Bruce E. VOID, Plaintiff, v. J. Patricia Wilson SMOOT, et al., Defendants.
Civil Action No. 16-78 (RC)
United States District Court, District of Columbia.
October 31, 2016
Bruce E. Void, Cumberland, MD, pro se. Caitlin O‘Leary Trujillo, Tammy Allison Holloway, U.S. Attorney‘s Office, Washington, DC, for Defendants.
RUDOLPH CONTRERAS, United States District Judge
This matter is before the court on De
I. BACKGROUND
A. Parole for D.C. Code Felony Offenders
At all times relevant to the Complaint, the Superior Court of the District of Columbia imposed on an offender an indeterminate sentence “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.”
B. The 1987 Regulations
For offenders such as plaintiff who committed offenses in 1987 and 1989, the USPC applies guidelines “promulgated in 1985, see 32 D.C. Reg. 940 (Feb. 15, 1985),” which have become known “as the 1987 [R]egulations because of their year of publication[.]” Phillips v. Fulwood, 616 F.3d 577, 580 n.2 (D.C. Cir. 2010). There are “criteria consist[ing] of pre[-] and post-incarceration factors which enable[ the USPC] to exercise its discretion when, and only when, release is not incompatible with the safety of the community.” 28 D.C.M.R. § 204.1.
First, the 1987 Regulations call for the calculation of a salient factor score (“SFS“), 28 D.C.M.R. § 204.2, described as “an actuarial parole prognosis aid to assess the degree of risk posed by a parolee,” 28 D.C.M.R. § 204.3. To calculate the SFS, the USPC considers six pre-incarceration factors: (1) prior convictions and adjudications (Item A); (2) prior commitments of more than 30 days (Item B); (3) age at the commission of current offense (Item C); (4) recent commitment-free period (Item D); (5) the offender‘s status (e.g., as a parolee or probationer) at time of current offense (Item E); and (6) a history of heroin or opiate dependence (Item F). See 28 D.C.M.R. §§ 204.4-204.16. Then it assigns a numerical value to each factor. See 28 D.C.M.R. § 201 app. 2-1 (SALIENT FACTOR SCORE). With respect to the first factor, and with exceptions not relevant here, the USPC counts “[a]ll convictions . . . for criminal offenses . . . other than the current offense.” 28 D.C.M.R. § 204.5(a).
The remaining pre-incarceration factors assess the type of risk the candidate poses. Id.; see 28 D.C.M.R. § 204.18(a)-(g). If the candidate‘s current offense or a past conviction involved a felony causing death or serious bodily injury, a felony in which the candidate used a dangerous weapon, or a felony conviction for distribution or intent to distribute illegal drugs, one point (+1) is added to the candidate‘s base point score. See 28 D.C.M.R. § 204 app. 2-1 (TYPE OF RISK ASSESSMENT and POINT ASSIGNMENT GRID ADULT OFFENDERS).
The post-incarceration factors are the candidate‘s institutional behavior and sustained program achievement. See 28 D.C.M.R. § 204.18(h)-(i). The USPC may add one point to a candidate‘s base point score (+1) if he committed serious disciplinary infractions, and it may subtract one point from the candidate‘s base point score (-1) if the “offender demonstrated sustained achievement in the area of prison programs, industries, or work assignments during this period of incarceration.” 28 D.C.M.R. § 204 app. 2-1 (Post-Incarceration Factors).
If the candidate‘s total point score is zero, one or two, the 1987 Regulations provide that “[p]arole shall be granted at the initial hearing” with an appropriate level of supervision. 28 D.C.M.R. § 204.19(a)-(c). If the candidate‘s total point score is three, four or five, parole was to be “denied at initial hearing and rehearing scheduled.” 28 D.C.M.R. § 204.19(d). On rehearing, the USPC takes the candidate‘s “total point score from the initial hearing and adjust[ed] that score according to the institutional record of the candidate since the last hearing[.]” 28 D.C.M.R. § 204.21. If the candidate‘s score on rehearing is zero, one, two or three, parole ordinarily is granted at the appropriate level of supervision. 28 D.C.M.R. § 204.21(a); see 28 D.C.M.R. § 204 app. 2-2 (POINT GRID FOR PAROLE REHEARINGS). If the candidate‘s score is four or five, parole is “denied and a rehearing date scheduled.” 28 D.C.M.R. § 204.21(b).
