United States District Court, District of Columbia
July 31, 2001
AMU ALLSTON, PETITIONER,
MICHAEL GAINES, ET AL., RESPONDENTS.
The opinion of the court was delivered by: Paul L. Friedman, District Judge.
This case is before the Court on petitioner's application for
a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner
Amu Allston alleges that the United States Parole Commission was
arbitrary and capricious in revoking his parole and issuing an
18-month set-off, that this decision was vindictive, that his
due process rights were violated, and that the delay in
scheduling his parole revocation hearing prejudiced him. Mr.
Allston also claims that the 18-month set-off violated the Ex
Post Facto Clause of the Constitution. Upon consideration of the
arguments of the parties, the Court denies the petition for writ
of habeas corpus.*fn1
Petitioner Amu Allston is serving aggregate sentences for two
separate convictions for distribution of cocaine imposed by the
Superior Court of the District of Columbia on April 9, 1992. Mr.
Allston was released on parole in May 1999, but he was
rearrested on May 9, 2000 for simple assault, destruction of
property and unlawful entry for an incident that involved an
altercation with his ex-girlfriend, Rainey Duncan. At the time
of the alleged incident, a police report was prepared by Darrell
Garner, an off-duty police officer who resided in Ms. Duncan's
apartment building. See Parole Commission's Response to
Court's Order to Show Cause ("Parole Commission's Response"),
Appendix G. Officer Garner became alerted to the incident when
he heard a loud noise in the hallway outside of his apartment.
See id. at 2. As he exited his apartment, Officer Garner
observed petitioner walking down the hallway and detained him.
See id. Ms. Duncan then informed Officer Garner that Mr.
Allston had "kicked in her apartment door and started punching
her." Id. As the police report reflects, Ms. Duncan's sister,
Tina Duncan, confirmed that petitioner had kicked in the
apartment door and punched Rainey Duncan. See id.
The District of Columbia Board of Parole scheduled a parole
revocation hearing for July 13, 2000, based on a report
submitted by petitioner's Community Service Officer alleging two
parole violations: (1) failure to obey all laws, and (2) failure
to report on June 5. See Parole Commission's Response,
Appendix F. For reasons that the parties do not make entirely
clear, the hearing did not take place on July 13, and the Board
of Parole issued a warrant for petitioner's arrest. On August 5,
2000, the United States Parole Commission assumed jurisdiction
over Mr. Allston pursuant to the National Capital Revitalization
and Self Improvement Act of 1997 and rescheduled the revocation
hearing for October 3, 2000. See D.C.Code § 24-1231(a). On
August 25, 2000, the criminal case on which Mr. Allston's May 9
arrest was based was dismissed in D.C. Superior Court because
Ms. Rainey Duncan no longer wanted to press charges. See
Petitioner's Response to Commission's Opposition ("Petitioner's
Response"), Appendix 2.*fn2
At the October 3 revocation hearing, Ms. Duncan testified that
she had lied to Officer Garner on the night of the alleged
incident because she believed that Mr. Allston was seeing
another woman. See Parole Commission's Response, Appendix J at
2. Petitioner's CSO also testified at the hearing, stating that
Mr. Allston had failed to contact him after missing a June 5
appointment, tested positive for cocaine on the day he was
arrested and had not reported for further testing on May 30. In
view of this testimony, the Hearing Examiner, Jasper Clay, made
no finding with respect to any of the alleged criminal law
violations but did find an administrative
violation for Mr. Allston's failure to report on June 5. See
id. Examiner Clay classified the offense as a Category I parole
violation with a salient factor score of 3, for which the
Commission guideline range is 12 to 16 months; he recommended a
12-month set-off. See Parole Commission's Response, Appendix J
Petitioner's case was then reviewed by an Executive Hearing
Examiner, S.D. Shoquist. See 28 C.F.R. § 2.23(a). Examiner
Shoquist disagreed with Examiner Clay's conclusion and found
that petitioner had committed an act of simple assault upon Ms.
Duncan. See Parole Commission's Response, Appendix K. As a
result, Examiner Shoquist upgraded petitioner's violation to a
Category II offense with a salient factor score of 3, for which
the Commission guideline range is 16 to 22 months; he
recommended an 18-month set-off. See Parole Commission's
Response, Appendix K.
