Moorer v. Fulwood, Jr. et al
Filing
25
ORDER: The Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 is denied and this case is dismissed with prejudice. Denying 18 Applicant's Motion for Evidentiary Hearing or Summary Judgment. Any other pending motions are denied as moot. Leave to proceed in forma pauperis on appeal is denied for the purpose of appeal, by Judge Lewis T. Babcock on 1/8/2016. (ebuch)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-03362-LTB
STEPHAN MOORER,
Applicant,
v.
ISAAC FULWOOD, JR., and
WARDEN OLIVER,
Respondents.
ORDER DENYING WRIT OF HABEAS CORPUS
This matter is before the Court on the Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 (ECF No. 1) and the supplemental claims (ECF No. 15)
(together the “Amended Application”) filed pro se by Applicant Stephan Moorer, an
inmate at the United States Penitentiary, Florence ADX, in Florence, Colorado.
Applicant’s claims challenge the denial of his parole in 2014 and 2015. Respondents
filed a Response (ECF No. 12) and Supplemental Response (ECF No. 23) (together
“the Answer”). Applicant also filed a “Declaration in Response to Doc. 23" (ECF No. 24)
(“the Reply”).
Because Applicant is proceeding pro se, the Court must construe his pleadings
liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam). The Court,
however, cannot act as advocate for a pro se litigant. Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991). The Court has determined that it can resolve the Amended
Application without a hearing. 28 U.S.C. § 2243; see also Jeter v. Keohane, 739 F.2d
257 n.1 (7th Cir. 1984) (“An evidentiary hearing is not necessary when the facts
essential to consideration of the constitutional issue are already before the court.”).
Upon careful review of the materials supplied by the parties, the Court finds that the
Amended Application should be DENIED and the case DISMISSED for the reasons
discussed below.
I. Background
Applicant is serving a thirty-year sentence in prison pursuant to a conviction in
the Superior Court of the District of Columbia for carrying a pistol without a license and
unarmed manslaughter that was committed on September 10, 1997. (ECF No. 12-1 at
2). Although Applicant was sentenced by a D.C. court under the D.C. Code, he was
transferred to the custody of the United States Bureau of Prisons (“the BOP”) to serve
his sentence pursuant to the National Capital Revitalization and Self-Government
Improvement Act of 1997 (“the Revitalization Act”), Pub. L. No. 105-33, § 11231(a)(1),
111 Stat. 712, 745, D.C. Code § 24-131(a). The Revitalization Act also transferred
paroling authority from the D.C. Board of Parole to the United States Parole
Commission (“the Commission”). Id., § 11231©. Applicant is projected to be released
on June 1, 2029 via mandatory parole. (ECF No. 12-1 at 2).
In the initial Application filed December 11, 2014, Applicant asserts five claims for
relief challenging the Commission’s denial of parole based on the April 2, 2014 parole
reconsideration hearing and the May 2, 2014 Notice of Action, which was corrected by
the December 23, 2014 Notice of Action. Applicant specifically claims that:
•
the Commission incorrectly applied parole guidelines concerning his “negative
institutional misconduct” (claim one);
2
•
the Commission failed to specify what unusual circumstances warranted a
departure from parole guidelines (claim two);
•
the Commission incorrectly applied parole guidelines concerning his positive
program achievement (claim three); and
•
the Commission failed to mention two disputed incident reports for criminal mail
abuse (IR 2267819 and IR 2307191) (claims four and five).
(See ECF No. 1 at 2-9).
On April 9, 2015, Applicant filed a “Motion to Supplement Initial Application” (ECF
No. 15). The Court granted Applicant’s request to supplement the initial application and
deemed the Application to be amended, such that it now includes the following claims:
•
the Court should substitute the Parole Commission as respondent instead of
Isaac Fulwood, Jr. (claim six);
•
the hearing examiner wrongfully recommended denial of parole at Applicant’s
March 31, 2015 parole reconsideration hearing based on two incident reports
that “(1) were disposed of after consideration at previous parole reconsideration
hearings; (2) occurred 36 months ago, and (3) are illegally determined to be
criminal conduct” (claim seven);
•
Applicant’s warden wrongfully denied him access to a notary public for his March
31, 2015 parole reconsideration hearing (claim eight); and
•
the Commission destroyed the audio recording of Applicant’s April 2, 2014 parole
reconsideration hearing (claim nine).
(ECF No. 15 at 2-8).
As relief, Applicant seeks expungement of the incident reports for criminal mail
abuse (IR 2267819 and IR 2307191), “production of the April, 2014 parole
reconsideration hearing, and production of the March 31, 2015 parole reconsideration
hearing,” and his immediate release on parole. (See ECF No. 1 at 11; ECF No. 15 at
8).
II. Standard of Review
3
A habeas proceeding under 28 U.S.C. § 2241 is "an attack by a person in
custody upon the legality of that custody, and . . . the traditional function of the writ is to
secure release from illegal custody." McIntosh v. U.S. Parole Comm’n, 115 F.3d 809,
811 (10th Cir. 1997) (quoting Preiser v. Rodriguez, 411 U.S. 475, 484 (1973)). On a
habeas application challenging the denial of parole by the Commission, review of the
Commission’s decision is narrow. See Peltier v. Booker, 348 F.3d 888, 892 (10th Cir.
2003). The appropriate standard of review “is whether the decision is arbitrary and
capricious action or is an abuse of discretion.” Dye v. U.S. Parole Comm’n, 558 F.2d
1376, 1378 (10th Cir. 1977) (per curiam); see also Gometz v. U.S. Parole Comm’n, 294
F.3d 1256, 1260 (10th Cir. 2002) (“We will not disturb a decision by the Parole
Commission ‘unless there is a clear showing of arbitrary and capricious action or an
abuse of discretion.’”) (internal citation omitted). “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.” Gometz, 294
F.3d at 1260 (internal quotation marks omitted). The Court does “not reweigh evidence,
make credibility determinations, or substitute [its] judgment for the Commission’s.” Id.
Moreover, “it is not the function of courts to review the Board’s discretion in denying
parole or to repass on the credibility of reports received by the Board in making its
determination.” Dye, 558 F.2d at 1378.
III. Relevant Statutory Background
At the time of Applicant’s offenses in 1997, parole determinations for D.C. Code
offenders, like Applicant, were made by the D.C. Board of Parole pursuant to
4
regulations published in 1987. (See ECF No. 12-12, D.C. Mun. Regs. tit. 28, §§ 100 et.
seq. (1987) (repealed Aug. 5, 2000)) (hereinafter “the 1987 Guidelines”). The 1987
Guidelines utilized a series of “pre and post-incarceration factors which enable[d] the
Board to exercise its discretion” to determine whether parole candidates were suitable
for parole. (Id. at 15-20, the 1987 Guidelines §§ 204.1 - 204.22). Specifically, after
consideration of six pre-incarceration factors, the D.C. Board of Parole calculated a
parole candidate’s baseline number of points “(base point score”) that provided 0 for low
risk, 1 for fair risk, 2 for moderate risk, and 3 for high risk. (Id. at 18, the 1987
Guidelines § 204.17); see also Sellmon v. Reilly, 551 F. Supp.2d 66, 70 (D.D.C. 2008)
(describing in detail how the 1987 Guidelines operate).
