Hawkins-Bey v. Stephens

Filing 21

ORDER granting 16 Motion to Dismiss; Order Denying Petition Pursuant to 28 U.S.C. 2241; Order Certifying Appeal Not Taken in Good Faith; Order Denying Leave to Proceed in Forma Pauperis on Appeal. Signed by Judge S. Thomas Anderson on 2/10/16. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

CHARLES HAWKINS-BEY,

Petitioner,
No. 14-2275-STA-cgc
vs.

LEONARD ODDO,
Respondent.
______________________________________________________________________________
ORDER GRANTING MOTION TO DISMISS
(ECF No. 16)
ORDER DENYING PETITION PURSUANT TO 28 U.S.C. § 2241
ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
AND
ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
______________________________________________________________________________
On April 17, 2014, Petitioner Charles Hawkins-Bey, Bureau of Prisons register number
03162-000, who is currently an inmate at the Federal Correctional Institution in Bruceton Mills,
West Virginia (“FCI Hazelton”), filed a pro se application for writ of habeas corpus pursuant to
28 U.S.C. § 2241. (Petition (“Pet.”), ECF No. 1.) On April 18, 2014, Hawkins-Bey paid the
filing fee. (ECF No. 3.) On April 3, 2015, the Court entered an order directing Respondent to
file a response to the habeas petition. (Order, ECF No. 7.) On May 26, 2015, Respondent filed a
motion to dismiss the petition. (Motion (“Mot.”) to Dismiss, ECF No. 16.) On November 23,
2015, Petitioner filed a response to the motion to dismiss. (Response (“Resp.”), ECF No. 19.)

I.

BACKGROUND
The following facts appear in the record and exhibits1:
Petitioner is currently serving a life sentence imposed by the Superior Court of the

District of Columbia for a murder he committed on October 14, 1988. (ECF No. 16-2, Exhibit
A, BOP sentence monitoring computation data at PageID 77; ECF No. 16-3, Exhibit B, summary
of Initial Parole Hearing, PageID 80-82.) On September 29, 1999, a Parole Commission hearing
examiner conducted Petitioner’s initial parole hearing. (ECF No. 16-3, Exhibit B at PageID 8082.)

The base point score calculated by the hearing examiner, along with the nature of

Petitioner’s crimes, indicated that parole should not be granted at that time, and the hearing
examiner recommended that parole be denied. (Id.) The hearing examiner recommended that
Petitioner be scheduled for a rehearing in 60 months – a departure from the usual guidelines for
scheduling rehearings. (Id. at 81-82.) The Commission agreed with the hearing examiner’s
recommendation and, by notice of action dated January 3, 2000, denied parole and continued
Petitioner for a rehearing in 60 months. (ECF No. 16-4, Exhibit C, PageID 83-84). The
Commission explained this departure as follows:
Your overall offense behavior was more serious than that reflected by your
sentence in that it involved the following aggravated circumstances: You
committed two especially brutal crimes while on escape status from a halfway
house. In one of the crimes a disabled man was stabbed and robbed inside his
own apartment and in the other, a woman was strangled to death.
(Id. at PageID 83.)
At the subsequent 2004 parole hearing, Respondent admits that the Parole Commission
applied parole regulations promulgated since Petitioner had last been considered for parole2 (the
1

The Court has taken the facts from and has referenced the Respondent’s statement of
facts and exhibits because those exhibits are most legible and complete. Petitioner has not
disputed Respondent’s statement of facts or exhibits in his response to the motion to dismiss.
2