Under U.S. Parole Commission regulations, the disagreement
between Examiners Clay and Shoquist required the case to be
reviewed by a third examiner leading to a "panel
recommendation." See 28 C.F.R. § 2.23(b), (c). The panel
unanimously agreed to revoke Mr. Allston's parole but disagreed
as to the duration of the revocation. See Parole Commission's
Response, Appendix M. The Commission then apparently held
another vote on October 20 in which two Commissioners voted for
an 18-month set-off and one Commissioner voted for a 12-month
set-off. See Parole Commission's Response, Appendix L. In
total, four Commissioners believed that an 18-month set-off was
appropriate in petitioner's case while two recommended only
twelve months. See id.
In its November 6 Notice of Action, the Parole Commission
stated in, its Findings of Fact that it had made no finding of
any criminal violation but still classified the parole violation
as a Category II offense. See Parole Commission's Response,
Appendix N. On December 4, the Commission issued a corrected
Notice of Action in which it found a criminal violation of
simple assault listing Officer Garner's police report as its
basis. See Parole Commission's Response, Appendix O.
Petitioner's attorney, however, did not receive a copy of this
notice because the Parole Commission sent it to the wrong
address. See id. at 2. On December 7, Mr. Allston filed this
petition. On that same day, petitioner's attorney finally
received the corrected Notice of Action.
A. Petitioner's Parole Revocation Process
1. The Parole Commission's Decision Petitioner's primary
challenge to the Parole Commission's decision is that it
lacks adequate support in the record. Specifically, he
attacks Examiner Shoquist's reliance on Officer Garner's
police report as hearsay evidence — and in some respects
double hearsay — and argues that it should not trump Ms.
Rainey Duncan's live testimony at the hearing. He contends
that the hearsay evidence is unreliable because no evidence
was presented at the hearing to support the police report
and because Ms. Duncan's change in testimony is consistent
with what she told the Assistant U.S. Attorney handling the
case in Superior Court.
On a petition for a writ of habeas corpus, judicial review of
the Parole Commission's decision to revoke parole is narrowly
circumscribed. The Court is confined to determining whether
there has been an "abuse of discretion," meaning that it may
only consider whether there is a "rational basis" in the record
to support the Parole Commission's conclusions. See
Gambino v. E.W. Morris, 134 F.3d 156, 159-60 (3d Cir. 1998);
Iuteri v. Nardoza, 732 F.3d 32, 37 (2d Cir. 1984).
Furthermore, the Parole Commission need only find a violation of
parole conditions by a preponderance of evidence. See
18 U.S.C. § 4214(d); 28 C.F.R. § 2.105(a).
Applying this standard, the Court finds that petitioner has
not demonstrated the absence of a rational basis for the Parole
Commission's finding of a simple assault violation by a
preponderance of the evidence. Examiner Shoquist determined that
the police report was a more reliable version of the facts than
Ms. Duncan's revised testimony. His reasoning for this
conclusion is clear: "While Ms. Duncan has subsequently changed
her story, which is not unusual in these types of domestic
cases, I believe the initial statements as provided to the
officer are more believable and credible." Parole Commission's
Response, Appendix K. According greater weight to a victim's
initial representations rather than to her subsequent
contradictory testimony is a legitimate practice of
decision-makers engaging in credibility determinations. See
Stinchfield v. Menifee, 119 F. Supp.2d 381, 385 (S.D.N.Y. 2000)
(rational to credit police report over subsequent conflicting
recantation). Moreover, in this case the police report was
written by an individual who not only corroborated Ms. Duncan's
statement with the statement of another witness to the alleged
assault (Ms. Duncan's sister) but who also witnessed a portion
of those events himself.
While the use of hearsay evidence does present the danger of
preventing the confrontation and cross-examination of a
declarant, petitioner knew the basis for the police report but
failed to exercise his opportunity to designate either Officer
Garner or Ms. Duncan's sister as witnesses. One can surmise that
the reason he did not do so was because he thought they would
make clear that Ms. Duncan's original description of what
happened — not her subsequent version — was true. Moreover, Ms.
Duncan never testified that Officer Garner's report inaccurately
reported what she told him on the night in question. Rather, she
testified that she lied to him because she was angry at Mr.
Allston. In effect, Ms. Duncan's hearing testimony strengthened
the reliability of Officer Garner's report as a true and
accurate rendition of what was said to him. In view of his own
statements about what he personally saw and heard and what Ms.
Tina Duncan said, the Court cannot conclude that the Parole
Commission's finding of a simple assault violation is void of
rationality. Finally, petitioner misunderstands his baseline: it
is his duty to demonstrate why the police report is unreliable.