The 1987 Regulations provide that the USPC could, “in unusual circumstances, waive the SFS and the pre[-] and post-incarceration factors . . . to grant or deny parole to a parole candidate.” 28 D.C.M.R. § 204.22. For example, if the candidate repeatedly had failed under parole supervision, had a history of repetitive sophisticated criminal behavior, had an unusually extensive and serious prior record, had displayed unusual cruelty to victims, or had “[r]epeated or [e]xtremely [s]erious [n]egative [i]nstitutional [b]ehavior,” the USPC could deny parole. 28 D.C.M.R. § 204, app. 2-1 (DECISION WORKSHEET: INITIAL HEARINGS for WORSE RISK). If the candidate‘s criminal record resulted exclusively from trivial offenses or if he showed exceptional achievement in educational or vocational programs while incarcerated, the USPC could find him a better risk than application of the 1987 Regulations would suggest
C. Plaintiff‘s Criminal History
On September 9, 1991, the Superior Court of the District of Columbia sentenced plaintiff to a term of 20 years to life imprisonment for first degree murder while armed, and a consecutive term of three to nine years imprisonment for conspiracy. See Mot. of Pl. for Partial Summ. J. on his Ex Post Facto Claim, ECF No. 15 (“Pl.‘s Mot.“), Ex. 3 (Judgment and Commitment Order, United States v. Void, No. F 10343-90 (D.C. Super. Ct. Sept. 6, 1991)). The conspiracy conviction pertained to plaintiff‘s distribution and possession with intent to distribute PCP and cocaine in or about November 1987. See id., Ex. 1 (DC Board of Parole Guideline Prehearing Assessment dated December 6, 2011) at 1. The murder conviction was not the plaintiff‘s first—he had been “previously convicted of a Murder (Conspiracy After the [F]act) in Prince George‘s County, Maryland[,] and sentenced to a term of 5 years” imprisonment.2 Id., Ex. 2 (Hearing Summary dated December 12, 2011) at 3. In addition, plaintiff had been convicted of robbery in 1989. See id., Ex. 1 at 2.
D. Plaintiff‘s Parole Hearings
Plaintiff became eligible for parole on the D.C. sentences on September 28, 2012, see id., Ex. 1 at 1, and his initial parole hearing took place on December 12, 2011, see id., Ex. 2 at 1. The hearing examiner described the circumstances of the murder as follows:
[Plaintiff] had known the [Tyrone Ricardo Carrington] for approximately 1 year, and . . . the victim was a cocaine dealer . . . . [According to plaintiff, he] only distributed PCP and [Carrington] sold cocaine . . . . [T]he incident stemmed from a dispute regarding stolen drug proceeds. Specifically, [plaintiff] stated that [Carrington] had entrusted him with [$25,000] to pay another drug dealer. The drug dealer subsequently informed [Carrington] that $5,000 was missing from the pay-off. [Plaintiff] denied stealing the money. [Carrington] (who had a reputation for settling disputes violently) confronted [plaintiff] and demanded that [plaintiff] repay the money. [Plaintiff] became fearful that [Carrington] was going to murder him and decided to kill [Carrington] first . . . . On the night of the murder [Carrington] . . . had been drinking at a local night club with [plaintiff]. After leaving the club [Carrington asked plaintiff] to accompany him to pick[ ] up some money. [Carrington] (who was driving a black [C]orvette) was accompanied by [plaintiff‘s co-defendant] who was in the passenger seat. [Plaintiff] (who was driving another vehicle) followed the victim‘s car. [Plaintiff] remained in his car, while [Carrington] entered a residence and retrieved his money. [Carrington] subsequently drove to another location with [plaintiff] following in another vehicle. When [Carrington] pulled down a side street and summoned [plaintiff] to his vehicle, [plaintiff] became nervous. After he walked over to [Carrington‘s] vehicle he observed a gun on the console. [Plain
tiff] subsequently returned to his vehicle, retrieved his weapon, and shot [Carrington] once in the head.
