Filing 8

OPINION. Signed by Judge Renee Marie Bumb on 4/10/2017. (dmr)

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NOT FOR PUBLICATION IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CAMDEN VICINAGE : : : : : : : : : : : KEITH BOND, Petitioner, v. MARK KIRBY, WARDEN, Respondent. This matter comes before Civil Action No. 16-4027(RMB) OPINION the Court on Petitioner Keith Bond’s petition for writ of habeas corpus under 28 U.S.C. § 2241, challenging Petitioner’s the D.C. programming change in his parole date. Parole Commission’s achievement award (ECF No. 1.) decision did not that merit a Petitioner also filed a motion to expedite, which this Court dismisses as moot. (ECF No. 7.) On August 23, 2016, Respondent filed an answer to the petition, opposing habeas relief. (ECF No. 4.) filed a reply on September 9, 2016. reasons discussed below, the Court Petitioner (ECF No. 5.) will grant the For the habeas petition and order a rehearing. I. Factual Background and Procedural History Petitioner is an inmate at FCI Fairton. (Pet., ECF No. 1, ¶2.) On May 2, 2002, he was sentenced in the District of 1 Columbia Superior Court to life imprisonment, with a minimum term of fifteen years, for second degree murder while armed, possession of a firearm during a crime of violence, carrying a pistol without violation license, D.C. of a and Code. obstruction (Declaration of of justice, Sharon in Gervasoni (“Gervasoni Decl.”), Ex. 1, ECF No. 4-1 at 3.) Petitioner became parole eligible on July 12, 2015. (Id.) On October 9, 2014, the U.S. Parole Commission (“the Commission”) conducted an initial parole hearing for Petitioner. (Gervasoni examiner Decl., Ex. recommended 2, ECF No. 4-1 at that the guideline 6.) range The be hearing reduced by twenty-four (24) months for superior program achievement under 28 C.F.R. § 2.60, which lowered the applicable guideline range to 210-232 months. (Id. at 8-9.) Further, the hearing examiner recommended that Petitioner be denied parole and that a rehearing be scheduled in February 2018, after Petitioner served 211 months of his guideline range. (Id.) However, examiner, in a reviewing her examiner calculation of found credit that for the hearing superior program achievement, had incorrectly referenced Section 2.60, which only applies to United States Code prisoners and parolees. (Gervasoni Decl., Ex. 2, ECF No. 4-1 at 9.) The reviewing examiner determined that an award of 24 months was also merited under § 2.80, representing one-third of 2 the six years prior to the initial parole hearing where petitioner had demonstrated superior program achievement. (Id. at 9-10.) On November 5, 2014, that the scheduled Commission a Petitioner ordered reconsideration served the parole hearing for amount of base was denied, January his 2018, guideline and after range. (Gervasoni Decl., Ex. 3, ECF No. 4-1 at 16.) Petitioner contends that he should have received a superior programming achievement award of one-third his total time in custody, increasing his award from 24 months to 57 months. (Pet., ECF No. 1-3 at 2.) Petitioner argues that the hearing examiner’s award for superior programming achievement under Section 2.60 demonstrates that she found Petitioner had superior programming achievement for 162 of his 171 months of confinement, not the six years found by the reviewing examiner. (Id. at 9.) Respondent because submits Petitioner that seeks to the Petition challenge is the without merits Commission’s parole decision, which is unreviewable. merit of the (Answer, ECF No. 4 at 11.) To the extent that Petitioner challenges the process the by which Commission determined the award for superior programming, Respondent maintains that the decision has a rational basis in the record and was not capricious, and the petition should be denied. arbitrary and (Id. at 11-12.) Specifically, Respondent contends that the record supports the 3 conclusion that a substantial amount of Petitioner’s programming occurred in the six years prior to his initial parole hearing, for which he was granted credit. (Id. at 12.) Petitioner was incarcerated for the offenses at issue here for fourteen years, two months and twelve days as of September 23, 2014. (Gervasoni Decl., Ex. 2, ECF No. 4-1 at 4.) In reply, Petitioner cites Williams v. Francis, Civ. Action No. 2:07CV72, 2009 WL 539949 (W.D. Va. Mar. 4, 2009) where the District Court remanded because the Commission failed to presume that the total number of months of superior program achievement under § 2.80(k) is based on the total number of months from the beginning of confinement. II. DISCUSSION In this case, Petitioner challenges the process by which the Commission achievement. determined his award for superior programming “[A] court's role in reviewing decisions by the Parole Commission on an application for a writ of habeas corpus