EDWARD J. X. FORD, JR. v. CHARLES MASSARONE, COMMISSIONER OF THE UNITED STATES PAROLE COMMISSION, ET AL.
No. 16-5298
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided September 4, 2018
Argued April 26, 2018
Appeal from the United States District Court for the District of Columbia (No. 1:13-cv-02054)
Zachary C. Schauf, appointed by the court, argued the cause and filed briefs as amicus curiae in support of appellant. With him on the briefs was David W. DeBruin, appointed by the court.
Edward J.X. Ford Jr., pro se, filed briefs for appellant.
Peter C. Pfaffenroth, Assistant U.S. Attorney, argued the cause for appellees. With him on the brief were Jessie K. Liu, U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney. Fred E. Haynes and Alessio D. Evangelista, Assistant U.S. Attorneys, entered appearances.
Before: GARLAND, Chief Judge, and GRIFFITH and SRINIVASAN, Circuit Judges.
Opinion for the Court filed by Circuit Judge SRINIVASAN.
SRINIVASAN,
Generally, once a D.C. offender has served the minimum term of his court-imposed sentence, he is eligible for parole and has a parole hearing at that time. The rule is different, though, for the small number of offenders like Ford who are serving sentences for both a D.C. crime and a federal crime committed before federal parole was abolished. In that situation, if an offender‘s eligibility for parole from his D.C. sentence comes before his projected parole date on his federal sentence, a federal regulation calls for delaying his first D.C. parole hearing until shortly before his projected federal parole date. The central question in this case is whether the federal regulation‘s mandate to delay the first D.C. parole hearing in that situation conflicts with D.C. law.
The district court granted summary judgment to the Commissioners on that claim as well as several others pressed by Ford. We conclude that Ford‘s first D.C. parole hearing was unlawfully delayed. We therefore reverse and remand for entry of summary judgment in Ford‘s favor on that issue, but we otherwise affirm the district court.
I.
In 1980, Ford committed three murders in three jurisdictions in the space of three months. Ford‘s final victim was an inmate at a federal prison in Northern Virginia, whom Ford broke into the facility to kill.
Ford was first convicted of the prison murder and conspiracy to commit that murder, both in violation of federal law. He received concurrent sentences of life imprisonment for the murder and 15 years for the conspiracy offense. Ford was next convicted of murder while armed, kidnapping while armed, and carrying a pistol without a license, all in violation of D.C. law. He received a sentence of 20 years to life for the murder, 10 years for the kidnapping, and an unspecified term for the gun offense—all concurrent to each other, but consecutive to his federal sentences.
Ford is currently serving his D.C. and federal sentences in federal prison. If paroled, he will begin serving another life sentence for a third murder he committed in Maryland.
Since 1997, when the D.C. Board of Parole was abolished, the U.S. Parole Commission has conducted parole proceedings for both D.C. and federal offenders. See Daniel v. Fulwood, 766 F.3d 57, 59 (D.C. Cir. 2014). In December 2001, the Commission held Ford‘s initial federal parole hearing.
The Commission applied the federal parole guidelines and determined that, barring disciplinary infractions in prison, Ford would be paroled from his federal sentence on November 22, 2005. The Commission also concluded that Ford would become eligible for parole from his D.C. sentence before his projected parole date for his federal sentence. Applying the federal regulation that governs the timing of D.C. parole hearings for offenders serving both D.C. and federal sentences,
Ford had his first D.C. parole hearing shortly after that date, on August 10, 2005. He was denied parole. Since then, Ford has had three rehearings—in October 2010, October 2012, and February 2016—and has been denied parole each time. His next rehearing is scheduled for February 2019.
In 2013, before Ford‘s most recent rehearing, he filed a pro se complaint against
The district court agreed, and granted summary judgment to the Commissioners on that issue and Ford‘s remaining claims. Ford v. Massarone, 208 F. Supp. 3d 91, 106, 108 (D.D.C. 2016). Ford appealed, and we appointed amicus counsel to present arguments favoring Ford‘s position.
