Haley v. Holt et al
MEMORANDUM OPINION - For the foregoing reasons, the Petition for Writ of Habeas Corpus (Doc. 1) will be denied. A separate Order follows.Signed by Honorable Robert D. Mariani on 1/21/15. (jfg)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RONNIE HOLT, et al.,
Petitioner William Haley ("Petitioner" or "Haley"), an inmate currently in the custody
of the Federal Bureau of Prisons, initiated the above-captioned action by filing a Petition for
Writ of Habeas Corpus. (Doc. 1). Petitioner asserts Respondents violated the Ex Post Facto
Clause of the Constitution by granting him parole in 2010 rather than 2001, when, according
to Haley, he was presumptively suitable for parole. (Doc. 22 at 4-5). Petitioner argues
Respondents inappropriately applied the parole guidelines promulgated by the United
States Parole Commission ("USPC" or "Commission") in 2000 ("2000 Guidelines"), 28
C.F.R. § 2.80 (2001), 65 Fed. Reg. 70663 (Nov. 27, 2000), rather than the regulations
promulgated by the District of Columbia Board of Parole ("D.C. Parole Board"), D.C. Mun.
Regs. tit. 28, §§ 100 et seq. (1987) (repealed Aug. 5, 2000), in 1987 ("1987 Regulations").
(Doc. 22 at 4-5).
Presently before the Court is Magistrate Judge Carlson's Report and
Recommendation ("R&R"), recommending that Haley's Petition be denied. (Doc. 48). Haley
has filed Objections (Doc. 53), the parties have briefed the issues (Docs. 54-56), and the
matter is now ripe for disposition. For the reasons set forth below, Haley's Petition will be
A. Parole Practices for D.C. Offenders
Because Haley's claim is predicated upon differences between the 1987 Regulations
and the 2000 Guidelines, it is appropriate for the Court to begin with adiscussion of those
parole regimes. On August 5, 1998, jurisdiction over parole decisions for D.C. offenders was
transferred from the D.C. Parole Board, which had used its 1987 Regulations, to the USPC.
Sellmon v. Reilly, 551 F. Supp. 2d 66, 69 (D.D.C. 2008) (citing D.C. Mun. Regs. tit. 28, §§
100 et seq. (1987) (repealed Aug. 5, 2000)); see also Puifory v. Reilly, 2009 WL 839354, at
*2 (M.D. Pa. 2009) (Vanaskie, J.). The National Capital Revitalization and Self-Government
Improvement Act of 1997 ("Revitalization Act"), Pub. L. No. 105-33, § 11231(a)(1), 111 Stat.
712,734-37 (codified at D.C. Code § 24-131 (2001)), abolished the D.C. Parole Board but
required the USPC to continue to follow D.C. parole law and regulations. Puifory, 2009 WL
839354, at *2. However, the Revitalization Act accorded the USPC the "'exclusive authority
to amend or supplement any regulation interpreting or implementing' D.C. parole laws." Id.
(quoting D.C. Code § 24-131). "Between 1998 and 2000, the USPC drafted new parole
regulations and guidelines ... that it applied to any offender who received an initial parole
hearing after August 5, 1998." Sellmon, 551 F. Supp. 2d at 72.
In 2008, the United States District Court for the District of Columbia ("D.C. Court")
held in Sellmon v. Reilly "that application of the USPC's regulations to those D.C. offenders
who had committed their offenses during the time period that the D.C. Board's guidelines
were in effect (Le., March 4, 1985 to August 4, 1998), violated the Ex Post Facto clause of
the U.S. Constitution." Marshall v. Reiley, 2014 WL 6066163, at *2 (M.D. Pa. 2014) (citing
Sellmon, 551 F.Supp.2d 66). In response, the USPC issued the "Sellmon Rule" which
required the USPC "to provide new parole hearings for D.C. Code offenders who had
committed their crimes between March 4, 1985 and August 4, 1998, and to use the 1987
guidelines ofthe D.C. Board in conducting those parole hearings." Id. (citing 74 Fed. Reg.
34688 (July 17,2009)).
1. 1987 Regulations
In Sellmon, the D.C. Court discussed the 1987 Regulations and 2000 Guidelines in
considerable detail. 551 F. Supp. 2d at 68-73,87-89. Under the 1987 Regulations, a D.C.
Code offender became eligible for parole after serving his minimum sentence. Id. at 69. The
1987 Regulations drew a distinction between parole eligibility and suitability. Id. An inmate
would first have to become eligible for parole before the D.C. Parole Board would consider
whether he was suitable for parole. Id. An offender's parole ellgibility was prescribed by
statute. Id. at 69 nA (citing Cosgrove v. Thornburgh, 703 F. Supp. 995, 997 (D.D.C. 1988)).
An offender's suitability, in contrast, was determined by the D.C. Parole Board in
accordance with the 1987 Regulations. Id.
The 1987 Regulations erected an analytical framework that relied on four factors,
two pre-incarceration factors, the degree and type of risk posed by an offender, and two
post-incarceration factors, an offender's institutional adjustment and program participation.
Id. at 70-71. The first and "primary" factor under the 1987 Regulations was the degree of
risk an offender posed. Id. at 70. The D.C. Parole Board calculated this category based on a
"Salient Factor Score ['SFS'], an actuarial risk assessment device that relies exclusively on
information known at the time of incarceration." Id. (internal quotation marks omitted).
Sellmon explained how an offender's SFS was calculated under the 1987 Regulations.