The D.C. Board of Parole then adjusted the base point score into the total point
score or point assignment grid score (hereinafter the “grid score”) after consideration of
one additional pre-incarceration factor (adding one point if the parole candidate’s
offense involved violence, weapons, or drug trafficking), and two post-incarceration
factors (adding one point for negative institutional behavior and subtracting one point for
program achievement). (See ECF No. 12-12 at 18-19, the 1987 Guidelines § 204.18);
see also Sellmon, 551 F. Supp.2d at 70-71. The 1987 Guidelines indicated that parole
should be granted (with varying levels of supervision) in parole reconsideration
proceedings if the grid score was between 0 and 3, or denied if the grid score was
between 4 and 5. (Id. at 20, the 1987 Guidelines § 204.21). The 1987 Guidelines,
however, provided the D.C. Board of Parole with discretion to deny parole to prisoners
deemed suitable by the grid score where the parole candidate was “a greater risk for
parole than reflected by his or her total point score,” and the Board specified in writing
5
what applicable factors it followed in deciding that a departure from the guidelines was
warranted. (Id., the 1987 Guidelines § 204.22); see also Sellmon, 551 F. Supp.2d at 71
(recognizing that the Parole Board could depart from the action indicated by the
guidelines by referencing an applicable aggravating or mitigating factor); Ellis v. Dist. of
Columbia, 84 F.3d 1413, 1415 (D.C. Cir. 1996) (“[Under the statutory law of parole in
D.C.,] even if a prisoner established everything the statute required, the Board of Parole
still had discretion to deny parole.”).
The D.C. Board of Parole clarified and expanded the 1987 Guidelines through
policy statements in 1991, 1992, and 1995. (See e.g., ECF No. 12-13, 1991 Policy
Guideline; ECF No. 12-14, 1995 Policy Guideline). The 1991 Policy Guideline defined
terms appearing in the 1987 Guidelines. For example, in order to add a point for
“negative institutional behavior” in parole reconsideration proceedings, the prisoner had
to acquire either “(1) One Class I Offense. . .; OR (2) Two Class II Offenses” after “the
preceding release consideration on the sentence.” (ECF No. 12-13 at 2); see also
Sellmon, 551 F. Supp.2d at 71. Moreover, the 1991 Policy Guideline “added and
defined three additional ‘unusual circumstances’ that would justify a departure from the
action indicated by the [grid score],” including “repeated or extremely serious negative
institutional behavior.” (ECF No. 12-13 at 7-8); Sellmon, 551 F. Supp.2d at 72.
The 1995 Policy Guideline, which superseded the 1991 Policy Guideline, revised
the factors that would support a departure from the action recommended by the grid
score. (See ECF No. 12-14). For example, the 1995 Policy Guideline spoke only of
“serious negative institutional behavior” as a factor that would support a departure and
defined the term as “documented criminal conduct or breach of institutional rules, the
6
severity, frequency, or recent occurrence of which indicates that subject is not ready to
remain crime-free in the community.” (Id. at 3). Moreover, “[u]nlike the 1991 Policy
[Guideline], which provided a three-year limitation period, the 1995 Policy [Guideline]
allowed for the consideration of infractions that had occurred at any time during
incarceration.” Goodall v. Billingsley, No. 11Civ.5603(RA), 2013 WL 3343658, at *5-7
(S.D.N.Y. June 28, 2013) (unpublished).
On August 5, 1997, the Revitalization Act abolished the D.C. Board of Parole and
tasked the Commission with responsibility for making parole determinations “pursuant to
the parole laws and regulations of the District of Columbia.” See Pub. L. No. 105-33, §
11231, 111 Stat. 712, 734-37 (codified at D.C. Code §§ 24-101 et seq. (2001 & Supp.
2005). Between 1998 and 2000, the Commission drafted new parole regulations and
guidelines (hereinafter “the Commission Guidelines”) that it applied to any D.C. Code
offender who received an initial parole hearing after August 5, 1998. See 28 C.F.R. §
2.20; see also Sellmon, 551 F. Supp.2d at 72. However, due to subsequent litigation
raising ex post facto concerns, the Commission promulgated a rule in 2009 that
application of the 1987 Guidelines applied to any offender who committed his crime
between March 4, 1985 (the effective date of the 1987 Guidelines), and August 4, 1998
(the last day the D.C. Board of Parole exercised parole release authority) (hereinafter
“the Sellmon Rule”). See 74 Fed. Reg. 34688 (July 17, 2009) (interim rule, effective
August 17, 2009) and 28 C.F.R. § 2.80(o) (November 13, 2009) (final rule).
IV. Applicant’s Parole Hearing History
On February 20, 2007, the Commission conducted Applicant’s initial parole
hearing under the Commission Guidelines. (See ECF No. 12-2). The hearing examiner
7
recommended denial of parole and reconsideration in three years. (Id. at 5). The
hearing examiner noted that Applicant’s “behavior in prison has been marked by a
number of disciplinary actions for Fighting and Possession of Weapons and Assault.”
(Id. at 4).
On March 5, 2007, the Commission issued its Notice of Action denying parole
and continuing the matter to a reconsideration hearing in February 2010. (See ECF No.
12-3). Under the Commission Guidelines, the Commission determined that Applicant’s
total guideline range (the total range of time the prisoner must presumptively serve
before he is suitable for parole) was 149 to 197 months, which included consideration of
twelve disciplinary infractions, three of which counted as new criminal conduct that were
committed while Applicant was incarcerated. (Id. at 1, 3).
Applicant next appeared at his second parole hearing on January 5, 2010. (ECF
No. 12-4). Following the Sellmon Rule, the hearing examiner reevaluated Applicant’s
case pursuant to the 1987 Guidelines and determined that his base point score was 2,
which included adding one point for negative institutional behavior based on the twelve
disciplinary infractions that Applicant had incurred prior to his initial parole hearing in
2007. (Id. at 2). The hearing examiner further determined that Applicant’s current grid
score was 2, which included adding one point for negative institutional behavior based
on six additional disciplinary infractions acquired after Applicant’s initial parole hearing,
and subtracting one point for positive program achievement. (Id. at 2-3). The hearing
examiner specifically found that Applicant received two “Class One” disciplinary
offenses for assault with serious injury and possession of a weapon. (Id.). The hearing
examiner further noted that although Applicant “has a parolable Grid Score of 2 . . . due
8
to his ongoing serious and negative institutional behavior, this examiner does not
believe [Applicant] has shown that he is worthy of a parole date at this point.” (Id. at 3).
The Commission applied the 1987 Guidelines and followed the hearing
examiner’s recommendations in its February 24, 2010 Notice of Action. (See ECF No.