II.
Before addressing the merits of the claims Ford has preserved, we consider various threshold arguments advanced by the Commissioners as to why we should decline to reach some or all of Ford‘s claims. On the merits of the properly preserved claims, we hold that the Commissioners unlawfully delayed Ford‘s first D.C. parole hearing. We rule in the Commissioners’ favor on the remaining claims.
A.
As an initial matter, the Commissioners argue that Ford‘s action is barred by res judicata and by a federal statute restricting second or successive habeas actions. The Commissioners further contend that, insofar as Ford‘s action can proceed, he forfeited certain of his claims by failing to raise them before the district court.
1. The Commissioners argue that res judicata bars Ford‘s action because, in 2001, he filed a habeas petition in which he alleged (among other things) that the Commissioners had unlawfully delayed his first D.C. parole hearing. Ford v. Attorney General, No. 02-302 (D. Colo. Apr. 9, 2004). Res judicata, however, is an “affirmative defense” that “must [be] plead[ed] . . . in the answer to the complaint.” Brown v. District of Columbia, 514 F.3d 1279, 1285 (D.C. Cir. 2008); see also
2. The Commissioners next contend that Ford‘s action is barred by
The Commissioners’ argument based on
The Commissioners’
If Ford prevails here, then the only relief he will receive is “a new parole hearing at which . . . parole authorities may, in their discretion, decline to shorten his prison term.” Wilkinson, 544 U.S. at 82. Ford‘s claims, then, have only a probabilistic impact on his custody, which means they were properly raised in a
3. The Commissioners next contend that Ford forfeited several arguments advanced by appointed amicus by failing to raise them below. When a plaintiff represents himself in the district court, we hold him to “less stringent pleading and forfeiture standards.” Elliott v. USDA, 596 F.3d 842, 851 (D.C. Cir. 2010). Still, “we will not consider for the first time on appeal arguments that a [pro se] plaintiff entirely failed to raise” below. Id.
The Commissioners initially set their sights on appointed amicus‘s primary argument: that the Commissioners violated D.C. and federal statutes by holding Ford‘s first D.C. parole hearing in 2005 rather than 2000. In the district court, Ford alleged that, by delaying his hearing, the Commissioners had violated the Ex Post Facto Clause. To prevail on that claim, he needed to prove that (i) the date of his hearing was set in accordance with a legal rule established after he was convicted of his D.C. offense, and (ii) the “retroactive application of [that rule] create[d] a significant risk of prolonging his incarceration as compared to application of the prior [rule].” Daniel v. Fulwood, 766 F.3d 57, 61 (D.C. Cir. 2014) (formatting modified); see Garner v. Jones, 529 U.S. 244, 251 (2000).
With respect to the latter point, Ford‘s complaint alleged that, under the law as it stood when he was convicted, he became eligible for parole from his D.C. sentence in May 2000. Complaint at ¶¶ 48, 77, Ford v. Massarone, No. 13-cv-02054 (D.D.C. Dec. 26, 2013), ECF No. 1. The Commissioners read that allegation as contending that Ford “should have received [his initial] parole hearing . . . in 2000.” Id., Memorandum of Law in Support of Motion for Summary Judgment at 3 (D.D.C. Jan. 28, 2016), ECF No. 48. In response, Ford confirmed he was alleging that he had been entitled to an initial hearing in 2000. Id., Declaration Attached to Response to Motion for Summary Judgment at 3 (D.D.C. Feb. 19, 2016), ECF No. 51. The
Reading the pleadings through the lens we normally apply to pro se filings, Ford ultimately alleged that, under the D.C. and federal statutes at issue, he was entitled to a parole hearing years before he actually received one. He thereby sufficiently preserved a claim that
The Commissioners’ next (and final) forfeiture argument fares better. That argument concerns appointed amicus‘s contention that the Commissioners violated the Ex Post Facto Clause by using Ford‘s three murder convictions as grounds for both (i) delaying his parole rehearings and (ii) denying him parole at those rehearings. Ford did not include that claim in his complaint. And in response to the Commissioners’ motion for summary judgment, Ford reiterated that he had never argued “that the longer set-off[s]“—meaning the delays between his rehearings—were “Ex Post Facto violation[s].” Ford v. Massarone, No. 13-cv-02054, Memorandum of Law in Support of Response to Motion for Summary Judgment at 13 (D.D.C. Feb. 19, 2016), ECF No. 51. The claim is therefore forfeited.