[T]he Board considered six pre-incarceration factors: (1) prior convictions and
adjudications; (2) prior commitments of more than 30 days; (3) age at the
commission of current offense; (4) recent commitment-free period; (5) status
of prisoner at time of current offense; and (6) history of heroin or opiate
dependence. The SFS placed the candidate into one of four risk categories
(10-9 =low risk, 8-6 =fair risk, 5-4 =moderate risk, or 3-0 =high risk) from
which the Board would determine a 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. (internal citations omitted).
After calculating an offender's base point score, the D.C. Parole Board would adjust
it using the remaining three factors to arrive at atotal point score. Id. The second factor, the
type of risk posed by the offender, permitted the Board to increase a total point score by a
maximum of one point if the parole candidate's current offense involved violence, weapons,
or drug trafficking. Id. The third factor, the offender's institutional adjustment, was also an
aggravating factor. Id. The Board could add one point to an offender's total point score for
"negative institutional behavior" if it found that the inmate's institutional infractions adversely
impacted his suitability for parole. Id. at 70-71. The fourth and final factor, an offender's
program participation, was a mitigating factor that enabled offenders to receive a one-point
reduction for "sustained achievement in the area of prison programs, industries, or work
assignments while under confinement for the current offense." Id.; D.C. Mun. Reg.
After the D.C. Parole Board combined all of these factors, the total point score
indicated whether an inmate was suitable for parole. Sellmon, 551 F. Supp. 2d at 71. At an
initial hearing, a total point score of zero, one, or two created a presumption of suitability for
parole, while a score of three or higher resulted in a presumption against parole. D.C. Mun.
Reg. § 204.19(aHd)). At a reconsideration hearing, the 1987 Regulations provided that
parole should ordinarily be granted for a total point score of zero to three but denied for a
score of four or five. Id. at § 204.21.
Section 204.22 of the 1987 Regulations permitted the D.C. Parole Board, "in unusual
circumstances," to "depart from the strict application" of the Regulations.
In Appendix 2-1 of the 1987 Regulations, the D.C. Parole Board listed six pre
incarceration factors that, if applicable, demonstrated that the candidate was
a greater risk for parole than reflected by his or her total point score: (1) the
offender repeatedly failed under parole supervision; (2) the current offense
involved ongoing criminal behavior; (3) the offender had a lengthy history of
criminally related alcohol abuse; (4) the offender had a history of repetitive
sophisticated criminal behavior; (5) the offender had an unusually serious
prior record of at least five felony convictions; or (6) the offender's crime
involved unusual cruelty to victims.
Sellmon, 551 F. Supp. 2d at 71.
2. 1991 Policy Guideline
As Sellmon explained, the D.C. Parole Board adopted a policy guideline in 1991
("1991 Policy Guideline") to elaborate on the terms used in the 1987 Regulations. Id. The
1991 Policy Guideline defined "negative institutional behavior" in the context of initial parole
hearings and reconsideration hearings. (Pet'r's Ex. 2, Doc. 22-4, at 2). For initial hearings,
negative institutional behavior was defined as: (1) n[o]ne Class I Offense for murder,
manslaughter, kidnapping, armed robbery or first degree burglary at any time during the
minimum sentence;" or (2) U[o]ne Class I Offense ... during the 12 months preceding the
hearing OR during the last half of the minimum sentence up to a period of three years,
whichever is longer; OR (3) [t]wo Class II Offenses ... during the 12 months preceding the
hearing or during the last half of the minimum sentence up to a period of three years,
whichever is longer." (ld.). For reconsideration hearings, negative institutional behavior was
measured "since the preceding release consideration on the sentence[.]" (Id. (emphasis in
The 1991 Policy Guideline also defined "sustained program or work assignment
achievement." (ld. at 3). During initial parole hearings, an offender would be found to have
"sustained program or work assignment achievement" upon:
(1) Successful completion of one or two educational or vocational programs,
or program levels, each of which enabled the offender to develop an
academic or job-related skill, OR enabled the offender to progress to a
higher level of difficulty or skill in the program area; OR
(2) Award of aGED ... OR
(3) Successful completion of the requirements and award of an Associate's or
Bachelor's degree; OR
(4) Successful completion of one or more short-term special needs programs,
such as drug treatment or psychological counseling to address the
offender's identified problems ... OR
(5) Satisfactory participation in one or more work details for at least one-third
of the period of incarceration.
In the context of a reconsideration hearing, offenders would be found to have
"sustained program or work assignment achievement" based on their achievements since
their last parole hearing. (ld.).
Lastly, the 1991 Policy Guideline included among its list of definitions each of the
1987 Regulations' "unusual circumstances" that could warrant departure and parole denial
despite a favorable total point score. (/d. at 6-9). The 1991 Policy Guideline
also added and defined three additional "unusual circumstances" that would
justify a departure from the action indicated by the total base point score: (1)
repeated or extremely serious negative institutional behavior; (2) lengthy
history of criminally-related substance abuse; and (3) absence of community
resources which ensure the safety of the community.
Sellmon,551 F. Supp. 2d at 72.
For areconsideration hearing, the 1991 Policy Guideline defined "repeated or
extremely serious negative institutional behavior" based on "offenses occurring since the
preceding release consideration[.]" (Pet'r's Ex. 2 at 7-8 (emphasis in original)).