is limited.” Furnari v. Warden, 218 F.3d 250, 254 (3d Cir. 2000). “[T]he inquiry is only whether there is a rational basis in the record for the [Commission's] conclusions embodied in its statement of reasons.” Id. (quoting Zannino v. Arnold, 531 F.2d 687, 691 (3d Cir. 1976)). The court “should consider whether the Commission ‘has followed criteria appropriate, rational and consistent’ with its enabling statutes so that its ‘decision is 4 not arbitrary and capricious, nor based on impermissible considerations.’” Id. (quoting Zannino, 531 F.2d at 690). For the reasons discussed below, the determination of Petitioner’s superior programming achievement lacked a rational basis. The process for parole of D.C. Code offenders is described in 28 prisoner C.F.R. should § 2.80. be “In paroled, determining the whether Commission guidelines set forth in this section.” an shall § 2.80(b). eligible apply the Calculation of an award for superior program achievement is governed by 28 C.F.R. § 2.80(k), which provides: (k) Guidelines for superior program achievement. If superior program achievement is found, the award for superior program achievement shall be one-third of the number of months during which the prisoner demonstrated superior program achievement. The award is determined on the basis of all time in confinement on the current offense in the case of an initial hearing, and on the basis of time in confinement since the last hearing in the case of a rehearing. If superior program achievement is not found, this step is not applicable. Note: When superior program achievement is found, it is presumed that the award will be based on the total number of months since the beginning of confinement on the current offense in the case of an initial hearing, or since the last hearing in the case of a rehearing. Where, however, the Commission determines that the prisoner did not have superior program achievement during the entire period, it may base its decision solely on the number of months during which 5 the prisoner achievement. In arriving incorrectly at a applied 24 § Prisoners and Parolees. had superior month 2.60, award, which the governs program hearing only examiner U.S. Code 28 C.F.R. § 2.60 provides, in relevant part: (a) Prisoners who demonstrate superior program achievement (in addition to a good conduct record) may be considered for a limited advancement of the presumptive date previously set according to the schedule below. Such reduction will normally be considered at an interim hearing or prerelease review. It is to be stressed that a clear conduct record is expected; this reduction applies only to cases with documented sustained superior program achievement over a period of 9 months or more in custody. (b) Superior program achievement may be demonstrated in areas such as educational, vocational, industry, or counselling programs, and is to be considered in light of the specifics of each case. A report from the Bureau of Prisons based upon successful completion of a residential substance abuse program of at least 500 hours will be given prompt review by the Commission for a possible advancement under this section. (c) Upon a finding of superior program achievement, a previously set presumptive date may be advanced. The normal maximum advancement permissible for superior program achievement during the prisoner's entire term shall be as set forth in the following schedule. It is the intent of the Commission that this maximum be exceeded only in the most clearly exceptional cases. 6 (d) Partial advancements may be given (for example, a case with superior program achievement during only part of the term or a case with both superior program achievement and minor disciplinary infraction(s)). Advancements may be given at different times; however, the limits set forth in the following schedule shall apply to the total combined advancement. (e) Schedule of Permissible Reductions for Superior Program Achievement. Total months required by original presumptive date 14 15 23 31 37 43 49 55 61 67 73 79 85 91 Not Permissible reduction months or less to 22 months to 30 months to 36 months to 42 months to 48 months to 54 months to 60 months to 66 months to 72 months to 78 months to 84 months to 90 months plus months only did the Not applicable. Up to 1 month. Up to 2 months. Up to 3 months. Up to 4 months. Up to 5 months. Up to 6 months. Up to 7 months. Up to 8 months. Up to 9 months. Up to 10 months. Up to 11 months. Up to 12 months. Up to 13 months.1 hearing examiner apply the incorrect regulation, she made a mistake in applying that regulation. The hearing examiner explained: VI. Other Information to Consider: During his confinement the offender has programmed in an exceptional manner, as evidenced by his completing numerous academic and vocational programs. Chief among his program achievements are his completion of 1 Plus up to 1 additional month for each 6 months or fraction thereof, by which the original presumptive date exceeds 96 months. 