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Sellmon v. Reilly

June 20, 2008


The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge


Plaintiffs, eight inmates serving prison sentences for committing criminal offenses under the District of Columbia Code, filed suit alleging that the United States Parole Commission ("USPC" or "the Commission") retroactively applied its own parole guidelines and practices thereby significantly increasing the risk that they would serve longer terms of incarceration in violation of the Ex Post Facto Clause. After considering the plaintiffs' motion for summary judgment and the defendants' motion for judgment on the pleadings, the Court issued a Memorandum Opinion on May 5, 2008. See Sellmon v. Reilly, -- F.Supp.2d -- , 2008 WL 1933759 (D.D.C. May 5, 2008). Plaintiffs Phillips, Sellmon, and Swinton have now moved, pursuant to Fed. R. Civ. P. 59(e), to alter or amend the Court's judgment. Defendants have also moved for reconsideration. For the reasons stated herein, both motions will be denied.


"A motion for reconsideration . . . will not be lightly granted." Mobley v. Cont'l Cas. Co., 405 F.Supp.2d 42, 45 (D.D.C. 2005). Reconsideration is only appropriate when "the moving party shows new facts or clear errors of law which compel the court to change its prior position." Nat'l Ctr. for Mfg. Sci. v. Dep't of Def., 199 F.3d 507, 511 (D.C. Cir. 2000). See also Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996). Such motions "are disfavored and relief from judgment is granted only when the moving party establishes extraordinary circumstances." Niedermeier v. Office of Baucus, 153 F.Supp.2d 23, 28 (D.D.C. 2001). "Reconsideration is not an appropriate forum for rehashing previously rejected arguments or arguing matters that could have been heard during the pendency of the previous motion." Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1270 (7th Cir. 1996). See also Katten v. District of Columbia, 995 F.2d 274, 276 (D.C. Cir. 1993).


A. Phillips

Phillips moves for reconsideration arguing that the Court erred in granting defendant's motion for judgment on the pleadings with respect to his case. (See Pls.' Mot. 5.) Phillips, like the remaining seven plaintiffs, alleged that defendants violated the Ex Post Facto Clause by applying the 2000 Guidelines, rather than the 1987 Regulations, to his case, and thereby substantially increased his risk of increased incarceration. Sellmon, 2008 WL 1933759, at *1. The Court held, however, that because Phillips committed his offense prior to 1987, he was not entitled to rely on the 1987 Regulations to demonstrate an ex post facto violation, since those regulations did not apply when he committed his offense. Id. at *16-17.

In moving for reconsideration, Phillips argues that the Court erred by failing to credit as true the allegation in his pro se complaint that at the time he committed his offense, "the D.C. Parole Board's policy and practice was to consider offense accountability as satisfied by an inmate's service of his or her minimum sentence and not as a proper consideration in determining the inmate's suitability for parole." (Pls.' Mot. 4.) This was the case under the Board's 1987 Regulations, but as Phillips appears to concede, this was not the Board's policy at the time of his offense.*fn1 Nonetheless, Phillips requests discovery in order to prove his assertion that the Parole Board's practice was not to use offense accountability to determine an inmate's suitability for parole prior to 1987. (Id. 6.)*fn2

Phillips has failed to offer any basis to support this contention. The Board's stated policy contradicts his position and Phillips has not provided any facts which would justify further discovery. It is true that in considering a motion to dismiss, the Court must consider the facts presented as true and construe them in the light most favorable to plaintiff. Williams v. Johnson, 537 F.Supp.2d 141, 148 (D.D.C. 2008). However, the facts alleged "must be enough to raise a right to relief above the speculative level," Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955 (2007), and the Court need not consider inferences that are unsupported by facts or legal conclusions framed as facts. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). That is all that Phillips has offered here.