“2000 Guidelines”). In Petitioner’s case, the Commission determined that he should serve 204222 months before release. (ECF No. 16-5, Exhibit D at PageID 86; but see ECF No. 16-6,
Exhibit E noting a range of 205-223 months at PageID 88.) It was further recommended that
Petitioner be scheduled for a rehearing in 36 months. (Id.) The Commission’s decision to deny
parole and continue to a three-year reconsideration hearing in 2007 resulted in Petitioner serving
outside the parole guidelines, and the Commission provided the following explanation:
[Y]ou are a more serious risk than your base point score indicates because your
offense behavior involved two separate crimes of high-level violence. In one, the
victim was assaulted with a knife inside his home and in the second, a victim was
strangled to death. The first victim was confined to bed due to illness and was
half your size and weight at the time you attacked him. You then strangled to
death a female victim only 1 week later. Both crimes occurred in the residence of
the victims and occurred while you were on escape from a separate offense. Your
multiple acts of violence against vulnerable victims that [sic] cannot be
adequately captured by the base point score. The Commission believes that you
remain a risk to commit further acts of violence and that your release to the
community on parole would jeopardize the public safety.
(Id.)3
After conducting another parole hearing in 2007 as scheduled, the Commission again
denied parole and continued Petitioner to a three-year reconsideration hearing, providing similar
reasons to those given in 2004 for its departure from the parole guidelines. (ECF No. 16-7,
Exhibit F at 90.)
At Petitioner’s hearing in 2010, the Parole Commission applied the 1987 parole
guidelines of the former D.C. Board of Parole (the “1987 Guidelines”). (ECF No. 16-8, Exhibit

2

The application of these regulations resulted in a guideline range of months to be served
before Petitioner should be granted parole.
3

The Notice of Action issued by the Commission following this hearing did not explain
the departure from the guidelines and a notice of action was issued in October 2007 to correct
this error.
3

G at PageID 93.) These guidelines indicated Petitioner should be granted parole. (Id. at PageID
94.) The hearing examiner recommended that Petitioner be granted parole (id. at PageID 94-95),
but, ultimately, the Commission disagreed with this recommendation and decided to deny parole
and continue for a two-year reconsideration hearing. (ECF No. 16-9, Exhibit H at PageID 96.)
Because this was a departure from the decision indicated by the parole guidelines, the
Commission provided the following explanation:
[A] departure from the guidelines at this consideration is found warranted because
the Commission finds at this time that there is a reasonable probability that you
would not obey the law if released and that your release will endanger the public.
Therefore, the Commission is departing from the guideline to parole at this
consideration and the normal rehearing schedule. Specifically, you are a more
serious risk than shown by your point score because you have committed two
violent crimes in which you have demonstrated exceptional cruelty to your victim.
You committed both of these crimes inside the residence of your victims. During
the first, you stabbed and attempted to rob a male victim that was lying down at
the time and was half your size. Within 10 days, you had committed another
crime in which you entered the home [of] a female victim and strangled her to
death. Both of these crimes occurred after you had been granted parole through a
work release program but prior to your parole becoming effective. The
Commission recognizes that you have made a positive institutional adjustment.
However, you also had made a positive adjustment while you were confined prior
to your release to a work release program and you had impressed both
correctional and parole officials with your adjustment at that time. Thus, the
Commission is not convinced that the positive institutional adjustment you have
demonstrated while serving this life sentence is indicative that you no longer
remain a risk to commit additional violent crimes if you are released on parole at
this time.
(Id.)
Following another parole rehearing in 2011 under the 1987 Guidelines, the Commission
denied parole and continued Petitioner to a rehearing in one year. (ECF No. 16-10, Exhibit I at
PageID 98.) The Commission provided the following explanation for its decision to depart from
the guidelines:

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[T]he Commission finds there is a reasonable probability that you would not obey
the law if released and your release would endanger the public safety. You are a
more serious parole risk than shown by your point score based on the reasons
cited in the Notice of Action dated February 25, 2010. Though you have
continued to make a positive contribution to the prison industry system, the
Commission believes that your history of violent crimes in the community,
including two instant offenses in which you demonstrated exceptional cruelty
toward your victims, is a greater indicator of your risk at this time. Also, you are
a greater risk to commit violent crimes while under the influence of illegal
substances and have not completed any significant substance abuse programs
since your return to the Bureau of Prisons.
(Id.)
Following a rehearing in November 2012, at which the 1987 Guidelines were again
applied to Petitioner’s case, the Commission denied parole and continued Petitioner to a
rehearing in one year. (ECF No. 16-11, Exhibit J at PageID 100.) The Commission cited the
reasons for the previous decision and new misconduct in prison for its decision to depart from
the guidelines. (Id.)
Following the September 5, 2013, rehearing by a Parole Commission hearing examiner, it
was recommended that the Commission grant parole pursuant to the 1987 Guidelines. (ECF No.
16-12, Exhibit K at PageID 102-04.)