B.
We now turn to appointed amicus‘s primary merits argument: that the Commissioners violated D.C. and federal statutes by delaying Ford‘s first D.C. parole hearing from 2000 until 2005.
1. To understand appointed amicus‘s argument in that regard, one must first identify when Ford would have received his first D.C. parole hearing had he been convicted only of his D.C. offense. When sentencing offenders for violating D.C. law, D.C. courts set minimum and maximum terms of incarceration.
The central issue before us is whether Ford‘s federal conviction should affect the date of his first D.C. parole hearing. While Congress “eliminated most forms of parole” for federal offenses as of November 1, 1987, parole remains available to offenders like Ford who committed federal crimes before that date. Howard v. Caufield, 765 F.3d 1, 2 n.1. (D.C. Cir. 2014) (quoting Johnson v. United States, 529 U.S. 694, 696-97 (2000)). The federal parole process begins with an initial hearing, at which the Commission applies the federal parole guidelines (codified at
So what happens when an offender is serving both D.C. and federal sentences? When do the D.C. parole hearings commence in that circumstance? A federal regulation,
The single parole eligibility date, in particular, turns on an application of
Consider, for example, an offender serving a federal sentence of 20 years and a D.C. sentence of 20 to 50 years. Based on his aggregate sentence of 70 years,
Ford‘s case presents the opposite scenario, in which the projected federal parole date comes after the single parole eligibility date. In that circumstance, the projected federal parole date drives the date of the initial D.C. parole hearing, in that the hearing is delayed until shortly before the projected federal parole date. See
In Ford‘s case, for instance, his single parole eligibility date, of May 22, 2000, was
2. Appointed amicus does not contend that the Commission misapplied
Section 24-409 provides that the Commission “shall have and exercise the same power and authority” over D.C. offenders housed in federal prisons as the (now-defunct) D.C. Board of Parole once exercised over D.C. offenders housed in D.C. prisons. (The statute refers to the Commission as the U.S. Board of Parole, which was the agency‘s title until 1976. See Parole Commission and Reorganization Act,
The Commissioners concede that
In support of that argument, the Commissioners point to the Seventh Circuit‘s decision in Thomas v. Brennan, 961 F.2d 612 (7th Cir. 1992). The offender there, like Ford here, was serving both D.C. and federal sentences. Id. at 613. And like Ford, the offender there alleged that the Commission‘s regulation (which would delay his first D.C. parole hearing by seven years) clashed with
The Seventh Circuit first reaffirmed its prior holdings that
The court “carve[d] an exception,” however, for offenders like Ford with projected federal parole dates later than their D.C. parole eligibility dates. Id. In such cases, the court held, the Commission can delay the offender‘s first D.C. parole hearing until shortly before his federal parole date. Id. That delay is warranted, the court believed, for three reasons.
First, the court noted, regardless of when the first D.C. parole hearing takes place, the offender would need to remain in prison on his federal sentence until his federal parole date. Id. Second, the court concluded that delaying an offender‘s first D.C. parole hearing until his federal parole date does not substantially injure him; he would enjoy only an “incremental benefit” if the hearing were held at his D.C. eligibility date. Id. Finally, the court observed that, under our court‘s decision in Chatman-Bey, an offender‘s single parole eligibility date as prescribed by
3. We agree with the Seventh Circuit‘s conclusion that
The text of
The Thomas court grounded its support of such a distinction, not in the statutory text, but in other considerations. Respectfully, we do not understand those considerations to justify the distinction.