Id., Ex. 2 at 2.
“The hearing examiner confronted [plaintiff] with the version [of events] provided in the Presentence Report” potentially connecting plaintiff to a burglary and two more murders which occurred shortly after Carrington‘s murder:
[T]he ignition key to [Carrington‘s] vehicle was missing and following the murder, [Carrington‘s] residence was entered by an unknown assailant who murdered [Carrington‘s] 13-year old son and a 12-year old boy[ ] who was a house guest. Drugs and money were also stolen from the residence.
Id., Ex. 2 at 3. Plaintiff “emphatically denied any knowledge regarding who was involved in the murders of the children, and testified that when he left the scene [of Carrington‘s murder], the key was still in the ignition.” Id.
Plaintiff‘s total point score was 1.3 See id., Ex. 4 (Notice of Action dated July 26, 2012). Under the 1987 Regulations, plaintiff thus was presumptively eligible for parole. However, the hearing examiner deemed plaintiff a more serious risk than the guidelines suggested. Id., Ex. 2 at 4. She recommended that parole be denied and that plaintiff serve another 36 months in custody. Id., Ex. 2 at 4. The USPC concurred:
You have a total point score of [1] under the 1987 Board guidelines for D.C. Code offenders. The guidelines indicate that parole should be granted at this time. However, a departure from the guidelines is found warranted because the [USPC] finds there is a reasonable probability that you would not obey the law if released and your release would endanger the public safety. You are a more serious parole risk than shown by your point score because of your repetitive violent criminal history suggests that you pose a serious risk to public safety. Specifically, your current conviction entailed you shooting a man in the head, who you believed posed a threat to your well being based upon his belief that you had stolen a large sum of money (drug proceeds) from him. In addition you were previously convicted of Accessory to Murder After the Fact, which involved the robbery and murder of a convenience store employee.
The guidelines for the time to rehearing indicate that your next hearing should be scheduled within 12 months. A departure from the guidelines is found warranted for the same reasons provided above for denying parole.
Id., Ex. 4 (Notice of Action dated January 27, 2012) (emphasis added).
In anticipation of plaintiff‘s parole rehearing, a reviewer considered the opinion of the District of Columbia Court of Appeals, a copy of which had been placed in plaintiff‘s file, and identified “a number of contradictions with the decision and [plaintiff‘s] statements to the [hearing examiner] at his initial hearing.” Notice of Filing Exhs. in Support of Defs.’ Mot. to Dismiss (“Notice“), ECF No. 17, Ex. 1 (DC Board of Parole Guideline Rehearing dated April 24, 2015) at 3.4 Generally, the contradictions identified by the reviewer suggested
Plaintiff‘s parole rehearing took place on June 4, 2015, and ultimately the USPC denied parole and continued the matter for rehearing in 2020 after plaintiff‘s service of 60 additional months in custody. Notice, Ex. 4 (Notice of Action dated July 7, 2015) at 1. Again, the USPC found plaintiff to be “a more serious parole risk than shown by [his] Grid Score [of zero],” and made an upward departure from the guidelines “for the same reasons identified in the Notice of Action dated [January 12, 2012].” Id., Ex. 4 at 1. Further, the USPC referred to “the Appellate Brief by the D.C. Court of Appeals [that] provide[d] substantial new evidence of a connection between the murder of Tyrone Ricardo Carrington and the murders of Carrington‘s 12-year old son and a 13-year old boy who was spending the night” at the apartment:
