BOND v. KIRBY

Filing 8

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

NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

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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