3. 2000 Guidelines
Before jurisdiction over D.C. offenders was transferred to the USPC, the USPC
incorporated a revised version of the 1987 Regulations into the Federal Register. See 63
Fed. Reg. 39172 (July 21,1998). These revised guidelines were interim regulations ("1998
Interim Regulations") that were applied, with subsequent amendment,1 until the USPC
established its final rules under the 2000 Guidelines. See id.; 28 C.F.R. § 2.80 (2001),
originally published at 65 Fed. Reg. 70663 (Nov. 27, 2000). The 2000 Guidelines applied to
"any rehearing for an adult [D.C. offender] who was given an initial hearing on or after
August 5, 1998, but before December 4,2000[.]" § 2.80(a).
As Sellmon demonstrated, the 2000 Guidelines share several similarities with the
1987 Regulations. 551 F. Supp. 2d at 72-73. Like "the 1987 Regulations, the 2000
Guidelines use a point score system to determine whether a candidate is presumptively
suitable for parole." Jd. at 73. The 2000 Guidelines similarly begin "with a calculation of the
[SFS], which assesses the degree of risk that a parole candidate will become a recidivist."
Jd. (citing § 2.80(c); § 2.20). Under the 2000 Guidelines, like the 1987 Regulations, the
USPC assesses the type of risk posed by an offender by considering the offender's history
1 The 1998 Interim Regulations were amended on October 26, 1998,63 Fed. Reg. 57060, and
February 4. 1999.64 Fed. Reg. 5611, before being republished in full on April 13, 2000, 65 Fed. Reg.
19996, with an ongoing request of public comment. See 65 Fed. Reg. 45885 (July 26.2000).
of violence, use of weapons, and whether the victim died as a result of the inmate's offense.
§ 2.80(ij. Under the 2000 Guidelines, the degree and type of risk posed by an offender
determines the base pOint score, which is then "converted into a 'base guideline range' of
months that are added to the parolee's minimum sentence imposed by the court." Id. (citing
Like the 1987 Regulations, the 2000 Guidelines also consider negative institutional
behavior and program achievement. Id. (citing §§ 2.800) &(k)). However, unlike the 1987
Regulations, these factors add and subtract months to a "'total guideline range,' which is
'the amount of time an offender may expect to serve with continued good conduct and
ordinary program achievement.'" Id. (brackets omitted) (quoting 65 Fed. Reg. 70663, 70664
(Nov. 27, 2000)). Under the 2000 Guidelines, a parole candidate is presumptively unsuitable
for parole until he has served a period of imprisonment equal to the bottom of his total
guideline range. Id. (citing §§ 2.80(h), (i) &(I)).
Finally, the 2000 Guidelines, like the 1987 Regulations, allow the USPC to deny
parole "notwithstanding the guidelines" in "unusual circumstances." Id.; § 2.80(n)(1).
Although the 2000 Guidelines provide examples of "unusual circumstances," they do not
limit the discretion of the USPC. § 2.80(n)(1) & (2). They instead state that the USPC may
depart for any reason "not fully taken into account in the guidelines" that is "relevant to the
grant or denial of parole." Id. at § 2.80(n)(1).
B. Haley's Incarceration and Parole Record
On August 1, 1994, the District of Columbia Superior Court sentenced Haley to five
to thirty years of imprisonment for possession of a firearm during a crime of violence and
attempted armed robbery. (Pet'r's Sentencing Data, Doc. 11-1, Ex. 1). While serving this
sentence, Petitioner stabbed another inmate and was convicted of second-degree murder.
(ld.; Prehearing Mem., Doc. 11-1, Ex. 13). On April 21, 1997, the United States District
Court for the Eastern District of Virginia sentenced Haley to an additional term of
imprisonment of 145 months to be served upon the completion of his first sentence. (ld.).
On January 7, 1999, the USPC conducted Haley's initial parole hearing. (Hr'g
Summ., Doc. 11-1, Ex. 2). The USPC applied 1998 Interim Regulations, 28 C.F.R. § 2.80
(1999), and assessed Haley's total point score to be nine. (Jan. 7,1999 Hr'g Summ. at 1,
4). Since his total point score was higher than two, the USPC denied Petitioner parole. (Feb.
4,1999 Notice of Action, Doc. 11-1, Ex. 3).
Haley's 'first rehearing was held on March 21, 2001. (Hr'g Summ., Doc. 11-1, Ex. 4,
at 1). The USPC reduced his total point score from nine to eight due to "ordinary program
achievement." (Id.).2 Although Petitioner would have been presumptive suitable for parole at
this time had the USPC applied 1987 Regulations (see infra Section IV; May 10,2010
Mem., Doc. 11-1, Ex. 16), the USPC denied his parole request. (May 4,2001 Notice of
2 While it is clear that the USPC did not apply the 1987 Regulations during Haley's first
reconsideration hearing, it is unclear what guidelines were applied. It appears that the USPC applied the
1998 Interim Regulations; however, the hearing summary does not detail the Hearing Examiner's total point
calculation. (Mar. 21, 2001. Hr'g Summ., Doc. 11-1, Ex. 4). Instead, it refers to a prehearing assessment,
dated February 26,2001, which was not included in the record. (Id. at 1).
Action, Doc. 11-1, Ex. 5). Between 2002 and 2009, Haley received three subsequent
reconsideration hearings. (Doc. 11-1, Exs. 6-12). During each rehearing, the USPC applied
the 2000 Guidelines and denied Petitioner parole.