The connecting evidence includes the fact that the same gun used to kill Carrington was used to kill the boys. It was a .45 caliber weapon. Evidence reveals[ ] Carrington was shot two times in the head, once from the driver‘s side with a .45 caliber weapon, and once from the passenger side [by the co-defendant] with a .38 caliber weapon. At the hearing, you admitted you were standing outside the driver‘s door when you shot Carrington and your co-defendant . . . was seated in the passenger side of [Carrington‘s] vehicle. Thus, the [USPC] concludes you fired the shot from the .45 caliber weapon from “the driver‘s side.” Evidence reveals that this was the same weapon later used to murder the boys . . . some 45 minutes later. A call was made to the [apartment] from Carrington‘s mobile phone, 5 minutes after he was shot, and another call was made to the [apartment] 3 minutes after that from your mobile phone. There was no sign of forced entry into the [apartment] and all evidence suggests that the key to the apartment was used to gain entry . . . . The Appellate Court found the similarities in the [apartment killings] and Carrington‘s murder rendered highly likely the possibility that they were committed by the same person or persons. Drugs, money, and a 9mm firearm were stolen from the . . . apartment, which also increases the likelihood that the person or persons who committed the crime would have to [have] had knowledge of where the drugs, money, and gun were located within the apartment . . . . Furthermore, the same 9mm firearm (stolen from the . . . apartment on the night of the murders) was found one week later in [the co-defendant‘s] possession, as the two of you were sitting in your truck. The [USPC] finds this new substantial evidence greatly increases the likelihood that you either participated in the murders of the two boys, you were there, and/or you knew about it and, thereafter, aided and abetted the actual killer. This adds a significant new risk element that was not considered at your previous hearing and which is not adequately captured in your Grid Score.
Id., Ex. 4 at 1-2.
II. DISCUSSION5
Defendants move to dismiss the complaint, see generally Mem. of P. & A. in Support of Defs.’ Mot. to Dismiss (“Defs.’ Mem.“) at 6-10, and the Court treats the
A plaintiff‘s complaint need only provide a “short and plain statement of [his] claim showing that [he] is entitled to relief,”
Plaintiff brings this action against the USPC‘s Chair and its Commissioners. See Compl. at 1. He alleges that defendants “applied [the USPC‘s] own guidelines and practices in violation of the Ex Post Facto Clause of the U.S. Constitution,” id. and rendered an “arbitrary and capricious” decision, id. at 2, based on alleged conduct outside of the record before them for which he has not been charged or convicted, see id. at 2-3. Further, plaintiff faults defendants for having departed from the guidelines based “on the same factors that went into formulating the [salient factor score] in the first place,” id. at 2, and “on punitive considerations,” id. at 3. Lastly, plaintiff contends, the denial of parole “reflects an abuse of discretion” by continuing his “confinement beyond the guidelines without the statutorily required good cause.” Id. Plaintiff asks this Court to “enter an injunction against the USPC to stop it from using its own guidelines and practices contrary to District of Columbia law[.]” Id. at 4.
A. Ex Post Facto Claim
The United States Constitution prohibits any State from passing an “ex post facto Law.”
Here, plaintiff hints at, but does not articulate, a claim that defendants violated the ex post facto clause by retroactively applying the wrong set of parole guidelines. See Compl. at 1 (referring to the USPC‘s “own guidelines and practices“); Pl.‘s Reply to Def.‘s Mot. to Dismiss, ECF No. 11 (“Pl.‘s Opp‘n“) at 7-8 (discussing “Federal Guidelines“). Notwithstanding plaintiff‘s purported reliance on Sellmon, where the retroactive application of the USPC‘s 2000 Guidelines may give rise to an ex post facto claim, see generally id. at 87-89 (discussing differences between the 2000 Guidelines and the 1987 Regulations), his claim bears no resemblance to that of the Sellmon plaintiffs. There is nothing in the record of this case to support the notion that defendants applied any parole guidelines other than the 1987 Regulations, which plaintiff himself demands be applied to him. See, e.g., Pl.‘s Opp‘n at 7-8. Rather, plaintiff objects to the result defendants reached based on their application of the 1987 Regulations, particularly the upward departure, upon their findings of a reasonable probability that plaintiff would not obey the law if paroled and that his release would endanger public safety. Denial of parole for these reasons is permissible under the 1987 Regulations. See Phillips, 616 F.3d at 582; Wellington v. Fulwood, No. 12-0209, 2013 WL 140254, at *3 (D.D.C. Jan. 11, 2013). Plaintiff‘s ex post facto claim is meritless, and therefore it will be denied.