By notice of action dated October 30, 2013, the

Commission denied parole and continued Petitioner for a rehearing in 60 months. (ECF No. 1613, Exhibit L at PageID 105). The Commission explained as follows:
[T]he Commission finds there is a reasonable probability that you would not obey
the law if released and your release would endanger the public safety. You are a
more serious parole risk than shown by your grid score based on the extreme
cruelty you committed in stabbing one victim and then strangling another to death
10 days later. Both of these crimes occurred after you had been released to a
work release center prior to your parole becoming effective. The Commission
finds that your extreme violence in the community is a stronger indicator of the
risk that you present to the community than your prison conduct over the past 12
months. The Commission finds that you remain a danger to the community and
should not be granted parole in the near future.
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(Id.) The Commission cited the same reasons for its decision to depart from the rehearing
guidelines and conduct the rehearing in 60 months. (Id.)
II.

DISCUSSION
Hawkins-Bey’s claims arise from the transfer of paroling authority from the D.C. Board

of Parole to the Parole Commission under the 1997 Revitalization Act. See Franklin v. D.C.,
163 F.3d 625, 632 (D.C. Cir. 1998). The Act required the Parole Commission to exercise its
authority “pursuant to the parole laws and regulations of the District of Columbia,” but also gave
the Parole Commission “exclusive authority to amend or supplement any regulation interpreting
or implementing the parole laws of the District of Columbia with respect to felons.” D.C. Code
§ 24-1231(a)(1), (c) (1999), recodified as D.C. Code § 24-131(a)(1), (c) (2001) (emphasis
added). The Parole Commission adopted the D.C. Board of Parole’s guidelines that were in
effect from 1987 to 1998 (“1987 Guidelines”). The Parole Commission made select revisions to
those guidelines under its “amend and supplement” authority. See 28 C.F.R. § 2.70 (1999).4 The
1987 Guidelines are described in detail in Ellis v. District of Columbia, 84 F.3d 1413, 1415–17
(D.C. Cir. 1996). In brief, these guidelines required the calculation of a “total point score”
showing the risk level presented by the prisoner. Id., see also D.C. Code § 24.204.1, et seq. If
the score was two points or fewer at the initial hearing, the prisoner would ordinarily be granted
parole. Id. If the score was three or more points at the initial hearing, parole would ordinarily be
denied and a rehearing scheduled. Id. At rehearings, a score of three (or fewer) points would
indicate that parole should ordinarily be granted. Id. But the Board of Parole could depart from
the guidelines’ recommendation to grant or deny parole. Id. at 1416 n.2.
4

The Parole Commission’s revisions added additional risk factors to the prisoner’s “total
point score;” and replaced the annual rehearing guideline with variable ranges (e.g., 12 to 18
months) based on the prisoner’s point score.
6

In 2008, the District of Columbia District Court decided Sellmon v. Reilly, 551 F. Supp.
2d 66 (D.D.C. 2008). Sellmon held that the Parole Commission’s application of the amended
regulations to offenders who committed their crimes before the transfer of authority to the Parole
Commission in 1998 might violate the Ex Post Facto Clause of the Constitution. Sellmon, 551
F. Supp. 2d at 66. The Parole Commission then promulgated the Sellmon Rule: the 1987
Guidelines should be applied to any offender who committed his crime between March 4, 1985
(the effective date of the 1987 Guidelines), and August 4, 1998 (the last day the D.C. Board
exercised parole release authority). 74 Fed. Reg. 34688 (July 17, 2009) (interim rule, effective
August 17, 2009) and 74 Fed. Reg. 58540 (November 13, 2009) (final rule) (codified in various
sections at 28 C.F.R. Part 2).
III.

HAWKINS-BEY’S CLAIMS
Petitioner Hawkins-Bey challenges the Parole Commission’s denial of parole, contending

the Parole Commission subjected him to the federal accountability standard which is not a factor
under the 1987 Guidelines. (Petition, ECF No. 1 at PageID 6; Memorandum (“Mem.”) in
Support (“Supp.”), ECF No. 1-2 at PageID 13-15.) Hawkins-Bey contends that, under the 1987
Guidelines, offense accountability or severity of the offense should not be considered by the
Parole Commission. (Id.) He contends that the Parole Commission’s determination violates the
Ex Post Facto Clause of the Constitution by retroactively increasing his punishment. (Id.)
IV.