7 the CODE program, obtaining his GED, the Non-Residential Drug Program, the 4,978 hour Upholstery Course, the 100-hour Pest Management Course, and the 150-hour HVAC Course. The offender is also currently enrolled in the Challenge Program and has completed numerous college correspondence courses. For a full list of the subject’s accomplishments please refer to the prehearing assessment. The guidelines for superior program achievement outlined in 2.60 suggests that 13 months be awarded to the offender for his sustained program achievement. The guidelines also provide that the recommended enhancement may be exceeded in exceptional cases. The offender obtaining his GED completing over 5,000 hours of vocational training, and the completion of his CODE program, make him suitable for a greater advancement. Therefore, this hearing examiner will be recommending an award of 24 months. (Gervasoni Decl., Ex. 2, ECF No. 4-1 at 8-9.) The hearing examiner concluded that thirteen months was the maximum award Petitioner could receive, but this was incorrect because footnote 1 of § 2.60 permits an award of up to 1 additional month for each 6 months or fraction thereof, by which the original date exceeds 96 months. Petitioner’s original presumptive date, a minimum of 234 months, exceeded 96 months by 138 months. Therefore, Petitioner was eligible for an additional 23 months credit under 2.60, which, if added to the 13 months awarded for the first 91 months of the sentence, would result in a maximum of 36 months credit. 8 This award is not consistent with the hearing examiner’s explanation of why she was awarding in excess of the guideline under § 2.60. The hearing examiner simply miscalculated the award, applying the incorrect regulation. The correct regulation for calculating Petitioner’s achievement award, as a D.C. Code offender, permits a credit of one third of time served, with a presumption that the superior programming achievement is applied to the total number of months since the beginning of confinement on the current offense. Rather than strictly applying the correct formula, the reviewing examiner rationalized reaching the same result as the hearing examiner, a 24-month award, by assuming that the hearing examiner only intended to credit Petitioner for six years of achievement. This determination was not rational for several reasons. First, as discussed above, the hearing examiner’s intent cannot be determined based on her award of 24 months because she miscalculated under § 2.60. award available to Thirteen months was not the maximum Petitioner, whose minimum presumptive sentence was 234 months, not 91 months. In fact, Petitioner was eligible for a maximum of 36 months credit under section 2.60, and this would not take into account what the hearing examiner described as exceptional achievement, which permits a greater award under § 2.60. 9 Second, comparing § 2.60 and § 2.80 is not comparing apples to apples. Section 2.60 calculates the time awarded based on the original total calculates the presumptive award based on sentence. the time Section served 2.80 since the beginning of confinement on the current offense. Third, and most importantly, the record does not support the hearing examiner’s conclusion that Petitioner only achieved superior programming for sentence. Petitioner’s participation and six of years programming performance service of his sentence. the over the he served reflects entire on his consistent course of the Awarding credit for a period of only six months is inconsistent with the hearing examiner’s finding of exceptional achievement as evidenced by petitioner obtaining his GED, completing over 5,000 hours of vocational training, and completion of the CODE program. Petitioner made these achievements over the course of July 1, 2002, the first entry for his GED program, through April 28, 2014, the start date of his last educational course. reasons, the Commission’s Court superior can (ECF No. 4-1 at 21-23.) find no programming rational For these basis achievement for award of the 24 months, by application of 8 C.F.R. § 2.80(k). III. CONCLUSION “In the absence of unusual circumstances,” remand for a new hearing is the appropriate habeas 10 remedy when a petitioner challenges a Parole Commission decision. F.3d 156, 165 (3d Cir. 1998). Gambino v. Morris, 134 Therefore, for the reasons discussed above, the Court will grant the habeas petition and order the Commission to hold a rehearing of Petitioner’s initial parole hearing, within 21 days of the date of this Order. Dated: April 10, 2017 s/Renée Marie Bumb RENÉE MARIE BUMB United States District Judge 11

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