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Smith v. Reilly

March 31, 2009

ERNEST D. SMITH, PLAINTIFF,
v.
EDWARD F. REILLY, JR., CHAIRMAN, UNITED STATES PAROLE COMMISSION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

This matter is before the Court on Plaintiff's Motion for Partial Summary Judgment on Ex Post Facto Claims and on Defendants' Cross-Motion for Summary Judgment.*fn1 For the reasons discussed below, the Court will grant partial summary judgment for Plaintiff.

I. BACKGROUND

A. Plaintiff's Criminal History

On February 22, 1989, Plaintiff, then a juvenile, committed assault with a dangerous weapon, and on June 7, 1990 the Superior Court of the District of Columbia ("Superior Court") imposed a one-year term of probation. See Mem. of P. & A. in Supp. of Defs.' Cross-Mot. for Summ. J. and Opp'n to Pl.'s Mot. for Summ. J. ("Defs.' Mot."), Ex. B (Presentence Report, Docket No. M-4582-90) at 2 & Ex. H (D.C. Initial Prehearing Assessment) at 1.

On January 16, 1990, Plaintiff attempted the distribution of cocaine. Defs.' Mot., Ex. A (Sentencing Monitoring Computation Data) at 1. He entered a guilty plea, and on May 23, 1990, the Superior Court sentenced Plaintiff to five to 15 years' imprisonment, suspended execution of the sentence except for a 120-day term of work release, and imposed a two-year term of probation. Id., Ex. A at 1 & Ex. D (Judgment and Commitment/Probation Order, Crim. No. F-610-90). On October 8, 1993, the Superior Court revoked probation and imposed a sentence of four to 12 years' imprisonment to be served consecutively to any other sentence. Id., Ex. C (Judgment and Commitment Order, F-610-90).

On April 21, 1990, Plaintiff carried a pistol without a license, a misdemeanor, and on September 19, 1990, the Superior Court imposed a term of 120 days' incarceration. Id., Ex. B at 3 & Ex. H at 2.

Plaintiff's current incarceration came about upon the revocation of probation on the drug offense, Crim. No. F-610-90, and upon his conviction and sentence for three offenses he committed on March 19, 1992. Defs.' Mot., Ex. A at 1-2. A jury found Plaintiff guilty, id., Ex. E (Judgment and Commitment Order, Crim. No. F-4505-92), and on December 3, 1993, the Superior Court sentenced Plaintiff to a term of 10 to 30 years' imprisonment for manslaughter while armed (Count E), five to 15 years' imprisonment for possession of a firearm during a crime of violence (Count D), and three to nine years for carrying a pistol without a license (Count C). Id., Ex. A at 2 & Ex. E. Plaintiff was to serve the sentences imposed for possession of a firearm during a crime of violence and for carrying a pistol without a license concurrently to each other, and he was to serve the sentence imposed for manslaughter while armed consecutively to the other sentences. Id., Ex. E.

On August 18, 1994, the Superior Court sentenced Plaintiff to a term of 40 months to 10 years' imprisonment for carrying a pistol without a license on April 26, 1992. Id., Ex. A at 3 & Ex. F (Judgment and Commitment Order, Crim. No. F-4503-92). Plaintiff was to serve this sentence concurrently to any other sentence. Id., Ex. F.

Plaintiff's "aggregate term of imprisonment is 19 to 57 years," Compl. ¶ 12, and he became eligible for parole on January 25, 2008. Id. ¶ 50; Defs.' Mot., Ex. A at 4.

B. The District of Columbia Board of Parole

1. Indeterminate Sentencing and Parole Eligibility

Generally, the Superior Court sentenced an offender "for a maximum period not exceeding the maximum fixed by law, and for a minimum period not exceeding one-third of the maximum sentence imposed, and any person so convicted and sentenced may be released on parole . . . at any time after having served the minimum sentence." D.C. Code § 24-403(a) (2001) (emphasis added). An offender was sentenced to a range, such as 10 to 30 years' imprisonment, and his parole eligibility was "established by the sentencing court." Cosgrove v. Thornburgh, 703 F. Supp. 995, 997 (D.D.C. 1988). Under District of Columbia law, parole may be granted when it appears that "there is a reasonable probability that a prisoner will live and remain at liberty without violating the law, that his release is not incompatible with the welfare of society, and that he has served the minimum sentence imposed or the prescribed portion of his sentence, as the case may be." D.C. Code § 24-404(a) (2001).

2. 1987 Regulations

There once existed a "Board of Parole . . . for the penal and correctional institutions of the District of Columbia," D.C. Code § 24-401.01(a) (2001), which determined an offender's suitability for parole. See Cosgrove, 703 F. Supp. at 997. The Board was authorized to:

(1) Determine if and when it is in the best interest of society and the offender to release ...


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