Vance KINGSBURY, Plaintiff, v. Isaac FULWOOD, Jr., et al., Defendants.
Civil Action No. 11-0884 (RBW)
United States District Court, District of Columbia.
Nov. 5, 2012.
51
Kenneth A. Adebonojo, U.S. Attorney‘s Office, Washington, DC, for Defendants.
MEMORANDUM OPINION
REGGIE B. WALTON, District Judge.
This matter is before the Court on the defendants’ motion to dismiss. For the reasons discussed below, the motion will be granted.
I. BACKGROUND1
A. The Plaintiff‘s Criminal Convictions
On December 15, 1975, while on probation for a 1974 burglary conviction,2 the plaintiff murdered the manager of a Peoples Drug Store in the course of a robbery. Complaint (“Compl.“), Exhibit
B. Parole Regulations and Guidelines
1. Indeterminate Sentencing
Generally, a Superior Court offender sentenced “for a maximum period not exceeding the maximum fixed by law, and for a minimum period not exceeding one-third of the maximum sentence imposed, ... may be released on parole ... at any time after having served the minimum sentence.”
2. The Parole Board‘s 1987 Regulations and 1991 Policy Guideline
When the plaintiff committed his crimes, the District of Columbia Board of Parole (“Parole Board“) made all parole-related decisions for District of Columbia Code offenders. See Austin v. Reilly, 606 F.Supp.2d 4, 8 (D.D.C.2009). Initially there was “no formalized scoring system” in place, and the Parole Board only “was required by regulation to consider factors such as the inmate‘s offense, prior history of criminality, personal and social history, ... [and] institutional experience, ... when exercising its discretion to authorize parole.” Davis v. Henderson, 652 A.2d 634, 635 (D.C.1995). In short, “parole eligibility was determined by a ... Board that operated with nearly complete discretion.” Wilson v. Fullwood, 772 F.Supp.2d 246, 252 (D.D.C.2011) (citing Austin, 606 F.Supp.2d at 8).
The Parole Board subsequently developed and published regulations, see D.C. Mun. Regs. tit. 28, § 100 et seq. (1987) (repealed Aug. 5, 2000) (“1987 Regulations“), in an effort to “mak[e] explicit those factors that [would] be considered in each [individual] case.” Sellmon v. Reilly, 551 F.Supp.2d 66, 69 (D.D.C.2008) (citations omitted and emphasis removed). In December 1991, it issued a policy guideline (“1991 Policy Guideline“) to define certain terms used in the appendices to the 1987 Regulations. Id. at 71.
3. The USPC‘s 2000 Guidelines
Pursuant to the National Capital Revitalization and Self-Government Improvement Act of 1997 (“Revitalization Act“), Pub. L. No. 105–33, 111 Stat. 712 (1997), the Parole Board was abolished, see
“[B]oth the 1987 Regulations and the 2000 Guidelines allow the USPC to deny parole to a presumptively suitable prisoner if there are ‘unusual circumstances.’ ” Cole v. Fulwood, 879 F.Supp.2d 60, 61 (D.D.C.2012) (quoting Sellmon, 551 F.Supp.2d at 73). The following summary of major differences in the two sets of guidelines is relevant to this case:
[T]he 2000 Guidelines allow departure from the decision reached based on the SFS [salient factor score] “on any basis ... [not] ‘fully taken into account in the guidelines.‘” [Sellmon, 551 F.Supp.2d at 73] (quoting
28 C.F.R. § 2.80(n) ). Additionally, under the 2000 Guidelines, the USPC is encouraged to consider “offense accountability” when making parole decisions. Id. at 88. Unlike the 2000 Guidelines, “the 1987 Regulations presume that the minimum sentence imposed by the sentencing court appropriately accounts for a parole candidate‘s offense severity and accountability and that the parole decision should be limited to consideration of the offender‘s risk of recidivism and institutional conduct.” Id. The 1987 Regulations required any departure from the presumption to be justified by reference to one or more of an enumerated list of possible reasons, which were intended to identify prisoners who were a greater risk for parole than indicated by their SFS. Id. at 71. The permissible factors justifying the denial of parole to a presumptively eligible prisoner, under the 1987 Regulations, are listed in Appendices 2-1 and 2-2. D.C. Mun. Regs., tit. 28, § 204.1; id. apps. 2-1 & 2-2. Appendix 2-1 lists: (1) “repeated failure under parole supervision;” (2) “ongoing criminal behavior;” (3) “a lengthy history of criminally related alcohol abuse;” (4) “a history of repetitive sophisticated criminal behavior;” (5) “an unusually extensive and serious prior record;” or (6) “unusual cruelty to victims.” Id. app. 2-1. Appendix 2-2 is entitled “Rehearing Guidelines—Point Assessment Grid and Findings Worksheet for Rehearings.” Id. app. 2-2. It lists three factors which can justify a departure from the guidelines: (1) “change in the availability of community resources leading to a better parole prognosis;” (2) “poor medical prognosis;” or (3) “other change in circumstances.” Id.