ANALYSIS
A.

The Parole Commission Properly Applied the 1987 Guidelines to Hawkins-Bey’s
Case

Under 18 U.S.C. § 4218(d), the Parole Commission’s substantive decision to grant or
deny parole is an action “committed to agency discretion” under the Administrative Procedure
7

Act, 5 U.S.C. §701(a)(2), and thus is insulated from judicial review. Farkas v. United States,
744 F.2d 37, 39 (6th Cir. 1984); see also Stevens v. Quick, 678 A.2d 28, 31 (D.C. 1996) (courts
do not review the merits of Parole Commission’s decision). The Court looks only for an abuse
of discretion. As long as there is “a rational basis in the record for the Parole Commission’s
conclusions embodied in its statement of reasons,” the parole decision should be affirmed.
Hackett v. United States Parole Comm’n, 851 F.2d 127, 130 (6th Cir. 1987).
Hawkins-Bey claims that the USPC did not follow the 1987 Guidelines in denying him
parole. (Mem. in Supp., ECF No. 1-2 at PageID 13-15.) That claim fails. First, the record
clearly shows that since 2009, the Parole Commission has applied the 1987 Guidelines, not the
federal parole rules, to calculate Hawkins-Bey’s point score. (Compare ECF No. 16-8, Exhibit
G at PageID 93; ECF No. 16-9, Exhibit H at PageID 96; ECF No. 16-10, Exhibit I at PageID 98;
ECF No. 16-11, Exhibit J at PageID 100; ECF No. 16-12, Exhibit K at PageID 102-04; ECF No.
16-13, Exhibit L at PageID 105, with Ellis, 84 F.3d at 1416 (describing the application of the
1987 Guidelines). Second, the 1987 Guidelines give the Board of Parole or Parole Commission
discretion to depart from the point score in denying parole. See D.C. Code § 24-404(a) (“[T]he
Board may authorize [an inmate’s] release on parole . . .”) (emphasis added). In “unusual
circumstances,” the board can deny parole to an eligible candidate as long as it specifies its
reasons in writing. 28 D.C. Mun. Regs. § 204.22 (1987); Brown v. United States Parole
Comm’n, 02 Civ. 7639 (NRB), 2003 WL 194206, *4 (S.D.N.Y. Jan. 28, 2003) (citing 28 D.C.
Mun. Regs. § 204.22 (1987)). The unusual cruelty of a crime and a reasonable probability that
the prisoner’s release would endanger the public qualify as unusual circumstances. See Sellmon,
551 F. Supp. 2d at 95; White v. Hyman, 647 A.2d 1175, 1179 (D.C. 1994). Here, after a previous
release to a work release program, Hawkins-Bey stabbed a bed-ridden, disabled victim and,
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within ten days, strangled another victim to death. (ECF No. 16-13, Exhibit L at PageID 105.)
Despite Hawkins-Bey’s positive adjustment during confinement to prison, his unusual cruelty to
his victims and continued violent conduct while on work release were unusual circumstances
allowing the parole board to deny him parole under the 1987 Guidelines.

The Parole

Commission concluded that there was a “reasonable probability that [Hawkins-Bey] would not
obey the law if released and [his] release would endanger the public safety.” Id. Therefore, the
denial of parole was warranted despite Hawkins-Bey’s low point score.
Third, the 1987 Guidelines permit the board to schedule rehearings outside of the
ordinary one-year requirement. The regulations state that “[w]hen the [b]oard denies parole and
orders reconsideration for a person serving a maximum sentence of five (5) years or more,
reconsideration shall ordinarily occur within twelve (12) months.” D.C. Mun. Regs. 28, § 104.2
(1987). The board, however, “may order a parole reconsideration date it determines to be
appropriate.” See White, 647 A.2d at 1179 (upholding board’s authority to order a hearing after
five years based on its determination of prisoner’s impact on public safety) (emphasis added);
see also Hall v. Henderson, 672 A.2d 1047, 1054 (D.C. 1996) (upholding decisions by the board
to override the annual rehearing guideline); Jones v. Braxton, 647 A.2d 1116, 1117 (D.C. 1994).
In Hawkins-Bey’ case, the Parole Commission deviated from the annual rehearing guideline
because he was a significant risk to the community. (ECF No. 16-13, Exhibit L at PageID 105.)
The USPC had discretion to do so under the 1987 Guidelines.
B.