12-5). The Commission explained that while Applicant’s grid score of 2 indicated that
parole should be granted, a departure above the guidelines was warranted because
“the Commission finds there is a reasonable probability you would not obey the law if
released and your release would endanger the public safety.” (Id. at 1). The
Commission specifically noted that Applicant “continued to engage in serious negative
institutional behavior” and determined that Applicant’s disciplinary record consisted of
the following: (I) eleven disciplinary infractions prior to Applicant’s initial parole hearing
in 2007; (ii) five disciplinary infractions since the initial hearing; and (iii) three acts of
possession of a dangerous weapon and two assaults with serious injury. (Id.). The
Commission advised Applicant that he “must demonstrate a substantial period of
incident free conduct prior to further parole consideration.” (Id.). A reconsideration
hearing was scheduled in 24 months. (Id.).
On February 1, 2012, the Commission conducted Applicant’s third parole
hearing. (See ECF No. 12-7). The hearing examiner listed three incidents of
institutional misconduct committed by Applicant since the January 2010 parole hearing,
which included a “Class 2" infraction for fighting in March 2010, a “Class 1" infraction for
using marijuana in November 2010, and a “Class 2" infraction for phone abuse in
October 2011. (Id. at 2-3). The hearing examiner added one point for negative
institutional behavior based on these infractions. (Id.). Although Applicant’s grid score
9
remained 2, which indicated parole under the 1987 Guidelines, the hearing examiner
recommended denial of parole as well as reconsideration in 24 months because “[y]ou
are a more serious risk than shown by your point score because you have engaged in
serious negative institutional behavior.” (Id. at 3).
On March 12, 2012, the Commission issued its Notice of Action denying parole
and continuing the matter for a reconsideration hearing in February 2014. (ECF No. 128). The Commission explained that while the 1987 Guidelines indicated that Applicant
should be granted parole, a departure was warranted because of his serious negative
institutional behavior, which indicated that Applicant was “not ready to obey the laws if
paroled.” (Id. at 1). The Commission also determined that a departure from the
guidelines for a rehearing within one year was warranted because “it believes the
additional time in custody is necessary for you to prove to the Parole Commission that
you can go an extended period of time in custody without violating the rules of the
institution.” (Id.).
Applicant next appeared at his fourth parole hearing on April 2, 2014. In the
hearing summary, the examiner noted three new disciplinary infractions since
Applicant’s 2012 rehearing, including one BOP incident report for fighting and two BOP
incident reports for Mail Abuse Criminal (IR 2307191 and IR 2267819). (See ECF No.
12-9 at 2). At the hearing, Applicant admitted to the infraction for fighting but denied the
criminal mail abuse charges. (Id.) The hearing examiner found that Applicant violated
the rules of the institution in all three instances based on the BOP disciplinary hearing
officers’ findings, and added one point for negative institutional behavior to Applicant’s
grid score. (Id. at 2-3). After recognizing that Applicant had a grid score of 2, which
10
indicated that parole should be granted, the hearing examiner recommended that the
Commission deny parole and that Applicant receive a rehearing in 12 months. (Id. at 3).
The hearing examiner provided the following written statement of the reasons for her
recommendations:
To his credit, since he last appeared before the Commission he has
completed an Anger Management Workbook sponsored by the
Psychology Department and a 6 credit Essay on the Power of Intention.
He was commended by the state psychologist for demonstrating both
insight into his behavior and recognizing the consequences of his actions.
He is currently enrolled in the Substance Abuse Program. Although he has
exhibited some improvement, he has incurred three disciplinary
infractions, the most serious infraction was again for Fighting. His
continued inability to resolve conflicts without violence, suggests that he is
not currently suitable for release on parole.
The guidelines suggest that with a Grid Score of 2 that the parolee be
granted parole. Based upon his continued inability to resolve conflicts
without violence, this hearing examiner finds that he is a more serious risk
than what the guidelines suggest.
(Id. at 3).
On May 1, 2014, the Commission issued its Notice of Action denying parole and
continuing the matter for reconsideration in April 2015. (ECF No. 12-10). In the Notice
of Action, the Commission stated that under the 1987 Guidelines, one point should be
added for negative institutional behavior since Applicant’s last parole rehearing, and that
his “current Grid Score is 3.” (Id. at 1). The Commission provided the following reasons
for denying parole:
[A] departure from the guidelines at this consideration is found warranted
because the Commission 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 grid
score because your continuance to engage in violent conduct (fighting)
during your confinement makes you a more serious risk than what the
guidelines suggests.
11
(Id.).
A corrected Notice of Action was issued by the Commission on December 23,
2014 to reflect that Applicant had been awarded an one point reduction for program
achievement at his April 2014 parole rehearing, and that Applicant’s current grid score
was therefore 2 instead of 3. (See ECF No. 12-11). The Commission’s decision to
deny parole and its explanation for departing from the guidelines remained the same.
(Id.).
On March 31, 2015, a hearing examiner conducted Applicant’s fifth parole
hearing. In the post hearing assessment, the hearing examiner did not add any points
for negative institutional behavior because Applicant “incurred no new disciplinary
infractions since his last hearing.” (ECF No. 23-1 at 2). The hearing examiner,
however, found that Applicant
is still a more serious risk than indicated by his grid score of 1 on the basis
of serious negative institutional behavior due in part to the disciplinary
infractions committed in 2010, 2011, and 2012. Specifically, this examiner
obtained new information from the BOP regarding prior infractions for mail
abuse and finds the conduct may have involved more serious conduct than
the Commission considered at the previous hearing.
(Id.).
The hearing examiner then summarized Applicant’s disciplinary history, from
2001 to 2012, including five disciplinary infractions for fighting, five disciplinary
infractions for assault with serious injury, three disciplinary infractions for possession of
dangerous weapons, one disciplinary infraction for drug use (marijuana), two
disciplinary infractions for stealing, and multiple counts of phone and mail abuse. (ECF
No. 23-1 at 3). The hearing examiner explained that “[t]he above infractions were
12
considered at previous hearings and resulted in the Commission’s findings he was a
more serious risk” in deciding to deny parole in 2007, 2010, 2012, and 2014. (Id.).
The hearing examiner continued by detailing the “new information” he received
from the BOP in the “Notice of Hearing on Referral for Transfer to ADX Florence
General Population” and the “ADX General Population Hearing Administrator’s Report”
(hereinafter “the ADX Reports”). (See ECF No. 23-1 at 3). The hearing examiner noted
that the ADX Reports provided details concerning the two BOP incident reports for Mail
Abuse Criminal (IR 2307191 and IR 2267819). (Id. at 3-5). The hearing examiner
stated the following:
Before discussing the details of the new information, it should be noted,
for context, the subject’s history of phone and mail abuse resulted in his
movement to the Communications Management Unit (CMU) at Terre
Haute. The last instance of mail abuse occurred while the subject was in
the CMU and, this along with an incident of fighting (addressed on the
Commission’s last NOA dated 12/23/2014), were essentially the proverbial
“last straws” resulting in his referral to the ADX.
....