In 2009, the USPC promulgated the Sellmon Rule, which required the USPC to
apply the 1987 Regulations to D.C. Code offenders who committed an offense between
March 4,1985 and August 4, 1998.74 Fed. Reg. 34688 (July 17, 2009) (interim rule,
effective August 17, 2009); 74 Fed. Reg. 58540 (November 13, 2009) (final rule). Since
Haley committed his offense on August 1, 1994, he received a Sellmon reconsideration
hearing on December 10, 2009. (Prehr'g Summ., Doc. 11-1, Ex. 13; Hr'g Summ., Doc. 11-1,
Ex. 14)). The Hearing Exarniner reassessed Petitioner's total point score for each of his
prior parole hearings. (Dec. 10,2009 Hr'g Summ. at 2-3). Based on these scores, the
Hearing Examiner determined that Haley's total point score at that time was four. (Id. at 3).
As a result, the USPC again denied Petitioner parole. (Feb. 13,2010 Notice of Action, Doc.
11-1, Ex. 15).
The USPC's summary of the December 10, 2009 hearing reflects that Haley's
counsel contended that he was entitled to parole nunc pro tunc since he would have been
presumptively suitable for parole in 2001. (Dec. 10,2009 Hr'g Summ. at 3). The Hearing
Examiner specifically rejected this argument, stating that even if he had recommended
parole, the Hearing Examiner "would have recommended a parole to the consecutive
sentence only." (ld.). On January 8,2010, Haley's counsel wrote a letter to the USPC,
Mr. Haley should have received a rehearing score of two (2) at the remedial
parole hearing conducted on December , 2009 by Hearing Examiner
Joseph M. Pacholski. Mr. Haley is therefore presumptively suitable for parole
at this time, as he has been since his second hearing in 2001. Thus, we
request that the Commission decline to adopt the recommendation of Mr.
Pacholski, and instead grant Mr. Haley parole to his federal detainer at this
time. Furthermore, we request that the Commission exercise its discretion to
issue Mr. Haley's parole certificate nunc pro tunc, dated to March 21, 2001,
the date on which Mr. Haley would 'first have been presumptively suitable for
parole under the correct guideline, because this is the only adequate remedy
for the ex post facto violation in his case.
(Doc. 22-6, Ex. 4, at 1).
On January 25, 2010, an Executive Reviewer provided comments on Hearing
Examiner Pacholski's recommendation. (Dec. 10,2009 Hr'g Summ. at 3-4). The Executive
Reviewer indicated that the USPC received and considered the January 8,2010 letter from
Haley's counsel. (Id. at 3). The Executive Reviewer nevertheless "agree[d] with Examiner
Pacholski's point score and his recommendation to deny parole[.]" (Id.).
According to a USPC memorandum, Haley's counsel sent the USPC another letter
on April 5, 2010 requesting that it reopen Petitioner's case. (May 10, 2010 Mem., Doc. 11-1,
Ex. 16). Haley's attorney asserted that the USPC inappropriately applied the 2000
Guidelines with regard to Petitioner's program participation and that Haley was entitled to a
one-point reduction under the 1987 Regulations at his initial hearing. (ld.). Haley had
"submitted an official record showing he passed the GED test in August 1996," prior to his
1999 initial hearing. (ld.). The USPC's general counsel reviewed the December 10, 2009
parole decision and determined that there was "some merit" to Haley's claim that he "should
have received aone-point reduction in his grid score at the 1999 initial hearing." (ld.).
Accordingly, the USPC's general counsel recommended that Petitioner's case be reopened.
(ld.). On May 18, 2010, the USPC issued a Notice of Action ordering a IIspecial
reconsideration hearing" to lire-evaluate the case under the 1987 D.C. Board guidelines with
the information that the prisoner completed the GED requirements in August 1996." (Doc.
11-1, Ex. 17).
The USPC conducted the rehearing on June 22,2010. (Hr'g Summ., Doc. 11-1, Ex.
18). The hearing summary indicates that the "hearing was limited in scope to discuss the
points awarded at the previous hearings." (Doc. 11-1, Ex. 18, at 1). The Hearing Examiner
noted, 1I0ne of the primary purposes of today's hearing was to determine whether there
would be program achievement points awarded at the Initial Hearing [on] 117/1999." (Id. at
2). Because the Hearing Examiner found that Haley received his GED in prison prior to his
initial hearing, she concluded that he was entitled to a one-point reduction for program
achievement under the 1987 Regulations. (Id.). As a result, the Hearing Examiner assessed
Haley's total point score to be two, which made him presumptively suitable for parole. (Id. at
She then discussed Petitioner's history of institutional infractions but stated she
nonetheless believed "a positive outcome from this parole hearing is justified." (Id.). In
reaching this conclusion, the Hearing Examiner discussed Haley's program participation
and the fact that most of his disciplinary infractions occurred prior to 2007. (Id.). "Finally,"
she noted, "the subject will not [be] release[d] to the community, but instead has a
consecutive sentence of 145 months. It was clearly explained to Mr. Haley that, if paroled,
he would still be held accountable for any serious infractions he receives while incarcerated
on the 145[-month] sentence." (/d.).
Rather than recommend immediate parole, the Hearing Examiner recommended that
Haley be paroled after serving 198 months, two and a half months after the hearing. (Id.).
Petitioner was paroled on September 6,2010 and began to serve his 145-month
consecutive sentence. (July 27,2010 Notice of Action, Doc. 11-1, Ex. 19; Certificate of
Parole, Doc. 11-1, Ex. 20). There is no evidence of record that indicates that Haley
requested nunc pro tunc relief during the June 22, 2010 hearing or in his request to reopen.