C. The Plaintiff‘s Parole Hearings
The plaintiff‘s initial parole hearing took place on November 30, 2000. Compl., Ex. 1 at 1. Although the hearing examiner recommended that parole be denied, it later “was decided that another hearing should be conducted in order to discuss with the [plaintiff] the details discovered” on review of “the evaluation section of the [presentence investigation report] and the Murder/Robbery case,” as well as “information about the assault with a Deadly Weapon, Robbery, Obstruction of Justice and even the earlier burglary case.” Id. The assault with a deadly weapon and obstruction of justice offenses apparently arose from the plaintiff‘s “attempt[] to kill a female who testified against him in the 1974 burglary case.” Id. at 2. The plaintiff injured the female and the small children
Hearing examiner Rob Haworth (“Haworth“) conducted a second hearing on July 17, 2001, and recommended that parole be denied:
This prisoner claims to be innocent of the murder and the robbery at the Peoples Drug Store, 12/15/75. He admits being involved in a shooting but states it was only to scare the victim. The [presentence investigation report] indicates otherwise and shows that several people including children were injured from the shotgun blast. Subject admits he committed a residential burglary.
Parole eligibility came after 24 years, 2/1/2000. Subject did not have his first Initial Hearing until November or [sic] 2000 and is now having this new hearing in July 2001. Any set off given at this time should be from the parole eligibility date....
Subject has been in custody 25 1/2 years, 306 months as of 7/21/2001. Based on the extremely serious crimes he committed, it is recommended that he not be seriously considered for release until he serve [sic] 35-40 years. This examiner is recommending that parole be denied and that subject be set off for 5 years.
Id., Ex. 1 at 3. Haworth declined to apply the USPC‘s 2000 Guidelines because the plaintiff‘s initial hearing took place before the 2000 Guidelines took effect. Id.
The plaintiff‘s parole reconsideration hearing took place on November 17, 2004. Compl. at 10. Applying the 2000 Guidelines, hearing examiner Joseph M. Pacholski (“Pacholski“) determined that “[a] decision above the guidelines [was] warranted,” given that the plaintiff had “injured [a] female and two children and a teenager with a shotgun blast,” and “also [committed] murder.” Id., Ex. 2 (Hearing Summary dated November 17, 2004) at 2. Pacholski “struggled with the idea of giving the [plaintiff] a parole date at the top of the guideline range,” but found instead that the plaintiff was “a more serious risk” than his scores indicated. Id.
Haworth conducted the plaintiff‘s next reconsideration hearing on September 11, 2007. Compl. at 10. He opined that “[t]he granting of parole for someone like [the plaintiff was] difficult,” given the “extremely serious crimes” the plaintiff committed. Id., Ex. 3 (Hearing Summary dated September 11, 2007) at 2. Haworth was “of the opinion that [the plaintiff] should serve 40 years before being released,” and recommended an upward departure from the 2000 Guidelines and further reconsideration in September 2010. Id. The USPC adopted the recommendation. Memorandum of Points and Authorities in Support of Defendants’ Motion to Dismiss (“Defs.’ Mem.“), Ex. A (Notice of Action dated October 4, 2007) at 1.