Thus, if he wanted to mount a successful challenge to the
report, he should have attempted to contradict Tina Duncan and
Officer Garner's version of the facts as well.*fn3
Petitioner argues that the Parole Commission's December 4
Notice of Action was a post hoc rationalization for a
baseless 18-month set-off that was imposed because he was
preparing to challenge the Commission's actions. See
Supplement to Petition for Writ of Habeas Corpus at 8-9. There
is no evidence to support this claim, and the Parole Commission
has explained the discrepancy between the language in the
November 6 notice and the language in the December 4 notice: the
Commission simply had made a clerical mistake the first time.
The Parole Commission is entitled to a presumption of good faith
unless it has imposed a more severe sanction in response to a
successful appeal or collateral attack or is otherwise shown to
have been vindictive; a presumption of vindictiveness is not
warranted. See Maddox v. Elzie, 238 F.3d 437, 445-47 (D.C.Cir.
2001); Hammond v. D.C. Board of Parole, 756 A.2d 896 (D.C.
2000). The 18-month setoff — a product of the classification of
the parole violation as Category II — is supported by objective
information in the record. See Maddox v. Elzie, 238 F.3d at
446. Accordingly, there is no basis for the Court to find that
the Parole Commission acted vindictively in imposing the
3. Unreasonable Delay
Petitioner contends that the delay between the October 3, 2000
hearing and his detention on July 13, 2000 was unreasonable and
prejudicial. There is no merit to this argument. Mr. Allston was
entitled to a hearing within 90 days of being taken into
custody. See 18 U.S.C. § 4214(c); Sutherland v. McCall,
709 F.2d 730, 732 (D.C.Cir. 1983); see also Morrissey v. Brewer,
408 U.S. 471, 485, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). The
revocation hearing was held after Mr. Allston had been detained
for 82 days. Thus, the delay was not unreasonable — especially
in light of the fact that the delay was partly due to
petitioners indecisiveness as to whether to obtain counsel and
call witnesses on his own behalf. Nor did Mr. Allston suffer any
prejudice from the delay. Petitioner's claim requires the Court
to assume that the Parole Commission only imposed a set-off in
order to justify Mr. Allston's detention — a speculative claim
that he has not proven.
B. Ex Post Facto Claim
Petitioner argues that the Parole Commission has violated the
Ex Post Facto Clause of the Constitution by applying its own
parole revocation guidelines rather than adhering to the
regulations of its predecessor, the D.C. Board of Parole. Mr.
Allston contends that under the D.C. Board of Parole's regime he
would have been subject to only a 9 to 15 month revocation of
his parole. Instead, petitioner was subject to an increased
parole revocation term of 16 to 22 months because the U.S.
Parole Commission guidelines were invoked. Thus, Mr. Allston
argues that he received three months more than would have been
permissible under the D.C. Board of Parole guideline system.
Article I, Section 9, clause 3 of the United States
Constitution prevents Congress from passing ex post facto laws.
The clause has been interpreted as a prohibition on the
enactment of any law that "retroactively alter[s] the definition
of crimes or increase[s] the punishment for criminal acts."
Collins v. Youngblood, 497 U.S. 37, 43, 110 S.Ct. 2715, 111
L.Ed.2d 30 (1990); see Garner v. Jones, 529 U.S. 244, 249-50,
120 S.Ct. 1362, 146 L.Ed.2d 236 (2000). The government argues
that the Parole Commission's guidelines can never be considered
"laws" for the purposes of ex post facto analysis. Most circuits
that have considered the question agree with
this proposition.*fn4 As the Seventh Circuit has said: "The
power to exercise discretion indicates that the guidelines are
merely guides, and not laws: guides may be discarded where
circumstances require; laws may not. . . . The key to the
finding that guidelines are guides merely, and not laws, is that
the Parole Commission has a congressional mandate . . . to
exercise discretion." Inglese v. United States Parole
Commission, 768 F.2d at 936-37. To conclude otherwise ignores
the fact that the Parole Commission is not required to follow
the guidelines in every case but has the discretion to depart
upwards or downwards when the circumstances warrant. See
18 U.S.C. § 4206(c); 28 C.F.R. § 2.20(c).
The Third Circuit has identified circumstances in which the
guidelines could be considered laws for ex post facto purposes.