While the infraction of mail abuse is typically a relatively minor offense,
this examiner finds the above two incidents of mail abuse involve
preparation of fraudulent checks. The first incident involves a
homemade/fraudulent check in the amount of $99,999,999, and this
examiner finds the amount on the check to be almost farcical, to the extent
it would almost be unreasonable to think anyone would actually believe
the amount on the check is real. Nonetheless, fraudulent preparation of
such a check is a violation of the law. This examiner is much more
concerned regarding the second, and most recent incident of mail abuse,
which involved the subject mailing a fraudulent check in the amount of
$9,500, with instructions for another individual in the community
to open a bank account. This examiner views these incidents as new
criminal conduct in a prison facility that extends into the community and
finds the conduct committed far more serious than what the caption of the
offense would otherwise suggest. The fact that he sent these two
fraudulent checks out while housed in a CMU due to other similar issues
of phone and mail abuse, and tried to disguise the correspondence as
13
“legal mail” is considered an aggravating factor.
Again, though the above mail abuse infractions were considered at the
last hearing, it does not appear the Commission was aware of the extent
and severity of the conduct. For this reason, this examiner believes there
is a strong possibility the Commission may have considered a longer
setoff following the previous hearing. In considering the totality of the
subject’s disciplinary infractions, including the new information, this
examiner finds the subject is still a more serious risk on the basis of
serious negative institutional behavior and finds the severity, frequency,
and (relatively) recent occurrence of which indicates he is not ready to
remain crime-free in the community.
(Id.).
Accordingly, the hearing examiner recommended that the Commission deny
parole despite Applicant’s grid score of 1. (Id. at 5-6). The hearing examiner also
recommended that the Commission depart from the rehearing guidelines and set a
rehearing in 24 months. (Id.). Finally, the hearing examiner added the following
information:
The subject presented as very argumentative during his hearing. He was
highly critical of past Commission findings and frequently referenced prior
litigation in this case. He also seemed confused about the guideline
application in his case as he routinely referenced procedures under the
Commission’s 2000 guidelines and the DC Board’s 1991 policy guideline,
neither one of which are applicable in his case. Further he demanded this
examiner explain to him how the 1995 policy guideline would be applied in
his case and whether the 1995 policy guideline replaced the 1987 DC
Board guidelines. In response, this examiner explained we are continuing
to apply the 1987 DC Board guidelines. I also advised the 1995 policy
guideline, which is applicable in his case, does not replace the 1987
guidelines, but rather served as a mechanism to further clarify how the
Board was to apply the 1987 guidelines, particularly as it pertained to
identifying/clarifying factors both favoring release and favoring further
incarceration.
The subject also expressed a great deal of confusion and frustration that
this examiner was still considering disciplinary infractions that were
considered at his last hearing. . . This examiner tried to explain this was a
reconsideration hearing and, as a result, the Commission may consider
14
any relevant information in determining suitability for parole. Further, this
examiner tried to explain the Commission is not adding a point for
negative behavior (since he has none since his last hearing), but that
doesn’t mean the Commission can no longer consider past disciplinary
conduct as it pertains to his overall risk. This examiner was never able to
fully state any of this because the subject continually interrupted this
examiner before I could make a full statement. The subject was extremely
uncooperative with this examiner during his hearing, hearing only what he
wanted to hear. He was fixated during the hearing that the Commission
could not consider any infraction that occurred more than 3 years ago,
despite this examiner explaining numerous times the 1991 policy guideline
was not applicable. He provided a letter documenting many of these
incorrect assumptions. He got up to leave the hearing room before this
examiner could even pronounce the whole recommendation or explain my
reasoning. He came back only to launch a barrage of questions and
accusations toward this examiner, but never allowed me the opportunity to
respond. He then left the room, making threats of additional litigation.
This examiner did take the time to explain my reasons to the subject’s
case manager after he left, so he may be able to relay those reasons later,
after the subject has calmed down.
This examiner finds the subject’s attitude and uncooperative nature during
his hearing is additional evidence he is not ready to be paroled.
On a favorable note, there is evidence the subject is a good programmer.
He provided documentation that he completed a paralegal certification
program, Commercial Driver’s License programming, and the 40-hour
drug program. Despite his favorable achievements, this examiner finds
the factors favoring additional incarceration weigh heavier in this case.
(ECF No. 23-1 at 6-7).
On April 20, 2015, the Commission issued its Notice of Action denying parole
and continuing the matter for a reconsideration hearing in March 2017. (ECF No. 23-2).
The Commission determined that under the 1987 Guidelines, one point should be
deducted for program achievement and that Applicant’s current grid score is 1, which
indicates that parole should be granted. (Id. at 1). The Commission provided the
following reasons for its decision to depart from the guidelines and deny parole:
After consideration of all factors and information presented, a departure
15
from the guidelines at this consideration is warranted because the
Commission 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 risk than shown by your grid score
because of your serious negative institutional behavior. Though you have
not committed any new disciplinary infractions in the year since your last
hearing, the Commission continues to find your cumulative disciplinary
record, including the most recent infractions of mail abuse, which the
Commission views as new criminal conduct extending into the community,
and the severity, frequency, and recent occurrence of which, all indicate
you are not ready to remain crime-free in the community.
(ECF No. 23-2).
The Commission also departed from the guideline’s recommendation that
Applicant receive a rehearing in 12 months, instead postponing Applicant’s next parole
hearing for 24 months. (Id.).
V. Analysis of Claims
A. Claim Six
The Court first will address Applicant’s contention in Claim Six that the Court
should substitute the Commission as respondent instead of Isaac Fulwood, Jr.,
Chairmen of the U.S. Parole Commission. A § 2241 application is properly addressed
to the person with “custody over” the applicant. See 28 U.S.C. § 2242. Thus, the
United States Supreme Court has recognized that with certain narrowly-defined
exceptions, none applicable here, “the proper respondent [in a habeas corpus case] is
the warden of the facility where the prisoner is being held.” Rumsfeld v. Padilla, 542
U.S. 426, 435 (2004). The Tenth Circuit has declined to decide whether a habeas
challenge to a decision by the U.S. Parole Commission renders the Commission the de
facto “custodian” and thus, the proper respondent, where the government already filed a
16
brief on the merits. See Von Kahl v. United States, 321 Fed. App’x 724, 727 n.1 (10th
Cir. 2009) (“Whoever the proper respondent may be, the government has filed a brief on
his or its behalf. We therefore proceed to the merits.”); see also DeWilliams v. Davis,
369 Fed. App’x 912, 915 (10th Cir. 2010) (denying motion to add the United States
Parole Commission Chairman as respondent to appeal because the “only proper
respondent in this case is [ ] the warden . . . where [Applicant] is being held”). Here,
Applicant has named his warden as a respondent and the government has filed its
Answer. Accordingly, this Court declines to resolve Claim Six, and proceeds to the
merits of Applicant’s remaining habeas corpus claims.