The parties did not include a copy of the April 5, 2010 request to reopen for the Court's
review, and the summary of the June 22,2010 hearing does not indicate that Petitioner
argued for nunc pro tunc relief during the hearing.
On September 15, 2011, over a year after Haley was paroled to begin his second
sentence, his counsel contacted the USPC requesting that it "either issue a revised Notice
of Action and enter a nunc pro tunc [parole] date or order a special reconsideration hearing
to further consider what the Commission would have done at Mr. Haley's prior hearings had
the correct guidelines been applied." (Pet'r's Ex. 5, Doc. 22-7, at 2). In renewing his request
for nunc pro tunc reliet Petitioner soUght to be paroled effective 2001. (Id.). The USPC
responded, in a letter dated September 29, 2011,
The Parole Commission received your letter on behalf of William Haley to
Chairmen Fulwood and Rockne Chickinell requesting an earlier parole date
(nunc pro tunc) or, in the alternative, a special reconsideration hearing. The
letter has been treated as a request to reopen the case. This letter is inform
you that the Commission has reviewed the case, and decided not to reopen.
(Pet'r's Ex. 6, Doc. 22-8).
After the USPC declined to reopen his case, Haley filed a Petition for Writ of Habeas
Corpus. (Doc. 1). Petitioner asserts that the USPC's failure to apply the 1987 Regulations
during his 2001 reconsideration hearing constitutes an ex post facto violation. (Doc. 22 at
7). Haley further argues that the only appropriate remedies for the alleged violation is either
his immediate release from custody or remand to the USPC to conduct a reconsideration
hearing. (/d. at 19).
III. STANDARDS OF REVIEW
A. Magistrate Judge's Report & Recommendation
When a party files objections to a magistrate judge's report and recommendation,
the district court must perform a de novo review of the contested portions of the report. 28
U.S.C. § 636(b)(1)(C). The Federal Magistrates Act does not require a district court to
review a report and recommendation in the absence of objections. Henderson v. Car/son,
812 F.2d 874, 878 (3d Cir. 1987). However, the Third Circuit has held that courts should
"afford some level of review to dispositive legal issues raised by the report." Id. "When no
timely objection is 'filed, the court need only satisfy itself that there is no clear error on the
face of the record in order to accept the recommendation." Cruz v. Chafer, 990 F. Supp.
375,378 (M.D. Pa. 1998) (quoting Fed. R. Civ. P. 72(b) 1983 advisory committee notes).
B. USPC Decisions
U[A] court's role in reviewing decisions by the Parole Commission on an application
for awrit of habeas corpus is limited." Furnari v. Warden, Allenwood Fed. Corr. Inst., 218
F.3d 250,254 (3d Cir. 2000). "The function of judicial review on a petition for writ of habeas
corpus in the parole context is to determine whether the Commission abused its discretion."
Marshall, 2014 WL 6066163, at *2 (citing Furnari, 218 F.3d at 254). "The court is not
empowered to substitute its judgment for that of the Commission in evaluating a habeas
petitioner's claims, unless the Commission's exercise of discretion represents an egregious
departure from rational decision-making." Id. "The appropriate standard of review of the
Commission's findings of fact '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.'" Furnari, 218 F.3d at 254 (brackets omitted) (quoting Zannino v.
Arnold, 531 F.2d 687, 691 (3d Cir. 1976)). Courts consider "whether the Commission 'has
followed criteria appropriate, rational and consistent' with its enabling statutes so that its
'decision is not arbitrary and capricious, nor based on impermissible considerations.'" Id.
(quoting Zannino, 531 F.2d at 690).
"The Constitution prohibits both federal and state governments from enacting any 'ex
post facto Law.'" Peugh v. United States, 133 S. Ct. 2072, 2081,186 L. Ed. 2d 84 (2013)
(quoting U.S. Const. art. I, § 9, cl.; art. I, § 10, cl. 1). "One function of the Ex Post Facto
Clause is to bar enactments which, by retroactive operation, increase the punishment for a
crime after its commission." Garner v. Jones, 529 U.S. 244,249,120 S. Ct. 1362, 1367, 146
L. Ed. 2d 236 (2000). "Retroactive changes in laws governing parole of prisoners, in some
instances, may be violative of this precept." Id. at 250. "Whether retroactive application of a
particular change in parole law respects the prohibition on ex post facto legislation is often a
question of particular difficulty when the discretion vested in a parole board is taken into
account." Id. "But the mere fact that parole decisions are discretionary is not, in and of itself,
sufficient to immunize a retroactive change in parole guidelines from ex post facto review."
Puifory, 2009 WL 839354, at *5 (citing Garner, 529 U.S. at 250).
"The ex post facto inquiry has two prongs: (1) whether there was a change in the
law or policy which has been given retrospective effect, and (2) whether the offender was
disadvantaged by the change." Richardson v. Pennsylvania Bd. of Prob. & Parole, 423 F.3d
282,287-88 (3d Cir. 2005). With regard to the second prong, the "touchstone" of the "inquiry
is whether a given change in law presents a 'sufficient risk of increasing the measure of
punishment attached to the covered crimes.'" Peugh, 133 S. Ct. at 2082 (quoting Garner,
529 U.S. at 250). A "speculative and attenuated possibility of ... increasing the measure of
punishment" is insufficient. California Dep't of Corr. v. Morales, 514 U.S. 499, 509, 115 S.
