Eldridge v. Oliver et al
ORDER DENYING re: 1 Application for Writ of Habeas Corpus filed by Clinton T. Eldridge by Chief Judge Marcia S. Krieger on 6/29/17. (pglov)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Marcia S. Krieger
Civil Action No. 16-cv-00690-MSK
CLINTON T. ELDRIDGE,
J. OLIVER, Warden, and
U.S. PAROLE COMMISSION,
ORDER DENYING APPLICATION FOR 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) filed pro se by Applicant Clinton T. Eldridge, an inmate at the
United States Penitentiary, Administrative Maximum, in Florence, Colorado. Applicant
challenges the denial of his parole in 2010, 2013, and 2016. Respondents filed a Response (ECF
No. 28), and Applicant filed an “Answer to Respondent’s Response to Writ of Habeas Corpus”
(ECF No. 29) (“Reply”). Applicant also filed “Petitioner’s Request the Court to Grant
Permission to Supplement the Record” (ECF No. 30), “Motion for Leave to File a Clarification
on the Issue of ‘Sex Offender Treatment Program’” (ECF No. 39), “Motion to Supplement the
Record” (ECF No. 44), and “Emergency Motion for a Show Cause Order to Respondents” (ECF
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 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
Application should be DENIED and the case DISMISSED for the reasons discussed below.
In 1984, Applicant was convicted of eight felony counts, including rape and robbery, and
was sentenced by the District of Columbia Superior Court to consecutive prison terms totaling 40
to 120 years. (ECF No. 28-2 at 1). 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 (“BOP”) to
serve his sentence pursuant to the National Capital Revitalization and Self-Government
Improvement Act of 1997 (“Revitalization Act”). See D.C. Code § 24-101. The Revitalization
Act also transferred paroling authority from the District of Columbia Board of Parole (“Board”)
to the United States Parole Commission (“Commission”). See D.C. Code § 24-131. Applicant
became eligible to be considered for parole on November 9, 2010. (ECF No. 28-2 at 2).
In this action, Applicant challenges the Commission’s decisions denying him parole in
2010 (“claim one”), 2013 (“claim two”), and 2016 (“claim three”). Construing his allegations
liberally, Applicant raises four claims:
the Commission incorrectly applied parole guidelines concerning his positive
the Commission erred in denying parole based on Applicant’s failure to
participate in sex offender treatment that had not been recommended earlier or
made available to him and is not required under parole guidelines;
the Commission incorrectly relied on 18 U.S.C. § 4042; and
Applicant was denied the right to administrative appeals.
(ECF No. 1 at 2-16).
As relief, Applicant seeks a parole rehearing or his release on parole. (Id. at 5).
II. STANDARD OF REVIEW
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)). Judicial review of the Commission’s parole
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 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 citation
and 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 [Commission’s] discretion in denying parole or to repass on the
credibility of reports received by the [Commission] in making its determination.” Dye, 558 F.2d
III. PAROLE REGULATIONS AND GUIDELINES
At the time of Applicant’s offenses, parole eligibility for prisoners sentenced under the
D.C. Code was determined by the Board pursuant to regulations issued in 1972 (“the 1972
Regulations”). See Daniel v. Fulwood, 766 F.3d 57, 58 (D.C. Cir. 2014) (providing historical
overview of parole regulations and guidelines for D.C. Code offenders). Under the 1972
Regulations a prisoner became eligible for parole after serving the minimum sentence imposed
by the sentencing court. Id. Once eligible for parole, the Board would then determine whether
the prisoner was suitable for parole by considering a set of factors that included, “‘[a]mong
others,’ the nature of the prisoner's offense, his prior criminal history, his personal and social
history, and his institutional experience (including behavior in prison, involvement in academic
and vocational programs, etc.).” Id. at 58-59. The 1972 Regulations contained no prescribed
method for “translat[ing] the factors into a parole release date.” Id. at 59 (citing Phillips v.
Fulwood, 616 F.3d 577, 579 (D.C. Cir. 2010)). Thus, the Board “operated with nearly complete
discretion.” Wilson v. Fullwood, 772 F. Supp.2d 246, 252 (D.D.C. 2011); see also Sellmon v.
Reilly, 551 F. Supp.2d 66, 86 n.15 (D.D.C. 2008) (recognizing that the Board enjoyed “almost
unbridled discretion” in its parole decisions because the 1972 Regulations “offered no guidance
as to how these factors should be weighted in the decision.”).
