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Brian K Cole v. Isaac Fulwood Jr.

July 25, 2012


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


Plaintiff Brian Cole has been incarcerated since 1989 for voluntary manslaughter. He is suing the United States Parole Commission, three of its commissioners, and Isaac Fulwood Jr., its chairman, claiming he was unlawfully denied parole. Mr. Cole has been denied parole three times and argues that his last two parole denials constitute violations of the Ex Post Facto Clause because the U.S Parole Commission impermissibly used the less favorable 2000 Parole Guidelines ("2000 Guidelines"), 28 C.F.R § 2.80, rather than the 1987 Regulations ("1987 Regulations"), D.C. Mun. Regs. tit. 28, §§ 204.1 et seq. (1987) (repealed Aug. 5, 2000). He also challenges his most recent parole denial under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq. Before the Court are plaintiff's motion for summary judgment and defendants' motion to dismiss or in the alternative for summary judgment. For the reasons stated herein, the Court will grant defendants' motion and deny plaintiff's motion.



In 1997 Congress enacted the National Capital Revitalization and Self-Government Improvement Act. Pub.L. No. 105-33 § 11231; 111 Stat. 712, 734-37 (codified at D.C. Code §§ 24-131 et seq). As part of that law, the U.S. Parole Commission ("USPC") assumed the responsibilities of the District of Columbia Board of Parole ("the Board"). See Taylor v. Reilly, No. 10-5153, 2012 WL 2892392 at *1 (D.C. Cir. 2012). The USPC was to apply "'the parole laws and regulations of the District of Columbia'" to D.C. Code offenders. Sellmon v. Reilly, 551 F. Supp. 2d 66, 68 (D.D.C. 2008)*fn1 (quotingPub.L. No. 105-33 § 11231(c)).In 2000, the USPC issued new parole guidelines applicable to D.C. Code offenders who received an initial parole hearing after August 5, 1998. Id. at 72. The 2000 Guidelines replaced the 1987 Regulations that the Board had previously operated under. Id. at 69.

A detailed explanation of the differences between the two sets of guidelines is set forth in Sellmon. 551 F. Supp. 2dat69-73, 87-91. For the purposes of this case a more abbreviated summary will suffice. Under both the 1987 Regulations and the 2000 Guidelines an initial "salient factor score" ("SFS") -- an actuarial approximation of parole suitability -- is calculated based on a combination of pre and post incarceration factors. Id. at 73. Based on the SFS, a prisoner is presumptively either suitable or unsuitable for parole. Id. However, both the 1987 Regulations and the 2000 Guidelines allow the USPC to deny parole to a presumptively suitable prisoner if there are "unusual circumstances." Id.

The major difference between the two sets of guidelines, for the purposes of this case, is that the 2000 Guidelines allow departure from the decision reached based on the SFS score "on any basis . . . [not] 'fully taken into account in the guidelines.'" Id. (quoting 28 C.F.R § 2.80(n)). Additionally, under the 2000 Guidelines, the USPC is encouraged to consider "offense accountability" when making parole decisions. Id. at 88. Unlike the 2000 Guidelines, "the 1987 Regulations presume that the minimum sentence imposed by the sentencing court appropriately accounts for a parole candidate's offense severity and accountability and that the parole decision should be limited to consideration of the offender's risk of recidivism and institutional conduct." Id. The 1987 Regulations required any departure from the presumption to be justified by reference to one or more of an enumerated list of possible reasons, which were intended to identify prisoners who were a greater risk for parole than indicated by their SFS. Id. at 71. The permissible factors justifying the denial of parole to a presumptively eligible prisoner, under the 1987 Regulations, are listed in Appendices 2-1 and 2-2. D.C. Mun. Regs., tit. 28, § 204.1; id. apps. 2-1 & 2-2. Appendix 2-1 lists: (1) "repeated failure under parole supervision;" (2) "ongoing criminal behavior;" (3) "a lengthy history of criminally related alcohol abuse;" (4) "a history of repetitive sophisticated criminal behavior;" (5) "an unusually extensive and serious prior record;" or (6) "unusual cruelty to victims." Id. app. 2-1. Appendix 2-2 is entitled "Rehearing Guidelines -- Point Assessment Grid and Findings Worksheet for Rehearings." Id. app. 2-2. It lists three factors which can justify a departure from the guidelines: (1) "change in the availability of community resources leading to a better parole prognosis;" (2) "poor medical prognosis;" or (3) "other change in circumstances." Id.


Cole is incarcerated for a homicide committed in 1989. (Pl. Statement of Undisputed Facts ("Pl. SUF") ¶ 2.) On the day of the crime, he and a friend were smoking crack cocaine and when an argument started, Cole stabbed his friend over 100 times. (Def. Statement of Undisputed Facts ("Def. SUF") ¶ 2.) After her death Cole remained in the apartment for three days, during which time he was high on crack cocaine and attempted suicide multiple times.

(Compl. ¶ 21.) In 1990, Cole pleaded guilty to voluntary manslaughter while armed and was sentenced to 131/2 to 45 years in prison. (Pl. SUF ¶ 5.)

Cole has been denied parole three times. In May 1998, Cole had his first initial parole hearing. (Id. ¶ 8.) The Board granted him parole and transferred him to a halfway house. (Id. ¶ 10.) However in August 1998, the Board set its initial decision aside, because the family of Cole's victim had not had the opportunity to testify at his parole hearing. (Id. ¶ 11.)

Cole's second initial hearing occurred in December 1998, after the USPC assumed the responsibilities of the Board, supposedly under the 1987 Regulations. (Id. ¶¶ 12-13); see Sellmon, 551 F. Supp. 2d at 68. The USPC found that he was presumptively suitable for parole under the 1987 Regulations but deviated from that presumption and denied him parole. (Id.) The USPC explained that:

You continue to be scored under the 1987 guidelines of the D.C Board of Parole.

Those guidelines indicate that parole should be granted at this time. After a review of all factors and information presented, a departure from the guidelines at this consideration is warranted for the following reasons: You committed an extremely brutal murder in which you stabbed the victim over a hundred times, leaving her body almost unrecognizable. Also, after you murdered the victim you made no effort to contact the authorities or her family, remaining with the body in the victim's apartment for 3 days before the crime was discovered. (Id.) Cole subsequently filed an unsuccessful habeas corpus petition challenging this decision; it is therefore not at issue in this case. (Id. ¶ 15.)

Cole's next parole hearing was in 2004. (Id. ΒΆ 16.) Once again he was presumptively suitable for parole based on his SFS of zero. (Id.) Again, ...

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