Ct. 1597, 1597, 131 L. Ed. 2d 588 (1995). 'The question when a change in law creates such
a risk is 'a matter of degree'; the test cannot be reduced to a 'single formula.'" Peugh, 133
S. Ct. at 2082 (quoting Morales, 514 U.S. at 509).
"[I]t is not sufficient for a prisoner to show that [a parole board] relied on a new law or
policy." Richardson, 423 F.3d at 292. Instead, the prisoner must also adduce "some
evidence" to show that the law or policy "as applied to his own sentence . .. created a
significant risk of increasing his punishment." Id.; Garner, 529 U.S. at 255 (emphasis
added). However, a prisoner need not demonstrate that he would have been paroled "but
for" the new law or policy. Richardson, 423 F.3d at 292 n. 5 (noting that a "but for" standard
"has no basis in federal ex post facto law").
Here, Magistrate Judge Carlson found that Haley met the first prong of the ex post
facto analysis (Doc. 48 at 14-15) but did not reach the question of whether Petitioner met
the second prong. (ld. at 15-19). Instead, he concluded that even if an ex post facto
violation occurred, "Haley has already received the relief to which he might have been
entitled when the Commission reconsidered his case in 2010 and he was released." (ld. at
18). As Magistrate Judge Carlson noted, "the undisputed fact is that in June 2010, the
Commission did reconsider Haley for parole based upon the 1987 Guidelines, and following
that review determined that Haley should be paroled - not immediately - but in September
2010 to begin serving his 145-month sentence for the murder conviction." (ld.).
Petitioner filed objections to the R&R (Doc. 53) and argues that Magistrate Judge
Carlson erred (1) in failing to find that the USPC violated the Ex Post Facto Clause and (2)
in finding that Haley is not entitled to further relief. (Doc. 54 at 2). There is no objection to
Magistrate Judge Carlson's findings regarding the first prong of the ex post facto analysis.
Accordingly, the Court reviews Magistrate Judge Carlson's analysis under the first prong for
Magistrate Judge Carlson was correct in finding that the 2000 Guidelines are more
stringent than the 1987 Regulations, which were in effect when Haley committed his crime.
See Sellmon, 551 F. Supp. 2d at 87-89 (detailing the differences between the 2000
Guidelines and the 1987 Regulations and concluding "that there are facial differences
between them that could give rise to an ex post facto violation in individual cases"); Puifory,
2009 WL 839354, at *2,7 (comparing 1987 Regulations and the 2000 Guidelines and
observing that the plaintiff was "confronting a parole regime that is much different than that
which prevailed at the time he committed his offense"); see also Brown v. Williamson, 314
F. App'x 492,493-94,496-498 (3d Cir. 2009) (outlining the differences between D.C.
guidelines from 1978, which the 1987 Regulations codified with "no significant substantive
changes," and the 2000 Guidelines and finding that those differences "indicate that
retroactive application of the current parole guidelines might pose aSignificant risk of
prolonging [the plaintiff's] incarceration").
Whereas the 1987 Regulations added a maximum of one "point to a candidate's SFS
if his current or past offenses involved violence, weapons, and/or drug trafficking, the 2000
Guidelines treat acandidate's history of violence, use of a weapon, and the death of the
victim as separate factors for which the USPC may award up to 7 points" to the candidate's
base point score. Sellmon, 551 F. Supp. 2d at 87. Second, "the 2000 Guidelines penalize
an offender more harshly for negative institutional behavior." 'd.
Under the 1987 Guidelines, an offender could have one additional point
added to his SFS for disciplinary violations, which, depending on the
offender's record, might not have any impact on his eligibility for parole.
Under the 2000 Guidelines, institutional disciplinary reports are used to add a
range of months to the period that a candidate must serve to be presumed
eligible for parole.
Third, the 2000 Guidelines limit the benefit an offender can receive for program
participation. 'd. at 88. Under the 1987 Regulations, an offender with "sustained
achievement in the area of prison programs, industries, or work assignments" would have
one point deducted from his total point score. 'd. Such a reduction could offset an added
point for negative institutional behavior or an increased risk assessment. 'd. Under the 2000
Guidelines, in contrast, an inmate must demonstrate "superior program achievement (as
determined subjectively by the Hearing Examiners and Commissioners)," which would only
result "in reduction of the offender's total guideline range by 1/3 of the period for which such
achievement [was] demonstrated." 'd. (emphasis in original).
Finally, whereas the 1987 Regulations, and the 1991 Policy Guideline, established
criteria for determining when the D.C. Parole Board could depart from an offender's total
point score to deny parole, the 2000 Guidelines are much more open-ended. Id. The 2000
Guidelines "treat as 'unusual' any circumstance not already accounted for in the total
guideline range, thus substantially enlarging the USPC's discretion to impose a nonguidelines decision." Id.
Thus, the facial differences between the 1987 Regulations and the 2000 Guidelines
constitute a retroactive change in the law that is sufficient to satisfy the first prong of the ex
post facto analysis}
Regarding the second prong, Haley argues that Magistrate Judge Carlson erred
insofar as he did not find that the USPC's failure to apply the 1987 Regulations constituted
an ex post facto violation. (Doc. 54 at 5-6). There is no dispute that the 1987 Regulations
should have been applied during all of Petitioner's parole hearings. (See Doc. 34 at 23:12
24). Had the 1987 Regulations been applied during Haley's first rehearing, on March 21,
2001, his total point score would have been two. (May 10, 2010 Mem., Doc. 11-1, Ex. 16).
