United States District Court, D. Columbia
October 24, 2005.
CARROLL MONTGOMERY, et al., Plaintiffs,
DISTRICT OF COLUMBIA SELF-GOVERNMENT, et al., Defendants.
The opinion of the court was delivered by: ELLEN HUVELLE, District Judge
Plaintiffs Carroll G. Montgomery and Rubin F. Montgomery are
inmates incarcerated respectively at the Federal Correctional
Institution in Otisville, New York and the United States
Penitentiary in Atlanta, Georgia. Plaintiffs brought this civil
action for damages pro se and allege that their continued
imprisonment violates their constitutional rights. Defendants
have filed motions to dismiss. Based on the parties' filings and
the applicable law, the Court will grant defendants' motions.
In July 1983, plaintiffs were convicted of first degree murder
in the Superior Court of the District of Columbia. Complaint
("Compl."), ¶ 2. Plaintiffs were each sentenced to a term of
imprisonment of twenty years to life. Id. On November 12, 2002,
the United States Parole Commission ("USPC") denied parole to
plaintiffs and ordered their cases continued for reconsideration
hearings after the service of 60 months. Id.; Defendant USPC's
motion to dismiss, p. 5.
II. STANDARD OF REVIEW
On a motion to dismiss, the Court must accept all well-pleaded
factual allegations as true and draw all reasonable inferences in favor of the
plaintiff. Taylor v. Fed. Deposit Ins. Corp., 132 F.3d 753, 761
(D.C. Cir. 1997). "[A] complaint should not be dismissed for
failure to state a claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which
would entitle him to relief." Conley v. Gibson, 355 U.S. 41,
45-46 (1957); Kowal v. MCI Communications Corp., 16 F.3d 1271,
1276 (D.C. Cir. 1994). "Indeed it may appear on the face of the
pleadings that a recovery is very remote and unlikely but that is
not the test." Swierkiewicz v. Sorema, 534 U.S. 506, 515 (2002)
(quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
The essence of plaintiffs' claim is that they had a right to be
paroled after the service of 20 years imprisonment. Their
arguments to support this contention are (1) the National Capital
Revitalization and Self-Government Improvement Act of 1997
("Revitalization Act") violates the Ex Post Facto Clause of the
Constitution; (2) that the USPC has denied them equal protection
by denying them parole based on the nature of their convictions;
(3) by denying them parole, the USPC violated the Double Jeopardy
Clause of the Fifth Amendment.
A. Ex Post Facto
The Ex Post Facto Clause prohibits retroactive application of
a law which increases the punishment for a crime that an
individual has already committed. Collins v. Youngblood,
497 U.S. 37, 42 (1990). A statute retroactively increasing the
penalties upon parole revocation also would be unconstitutional.
Johnson v. United States, 529 U.S. 694, 701 (2000). The same
principle applies to an administrative regulation promulgated
pursuant to statutory authority. The "controlling inquiry" is
whether retroactive application of the change in a parole
regulation creates "a sufficient risk of increasing the measure of
punishment attached to the covered crimes." Garner v. Jones,
529 U.S. 244, 250 (2000).
At the time plaintiffs committed their offenses, the punishment
for first degree murder was life imprisonment. See D.C. Code §
22-2404(a)(1981); see also Garris v. United States,
491 A.2d 511, 514 (D.C. 1985). The District of Columbia Code further
provided that "a person convicted of first-degree murder and upon
whom a sentence of life imprisonment is imposed shall be eligible
for parole [after 20 years]." See D.C. Code. §
22-2404(b)(1981). Therefore, plaintiffs are required to serve at
a minimum 20 years. See Garris, 491 A.2d at 513.
As part of the Revitalization Act, parole authority over D.C.
Code offenders was transferred from the District of Columbia
Board of Parole to the USPC. See D.C. Code § 24-1231; see also
Franklin v. District of Columbia, 163 F.3d 625, 632 (D.C. Cir.
1998). Plaintiffs cannot demonstrate that they have been
subjected to an increased punishment or otherwise disadvantaged
because of this statutory enactment. Under D.C. law, they were
only eligible for parole after the service of 20 years. They were
afforded a parole hearing by the USPC at that time. There has
been no Ex Post Facto Clause violation.
B. Equal Protection
Plaintiffs contend that they have been deprived of equal
protection of the laws because the USPC denied them parole based
on the nature of their crime first-degree murder. The equal
protection clause requires that the government not treat
similarly situated individuals differently without a rational
basis. Noble v. United States Parole Comm'n, 194 F.3d 152, 154
(D.C. Cir. 1999). A plaintiff must show he is similarly situated
to someone who received more favorable treatment. Women
Prisoners of the District of Columbia Dep't of Corrections v.
District of Columbia, 93 F.3d 910, 924 (D.C. Cir. 1996), cert. denied,
520 U.S. 1196 (1997).
Plaintiffs' allegation that those convicted of murder and those
convicted of other offenses are treated differently by the USPC
does not state a valid equal protection claim. The USPC is
entitled to use the violent nature of an offense as a factor in
parole decisions. See Brandon v. District of Columbia Bd. of
Parole, 823 F.2d 644, 650 (D.C. Cir. 1987).
C. Double Jeopardy
Plaintiffs contend that by denying them parole, the USPC has
punished them twice for the same offense. This claim is specious.
There is no double jeopardy issue involved in the denial or
revocation of parole. See United States v. DiFranceso,
449 U.S. 117, 137 (1980); Goode v. Markey, 603 F.3d 973, 977 (D.C. Cir.
1987), cert. denied, 444 U.S. 1083 (1980). Parole eligibility
is no assurance of release. Id. Requiring a defendant to serve
his entire original sentence after revocation or denial of parole
is not a double jeopardy violation. Morris v. Johnson,
106 F.3d 127, 129 n. 1 (5th Cir. 1997); United States v. Brown,
59 F.3d 102, 105 (9th Cir. 1995); Kell v. United States Parole
Comm'n, 26 F.3d 1016, 1020 (10th Cir. 1994). Therefore, the
USPC's denial of parole to plaintiffs does not present a viable
Based on the foregoing, the complaint fails to state a claim
upon which relief can be granted. Accordingly, the Court will
grant defendants' motions to dismiss. A separate order
accompanies this Memorandum Opinion.
© 1992-2005 VersusLaw Inc.