First, it is undoubtedly true that an offender in Ford‘s position cannot be released from prison until he is paroled from both his D.C. and federal sentences. Thomas, 961 F.2d at 618. But an offender can be paroled from one sentence first and still remain incarcerated until he is paroled from the other. That is Ford‘s current situation; he was paroled from his federal sentence in August 2005 but remains in prison serving his D.C. sentence.
Second, an offender serving both D.C. and federal sentences seemingly could gain more than an “incremental benefit” if his D.C. parole hearings began at the time of his D.C. parole eligibility instead of being delayed until his federal parole date. Id. To see why, it is necessary to understand how the relevant D.C. parole guidelines operate in an offender‘s first parole hearing and in any rehearings.
In an offender‘s first hearing, the Commission uses various offender characteristics to calculate what is known as a “salient factor score” (or SFS).
If the adjusted SFS is between 0 and 2, then “[p]arole shall be granted“; if the score is between 3 and 5, then “[p]arole shall be denied and rehearing scheduled.”
In a rehearing, the Commission takes the adjusted SFS from the previous hearing and then accounts for the offender‘s interim “institutional record.”
So how could an offender be injured if his D.C. parole hearings are delayed until his projected federal parole date? For one thing, even if an offender has just a single hearing before his federal parole date, when he later has his first rehearing, the more lenient, rehearing-specific point scale will apply. For another, at that rehearing, the offender can obtain a second deduction for rehabilitative efforts. Finally, if an offender‘s D.C. parole eligibility date is several years before his projected federal parole date, then he could potentially have several D.C. parole hearings before being paroled from his federal sentence. That would give him the opportunity to reduce his SFS over time and thereby obtain an earlier D.C. release date.
Consider, for example, an offender with a D.C. eligibility date six years before his federal parole date. Even if that offender had an SFS of 5 at his first D.C. parole hearing, he could, through persistent rehabilitative efforts, reduce his score to 0 by the time of his federal parole date, provided the Commission held rehearings each year as it “ordinarily” does.
The Thomas court noted, finally, that under our decision in Chatman-Bey, an offender‘s single parole eligibility date might be later than the D.C. eligibility date (i.e., the parole eligibility date that would apply if the offender were serving a D.C. sentence but not a federal one). See Thomas, 961 F.2d at 618-19. That would happen if the eligibility date dictated by
We recognize that, in reaching a different conclusion on that issue than the Thomas court did, our decision could result in the Commission‘s applying different rules to offenders serving aggregated D.C. and federal sentences depending on where the offenders are incarcerated. But we must give effect to the terms of
In short, we hold that, under
4. In addition to arguing that the delay in Ford‘s initial D.C. parole hearing violates D.C. and federal statutes, appointed amicus also contends that the delay violates the Ex Post Facto Clause. The remedy for that alleged constitutional violation, appointed amicus says, should be the same as the remedy for the alleged statutory violations.
This case, then, is one in which a party has raised both constitutional and statutory claims, and, by winning on the latter, has secured “all the relief [the party] seeks.” Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 205 (2009). In that situation, we have no occasion to decide the constitutional issue. Id. We therefore do not reach appointed amicus‘s delay-related Ex Post Facto claim.
C.
Appointed amicus also advances two arguments concerning the Commission‘s decisions to deny Ford parole. We find those arguments unpersuasive.
1. Appointed amicus contends that the Commissioners violated the Ex Post Facto by repeatedly denying Ford parole on the ground that he had three murder convictions. Again, parole authorities violate the Ex Post Facto Clause when (i) they apply parole guidelines promulgated after an offender was convicted, and (ii) that “retroactive application . . . creates a significant risk of prolonging [the offender‘s] incarceration as compared to application of the prior guidelines.” Daniel, 766 F.3d at 61 (formatting modified).