Under the 1987 Regulations, an inmate with a total point score of two would be
presumptively suitable for parole. D.C. Mun. Reg. § 204.21.
3 During Haley's initial hearing, and apparently during his first rehearing, the USPC applied the
1998 Interim Regulations. (See Hr'g Summs., Doc. 11-1, Exs. 2, 4). This does not affect the Court's
analysis. Clearly, the 1987 Regulations were not applied during these hearings. Although the 1998 Interim
Regulations differ from the 2000 Guidelines, the 1998 Interim Regulations contain elements of the 2000
Guidelines that make them more stringent than the 1987 Regulations.
As a result, the record presents more than a "speculative and attenuated possibility,"
see Morales, 514 U.S. at 509, that the USPC's failure to apply the 1987 Regulations during
the March 21,2001 hearing "disadvantaged" Petitioner. See Richardson, 423 F.3d at 287
88. Thus, the USPC's failure to apply the 1987 Regulations constituted an ex post facto
violation. The question therefore becomes what relief was Haley entitled to?
In cases involving challenges to parole decisions, the remedy for an Ex Post Facto
Clause violation is remand to the parole board to apply the parole laws and regulations that
were in effect when the offender committed his crime. Mickens-Thomas v. Vaughn, 321
F.3d 374, 393 (3d Cir. 2003); Farmerv. McVey, 2011 WL 776210, at *5 (M.D. Pa. 2011)
(collecting cases) aff'd, 448 F. App'x 178 (3d Cir. 2011). Here, this would entail remand to
the USPC to apply the 1987 Regulations. However, as Magistrate Judge Carlson observed,
Haley has already received such relief. (Doc. 48 at 18). Following the promulgation of the
Sellmon Rule, Petitioner received a remedial hearing in 2009, and another in 2010, where
the USPC evaluated Haley's parole status under the 1987 Regulations. (Hr'g Summs., Doc.
11-1, Exs. 14, 18). Following his June 22,2010 hearing, Haley was paroled. (July 27,2010
Notice of Action, Doc. 11-1, Ex. 18; Certificate of Parole, Doc. 11-1, Ex. 19).
Therefore, Magistrate Judge Carlson correctly found that Petitioner received all of
the relief to which he was entitled during the June 22,2010 hearing. (Doc. 48 at 18).
Despite this, Haley argues that he is entitled to further relief in the form of a nunc pro tunc
parole date effective 2001. (Doc. 56 at 3-4). Petitioner protests that the USPC should have
considered his nunc pro tunc request and that the record indicates that it did not do so. (Jd.).
This assertion is without legal or factual support.
Contrary to Haley's contention, the record reflects that the USPC considered his
request to be paroled nunc pro tunc on multiple occasions. During his December 10,2009
Sellmon hearing, Hearing Examiner Pacholski addressed Petitioner's nunc pro tunc claim.
(Hr'g Summ., Doc. 11-1, Ex. 14, at 3). Although the Hearing Examiner recommended denial
of parole, he also specifically rejected Haley's request for nunc pro tunc relief. (Jd.). Hearing
Examiner Pacholski wrote that even if he were to recommend parole, he would not have
selected a nunc pro tunc parole date, but instead "would have recommended a parole to the
consecutive sentence only." (Jd.).
Following the December 10, 2009 hearing, Haley's counsel sent the USPC a letter,
dated January 8,2010, asserting that under the 1987 Regulations he should have been
found to be presumptively suitable for parole. (Doc. 22-6, Ex. 4, at 1). In the letter, Petitioner
also renewed his request for a nunc pro tunc parole date. (Jd.). On January 25,2010, an
Executive Reviewer reevaluated Hearing Examiner Pacholski's recommendation. (Dec. 10,
2009 Hr'g Summ. at 3-4). The Executive Reviewer stated that the USPC considered the
January 8, 2010 letter but nonetheless "agree[d] with Examiner Pacholski's point score and
his recommendation to deny parole[.]" (Jd. at 3).
On April 5, 2010, Haley's counsel sent the USPC another letter. (May 10, 2010
Mem., Doc. 11-1, Ex. 16). While the Court was not provided with a copy, a memorandum
produced by the USPC's gener~1 counsel indicates that this letter sought to have the USPC
reopen Petitioner's case due to afailure to credit him with a one-point reduction for attaining
his GED while incarcerated. (Id.). The USPC's general counsel determined that Haley's
claim had "some merit" and recommended a special reconsideration hearing to determine
the ramifications of a possible one-point reduction. (ld.). There is nothing in the general
counsel's memorandum that indicates that Petitioner's April 5, 2010 letter requested a nunc
pro tunc parole date or that the USPC granted Haley's request to reopen in order to
consider nunc pro tunc relief. (ld.; May 18, 2010 Notice of Action, 11-1, Ex. 17).
To the contrary, USPC records indicate that the special hearing, held on June 22,
2010, "was limited in scope to discuss the points awarded at the previous hearings." (Hr'g
Summ., Doc. 11-1, Ex. 18, at 1). Nothing in the summary of the June 22,2010 hearing
indicates that Haley, or his counsel, argued for nunc pro tunc relief. (See id.). As a result,
the Hearing Examiner did not specifically discuss why a nunc pro tunc parole date would be
inappropriate. However, she did indirectly address the matter in explaining her rationale for
recommending parole effective September 6,2010, two and a half months after the June
22,2010 hearing. (ld. at 3).