B. Double Counting Claim
Plaintiff deems it “impermissible for the [USPC] to base a decision . . . to deny parole on the same factors that went into formulating the guidelines in the first place.” Compl. at 2. The Court understands this contention as a “double counting” claim—that the USPC “uses the same criteria to establish both the parole guidelines and to justify a departure from those guidelines.” Kingsbury v. Fulwood, 902 F. Supp. 2d 51, 59 (D.D.C. 2012) (quoting Delong v. Snyder, No. 5:07-HC-2195, 2008 WL 4510583, at *6 (E.D.N.C. Sept. 29, 2008)).
Plaintiff‘s prior criminal convictions necessarily are reflected in his salient factor score, and in assessing points for the type of risk plaintiff poses, defendants necessarily take into account the violence attendant to and weapon used in Carrington‘s murder. However, in deciding that plaintiff is not suitable for parole despite his total point score, defendants relied on the nature of plaintiff‘s criminal conduct. Here, plaintiff‘s second murder conviction came about when he and his co-defendant in a coordinated fashion shot Carrington in the head. Information set forth in plaintiff‘s presentence report and in a published District of Columbia Court of Appeals de
C. Due Process Claim
Plaintiff contends that the USPC‘s decision to deny parole is arbitrary and capricious because the USPC relied on information that was not in the record before it. See Compl. at 2-3. The Court treats this claim as one alleging a violation of due process.
“In the context of parole, [the Supreme Court has] held that the procedures required are minimal.” Swarthout v. Cooke, 562 U.S. 216, 220 (2011). Generally, the prisoner must be “allowed an opportunity to be heard and was provided a statement of the reasons why parole was denied.” Id. (citing Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 442 U.S. 1, 16 (1979)). The D.C. Circuit has found that a parole revocation decision “either totally lacking in evidentiary support or . . . so irrational as to be fundamentally unfair . . . indeed would violate due process.” Duckett v. Quick, 282 F.3d 844, 847 (D.C. Cir. 2002) (citations omitted). If the court were to apply this standard in the context of a parole release decision, as did the court in Gambrell v. Fulwood, 950 F. Supp. 2d 109, 117 (D.D.C. 2013), aff‘d, 612 Fed.Appx. 3 (D.C. Cir. 2015), plaintiff‘s due process claim fails.
Plaintiff proceeds as if he is entitled to parole, yet “parole is never ‘required [even if the USPC] determines that the necessary prerequisites exist.‘” Ellis v. District of Columbia, 84 F.3d 1413, 1420 (D.C. Cir. 1996) (quoting Bd. of Pardons v. Allen, 482 U.S. 369, 376 (1987)) (emphasis in original). Defendants are not obliged to “render a decision based on a strict application of the system set forth in the 1987 Regulations.” Bailey v. Fulwood, 793 F.3d 127, 132 (D.C. Cir. 2015) (citing McRae v. Hyman, 667 A.2d 1356 (D.C. 1995)), cert. denied sub nom. Bailey v. Smoot, No. 15-1217, 137 S. Ct. 38, 196 L. Ed. 2d 27 (2016). Rather, they need only comply with the govern
III. CONCLUSION
Plaintiff‘s complaint fails to state claims upon which relief can be granted and, accordingly, Defendants’ Motion to Dismiss will be granted. An Order is issued separately.
RUDOLPH CONTRERAS
United States District Judge