The plaintiff‘s most recent reconsideration hearing took place on January 25, 2011. Compl. at 11. Hearing examiner Mark A. Tanner (“Tanner“) “believe[d that the plaintiff needed] to serve a substantial amount of time before he should be recommended for parole based upon [the plaintiff] being a more serious risk.” Defs.’ Mem., Ex. C (Hearing Summary dated January 25, 2011) at 2. Tanner recommended that parole be denied and offered the following explanation:
A decision above the guidelines is warranted because you are a more serious risk than indicated by the guidelines in that your current offense behavior involved a Murder during an Armed Robbery and a separate crime during which you Attempted to Murder a Witness who was scheduled to testify against you
in court. During the second assault, you injured a witness, two small children and a teenager with a shotgun blast you fired at the intended victim. You were already on probation for a burglary when you committed these offenses. The Commission finds that your criminal conduct in which you caused the death of one and attempted to kill others while on probation indicates that there is a reasonable probability that you will commit additional crimes if released and you remain a risk to the community.
Id., Ex. C at 3. The USPC adopted Tanner‘s recommendation, denied parole, and continued the matter for a further reconsideration hearing in January 2014. Compl., Ex. 4 (Notice of Action dated March 1, 2011) at 1.
II. DISCUSSION
The plaintiff brings this civil rights action under
A. Dismissal Standard Under Rule 12(b)(6)
A plaintiff need only provide a “short and plain statement of [his] claim showing that [he] is entitled to relief,”
A complaint survives a motion under
B. Ex Post Facto Clause Claim
According to the plaintiff, because he was convicted of crimes committed in the early 1970‘s, see Compl. at 9, he is “subject to D.C. Parole Guidelines in effect at the time of his offenses,” not the USPC‘s 2000 Guidelines, id. at 22. He argues that “application of the 2000 Guidelines automatically extended [the plaintiff‘s] minimum sentence by ... 54-72 months ... past his [parole] eligibility date ... because he was convicted of a violent crime with one prior act of violence [and] one []which resulted in the death of a victim.” Id. at 23. Had he been considered for parole under the 1987 Regulations, he claims that he would have been deemed eligible for parole. Id. at 15.
The United States Constitution prohibits any State from passing an “ex post facto Law.”
Nothing in the record in this case suggests that the former Parole Board‘s 1987 Regulations apply to the plaintiff. “[A] plaintiff may invoke an ex
C. Due Process Clause Claim
The plaintiff points to three matters which allegedly comprise violations of his right to due process. None is meritorious.
1. Hearing Examiner Bias Claim
First, the plaintiff argues that his right to due process was violated because the same hearing examiner, Rob Haworth, conducted reconsideration hearings both in 2001 and in 2007. Compl. at 12-13. He claims that “Haworth should have been recused ... as he is biased, prejudicing [sic] and had pre-decided the case as is clear from his 2001 and 2007 decisions and stated opinion” of the plaintiff‘s unsuitability for release “until after he has served 34-40 years of incarceration.” Id. at 13. Although “there [is] no [r]egulation against an [e]xaminer conducting multiple [h]earings for the same subject,” the plaintiff contends that the USPC‘s “adoption of ... Haworth‘s arbitrary pre-made capricious decisions ... went beyond the scope of [his] authority.” Id. (emphasis removed).