In 1987, the Board replaced the 1972 Regulations with new regulations creating a system
of points related to offender history, offense characteristics, and behavior while in prison. See
D.C. Mun. Regs. tit. 28, § 204 et. seq. (1987) (repealed Aug. 5, 2000) (“the 1987 Regulations”).
The resulting point total determined whether parole would be granted, id. § 204.19, although the
Board could depart from the point calculation in “unusual circumstances,” id. § 204.22.
On August 5, 1997, the Revitalization Act abolished the Board and tasked the
Commission with responsibility for making parole determinations “pursuant to the parole laws
and regulations of the District of Columbia.” D.C. Code § 24-131(a). In 2000, the Commission
drafted new parole regulations and guidelines (“the 2000 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. § 2.80.
The 2000 Guidelines established a different point-based system, which calculated a range of
months beyond the time a prisoner is eligible for parole that must be served before he is regarded
as suitable for parole. See Daniel, 766 F.3d at 59 (citing § 2.80(l)). The first step in this
determination involves assigning points based on the prisoner's risk of recidivism, the presence
of violence in his current or prior offenses, and whether the current offense involved the death of
a victim or an otherwise high level of violence. Id. (citing § 2.80(c), (f)). The sum of these
points, called the prisoner's “base point score,” corresponds to a range of months to be served by
the prisoner, called his “base guideline range.” Id. (citing § 2.80(f), (h)). That range of months
is added to the number of months until the prisoner's parole eligibility date, and adjusted upward
for “significant disciplinary infractions” and downward for “superior program achievement.” Id.
(citing § 2.80(j)-(l)). This calculation at the initial parole hearing produces the prisoner’s “total
guideline range”—the range of time the prisoner must presumptively serve before he is
considered suitable for parole. Id. (citing § 2.80(b), (l)). At subsequent reconsideration hearings,
the Commission “[a]dd[s] together the ... Total Guideline Range from the previous hearing, and
the ... guideline range for [any] disciplinary infractions since the previous hearing,” and “[t]hen
subtract[s] [any] award for superior program achievement.” Id. at 60 (citing § 2.80(m)).
Although the Commission may “grant or deny parole to a prisoner notwithstanding the
guidelines,” it may do so only in “unusual circumstances.” Id. (citing § 2.80(n)(1)).
In 2015, the Commission amended 28 C.F.R. § 2.80 to provide that the Commission must
use the parole guidelines in the 1972 Regulations when reviewing parole applications filed by
D.C. Code offenders who committed their offenses on or before March 3, 1985. See 80 Fed.
Reg. 63115-01 (Oct. 19, 2015); 28 C.F.R. § 2.80(p). The Commission promulgated this new rule
due to “developing case law that relates to parole guidelines and the Ex Post Facto Clause,” and
to be consistent with its decision to apply the parole guidelines in the 1987 Regulations to any
D.C. Code offender who committed his offense between March 4, 1985 and August 4, 1998, i.e.,
the Sellmon rule. See 80 Fed. Reg. 63115-01 (Oct. 19, 2015); 28 C.F.R. § 2.80(0). The new
rule provides that “[a]mong others, the U.S. Parole Commission takes into account some of the
following factors in making its determination as to parole:
(i) The offense, noting the nature of the violation, mitigating or aggravating . . .
(ii) Prior history of criminality, noting the nature and pattern of any prior offenses
as they may relate to the current circumstances.
(iii) Personal and social history of the offender, including such factors as his
family situation, educational development, socialization, marital history,
employment history, use of leisure time and prior military experiences, if any.
(iv) Physical and emotional health and/or problems which may have played a role
in the individual’s socialization process, and efforts made to overcome any such
(v) Institutional experience, including information as to the offender’s overall
general adjustment, his ability to handle interpersonal relationships, his behavior
responses, his planning for himself, setting meaningful goals in areas of academic
schooling, vocational education or training, involvements in self-improvement
activity and therapy and his utilization of available resources to overcome
recognized problems. Achievements in accomplishing goals and efforts put forth
in any involvements in established programs to overcome problems are carefully
(vi) Community resources available to assist the offender with regard to his needs
and problems, which will supplement treatment and training programs begun in
the institution, and be available to assist the offender to further serve in his efforts
to reintegrate himself back into the community and within his family unit as a
productive useful individual.
