Opinion
Civil Action No. 02-395-AM
August 8, 2002
Lewis Floyd (Pro-Se), Greenville Corretional Center, Jarratt, Virginia., Attorney's for Plaintiff or Petitioner.
Lawrence J. Leisure, Esquire, Assistant United States Attorney United States Attorney's Office, Alezandria, Virginia., Attorney's for Defendant or Respondent
MEMORANDUM OPINION
This case involves an inmate's claim that he was denied due process in a parole board decision to deny parole as a result of impermissible double counting of similar factors under the applicable parole guidelines. This matter is before the court on respondent Warden's motion to dismiss the petition. Petitioner Lewis Floyd ("Floyd"), a District of Columbia ("D.C.") prisoner incarcerated at the Greensville Correctional Center in Virginia has brought this claim pro se under 28 U.S.C. § 2241 against Warden David Garraghty, alleging that the United States Parole Commission ("Parole Commission") decision denying him parole was arbitrary and a violation of due process because the Parole Commission improperly double counted the nature of his offense and his prior record as a basis to depart from the applicable parole guidelines. Respondent denies that the Parole Commission's decision was impermissible under the applicable parole guidelines and asserts that the decision was proper because the guidelines permit consideration of the nature of an inmate's offense and the inmate's prior record. Respondent's motion is granted and the petition is dismissed because no impermissible double counting occurred in the Parole Commission's decision.
I.
On July 18, 1986, after Floyd was convicted of second degree murder while armed, the D.C. Superior Court imposed a sentence of 12-36 years. (Resp't's Ex. A.) According to the presentence report, Floyd had been convicted of several violent crimes since 1947. (Resp't's Ex. B.) Floyd originally became eligible for parole in 1994, when the D.C. Board of Parole denied parole and set reconsideration for 1999. Among the Board's reasons for denying parole were his lengthy past record and the "unusual cruelty" displayed in the underlying offense. (Resp't's Ex. C.)
After an initial rehearing by an Examiner on April 30, 1999, the examiner recommended parole with conditions, citing Floyd's age and medical conditions. (Resp't's Ex. D at 2-3.) The Executive Hearing Examiner disagreed, however, and recommended that parole be denied and another five year rehearing date be scheduled, citing the fact that Floyd had committed the underlying offense at the age of fifty seven, and thus advanced age was not a mitigating factor. Id. at 3. The Executive Hearing Examiner also cited the unusual cruelty of the offense, which involved stabbing his girlfriend multiple times, causing her death. Id. On May 28, 1999, after considering both recommendations, the Parole Commission followed the recommendation of the Executive Hearing Examiner, denying parole and further delaying a rehearing until 2004. (Resp't's Ex. F.) The Parole Commission stated that Lho factors indicating a departure from the guidelines included his lengthy history of violent offenses and the unusual cruelty of the offense. Id.
According to Floyd, D.C. Code offenders do not have the statutory right to appeal parole decisions by the Parole Commission. Thus, Floyd asserts that he has exhausted all available administrative remedies. Respondent does not contest this assertion; accordingly, the claims made in Floyd's petition will be treated as exhausted.
On August 22, 2001, Floyd's petition for writ of habeas corpus was received by the Clerk of the United States District Court for the District of Columbia. In his petition, Floyd challenges the determinations made at the 1999 rehearing, making the following claims:
(1) The consideration of the nature of his offense and his record by the Parole Commission as factors warranting a departure from the guidelines was arbitrary and capricious because the Parole Commission double counted those factors in calculating his point assigned grid score;
(2) The Parole Commission's use of the same factors used to deny parole when setting the date of his rehearing was another form of double counting; and
(3) The Parole Commission's decision was based on opinion without evidence.
The district court granted Floyd in forma pauperis status on September 26, 2001. Respondents filed a motion to transfer the case to the Eastern District of Virginia, and on March 15, 2002, the action was transferred to this Court. An Order to Show Cause was issued on March 29, 2002, and respondents filed a response on May 24, 2002. Floyd filed a Motion of Opposition to the response on June 13, 2002. Accordingly, this matter is ripe for review.
II.
As an initial matter, jurisdiction and venue are proper in this Court. Challenges to Parole Commission decisions must be brought under 28 U.S.C. § 2241 in the district court with jurisdiction over the prisoner or his custodian. Braden v. 30th Jud. Cir. Ct. of Ky., 410 U.S. 484 (1973); Andrino v. United States Bd. of Parole, 550 F.2d 519 (9th Cir. 1977). Floyd indicates that he is incarcerated at the Greensville Correctional Center located in Jarratt, Virginia. For federal habeas corpus purposes, Floyd's custodian is the warden of that institution. See Billiteri v. United States Bd. of Parole, 541 F.2d 938, 948 (2d Cir. 1976). As Jarratt, Virginia, lies within the Eastern District of Virginia, petitioner's application for a writ of habeas corpus is properly before the Court.