B. Claim One
Applicant first claims that the Commission “erroneously applied” the 1987
Guidelines at his 2014 parole reconsideration proceedings. Specifically, he asserts that
the 1987 Guidelines define “negative institutional behavior” as “one Class One offense
or two Class Two Offenses occurring since the preceding release consideration on the
sentence,” and that “the Notice of Action dated May 1, 2014 cites only one Class Two
offense,” which is “not contemplated to be negative institutional behavior” under the
1987 Guidelines. (ECF No. 1 at 2-3).
Respondents argue that Claim One fails because the 1987 Guidelines, as
clarified by the 1995 Policy Guideline, do not contain any classification or numerical
requirements for the type or number of misconduct offenses necessary to constitute
“negative institutional behavior.” (See ECF No. 12 at 8-9). Respondents further
contend that even if the 1987 Guidelines had the classification and numerical
requirements Applicant alleges, he incurred a disciplinary infraction for fighting and two
17
disciplinary infractions for criminal mail abuse, thus satisfying the requirement for “two
Class II Offenses.” (Id.). The Court agrees with Respondents.
First, as noted above, at the April 2, 2014 parole reconsideration hearing, the
examiner found that Applicant acquired an incident report for fighting and two incident
reports for mail abuse since his February 1, 2012 parole reconsideration hearing. (See
ECF No. 12-9 at 2). Based on the hearing examiner’s findings that Applicant “violated
the rules of the institution” in all three instances, one point was added to Applicant’s grid
score for negative institutional behavior. (Id.). In the May 1, 2014 Notice of Action, the
Commission also explained that a departure from the guidelines was warranted
because “[y]ou are a more serious parole risk than shown by your grid score because
your continuance to engage in violent conduct (fighting) during your confinement makes
you a more serious risk than what the guidelines suggests.” (ECF No. 12-10).
The Court finds that Applicant’s first claim lacks merit because the Commission
correctly applied the 1987 Guidelines in adding one point for negative institutional
behavior and appropriately considered Applicant’s institutional misconduct as an
aggravating factor to deny him parole. First, it is undisputed that the 1987 Guidelines
were applicable to Applicant’s 2014 parole proceedings because he committed his
crimes in 1997. See 28 C.F.R. § 2.80(o) (requiring that the 1987 Guidelines apply to
any offender who committed his crime between March 4, 1985 and August 4, 1998).
Moreover, the 1987 Guidelines, as clarified by the applicable 1995 Policy Guideline, do
not appear to limit “negative institutional behavior” to a certain type or number of
misconduct offenses as Applicant suggests. While the 1991 Policy Guideline defined
“negative institutional behavior” in reconsideration proceedings as being “One Class I
18
Offense” or “Two Class II Offenses,” the 1995 Policy Guideline, which superseded the
1991 Policy Guideline, does not include any classification or counting of disciplinary
infractions. (Cf. ECF No. 12-13 at 2 with ECF No. 12-14 at 3). Rather, the 1995 Policy
Guideline speaks only of “serious negative institutional behavior,” which is defined as
“documented criminal conduct or breach of institutional rules, the severity, frequency, or
recent occurrence of which indicates that the subject is not ready to remain crime-free in
the community.” (See ECF No. 12-14 at 3). Thus, the Court cannot find that the
Commission exceeded its authority by adding one point for negative institutional
behavior to Applicant’s grid score based on the three disciplinary infractions he incurred
since his last parole hearing in February 2012, and in considering Applicant’s serious
negative institutional behavior or “documented criminal conduct or breach of institutional
rules” as a factor favoring incarceration despite a grid score indicating that parole
should be granted.
Moreover, Applicant’s assertions do not demonstrate that the Commission’s 2014
parole decision was arbitrary, capricious, or an abuse of discretion. As discussed
above, the Commission correctly added one point for negative institutional misconduct
as a result of Applicant’s disciplinary infractions for fighting and criminal mail abuse.
Moreover, the Court finds that the Commission’s decision to depart from the action
indicated by Applicant’s grid score rested on consideration of the permissible factor that
Applicant continued “to engage in violent conduct (fighting)” which indicates that
Applicant “would not obey the law if released” and that his “release would endanger the
public safety.” (ECF No. 12-10 at 1). See White v. Hyman, 647 A.2d 1175, 1179 (D.C.
1994) (recognizing that D.C. Code § 24-404(a) is phrased in discretionary terms and
19
leaves it to the parole board to determine whether the prisoner is likely to be a
responsible citizen if he is returned to the community and whether release on parole is
consistent with public safety); Duckett v. U.S. Parole Comm’n, 795 F. Supp. 133, 137-38
(M.D. Pa. 1992) (upholding the Commission’s departure from guidelines based upon
prisoner’s prior record and misconduct, which supported the finding that the prisoner
posed a serious risk to public safety); Hanna v. Bureau of Prisons, No. 04CV585, 2005
WL 1162519, at *3 (E.D. Va. Apr. 2, 2005) (unpublished) (holding that a prisoner’s “risk
to the community is a relevant factor to be considered at each parole hearing”);
DeVaughn v. Driver, Civil Action No. 06CV80, 2008 WL 4686162, at * 7 (N.D. W.Va.
Oct. 7, 2008) (unpublished) (recognizing that a prisoner’s institutional record “is relevant
to determining whether he or she will be able to live in the community without
committing additional crimes and whether his or her release will be compatible with the
welfare of society.”). Accordingly, claim one lacks merit.
C. Claim Two
Applicant contends that the Commission violated 28 C.F.R. § 2.80(n)(1) by failing
to specify what unusual circumstances warranted a departure from parole guidelines in
the 2014 Notice of Action. (ECF No. 1 at 3). Respondents contend that the
Commission adequately specified the unusual circumstances in the Notice of Action.
(ECF No. 12 at 9).
A review of the record indicates that in the May 1, 2014 Notice of Action (and the
corrected December 23, 2014 Notice of Action), the Commission acknowledged that:
[t]he guidelines indicate that parole should be granted at this time.
However, a departure from the guidelines at this consideration is
warranted because the Commission finds there is a reasonable probability
20
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 grid score because your continuance to engage in violent
conduct (fighting) during your confinement makes you a more serious risk
than what the guidelines suggests.
(ECF Nos. 12-10 and 12-11).
It is undisputed that the Commission may deviate from the parole determination
suggested by the grid score “in unusual circumstances,” where the Commission
specifies “in writing those factors which it used to depart.” (ECF No. 12-12 at 20, the
1987 Guidelines § 204.22); see also 28 C.F.R. § 2.80(n)(1) (the Parole Commission
“shall specify in the notice of action the specific factors that it relied on in departing from
the applicable guideline or guideline range.”).
In this case, the Commission complied with the 1987 Guidelines when it stated
that a departure was warranted based on Applicant’s “continuance to engage in violent
conduct (fighting)” during his confinement and the reasonable probability that
Applicant’s “release would endanger the public.” See Hanna, 2005 WL 1162519, at *3
(holding a prisoner’s “risk to the community is a relevant factor to be considered at each
parole hearing”); Duckett, 795 F. Supp. at 137-38 (upholding the Commission’s
departure from the guidelines based upon the prisoner’s prior record and misconduct,
which supported the finding that the prisoner posed a serious risk to public safety).
Moreover, the Constitution requires nothing more when parole is denied than that the
inmate be informed “in what respects he falls short of qualifying for parole.” Greenholtz
v. Nebraska Penal Inmates, 442 U.S. 1, 16 (1978). The Commission’s statement of
reasons given to Applicant in its 2014 Notice of Action satisfies both these standards.