Hawkins-Bey’s Ex Post Facto Claim Lacks a Legal Foundation

Hawkins-Bey claims that the Parole Commission’s departure from the 1987 Guidelines
violates the Constitution’s Ex Post Facto Clause. (Pet., ECF No. 1 at PageID 6.) This claim is
without a legal foundation. First, the Parole Commission followed the Sellmon Rule and applied
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the 1987 Guidelines to Hawkins-Bey’s parole decision. Second, Hawkins-Bey has no legal right
to be released on parole because of his low point score. In other words, the Parole Commission
has discretion to deviate from the point score in certain circumstances. As explained above, the
1987 Guidelines use discretionary language. D.C. Code § 24-404(a). A prisoner with a low
point score shall be granted parole unless the Board, in its discretion, “believes there is some
other reason for not granting him parole.” See Ellis, 84 F.3d at 1419 (emphasis added). In Ellis,
the Board overrode a favorable point score because of the prisoner’s cruelty to his victims and
aggressive tendencies. Id.; see also McRae v. Hyman, 667 A.2d 1356, 1361 (D.D. 1995) (denial
of parole affirmed, despite a favorable point score, of a repeat violent offender). No D.C.
prisoner can justifiably claim that the board is required to parole him, whatever his point score.
See Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 9–10 (1979) (“[T]here
is no set of facts which mandate a [parole release] decision favorable to the individual.”). The
Parole Commission appropriately exercised its discretion to deny Hawkins-Bey’s parole and
specified the reasons for its decision. (ECF No. 16-13, Exhibit L at PageID 105.)
V.

CONCLUSION
The Parole Commission acted within its statutory and regulatory authority to deny

Hawkins-Bey parole and schedule his rehearing for a date five years later under the 1987
Guidelines. The record fails to support Hawkins-Bey’s claims that the Parole Commission
applied improper guidelines or violated the Ex Post Facto Clause. Respondent’s motion to
dismiss

the

petition

(Mot.,

ECF

10

No.

16)

is

GRANTED.

VI.

APPEAL ISSUES
Federal prisoners who file petitions pursuant to 28 U.S.C. § 2241 challenging their

federal custody need not obtain certificates of appealability under 28 U.S.C. § 2253(c)(1).
Durham v. United States Parole Comm’n, 306 F.3d 225, 229 (6th Cir. 2009); Melton v.
Hemingway, 40 F. App’x 44, 45 (6th Cir. 2002) (“a federal prisoner seeking relief under § 2241
is not required to get a certificate of appealability as a condition to obtaining review of the denial
of his petition”); see also Witham v. United States, 355 F.3d 501, 504 (6th Cir. 2004) (28 U.S.C.
§ 2253 “does not require a certificate of appealability for appeals from denials of relief in cases
properly brought under § 2241, where detention is pursuant to federal process”).
A habeas petitioner seeking to appeal must pay the $505 filing fee required by 28 U.S.C.
§§ 1913 and 1917. To appeal in forma pauperis in a habeas case under 28 U.S.C. § 2241, the
petitioner must obtain pauper status pursuant to Federal Rule of Appellate Procedure 24(a).
Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997). Rule 24(a) provides that a party
seeking pauper status on appeal must first file a motion in the district court, along with a
supporting affidavit. Fed. R. App. P. 24(a)(1). However, Rule 24(a) also provides that if the
district court certifies that an appeal would not be taken in good faith, or otherwise denies leave
to appeal in forma pauperis, the petitioner must file his motion to proceed in forma pauperis in
the appellate court. See Fed. R. App. P. 24(a)(4)-(5).
In this case, because Petitioner is clearly not entitled to relief, the Court determines that
any appeal would not be taken in good faith. It is therefore CERTIFIED, pursuant to Fed. R.
App. P. 24(a), that any appeal in this matter would not be taken in good faith. Leave to appeal in
forma pauperis is DENIED. If Petitioner files a notice of appeal, he must also pay the full $505

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appellate filing fee or file a motion to proceed in forma pauperis and supporting affidavit in the
United States Court of Appeals for the Sixth Circuit within thirty (30) days.
Entered this 10th day of February 2016.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE

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