Morever, Phillips's unsupported characterization of the Parole Board's practice prior to 1987 is insufficient under the D.C. Circuit's precedent in Fletcher v. Reilly, 433 F.3d 867 (D.C. 2006), to warrant discovery. In that case, the Court concluded based upon facial differences between the new and old reparole guidelines, and Fletcher's credible allegation that these changes had personally affected his parole consideration, that Fletcherhad "made out a prima facie case that his rights under the Ex Post Facto Clause had been violated," and thus he was entitled to "factual development on his habeas petition." Id. at 878-79. Fletcher does not, as Phillips contends, permit a prisoner to engage in a fishing expedition about the Board's actual practices over twenty years ago based solely on the prisoner's contention that those practices were different than those currently in effect, particularly when that assertion has no relationship to any written policy, regulation, or guideline. Rather, Fletcher requires a "searching comparison" of the parole regimes only after plaintiff has made out his prima facie case, which Phillips has failed to do.

Finally, even if the Court credited Phillips's allegation that the Board's informal practice was to not to consider offense accountability in determining the inmate's suitability for parole, Phillips still could not show that the outcome in his case would have been any different under the pre-1987 regime, given the totally unstructured character of the Board's parole decisions prior to 1987. Unlike the 1987 Regulations, which based the presumption of parole eligibility on a numerical calculation and limited the grounds on which the Board could depart to an enumerated list, under the pre-1987 regime, the Board's discretion to grant or deny parole was totally unfettered. It could grant parole only if, after weighing a variety of factors, it "appeared . . . that there [was] a reasonable probability that a prisoner will live and remain at liberty without violating the law, that his release [was] not incompatible with the welfare of society, and that he [had] served the minimum sentence imposed . . . ." 9 D.C.R.R. § 105 (1972). In Phillips's case, parole was denied on the grounds that he hadn't yet sufficiently accounted for his offense and that he presented a more serious risk than his point score indicated. (See Phillips Ex. 3 [Initial Hearing Summary] at 4; Phillips Ex. 4 [Notice of Action, Dec. 13, 2002] at 1; Phillips Ex. 5 [Hearing Summary] at 2-3; Phillips Ex. 6 [Notice of Action, Nov. 18, 2005] at 1.) Therefore, even if Phillips could make a factual showing that the Board would not have considered offense accountability in making its parole determination in his case, he still would have to demonstrate that the Board would not have exercised its unlimited discretion to deny parole for other reasons. Given that the risk posed by an offender was the central question in the the Board's considerations pre-1987, Phillips would likely "have been denied parole under either set of guidelines." Glascoe v. Bezy, 421 F.3d 543, 549 (7th Cir. 2005). Thus, discovery on the issue of offense accountability would make no difference to the resolution of Phillips's ex post facto claim because even if his factual allegations are accepted as true and considered to be sufficient, he could not, as a matter of law, show that the consideration of offense accountability substantially increased his risk of lengthier incarceration, as required under Fletcher.

The motion for reconsideration will therefore be denied with respect to Phillips.

B. Sellmon and Swinton

Plaintiffs Sellmon and Swinton move for reconsideration on the basis that the record in their cases was insufficiently clear to support the Court's holding. (Pls.' Mot. 6.) With respect to Sellmon and Swinton, the Court held that based on the facial differences between the Parole Board's 1987 Regulations and the Commission's 2000 Guidelines, plaintiffs could make a prima facie case that the application of the 2000 Guidelines substantially increased their risk of increased incarceration. Sellmon, 2008 WL 1933759, at * 19. The Court determined, however, that Sellmon and Swinton failed to demonstrate that the application of the 2000 Guidelines significantly increased their risk of lengthier incarceration because the reason given by defendants for denying parole under the 2000 Guidelines -- the "unusual cruelty" of plaintiffs' crime" -- would have been a permissible reason for denying parole under the 1987 Regulations. Id. at *22-24. Thus, the Court concluded that plaintiffs failed to show that the application of the 2000 Guidelines to their cases had any practical effect on the length of their incarceration. Id. In their ...

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