First, the hearing summary makes clear that the Hearing Examiner recommended
parole "after the service of 198 months to [begin] the consecutive 145 month sentence."
(ld.). The Hearing Examiner explained to Haley that he would not be released into the
community but instead would be paroled to serve his second sentence. (ld.). Second, she
stated that this fact entered into her determination that Petitioner was suitable for parole.
(Id.). She reasoned that his risk to the community would be reduced since "he would still be
held accountable for any serious infractions he receives while incarcerated on the 145[
month] sentence." (ld.).
After Haley was paroled, the USPC again considered his nunc pro tunc request. On
September 15, 2011, Petitioner's counsel contacted the USPC requesting that it "either
issue a revised Notice of Action and enter a nunc pro tunc [parole] date or order a special
reconsideration hearing to further consider what the Commission would have done at Mr.
Haley's prior hearings had the correct guidelines been applied." (Pet'r's Ex. 5, Doc. 22-7, at
2). The USPC responded in letter dated September 29, 2011. (Pet'r's Ex. 6, Doc. 22-8). It
stated that the USPC had received the letter from Haley's counsel and "reviewed the case"
but nonetheless "decided not to reopen" Petitioner's case. (ld.).
Therefore, Haley's argument that the USPC never considered his nunc pro tunc
request is factually inaccurate. The USPC considered Petitioner's request on several
occasions. Despite this, Petitioner protests that the USPC did not specifically address the
possibility of nunc pro tunc relief during the June 22,2010 hearing. (Doc. 54 at 7-8).
However, Haley offers no evidence that he, or his counsel, made a request for a nunc pro
tunc parole date during the June 22,2010 hearing, or in his April 5, 2010 request to reopen.
Further, the USPC specifically rejected Petitioner's request for nunc pro tunc relief both
before and after the June 22,2010 hearing.
Moreover, the Court is unaware of any authority that would support Petitioner's
assertion that he is entitled to further relief. On April 15, 2014, Magistrate Judge Carlson
ordered the parties to file supplemental briefs addressing "whether there is any precedential
authority for the nunc pro tunc relief that the petitioner urges the Court to grant in this
matter." (Doc. 37). In support of his request, Petitioner proffers an unpublished Third Circuit
decision, Tras/avina v. Gaines, 2004 WL 322682 (3d Cir. 2004). (Doc. 43 at 15-16).
However, Haley's reliance on Tras/avina is misplaced. Not only is Tras/avina distinguishable
from the case at bar, it actually supports Magistrate Judge Carlson's finding that Haley has
already received all of the relief to which he was entitled.
In Tras/avina, the petitioner was sentenced to two fifteen-year sentences to run
consecutively. Id. at *1. The first sentence was parolable, but the second was not. Id. The
petitioner became eligible for parole after serving one-third of his first sentence. Id. After
serving two-thirds of the sentence, he was entitled to mandatory parole, absent a serious
institutional violation. Id.
The petitioner asserted that prison officials told him that he would be released from
custody in November 1999. Id. Relying on this representation, the petitioner waived his
initial parole hearing, which would have occurred in 1994. Id. In 1999, prison officials
notified the petitioner that he would not be immediately released into the community but
would instead be paroled to begin his fifteen-year non-parolable sentence. Id.
As a result, the petitioner filed a habeas petition and asserted that his waiver of an
initial parole hearing in 1994 was unintelligent. Id. at *2. The petitioner argued that he was
entitled to a parole hearing nunc pro tunc as of November 18, 1994. Id. The Third Circuit
agreed and ordered a hearing nunc pro tunc to that date. Id. at *3. Although the district court
did not reach the merits of the petition, the Third Circuit remanded the matter directly to the
USPC to conduct a hearing within thirty days. Id. at *5. The Third Circuit explained that it
issued a summary order because it was possible, if the petitioner's claim had merit, that he
should have been paroled in 1994 and released immediately. Id. In between the Circuit's
opinion in Traslavina and the summary order, which preceded it, the USPC conducted the
nunc pro tunc hearing and denied parole as of 1994. Id. As a result, the Circuit concluded
that the petitioner's request for relief had been satisfied. Id.
The key factor that distinguishes the instant action from Traslavina is that the
petitioner there was unconstitutionally deprived of a parole hearing. The Third Circuit
ordered a nunc pro tunc hearing to remedy the petitioner's loss of an initial hearing in 1994.
Here, in contrast, Haley has already received remedial hearings. As a result, remand is
unnecessary, and Traslavina provides no basis for finding that Haley is entitled to further
If anything, Traslavina supports Magistrate Judge Carlson's finding that Petitioner
has already received relief. Following the remedial hearing in Traslavina, the Third Circuit
stated that the "Parole Board has now conducted that hearing and, based upon their review
of plaintiffs record, denied him parole as of 1994. [The petitioner's] request for relief on this
claim has therefore been met." 2004 WL 322682, at *5. Likewise, here, Haley has received
remedial hearings, the 1987 Regulations were applied, and he was paroled. Petitioner's
request for relief has therefore been met.
Because Haley does not cite and the Court is unaware of any authority that would
support finding that he is entitled to relief beyond the remedial hearings he has already been
afforded, his Petition for Writ of Habeas Corpus must be denied.
For the foregoing reasons, the Petition for Writ of Habeas Corpus (Doc. 1) will be
denied. Aseparate Order follows.
United States District Judge
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