28 C.F.R. §2.80(p)(4).
IV. APPLICANT’S PAROLE HEARINGS
The Commission conducted Applicant’s initial parole hearing on July 21, 2010. (See
ECF No. 28-3 at 1). The Commission applied the 2000 Guidelines and calculated Applicant’s
total guideline range as 376-420 months, which represents the total range of time he must
presumptively serve before being considered suitable for parole. (Id. at 1, 5). This calculation
included 36-74 months assessed for institutional misconduct that included a sexual assault,
extortion/blackmail, and sexual proposal/threat to female prison staff members. (Id. at 3-5). In
the hearing summary, the examiner noted that Applicant had a history of sexual violence, refused
to accept responsibility for his sexual offenses, and had not participated in sex offender
counseling or treatment programs. (Id. at 6). On August 16, 2010, the Commission issued its
Notice of Action denying parole, declining to depart downward from Applicant’s total guideline
range, and continuing the matter for reconsideration in three years. (ECF No. 28-4 at 1).
On October 29, 2013, Applicant appeared at his second parole suitability hearing. (ECF
No. 28-5 at 1). Applicant’s total guideline range remained 376-420 months under the 2000
Guidelines. (Id. at 6). In the hearing assessment, the examiner noted that Applicant “was
advised that he is viewed as an untreated sex offender; therefore, it was recommended that he
seek to participate in Sex Offender; Substance Abuse Treatment and Victim Impact programs.”
(Id. at 2). On November 22, 2013, the Commission issued its Notice of Action denying parole,
explaining that a departure from the guideline range was not warranted, and continuing the
matter for reconsideration in three years. (See ECF No. 28-6)
The Commission held Applicant’s third parole suitability hearing on January 29, 2016.
(See ECF No. 28-8). The Commission applied the parole guidelines in the 1972 Regulations in
accordance with the recently amended 28 C.F.R. § 2.80(p). (Id.). In the hearing assessment, the
examiner stated that his main area of concern was that Applicant “remains an untreated sex
offender.” (Id. at 6). He noted that Applicant “fully admitted to his sex offenses and, thus,
appears to be a good candidate to complete sex offender treatment programming (SOTP).” (Id.).
The hearing examiner recommended that Applicant participate in SOTP, and that “if the BOP
cannot move him to a facility offering an SOTP, he should speak with Dr. Moody about the
possibility she could custom tailor a program for him at the ADX to address his sex crimes and
the accompanying risk of re-offense.” (Id.). The hearing examiner also explained that “if
treatment providers determine that you are not suitable for residential sex offender treatment at
this time, it is recommended that you participate in other programs, as determined by the Bureau
of Prisons, that address your risk of re-offense.” (Id. at 7). Finally, the hearing examiner advised
Applicant to complete drug and alcohol programming as well. (Id.).
On February 19, 2016, the Commission issued its Notice of Action denying parole and
continuing the matter for reconsideration in February 2019. (ECF No. 28-9). The Commission
provided the following reasons for its decision to deny parole:
[Y]ou are a more serious risk because the Commission finds you require
additional meaningful programming that addresses the underlying causes of your
criminal behavior and your risk of re-offense. The Commission finds you remain
an untreated sex offender. Furthermore, you have not completed any drug and
alcohol treatment classes despite your admission that you were using drugs and
alcohol at the time you committed your instant offenses of conviction.
It is recommended you complete drug and alcohol treatment classes before your
Additionally, the Commission is recommending that you promptly volunteer for
and participate in a residential sex offender treatment program within the Bureau
of Prisons. If treatment providers determine that you are not suitable for the
residential sex offender treatment at this time, it is recommended that you
participate in other programs, as determined by the Bureau of Prisons, that
address your risk of re-offense. The Commission will consider your participation
in such a program at your next rehearing and evaluate whether you are a lesser
risk to continue the type of criminal behavior that has led to your current period
The Commission will consider your participation in the programming
recommended above at your next rehearing and evaluate whether you are a lesser
risk to continue the type of criminal behavior that has led to your current period of
incarceration. The Commission also finds your continued incarceration beyond
the ordinary 12-month rehearing is necessary to allow sufficient time for you to
complete these critical programming goals.
Id. (emphasis in original).
V. MERITS OF APPLICANT’S CLAIMS
A. Program Achievement Credit
Applicant first claims that the Commission incorrectly applied the 2000 Guidelines at his
2010 and 2013 parole proceedings by failing to deduct any points for program achievements.
Respondents argue that this claim fails because the Commission properly exercised its discretion
in determining whether to rely on program achievements as a basis for recommending parole.