Accordingly, Applicant’s claim related to the sufficiency of the Commission’s explanation
21
for its departure from the guidelines in the 2014 Notice of Action must fail.
D. Claim Three
Applicant asserts that the Commission incorrectly applied parole guidelines in
violation of 28 C.F.R. § 2.80(e) by not subtracting a point for program achievement and
failing to “cite[], mention[], or reference[]” Applicant’s positive conduct in the 2014 Notice
of Action. (ECF No. 1 at 5). Respondents argue that this claim fails because the
Commission correctly subtracted a point for Applicant’s program achievement, which
was reflected in the corrected December 23, 2014 Notice of Action. (ECF No. 12 at 10).
As detailed above, at the April 2, 2014 parole reconsideration hearing, the
hearing examiner correctly noted that Applicant was entitled to a one point deduction
from his grid score for his program achievement in completing several programs. (See
ECF No. 12-9 at 2). While the May 1, 2014 Notice of Action failed to mention the
program achievement calculation, the corrected December 23, 2014 Notice of Action
stated that Applicant’s “point score has been corrected to include the 1 point reduction
for program achievement that was awarded at you [sic] hearing on April 2, 2014.” (ECF
No. 12-11 at 1). Thus, Applicant’s assertion is not supported by the record.
Moreover, Applicant’s claim that “the omission of these achievements adversely
impacted my eligibility for parole” is without merit because the Commission expressly
acknowledged in the December 23, 2014 Notice of Action that Applicant’s program
achievement was considered in calculating his grid score, and the Commission’s reason
for not granting parole was related to Applicant’s “continuance to engage in violent
conduct” while incarcerated. (See ECF No. 12-11). Ultimately, the Court finds that any
errors committed by the Commission regarding Applicant’s program achievement do not
22
rise to the level of arbitrary and capricious action.
E. Claims Four and Five
In claims four and five, Applicant further challenges the sufficiency of the 2014
Notice of Action. Specifically, Applicant claims that the 2014 Notice of Action wrongfully
omitted any reference to two incident reports for criminal mail abuse (IR 2267819 and
IR 2307191) that Applicant disputed at his April 2, 2014 parole reconsideration hearing.
(ECF No. 1 at 6-7). Respondents assert that the hearing summary reflects that the
examiner relied on the outcomes of the BOP disciplinary proceedings for both incident
reports, which provides adequate grounds for the examiner’s findings of negative
institutional behavior. (ECF No. 12 at 10-12).
The BOP inmate disciplinary procedures are specifically tailored and designed to
meet the due process safeguards outlined by the Supreme Court in Wolff v. McDonnell,
418 U.S. 539 (1974). See 28 C.F.R. § 541, et seq. Thus, the Commission may rely on
BOP incident reports and the outcome of BOP disciplinary hearing proceedings as
evidence of institutional misconduct. See Hunter v. U.S. Parole Comm’n, Civil No. 10CV-1594, 2011 WL 4528469, at *7 (M.D. Pa. Sept. 28, 2011) (unpublished) (holding
that “[s]ince the procedures employed by BOP disciplinary proceedings fully satisfy due
process requirements, reliance on the outcomes of those proceedings is fully justified by
parole adjudicators”); DeVaughn, 2008 WL 4686162, at *7 (“the Commission may
consider official reports of the prisoner’s prior record, reports from the staff of the facility
where the prisoner is confined, and any other relevant information concerning the
prisoner that is reasonable [sic] available.”); see also Roberts v. Corrothers, 812 F.2d
1173, 1180-81 (9th Cir. 1987) (“Where the Commission properly has evidence before it .
23
. . the evaluation of that evidence is almost entirely at its discretion.”).
Here, the hearing examiner considered the findings of the BOP disciplinary
hearing officers for both incident reports of criminal mail abuse (IR 2307191 and IR
2267819), and permitted Applicant the opportunity to respond. In the hearing summary,
the examiner specifically noted that Applicant “emphatically” denied the mail abuse
charges and offered his explanation as to why his behavior did not constitute criminal
mail abuse. (See ECF No. 12-9 at 2). The hearing examiner disagreed with Applicant
and found that he violated the rules of the institution based on the outcomes of the BOP
disciplinary proceedings. (See id.). Applicant nevertheless asks this Court to presume
that the Commission did not consider this information in reaching its decision to deny
parole because the incident reports were not expressly discussed in the 2014 Notice of
Action. The Court cannot assume that the Commission ignored the evidence which
Applicant presented during his parole reconsideration proceedings and which is
referenced in the hearing examiner’s summary. See e.g., Nunez-Guardado v. Hadden,
722 F.2d 618, 621 (10th Cir. 1983); see also DeVaughn, 2008 WL 4686162, at *7
(recognizing that the Commission’s determination as to the credibility of the prisoner’s
institutional record was not subject to review except for statutory, regulatory, or
constitutional violations). Here, Applicant does not challenge the fact that he was
afforded the rights provided under the BOP’s regulations concerning inmate disciplinary
proceedings, and that each of the due process requirements under Wolff was met.
Because there is no evidence in the record that the Commission exceeded its authority,
claims four and five are subject to dismissal.
Moreover, even if the hearing examiner found that there was insufficient
24
evidence to support the criminal mail abuse charges (IR 2307191 and IR 2267819),
Applicant’s disciplinary infraction for fighting, to which he admitted, constituted negative
institutional behavior under the 1987 Guidelines. In fact, the Commission expressly
stated that this “violent conduct (fighting)” provided the basis for Applicant’s unsuitability
for parole in the 2014 Notice of Action. (See ECF Nos. 12-10 and 12-11) (“A departure
from the guidelines at this consideration is found warranted . . . because your
continuance to engage in violent conduct (fighting) during your confinement makes you
a more serious risk that what the guidelines suggests.”); see also Hodges v. O’Brien,
589 F. Supp. 1225, 1229-30 (D. Kan. 1984) (recognizing that the “Commission’s stated
reasons are by definition the factors which the Commission considered most
significant.”) (internal citation omitted). Since this reason alone provides a rational basis
for the Commission’s decision to deny parole, this Court will not substitute its opinion for
that of the Parole Commission. Gometz, 294 F.3d at 1260
F. Claim Seven
Applicant maintains that at his March 31, 2015 parole reconsideration hearing,
the examiner wrongfully recommended denial of parole based on the two incident
reports for criminal mail abuse (IR 2267819 and IR 2307191) that “(1) were disposed of
after consideration at previous parole reconsideration hearings; (2) occurred 36 months
ago, and (3) are illegally determined to be criminal conduct.” (ECF No. 15 at 3).
Respondents contend that these two incident reports were not “disposed of” at
previous parole proceedings, and that the hearing examiner properly considered new
information about the details of these disciplinary infractions at the 2015 parole
proceedings. (ECF No. 23 at 8-11). Respondents further argue that the Commission
25
may consider institutional misconduct that occurred more than 36 months before the
parole hearing. (Id. at 12-13). Finally, Respondents contend that the Commission
properly characterized the charged disciplinary violations as criminal conduct. (Id. at
13-15).