See United States ex rel. Forman v. McCall, 776 F.2d 1156,
1158 (3d Cir. 1985) ("if administered without sufficient
flexibility, the guidelines could be considered laws for ex post
facto purposes"). Under the Third Circuit's approach, a court
would need to evaluate whether the Parole Commission has
discretion under the guidelines and how much discretion it has,
including undertaking a statistical evaluation of the percentage
of cases in which the Commission issues set-offs outside the
range of months specified in the guidelines. The court of
appeals in this Circuit has not directly ruled on the question
of whether the guidelines could be considered laws for ex post
facto purposes but has effectively endorsed a test similar to
that employed by the Third Circuit. See Blair-Bey v. Quick,
151 F.3d 1036, 1049 n. 12. (D.C.Cir. 1998); Warren v. United
States Parole Commission, 659 F.2d 183, 197 n. 57 (D.C.Cir.
In Blair-Bey, the court explained that a petitioner like Mr.
Allston could demonstrate the applicability of the ex post facto
analysis if he could show that (1) there is a sufficiently great
risk of disadvantaging a particular category of inmates, (2) the
guidelines were motivated by a desire to punish certain types of
prisoners, and/or (3) the guidelines are never ignored, which
means that in practice there is no exercise of discretion. See
Blair-Bey v. Quick, 151 F.3d at 1049. On rehearing, the court
stated that the hurdle to show that ex post facto analysis
applies is very high; for a petitioner to succeed, he would need
to show that "at a minimum . . . the [Commission's] discretion
under the guidelines is totally or very substantially
circumscribed in law or in fact and yields results materially
harsher than those ordinarily occurring under the prior regime."
Blair-Bey v. Quick, 159 F.3d 591, 592 (D.C.Cir. 1998). Even
applying this test, the Court still finds that petitioner is not
entitled to habeas corpus relief.
First, Mr. Allston has failed to demonstrate that the results
under the prior regime would be less harsh. Petitioner argues
that under the D.C. Board of Parole regulations, Mr. Allston's
set-off would have been from 9 to 15 months whereas the U.S.
Parole Commission guidelines provide that the set-off must be
between 16 and 22 months. This comparison is deceptive. Under
the old D.C. Board of Parole rules, the 9 to 15 month range
defined when a prisoner was entitled
to a reparole hearing, not the date on which the prisoner
would actually be reparoled. See Petitioner's Response,
Appendix A (old D.C. regulations set forth when petitioner was
entitled to reconsideration of parole).*fn5 Under the U.S.
Parole Commission guidelines, Mr. Allston will be reparoled
automatically after 18 months; this period of time does not
merely represent when he is entitled to a new hearing. As was
the case in Warren, petitioner's challenge therefore must fail
because he cannot show that he is worse off under the present
regime when compared to the prior regime. See Warren v. United
States Parole Commission, 659 F.2d at 193.
Second, under the analytical framework announced by the Third
Circuit, the statistical evidence — if statistical evidence by
itself is enough to demonstrate substantially limited discretion
— does not prove that the Parole Commission's discretion is
substantially limited in this case. Petitioner contends that the
discovery obtained from the government shows set-offs below the
guidelines in only 4% of the cases — a figure too low to
demonstrate that the Parole Commission has retained substantial
flexibility under the guidelines. But petitioner's
characterization is misleading because the issue in determining
how much discretion the Parole Commission has under the
guidelines rests on an analysis of how often the Commission
gives set-offs outside the guidelines — either below or above
the guidelines, not just below the guidelines. See United
States ex rel. Forman v. McCall, 776 F.2d at 1163. Taking the
set-offs above the guidelines into account (30% of the cases by
one calculation and 16% of the cases by another), the total
number of departures rises to a conservative 20% or perhaps as
much as 34%. See Parole Commission's Reply to Petitioner's
Response at 9. The 20% departure rate alone is sufficient to
show that the Parole Commission retains significant discretion
under the guidelines and certainly a departure rate in which 34%
of all cases fall outside the guidelines demonstrates sufficient
discretion and flexibility. See United States ex rel. Forman v.
McCall, 776 F.2d at 1163 (25% deviation from guideline ranges
allowed court to conclude that there was sufficient flexibility
such that the guidelines were not considered laws for ex post
For all of these reasons, the Court concludes that the
application of the U.S. Parole Commission guideline system in
this case does not offend the Ex Post Facto Clause of the
Since Mr. Allston has failed to articulate any reason why he
is entitled to habeas corpus relief, his petition for writ of
habeas corpus is denied. An Order consistent with this Opinion
shall be issued this same day.
ORDER AND JUDGMENT
For the reasons stated in the Opinion accompanying this Order
and issued this same day, it is hereby
ORDERED that the Order to Show Cause is DISCHARGED; and it is
FURTHER ORDERED that the petition for a writ of habeas corpus
DENIED and this case is DISMISSED. This is a final appealable