Under the 2000 Guidelines, if the Commission finds that an offender has demonstrated
“superior program achievement,” it may deduct “one-third of the number of months during
which the prisoner demonstrated superior program achievement” from his guideline range. 28
C.F.R. § 2.80(e)(1), (k). Whether an offender has demonstrated “superior program achievement”
is the subjective determination of the hearing examiner and Commission. Sellmon, 551 F.
Supp.2d at 88. The decision whether to award credit also is discretionary. Crutchfield v. U.S.
Parole Comm’n, 438 F. Supp.2d 472, 478 (S.D.N.Y. 2006).
At Applicant’s 2010 parole hearing, the examiner noted that Applicant had completed his
GED in 1991 while in state custody, and also completed additional educational, vocational, and
step-down programs in the BOP. (ECF No. 28-3 at 5). The hearing examiner did not award
superior program achievement credit. (Id.). At the reconsideration hearing in 2013, the
examiner found that Applicant “has not participated in any additional programs” since his 2010
parole hearing. (ECF No. 28-5 at 5).
The Court finds the record reflects that the Commission acknowledged and assessed
Applicant’s program achievements while incarcerated, but nonetheless exercised its discretion in
deciding that Applicant should not be granted credit for superior program achievement under the
2000 Guidelines. Applicant has not shown that this decision was arbitrary and capricious. Dye,
558 F.2d at 1378. Therefore, the Court concludes that the Commission did not abuse its
discretion in failing to award Applicant superior program achievement credit at his 2010 and
2013 parole proceedings.
To the extent Applicant is asserting that the Commission improperly applied the 2000
Guidelines at his 2010 and 2013 proceedings in violation of the Ex Post Facto Clause, this
argument is moot at this juncture because the Commission conducted a new parole suitability
hearing on January 29, 2016, and applied the parole guidelines in the 1972 Regulations. See e.g.,
Hunter v. Reilly, 405 F. App’x 514, 515 (D.C. Cir. 2011) (unpublished) (holding that the district
court properly dismissed the case as moot where the Commission conducted a new parole
hearing applying the controlling guidelines); see also Taylor v, Reilly, 685 F.3d 1110, 1112 (D.C.
Cir. 2012) (noting plaintiff did not contest that his claim for injunctive and declaratory relief
under the Ex Post Facto Clause became moot when the Commission agreed to grant him a new
parole hearing and apply the parole guidelines in the 1987 Regulations); Hunter v. U.S. Parole
Comm’n, 406 F. App’x 879 (5th Cir. 2010) (unpublished) (holding that prisoner’s receipt of July
2009 parole hearing applying old guidelines moots his Ex Post Facto claim based on his 2005
and 2008 hearings).
In addition, in making a parole decision under 28 C.F.R. § 2.80(p), the Commission
considers numerous factors, including the prisoner’s institutional involvement in academic,
vocational, and therapeutic programs. See id. § 2.80(p)(4)(v); see also Daniel, 766 F.3d at 5859. Thus, the decision to consider and weigh program achievement is solely within the
discretion of the Commission under the parole guidelines in the 1972 Regulations and the 2000
Guidelines. See Sellmon, 551 F. Supp.2d at 86 n.15, 88 (stating that the 1972 Regulations
“offered no guidance as to how factors should be weighted in [a] decision,” and “superior
program achievement” under the 2000 Guidelines was “determined subjectively by the Hearing
Examiners and Commissioners”); see also Otsuki v. U.S. Parole Comm’n, 777 F.2d 585, 587
(10th Cir. 1985) (holding that under regulations concerning superior program achievement, the
Commission may decline to advance parole date because of seriousness of inmate’s offense). As
explained above, Applicant has not demonstrated that the Commission abused its discretion in
evaluating Applicant’s program achievements during his parole proceedings. Accordingly, the
Court rejects Applicant’s arguments in his first claim.
C. Sex Offender Treatment
Applicant next claims that the Commission erred in denying parole in 2016 based on
Applicant’s failure to participate in a sex offender treatment program that was not recommended
at earlier parole proceedings. Applicant also alleges that this type of program is unavailable at
the prison where he is incarcerated. Applicant finally asserts that sex offender treatment was not
a precondition for parole under the 1972 Regulations. Respondents argue that Applicant was
advised to undergo sex offender programming, yet failed to make a good faith attempt to
participate in any rehabilitative program; Applicant has failed to demonstrate that such
programming was not available to him; and the Commission has discretion to set requirements
for parole, including sex offender treatment that demonstrates a lessened risk to the community.