First, Applicant’s contention that the hearing examiner wrongfully considered
disciplinary infractions that occurred more than three years prior to the 2015 parole
reconsideration hearing date is misplaced. As discussed above, the 1995 Policy
Guideline allows for consideration of infractions that occurred at any time during the
parole candidate’s incarceration. See Goodall, 2013 WL 3343658, at *7. Moreover, in
determining Applicant’s grid score, the hearing examiner did not add any points for
negative institutional behavior because he found that Applicant “incurred no new
disciplinary infractions since his last hearing.” (See ECF No. 23-1 at 2). Thus, the
hearing examiner appropriately considered the two incident reports for mail abuse (IR
2267819 and IR 2307191) by excluding the infractions from Applicant’s grid score
because they did not occur since his last parole hearing in 2014, but including the
infractions as a relevant consideration for parole recommendation. See e.g., Smith v.
Sepanek, Civil No. 14-55-ART, 2015 WL 5841937, at *4 (E.D. Ky. Oct. 5, 2015)
(unpublished) (denying habeas claims because the parole board acted within its
authority in considering prisoner’s long pattern of disciplinary infractions and institutional
misconduct as reasons to deny parole even though certain infractions could not be
counted in prisoner’s grid score).
Second, the Commission’s decision to deny parole based on Applicant’s
institutional misconduct, including the two incident reports for mail abuse, was not
26
arbitrary or capricious. Courts routinely recognize “the broad authority of parole officials
to fully consider all relevant information when making parole determinations.” Hunter,
2011 WL 4528469, at *8. Moreover, “double-counting” claims are judged by a
deferential standard of review—a parole decision will be set aside on the grounds that
parole officials engaged in improper double counting only when the parole consideration
of certain information was arbitrary or irrational. See Harris v. Martin, 792 F.2d 52, 55
(3d Cir. 1986). See also Kell v. U.S. Parole Comm’n, 26 F.3d 1016, 1020 (10th Cir.
1994) (rejecting applicant’s claim that Commission should not have relied on his criminal
history, past drug use, or institutional incident reports to exceed guidelines for
reincarceration because it had already relied on those factors to enhance his guidelines
during his initial incarceration). In other words, where the Commission has a rational
basis for considering a factor in several different ways when denying parole, a “double
counting” claim will fail. Hunter, 2011 WL 4528469, at *8 (“it was reasonable, rational,
and entirely proper for the Commission to take into account [applicant’s] on-going
propensity for violence when departing from the parole guidelines”); see also Dunmore
v. Francis, No. 06CV137, 2009 WL 775466, at *3, 9 (N.D. W.Va. March 20, 2009)
(unpublished) (finding that “Commission did not act arbitrarily or beyond its authorized
scope, or violate the petitioner’s constitutional rights by considering prior instances of
the petitioner’s misconduct, which had already been considered at previous hearings”).
In Applicant’s case, the hearing examiner found Applicant to be riskier than his
grid score suggested because of his pattern of negative institutional behavior.
Specifically, the hearing examiner properly relied on Applicant’s cumulative prison
record, evidenced by multiple disciplinary infractions since 2001, as one of several
27
reasons for his recommendation to deny parole. (ECF No. 23-1 at 3, 5). Moreover, the
hearing examiner relied upon his view that Applicant “is not ready to remain crime-free
in the community” based on “the severity, frequency and (relatively) recent occurrence”
of Applicant’s serious negative institutional behavior. (Id. at 5). Thus, the Court cannot
find that the Commission acted irrationally in considering the totality of Applicant’s
disciplinary record.
Moreover, Applicant errs when he suggests that the two mail abuse incident
reports (IR 2267819 and IR 2307191) were “disposed of” at his April 2014 parole
proceedings, and therefore, his 2015 parole decision was based solely on factors
previously considered by the Commission. To the contrary, in 2014, the Commission
expressly stated that Applicant’s violent conduct and the disciplinary infraction for
fighting was the most significant factor in deciding to deny Applicant parole. (See ECF
No. 12-10).
Moreover, while, the hearing examiner listed the BOP incident reports for mail
abuse (IR 2267819 and IR 2307191) in the 2014 post-hearing assessment, she did not
discuss them in any detail. (See ECF No. 12-9 at 2). In contrast, the hearing examiner
at the 2015 proceedings considered newly obtained information about the mail abuse
offenses and set forth a detailed, two-page summary of the incidents. (See ECF No.
23-1 at 4-5). The hearing examiner further explained that
the conduct committed [is] far more serious than what the caption of the
offense would otherwise suggest . . . though the above mail abuse
infractions were considered at the last hearing, it does not appear the
Commission was aware of the extent and severity of the conduct.
(Id. at 5). Finally, the hearing examiner recommended denial of parole based on “the
28
totality of the subject’s disciplinary infractions, including the new information” because
Applicant “is still a more serious risk on the basis of serious negative institutional
behavior.” (Id.). In the April 20, 2015 Notice of Action, the Commission adopted the
recommendation denying parole and found that Applicant’s “cumulative disciplinary
record, including the most recent infractions of mail abuse, which the Commission views
as new criminal conduct extending into the community, and the severity, frequency, and
recent occurrence of which, all indicate you are not ready to remain crime-free in the
community.” (ECF No. 23-2).
The Court finds that the new information relied upon by the Commission does not
demonstrate that the Commission exceeded it authority. “As a legal matter, it was
reasonable, rational and entirely proper for the Commission to take into account
[Applicant’s] on-going propensity for [serious misconduct] when departing from the
parole guidelines.” See Hunter, 2011 WL 4528469, at *8; see also Fox v. U.S. Parole
Comm’n, 517 F. Supp. 855, 859-60 (D. Kan. 1981) (holding that the Commission’s
consideration of relevant materials was not arbitrary or capricious or without rational
basis simply because the information was not made available at an earlier time). Since
the Commission was entitled to take into account Applicant’s institutional misconduct in
assessing parole suitability, the Court cannot find that the Commission abused its
discretion when it denied Applicant parole in 2015. See e.g., DeVaughn, 2008 WL
4686162, at *7 (rejecting habeas claim that the Commission erred in considering
disciplinary reports prepared by corrections officials because the Commission may
consider reports from the staff of the facility where the prisoner is confined, including
documentation summarizing a prisoner’s disciplinary record).
29
Moreover, even if this Court were to find that the Commission could not utilize the
disciplinary reports for mail abuse (IR 2267819 and IR 2307191) again as a reason for
departing upward from the guidelines at Applicant’s 2015 parole reconsideration
proceedings, this finding would not demand the granting of his habeas application. The
Court finds that the Commission cited other permissible discretion-based reasons for
departing from the guidelines in denying Applicant parole in the 2015 Notice of Action.