As the defendants note, see Defs.’ Mem. at 27, a hearing examiner may “conduct hearings and proceedings, take sworn testimony, obtain and make a record of pertinent information, ... and recommend disposition of ... matters,”
2. Improper Exercise of Judicial Functions Claim
The plaintiff asserts that the USPC‘s apparent goal is the imposition of harsh penalties, see, e.g., Compl. at 14, by ignoring an offender‘s rehabilitation while incarcerated, see, e.g., id. at 17, and instead “focus[ing] ... entirely on factors of deterrence, incapacitation and retribution,” id. In this way, the plaintiff argues, the USPC “begins to perform functions which are within the traditional province of the Judiciary.” Id. According to the plaintiff, the USPC through its hearing officers decides that an offender should serve a certain amount of time—35 to 40 years in his case—notwithstanding the sentence actual
It appears that the plaintiff misapprehends the nature of parole proceedings. “[T]he jurisdiction and authority ... to grant and deny parole ... [to] any felon who is eligible for parole ... under the District of Columbia Code” rests with the USPC. Franklin v. Dist. of Columbia, 163 F.3d 625, 632 (D.C.Cir.1998). The USPC, however, has no authority to impose a criminal sentence; this authority rests with the Superior Court of the District of Columbia. See
3. “Double Counting” Claim
“Double counting occurs when the [USPC] uses the same criteria to establish both the parole guidelines and to justify a departure from those guidelines.” Delong v. Snyder, No. 5:07-HC-2195, 2008 WL 4510583, at *6 (E.D.N.C. Sept. 29, 2008). The plaintiff argues that the USPC relied on the same factors not only to calculate his point score under the 2000 Guidelines but also to depart from those guidelines and deny parole. See Compl. at 12, 14-15.
Application of the 2000 Guidelines requires first the calculation of an offender‘s salient factor score (“SFS“), which “is used to assist the [USPC] in assessing the probability that an offender will live and remain at liberty without violating the law.”
The plaintiff‘s SFS places him in the “good risk” category (Category I: Risk of Recidivism (Salient Factor Score)), and he is assessed one point (+1). Because the plaintiff‘s current offense involved violence and his criminal history reflected felony violence in a prior offense (Category II: Current or Prior Violence (Type of Risk)), he is assessed three points (+3). His current offense resulted in the death of a victim (Category III: Death of Victim or High Level Violence), for which he is assessed three points (+3). The plaintiff‘s base point score, representing the total number of points assessed in Categories I-III, is 7. A base point score of 7 translates to a base guideline range of 54-72 months. By adding the number of months the plaintiff must serve prior to his parole eligibility date (288 months) to the base guideline range, the USPC determines the plaintiff‘s total guideline range: 342-360 months. See Defs.’ Mem., Ex. C at 2.
At the time of his most recent parole reconsideration hearing, the plaintiff had served 420 months. See id., Ex. C at 2. Exercising its discretion to depart from the guideline range, see
Where, as here, the USPC “used the same information to make two distinct determinations,” Delong, 2008 WL 4510583 at *6, double counting does not occur. The plaintiff‘s offenses of conviction necessarily were considered to calculate his point score. It was the nature of those crimes which led to the upward departure. See id.; Maddox v. U.S. Parole Comm‘n, 821 F.2d 997, 1001 (5th Cir.1987).
D. Equal Protection Clause Claim
Although plaintiff purports to “state[] a claim of an Equal Protection of the law,” Compl. at 5, he sets forth no “factual content that allows the court to draw the reasonable inference that the [defendants are] liable for the misconduct alleged,” Iqbal, 556 U.S. at 678, and, therefore, his equal protection claim must be dismissed. See Hunter v. U.S. Parole Comm‘n, 308 Fed.Appx. 856, 859 (5th Cir.2009) (rejecting a claim that USPC violated the Equal Protection Clause absent a showing that the USPC “purposefully discriminated against [petitioner] and that he was treated differently from similarly-situated” D.C.Code offenders) (quoting Longoria v. Dretke, 507 F.3d 898, 904 (5th Cir.2007)) (internal quotations omitted); King v. U.S. Parole Comm‘n, No. 02-5207, 2002 WL 31520756, at *1 (D.C.Cir. Nov. 13, 2002) (per curiam) (“With respect to his equal protection claim, appellant has not demonstrated that he is a member of a suspect class deserving heightened scrutiny, and the [USPC] has a legitimate reason for using degree of violence as a factor in its parole decisions.“).
III. CONCLUSION
The plaintiff‘s complaint fails to state a constitutional claim upon which relief can be granted and, accordingly, the defendants’ motion to dismiss will be granted.
REGGIE B. WALTON
United States District Judge