A review of the record indicates that Applicant was advised to participate in sex offender
treatment and other rehabilitative programming prior to his 2016 parole hearing. At the 2013
hearing, the examiner “advised” Applicant that she viewed him “as an untreated sex offender,”
and recommended “Sex Offender, Substance Abuse and Victim Impact programs.” (ECF No.
28-5 at 2). Similarly, the examiner noted in his summary of the 2010 parole hearing that “the
subject will need to have some participation in either the Sex Offender Management Program
(SOMPT) and/or the Bureau of Prisons Sex Offender Treatment Program (SOTP) prior to his
release to the community.” (ECF No. 28-3 at 6). Thus, Applicant’s position that he was not
aware of the need to participate in sex offender treatment is unavailing.
Applicant’s second argument—that the Commission’s decision to deny parole was
arbitrary and capricious because it was predicated upon Applicant’s failure to utilize
programming that was not available to him at the facility where he has been incarcerated—also
is without merit. The Commission informed Applicant that he should participate in sex offender
treatment, programming, or counseling to address the underlying causes of his criminal behavior.
(See ECF No. 28-3 at 6; ECF No. 28-5 at 2; ECF No. 28-8 at 6-7). Applicant has not
demonstrated that some form of programming or therapy addressing his sex offenses was not
available to him the United States Penitentiary in Florence, Colorado.
Moreover, the BOP must balance numerous factors for determining an inmate’s place of
imprisonment, including the facility’s resources, the nature and circumstances of the inmate’s
offenses, and the inmate’s personal history and characteristics. 18 U.S.C. §3621(b). While
Applicant currently may not be placed in a federal prison offering a sex offender treatment
program, the BOP is not obligated to prioritize his facility designation to ensure such availability,
and the Commission may reasonably consider the lack of sex offender treatment in its decision to
deny parole. As one court aptly explained:
The fact that a sex offender treatment program was unavailable at USP–
Lewisburg does not preclude the Parole Commission from taking into
consideration the fact that Petitioner had not completed such a program. The
Parole Commission has neither the authority nor the obligation to assure that
programs designed to improve the prospect of successful rehabilitation, and
consequently safeguard the community, are provided by corrections authorities. It
is the Parole Commission's responsibility to assess the risk posed by a parole
applicant, and completion of an appropriate treatment program is rationally
related to the assessment of that risk, regardless of the availability of appropriate
programming where the inmate is housed. In this case, the Parole Commission
was careful to note that its decision was based upon the undisputed fact that
Petitioner had not participated in “Sex Offender Treatment or Counseling
Program.” The Parole Commission did not state that it was denying parole
because Petitioner refused to participate in such programming. It ascribed no
fault to Petitioner in this regard. But the undeniable fact that such treatment was
not received by Petitioner afforded the Parole Commission a rational basis for
concluding that he posed an unacceptable risk to the community.
Turnage v. Bledsoe, No. 08-CV-1662, 2010 WL 3632699, at *7 (M.D. Penn. Sept. 9, 2010)
(unpublished); see also Greenwood v. English, No. 13-cv-193-RS-EMT, 2013 WL 6085131, at
*2, 4 (N.D. Fla. Nov. 19, 2013) (unpublished) (rejecting habeas petition challenging denial of
parole based on failure to complete sex offender treatment program notwithstanding claim that
BOP's refusal to transfer inmate to institution offering such programming until Commission
established presumptive parole date placed prisoner in “Catch-22”); Johnson v. Rios, 10-cv01164-SMS (HC), 2011 WL 13143678, at *4 (E.D. Ca. Mar. 29, 2011) (unpublished) (denying
habeas claim challenging Commission’s parole decision based on BOP’s failure to provide
access to sex offender treatment program where prisoner elected not to participate in one-on-one
counseling to address sex offender issues).