In the district court, Ford alleged (and the Commissioners agreed) that, when he was convicted of his D.C. offense, the parole guidelines in effect were those published in 1987. Complaint at ¶ 16; Answer at 5. Under the 1987 guidelines, if an
Here, the Commission‘s stated grounds for denying Ford parole in 2005, 2012, and 2016 were his three murder convictions. And in 2010, the Commission‘s stated grounds were the three murders, as well as his 1958 conviction for housebreaking (which is not a qualifying felony under the 1991 Policy Guideline) and his 1965 conviction for robbery (which is a qualifying felony). According to appointed amicus, each of those four denials was impermissible under the 1987 guidelines as interpreted by the 1991 policy guideline. That is so, appointed amicus says, because three murders—or three murders and a robbery—do not five felony convictions make. On the other hand, appointed amicus notes, Ford‘s three murder convictions were a permissible reason to deny him parole under the 2000 guidelines. Thus, appointed amicus concludes, when the Commission explicitly relied on Ford‘s three murder convictions, it revealed it was retroactively applying the 2000 guidelines, which worked to Ford‘s detriment.
Assuming arguendo that the Commission did apply the 2000 guidelines at Ford‘s parole hearings, appointed amicus‘s argument still fails. We have held that, when the Commission applies the 1987 guidelines, it can “depart from [the guidelines‘] numerical system” anytime it wishes, “as long as it ‘specifies in writing those factors which it used.‘” Bailey v. Fulwood, 793 F.3d 127, 132 (D.C. Cir. 2015) (formatting modified) (quoting McRae v. Hyman, 667 A.2d 1356, 1360 (D.C. 1995)). And “the 1991 Policy Guideline does not limit the [Commission‘s] discretion.” Bailey, 793 F.3d at 133. The guidelines in effect when Ford was convicted, then, would have posed no obstacle if the Commission wished to deny Ford parole based on his three murder convictions. Hence the retroactive application of the 2000 guidelines—which would also permit the Commission to deny Ford parole because of his three murder convictions—would not pose a significant risk of increasing Ford‘s prison term.
2. Appointed amicus additionally contends that, by repeatedly denying Ford parole because he had three murder convictions, the Commission violated the Due Process Clause. Parole authorities deprive an offender of due process only if their decisions are “either totally lacking in evidentiary support or [are] so irrational as to be fundamentally unfair.” Duckett v. Quick, 282 F.3d 844, 847 (D.C. Cir. 2002). Ford committed three murders in three months, breaking into prison to commit one of them. Given those facts, we cannot consider the Commission‘s decisions to deny Ford parole to have been irrational.
D.
Ford advances various additional arguments in his pro se briefs. We find those arguments to be without merit.
Ford also contends that the Commission violated the Double Jeopardy Clause by using his murder convictions (i) as grounds for departing upward from the federal parole guidelines when setting his projected federal parole date, and (ii) as grounds for denying him parole from his D.C. sentence. Among other things, the Double Jeopardy Clause “prohibits the government from punishing [an offender] twice . . . for the same offense.” United States v. Ursery, 518 U.S. 267, 273 (1996) (formatting modified). When parole authorities deny an offender parole, however, they do not impose a new punishment; rather, they decline to relieve the offender from the original punishment that is his sentence. Alessi v. Quinlan, 711 F.2d 497, 501 (2d Cir. 1983); Averhart v. Tutsie, 618 F.2d 479, 483-84 (7th Cir. 1980). Nor do parole authorities impose a new punishment when they set a parole date later than that recommended by the relevant parole guidelines, so long as departing from the guidelines does not increase the offender‘s sentence. Kell v. U.S. Parole Comm‘n, 26 F.3d 1016, 1020 (10th Cir. 1994). Because neither of the acts on which Ford bases his double jeopardy claim was an imposition of punishment for purposes of the Double Jeopardy Clause, the two acts together were not “multiple punishments . . . for the same offense.” Ursery, 518 U.S. at 273 (formatting modified).
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For the foregoing reasons, we affirm in part, reverse in part, and remand for entry of summary judgment in Ford‘s favor on his claim that the Commissioners unlawfully delayed his first D.C. parole hearing.
So ordered.