Specifically, the Commission’s belief that there was a reasonable probability that
Applicant’s release would endanger the public safety is rationally related to the
Commission’s discretion in determining his suitability for parole. See Hanna, 2005 WL
1162519, at *3 (holding a prisoner’s “risk to the community is a relevant factor to be
considered at each parole hearing”); Cambrel v. Bledsoe, Civil No. 3:CV-08-1684, 2011
WL 3439199, at * 9 (M.D. Pa. Aug. 5, 2011) (unpublished) (holding that the parole
board articulated a rational basis for departing from parole guidelines “given the nature
of [Applicant’s] offense and difficult, but recently improved, ability to abstain from drugs
and disciplinary infractions and violent altercations”). Here, the Commission articulated
a rational basis for departing from the parole guidelines in its 2015 Notice of Action.
(See ECF No. 23-2) (“after consideration of all factors and information presented, a
departure . . . is warranted because the Commission finds there is a reasonable
probability that you would not obey the law if released and your release would endanger
the public safety”),
Finally, Applicant argues that the BOP incident reports at issue were “illegally
determined to be criminal conduct.” He relies on Walden v. Gallegos, 92 F. App’x 745
(10th Cir. 2004) for the proposition that the incident reports fail to satisfy the “some
30
evidence” rule because the charged activity does not describe an actual criminal
violation and he was not prosecuted for this “crime.” (ECF No. 15 at 5). First,
Applicant’s BOP disciplinary proceedings reference the mailing of fraudulent financial
documents, which arguably relates to 18 U.S.C. § 1341(prohibiting mail fraud). (See
ECF No. 1 at 42-43, 52-55). Moreover, the Commission has authority to assess the
significance of an inmate’s behavior. See e.g., McNally v. Cooksey, 14 F.3d 604 (7th
Cir. 1993) (rejecting habeas petitioner’s argument that the Commission’s
characterization of prison misconduct reports as new criminal conduct was improper);
see also 28 C.F.R. § 2.36(a); (prison misconduct may be classified as new criminal
behavior in the community to establish a guideline range).
Here, after considering the ADX Reports, which are permissible sources of
information for the Commission to consult when determining parole suitability, the
hearing examiner described Applicant’s conduct as the mailing of fraudulent checks and
determined that it constituted criminal conduct extending into the community. See
Dunmore, 2009 WL 775466, at *9 (explaining that the Commission is not limited to
considering only conduct which results in criminal charges, but may consider official
reports of the prisoner’s prior record, reports from the staff where the prisoner is
confined, and any other relevant information concerning the prisoner that is reasonably
available). Therefore, the Court cannot find that the Commission’s decision was not
supported by a “rational basis in the record.” Misasi v. U.S. Parole Comm’n, 835 F.2d
754, 758 (10th Cir. 1987) (rejecting applicant’s argument to adopt a sufficiency of the
evidence standard of review of factual matters). The Court finds that the Commission
acted within its discretion when it determined that Applicant’s disciplinary infractions for
31
criminal mail abuse (IR 2267819 and IR 2307191) constituted criminal behavior. See
e.g., Scott v. Eiechenlaub, No. 09-cv-204-RS-EMT, 2011 WL 834004, at *4-5 (M.D. Fla.
March 4, 2011) (unpublished) (finding that the Commission’s determination that acts or
attempted acts of bribery constitute something more serious than administrative rule
infractions was not arbitrary and capricious).
G. Claim Eight
Applicant contends that the warden at ADX wrongfully denied him access to a
notary public for his affidavit to be submitted at his March 31, 2015 parole
reconsideration hearing. (ECF No. 15 at 6). Respondents argue that this is not a
cognizable habeas corpus claim because Applicant does not allege that the lack of
notarized papers affected the length of his confinement. (ECF No. 23 at 15-16).
Respondents further assert that Applicant fails to allege any harm because the
Commission accepted and considered Applicant’s sworn statement in lieu of notarized
documents. (Id. at 16).
The Court agrees that Claim Eight fails to present any issue warranting federal
habeas corpus relief because it does not challenge the fact or duration of his custody.
See e.g., McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997).
Moreover, even if the Court found that Claim Eight sounded in habeas corpus, it
must fail because the Commission received Applicant’s sworn affidavit prior to the 2015
proceedings, and the hearing examiner considered the information Applicant submitted
(without notarization) because he expressly found that “there is evidence the subject is
a good programmer. He provided documentation that he completed a paralegal
certificate program, Commercial Driver’s License programming, and the 40-hour drug
32
program.” (See ECF No. 18 at 10, 62-75; ECF No. 23-1 at 7). Accordingly, Claim Eight
fails.
H. Claim Nine
Finally, Applicant asserts that the Commission destroyed the audio recording of
the April 2, 2014 parole reconsideration hearing “to hinder and obstruct future defenses
to the disputed incident reports.” (ECF No. 15 at 7-8). Respondents argue that this
claim does not sound in habeas because it does not affect the length of Applicant’s
sentence; that the claim is now moot; and that there is no remedy available. (ECF No.
23 at 17).
The Court agrees with Respondents that this claim does not sound in habeas
because it does not affect the length of his sentence. McIntosh, 115 F.3d at 812.
Moreover, there is no judicial remedy available because the 2014 parole recording was
defective. (See ECF No. 15 at 97). In addition, the remedies Applicant seeks in his
Amended Application (i.e., expungement of the incident reports, production of the
hearing recordings, and his immediate release) cannot be granted. See Alexander v.
U.S. Parole Comm’n, 514 F.3d 1083, 1091 (10th Cir. 2008) (finding that the district
court’s authority was limited to remanding to the Parole Commission). In this case,
Applicant already has received a parole reconsideration hearing in 2015 and given the
Commission’s decision to deny parole based on a permissible departure factor (i.e.,
“after consideration of all factors and information presented, a departure . . . is
warranted because the Commission finds there is a reasonable probability that you
would not obey the law if released and your release would endanger the public safety”),
Applicant has not shown demonstrated prejudice from the defective April 2014 audio
33
recording, and therefore, he is not entitled to release or a reduction in his prison term.
Del Raine v. Daniels, 462 Fed. App’x 793 (10th Cir. 2012).
VI. CONCLUSION
Accordingly, it is
ORDERED that the Amended Application for a Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2241 (ECF Nos. 1 and 15), filed pro se by Applicant, Stephan Moorer, is
DENIED and this case is DISMISSED with prejudice. It is
FURTHER ORDERED that Applicant’s Motion for Evidentiary Hearing or
Summary Judgment (ECF No. 18) is DENIED because the Court determined that it
could resolve the claims in the Amended Application without a hearing. It is
FURTHER ORDERED that any other pending motions are denied as moot. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied for the purpose of appeal. The Court certifies pursuant to 28 U.S.C. §
1915(a)(3) that any appeal from this order would not be taken in good faith. See
Coppedge v. United States, 369 U.S. 438 (1962). If Applicant files a notice of appeal he
must also pay the full $505 appellate filing fee or file a motion to proceed in forma
pauperis in the United States Court of Appeals for the Tenth Circuit within thirty days in
accordance with Fed. R. App. P. 24.
Dated January 8, 2016, at Denver, Colorado.
BY THE COURT:
s/Lewis T. Babcock
Lewis T. Babcock
United States Senior District Judge
34
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?