The Court finds that the Commission’s conclusion that Applicant was not suitable for
parole and required “additional meaningful programming that addresses the underlying causes of
[his] criminal behavior and [his] risk of re-offense,” including some type of sex offender
treatment, was not irrational or unreasonable. (ECF No. 28-9). The Commission determined
that Applicant posed a serious risk of reoffending if released on parole based on the seriousness
of his sex offenses, his institutional disciplinary infractions involving sexual misconduct, and his
failure to participate in sex offender and drug and alcohol treatment to assist him in becoming
suitable for parole. (Id.; ECF No. 28-8). The Court concludes, therefore, that the Commission’s
decision to deny parole in 2016 satisfies the highly deferential standard of review accorded to
Finally, although the 1972 Regulations did not expressly mandate sex offender treatment
for release on parole, nothing in the parole regulations limits the Commission’s authority to
consider Applicant’s risk of reoffending, including completion of programming and therapy to
overcome “recognized problems.” See 28 C.F.R. § 2.80(p)(4) (factors include institutional
experience such as involvement in self-improvement activities and therapy, utilization of
available resources to overcome recognized problems, and achievements in established
programs). Moreover, sex offender treatment programs, “represent a sensible approach to
reducing the serious danger that repeat sex offenders pose,” McKune v. Lile, 536 U.S. 24, 48
(2002), and therefore, it is appropriate to consider whether an inmate has completed such a
program as indicative of his rehabilitation. See Turnage, 2010 WL 3632699, at *6 (“[F]ailure to
complete a sex offender program is one of the many factors parole authorities may take into
consideration in refusing to release an inmate, as successful completion of such a program bears
rationally on an inmate’s likely rehabilitation.”). For these reasons, the Court rejects Applicant’s
arguments concerning the Commission’s consideration of sex offender treatment in connection
with its parole decision.
D. 18 U.S.C. § 4042
Applicant also insists that the Commission erroneously relied on 18 U.S.C. § 4042
because it is inapplicable to non-federal offenders. Section 4042 outlines the duties of the BOP,
including providing notice of a sex offender’s release to the community. 18 U.S.C. § 4042(c).
The Commission never referenced or considered § 4042 in any of Applicant’s parole
proceedings or its decision to deny parole. Thus, Applicant’s claim that 18 U.S.C. § 4042 does
not apply to him as a D.C. Code offender does not warrant habeas relief.
E. Administrative Appeal
Applicant argues throughout the Application that he was wrongfully denied the right to
administratively appeal the Commission’s decisions denying him parole in 2010, 2013, and
2016. Applicant does not cite any legal authority for his position.
There is no constitutional right to appeal a parole decision. See Garcia v. Neagle, 660
F.2d 983, 988 (4th Cir. 1981) (“In unmistakable terms, the Parole Act specifically commits the
decision to grant or deny parole to the unreviewable discretion of the Parole Commission”);
Ortwein v. Schwab, 410 U.S. 656, 660 (1973) (“This Court has long recognized that, even in
criminal cases, due process does not require a State to provide an appellate system.”); see also
Ellis v. District of Columbia, 84 F.3d 1413, 1415-20 (D.C. Cir. 1996) (holding that neither the
Constitution nor D.C. parole regulations create a liberty interest in parole). Moreover, the D.C.
parole regulations in effect at the time of Applicant’s offenses did not include the right to appeal
the Board’s denial of parole. See D.C. Code §§ 24-401, et. seq.; see also 69 Fed. Reg. 68791
(Nov. 26, 2004) (“The Board did not provide for an appeal of any of its decisions”). Finally, the
Commission’s new rule concerning the 1972 Regulations provides that “[d]ecisions resulting
from hearings under this section may not be appealed to the U.S. Parole Commission.” 28
C.F.R. § 2.80(p)(8). Because Applicant has not demonstrated that he was improperly denied the
right to administratively appeal the Commission’s parole decisions, the Court rejects this claim.
Based on the foregoing, Applicant’s claims challenging the Commission’s decisions to
deny him parole in 2010, 2013, and 2016 do not warrant relief in this action. Accordingly, it is
ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. §
2241 (ECF No. 1), filed pro se by Applicant, Clinton T. Eldridge, is DENIED and this case is
DISMISSED with prejudice. It is
FURTHER ORDERED that Applicant’s “Request the Court to Grant Permission to
Supplement the Record” (ECF No. 30), “Motion for Leave to File a Clarification on the Issue of
‘Sex Offender Treatment Program’” (ECF No. 39), and “Motion to Supplement the Record”
(ECF No. 44) are GRANTED; the Court carefully reviewed these documents in considering
Applicant’s claims for relief. It is
FURTHER ORDERED that any other pending motions are DENIED as moot. It is
FURTHER ORDERED that no certificate of appealability will issue because Applicant
has not made a substantial showing of the denial of a constitutional right. See Eldridge v.
Berkebile, 791 F.3d 1239 (10th Cir. 2015). 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 this 29th day of July, 2017.
BY THE COURT:
Marcia S. Krieger
Chief United States District Judge
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