Additionally, the proper respondent for an application for a writ of habeas corpus is "the person having custody of the person detained." 28 U.S.C. § 2243. That person is the individual with day-to-day control over the petitioner. See, e.g., Henderson v. INS, 157 F.3d 106, 122 (2d Cir. 1998); Guerra v. Meese, 786 F.2d 414, 416 (D.C. Cir. 1986); Billiteri, 541 F.2d at 948. Thus, for federal habeas purposes, the proper respondent is David Garraghty, the Warden of Greensville Correctional Center, where Floyd is detained. Accordingly, Edward F. Reilly, Jr., Chairman of the Parole Commission, is not a proper respondent and must be dismissed.
III.
Next, respondent argues that this Court may not review decisions of the Parole Commission to grant or deny parole on the merits, as such decisions are committed to the absolute discretion of the Parole Commission. Garcia v. Neagle, 660 F.2d 983 (4th Cir. 1981); United States Bd. of Parole v. Merhige, 487 F.2d 25 (4th Cir. 1973); cf., United States v. Jureidini, 846 F.2d 964 (4th Cir. 1988). A United States District Court may consider, however, claims that guidelines for exercising discretion violate the intent and directives of the Parole Act or that the Parole Commission failed to follow constitutional, statutory, and regulatory provisions. Garcia, 660 F.2d at 988; see also, Norris v. White, 825 F.2d 21 (4th Cir. 1987); Fardella v. Garrison, 698 F.2d 208 (4th Cir. 1982); Smith v. Hambrick, 637 F.2d 211 (4th Cir. 1980). Here, Floyd's petition alleges that the Parole Commission acted arbitrarily and capriciously in such a manner as to violate the constitution by impermissible double counting, and failed to follow its procedures and regulations in failing to make its decision based upon the evidence in the record. Therefore, the Court may review Floyd's claims.
IV.
Floyd's initial parole hearing by the D.C. Board of Parole in 1994 was conducted pursuant to the 1987 D.C. parole regulations and guidelines. Consequently, the Parole Commission used the same framework in conducting Floyd's rehearing in 1999. Under that framework, the examiner first assigns numerical values for several factors, including prior convictions and adjudications, prior commitments of more than thirty days, the age at commission of the instant offense, any recent commitment-free period, the status of a prisoner at the time of the current offense, and any history of drug dependence. 28 D.C.M.R. §§ 204.4-204.16 (1987); see also, McRae v. Hyman, 667 A.2d 1356, 1359-60 (D.C. 1995). This process then results in a salient factor score ("SFS") ranging from zero to ten, which is sub-divided into four parole risk categories: high, moderate, fair and low. § 204.17. The SFS is then adjusted up or down based on pre-incarceration factors, including whether violence or weapons were used in the instant offense and any history of drug trafficking, and post-incarceration factors relating to the inmate's institutional adjustment. § 204.18. This results in a Point Assigned Grid ("PAG") score, a number between zero and five. A low number (0-2) indicates that parole should be granted, a high number (3-5) indicates that parole should be denied. § 204.19. The assessor may depart from the suggested grant or denial for good cause, specifying in writing the reasons for departure. § 204.22.
If parole is denied at either an initial hearing or a rehearing, the scheduling of the next hearing date is an independent determination, "notwithstanding any other provision of this section." § 104.2. When the inmate is serving a sentence of five years or more, reconsideration ordinarily occurs within twelve months. Id. A later rehearing date may be scheduled if aggravating factors are present, including a history of repetitive assaultive behavior, an extensive prior record (five or more felony offenses), and whether the offense involved unusual cruelty to the victim. White v. Hyman, 647 A.2d 1175, 1178 (D.C. 1994).
At that rehearing, the examiner takes the PAG score calculated at the previous hearing, and adds (or subtracts) any additional points resulting from the inmate's behavior during the interim. D.C.M.R. App. 2-2 (1987). Again, if parole is denied, the examiner calculates anew the next rehearing date pursuant to § 104.2. With this background in mind, the Court will examine each of Floyd's claims in turn.
V.
Claims (1) (2)
Floyd claims that during the rehearing on October 20, 1998, the Commission inappropriately calculated his eligibility for parole by using the nature of the offense and his past record as bases for departure from the guidelines in addition to using them to calculate his PAG score (Claim (1)) and further used the same reasons as bases for departure from the guidelines used to determine his rehearing date (Claim (2)). Floyd argues that the resultant double counting was sufficiently arbitrary and capricious to require the overturn of the Parole Commission's decision.
Respondent correctly argues that the Parole Commission did not double count the factors cited. Impermissible double counting occurs when the same factors used by the Parole Commission to determine the PAG or SFS are used as a basis for departure from the guidelines. See Maddox v. U.S. Parole Comm'n, 821 F.2d 997, 1001 (5th Cir. 1987); Romano v. Baer, 805 F.2d 268, 271 (7th Cir. 1986); Harris v. Martin, 792 F.2d 52, 54-55 (3d Cir. 1986); Briggs v. United States Parole Comm'n, 736 F.2d 446 (8th Cir. 1984). Nevertheless, "the nature and chronology of an offense may be taken into account to justify a decision above the guidelines even though the offense was counted in a determination of . . . the salient factor score." LaPlaca v. Clarke, 664 F. Supp. 991, 992 (E.D. Va. 1987) (citing Hawkins v. U.S. Parole Comm'n, 511 F. Supp. 460, 462-63 (E.D. Va. 1981)) (determining whether application of similar factors in the federal parole scheme constituted double counting).
