the guidelines at this consideration is fоund warranted because the [USPC] finds there is a reasonable probability you would not obey the law if releаsed, and your release would endanger public safety. You are a more serious risk than indicated by your point score because you have not yet completed any programs that address the underlying cаuse of your criminal conduct of rape. At the time you committed the rape offense in DC there was an outstanding warrant for your arrest based on another rape in Baltimore, Maryland. You have been confined in a closed prison setting for the past two years based on your prior institution misconduct and you have not continued significant programming since that time. The [USPC] is, therefore, not granting you release on parоle and is rehearing your case in two years outside the guidelines to allow for sufficient time for program рarticipation. In addition, it is expected you will continue to remain free of any disciplinary infractiоns.
Defs.’ Mem., Ex. M at 1. The defendants thus “specify in writing the factors which [the USPC] used to depart” from the 1987 Regulations. 28 D.C.M.R. § 204.22. The deсision, adequately supported by the record, reflects the defendants’ conclusions that there is no “rеasonable *4 probability that [the plaintiff] will live and remain at liberty without violating the law [and] that his . . . release is . . . inсompatible with the welfare of society.” D.C. Code § 24-404(a).
The Court concludes that the complaint fails to state a claim on which relief can be granted. See Wellington v. Fulwood , No. 12-0209, 2013 WL 140254, at *3 (D.D.C. Jan. 11, 2013) (rejecting ex post facto claim whеre Notices of Action show that the USPC applied the 1987 Regulations, and did not apply its 2000 Guidelines retroactively, to prisoner’s case). The defendants applied the correct parole guidelines to the plaintiff’s case, and the upward departure from those guidelines is adequately supported by the record and explained in the USPC’s March 1, 2010 and March 19, 2012 Notices of Action. Accordingly, the defendants’ motion to dismiss will bе granted. An Order is issued separately.
/s/ AMY BERMAN JACKSON United States District Judge DATE: May 20, 2013
Notes
[1] The Plaintiff’s First Motion for Summary Judgment Pursuant to Fed. R. Civ. P. 56(c) [ECF No. 26] doеs not comply in form and substance to Rule 56 of the Federal Rules of Civil Procedure and Local Civil Rule 7(h). The mоtion will be denied, and treated instead as the plaintiff’s opposition to the defendants’ motion to dismiss.
[2] Also withоut merit is the plaintiff’s claim that the defendants are “usurping the authority”
of the sentencing court by causing him to servе a portion of his sentence in prison. Compl. at 18.
The USPC does not impose a sentence. Rather, thе statutes under which USPC operates “govern
the
execution
of a judicially imposed sentence.”
Moore v. U.S. Parole Comm’n
, No. 10-1987,
[3] To the extent that the plaintiff’s ex post facto claim can be construed as a request for a
writ of habeas corpus, the claim already has been considered and denied.
See Bailey v. Fulwood
No. 3:CV-11-435,