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Hunter v. Reilly

March 12, 2010

STEVEN M. HUNTER, PLAINTIFF,
v.
EDWARD F. REILLY, JR., DEFENDANT.



The opinion of the court was delivered by: Richard W. Roberts United States District Judge

MEMORANDUM OPINION

This matter is before the Court on plaintiff's motions for summary judgment, to amend the complaint, and for injunctive relief, and defendant's motion to dismiss. Because plaintiff already has obtained the relief he seeks through a habeas corpus action filed in the United States District Court for the Western District of Louisiana, that is, a parole hearing at which the regulations of the former District of Columbia Board of Parole were applied, the Court will grant defendant's motion. In addition, the Court will deny plaintiff's motions for summary judgment and for injunctive relief as moot, and will deny plaintiff's motion to amend the complaint.

I. BACKGROUND

On February 1, 1996, in the Superior Court of the District of Columbia, plaintiff was sentenced to an aggregate term of 10 to 30 years' incarceration on his convictions for simple assault, aggravated assault while armed, and assault with a dangerous weapon. Compl. at 12.*fn1

He "committed his offenses after the 1987 Regulations and 1991 Policy Guideline were adopted" by the District of Columbia Board of Parole ("Parole Board"). Id. By the time plaintiff became eligible for parole, the Parole Board had been abolished, and the United States Parole Commission ("USPC") had assumed the jurisdiction and authority to grant, deny, or revoke parole, to impose or modify conditions of parole, and to promulgate regulations pertaining to parole for District of Columbia Code offenders. See National Capital Revitalization and Self-Government Improvement Act of 1997 ("Revitalization Act"), 111 Stat. 745, Pub. L. 105-33, § 11231, codified at D.C. Code § 24-131(a), (b).

When the USPC conducted plaintiff's initial parole hearing in February 2005 and a rehearing in July 2008, it applied its own guidelines, see 28 C.F.R. § 2.80 et seq., for District of Columbia Code offenders:

The USPC calculated Hunter's [Salient Factor Score] as an __ placing him in the risk category __ with a base point score of __ and added __ points because [the underlying offense] was a crime of violence in which [the victim's] death could have resulted . . .. The base point score was 4 converted to a base guideline range of 12-18 months, which was added to Hunter's parole eligibility period of 124 months. The USPC then added 12-16 months for [a] disciplinary infraction, for what they consider "new criminal conduct," and added 0-6 months for 3 disciplinary infractions . . . which they consider as administrative infraction[s]. Then [the USPC] added 12-22 months for disciplinary infraction Hunter guideline range of . . . 136-142 [giving] Hunter [a] guideline range total of 148-164 months. The USPC denied Hunter's request for parole on March __, 2005, a decision within the Guidelines. At that time, Hunter had served 115 months[,] 48 months away from the bottom of his total guideline range. The USPC set [a] rehearing for February 2008.

On July 30, 2008, the USPC conducted Hunter's rehearing under the 2000 Guidelines. The USPC added 0-10 months to Hunter's guideline range of 148-164, for 1 disciplinary infraction they consider "new criminal conduct," giv[ing] Hunter [a] total guideline range of 148-174. The USPC then added 0-8 months to Hunter['s] guideline range of 148-174, for 4 disciplinary infractions . . . which they consider Administrative Infractions [giving] Hunter [a] guideline range of 148-182. The USPC denied Hunter's request for parole and set [a] rehearing for 36 months July 2011. Above the top of the guideline by 10 months.

Compl. at 12-13 (blank lines in original). According to plaintiff, if the USPC had applied the Parole Board's 1987 Regulations and 1991 Policy Guideline, he would have been presumed suitable for parole release at his initial hearing with a low level of supervision:

[U]nder the 1987 Regulations his background would have qualified him to an SFS of 8, placing him in a good risk/low risk category with a baseline score of 0. One point would have been added to his baseline score because his current offense involved violence and one point would have been subtracted for sustained program achievement, leaving Hunter with a total point score of 0. ([Notably] even if the Board would have added one point for disciplinary infraction the one point for sustained program [achievement] would still have [given] Hunter [a] total point score of 1). With a total point score of 0 and or (1), Hunter would have been presumed suitable for parole at his Initial hearing with a low level of supervision.

Compl. at 17. In other words, application of the USPC's guidelines allegedly "increased the risk that [plaintiff] would and . . . in fact [did] serve a longer term of incarceration" in violation of the Ex Post Facto Clause of the United States Constitution. Id. at 19; Compl. (preprinted form) at 5 (page number designated by the Court).

Plaintiff demands an Order directing the defendant to conduct a new parole rehearing and to apply the former Parole Board's 1987 Regulations and 1991 Policy Guideline. Compl. (preprinted form) at 5.

II. DISCUSSION

A. Defendant's Motion to ...


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