Other courts agree with the reasoning in Hawkins. See, e.g., Washington v. Williams, No. 01-7159, 2002 WL 1364293 (D.C. Cir. May 24, 2002) (finding no double counting occurred in calculating the SFS or in setting the next hearing date); Edmonson v. Turner, 954 F.2d 510, 513 (8th Cir. 1992) (no double counting because nature of offense different from fact of offense); Walker v. United States, 816 F.2d 1313, 1316 (9th Cir. 1987) (same); Muhammad v. Mendez, 200 F. Supp.2d 466, 472-74 (M.D. Pa. 2002) (finding the use of a history of violent offenses and of the nature of inmate's convictions did not result in impermissible double counting); Broome v. U.S. Parole Comm'n, No 3:00-CV-2531-G, 2002 WL 628652 (N.D. Tex. Apr. 16, 2002) (same); Duckett v. U.S. Parole Comm'n, 795 F. Supp. 133, 136-37 (M.D. Pa. 1992) (same).
Under the 1987 parole scheme, the fact of Floyd's previous record was used to calculate the SFS, and the fact that he used violence in the instant offense was used as a pre-incarceration factor to increase his PAG. As in Muhammad and Broome, however, neither determination examined the nature of that record or the nature of the violence actually used. As a result, the Court finds that the Parole Commission did not impermissibly double count these factors in deciding to depart from the guideline suggestions and deny parole.
Similarly, Floyd argues that the Parole Commission's use of the same factors, his extensive and lengthy record of assaultive behavior and the unusual cruelty involved in the instant offense, to extend the period before the next hearing date is another form of impermissible double counting. The standard interim between hearing dates is twelve months, although the 1987 parole policy guidelines provide a list of aggravating factors that may be used to support a decision to prolong the interim outside of the guidelines. White v. Hyman, 647 A.2d at 1178. Among those listed aggravating factors are the two that the Parole Commission used both in denying Floyd's parole and in extending the date of his rehearing. Nevertheless, the regulations specifically mandate that any scheduling determination is to be conducted independent of the parole decision. 28 D.C.M.R. § 104.2 (1987). Thus, all prior determinations are set aside, and the examiner looks afresh at the complete record before him. Accordingly, the Court finds no impermissible double counting.
Floyd has failed to establish that the Parole Commission impermissibly double counted Floyd's extensive and lengthy record of assaultive behavior and the unusual cruelty involved in the instant offense in making its determination. Thus, he has not shown that the Parole Commission abused its discretion in either the denial of parole or setting the rehearing date. As a result, Floyd's claims (1) and (2) must be dismissed.
Claim (3)
In claim (3), Floyd asserts that the Parole Commission's decision was based on opinion, not evidence, and thus constituted abuse of discretion. To determine whether the Parole Commission abused its discretion by not basing its decision on the evidence, a reviewing court
need only determine whether the information relied on by the Commission is sufficient to provide a factual basis for its reasons. The inquiry is not whether the Commission's decision is supported by the preponderance of the evidence, or even by substantial evidence; the inquiry is only whether there is a rational basis in the record for the Commission's conclusions embodied in its statement of reasons.
Solomon v. Elsea, 676 F.2d 282, 290 (7th Cir. 1982).
Here, the record supplies a rational basis for the Parole Commission's departure. Floyd committed the instant crime in 1986, stabbing his girlfriend multiple times, killing her. The victim's sister witnessed the murder. Floyd was fifty seven at the time of the offense, had been arrested for numerous violent offenses and convicted of four violent offenses, including assault with intent to murder, assault with a deadly weapon, assault and unlawful wounding, with the first conviction coming in 1947, when he was nineteen years old. Thus, the record supplies a rational basis for the reasons offered by the Parole Commission to go beyond the guidelines to deny parole and to extend the rehearing date. As a result, Floyd has not shown that the Parole Commission abused its discretion, and this claim must be dismissed.
V.
For the reasons stated above, Floyd's petition will be dismissed. An appropriate Order will issue.
ORDER
For the reasons stated in the attached Memorandum Opinion, Respondent's Motion to Dismiss is GRANTED, and it is hereby ORDERED that this petition be and is DISMISSED.
Should petitioner wish to appeal, he must file a notice of appeal within thirty (30) days of the date of this Order.
The Clerk is DIRECTED to enter judgment pursuant to Fed.R.Civ.P. 58 in respondent's favor and to send a copy of this Order to the petitioner, pro se, and to counsel of record for the respondent.