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Gambrell v. Fulwood

United States District Court, District Circuit

June 18, 2013

JAMES GAMBRELL, et al., Plaintiffs,
v.
ISAAC FULWOOD, JR., Chairman of the United States Parole Commission, et al., Defendants.

MEMORANDUM OPINION

BARBARA J. ROTHSTEIN, UNITED STATES DISTRICT JUDGE.

DISMISSING CASE

I. INTRODUCTION

This case comes before the Court on Defendants’ motion to dismiss.[1] Plaintiffs are five individuals currently serving sentences in federal prison for various violations of the District of Columbia Code. Plaintiffs bring suit against the Chairman and three Commissioners of the United States Parole Commission (collectively, “the Commission”) under 42 U.S.C. § 1983. Plaintiffs allege that the Commission violated their constitutional rights under the Due Process Clause, the Ex Post Facto Clause, and the First Amendment when it misapplied the District of Columbia parole guidelines and denied them parole. For the following reasons, the Court grants Defendants’ motion and dismisses this case.

II. BACKGROUND

A. Parole Review Practices for D.C. Code Offenders

In 1997, Congress enacted the National Capital Revitalization and Self-Government Improvement Act (“Revitalization Act”), which abolished the D.C. Parole Board (“the Board”) and directed the United States Parole Commission to conduct parole hearings for D.C. Code offenders. Pub. L. No. 105-33, § 11231, 111 Stat. 251. The Revitalization Act further required that the Commission conduct the parole hearings in accordance with the District of Columbia parole laws and regulations. Id. § 11231(a)-(c).

In 1987, the District of Columbia promulgated regulations (“1987 Regulations”) designed to “structure the exercise of the paroling authority’s discretion, ” and promote “increased consistency in parole release decisions and enhanced accountability of the Board.” Report on the Development of the Paroling Policy Guidelines for the District of Columbia Board of Parole at 1.[2] Specifically, these regulations made “explicit” six factors that the Commission had to consider in reviewing the possibility of parole for a prisoner. Id. These factors, known as “pre-incarceration factors, ” included: (1) prior convictions and adjudications; (2) prior commitments of more than 30 days; (3) age at the commission of current offense; (4) recent commitment-free period; (5) status of prisoner at time of current offense; and (6) history of heroin or opiate dependence. D.C. Mun. Regs. tit. 28, §§ 204.4-204.16.

The Commission combined these factors to arrive at a “Salient Factor Score” for each prisoner, which in turn was used to assign a Total Point Score (“TPS”). The TPS took into consideration the degree and type of risk that a prisoner posed to society prior to his incarceration, as well as his institutional adjustment and program achievement while incarcerated. Report on the Development of the Paroling Policy Guidelines for the District of Columbia Board of Parole at 5-6. The 1987 Regulations indicated that parole should be granted or denied depending on the TPS score. See D.C. Mun. Regs. tit. 28, §§ 204.19, 204.21.

However, the 1987 Regulations allow the parole authority to deviate from the TPS score’s mandated outcome for “unusual circumstances” that the parole authority specified in writing. Id. § 204.22. The 1987 Regulations provide ten factors that the Commission may use to justify such a departure. Am. Compl., Ex. 1 at 32-34. Relevant to this case, these factors include: (1) the current offense involved “ongoing criminal behavior”; (2) the offender had a history of “repetitive sophisticated criminal behavior”; (3) the offender had an unusually serious prior record of at least five felony convictions; (4) the offender’s crime involved “unusual cruelty to victims”; and (5) other. Id. These factors are defined in the policy guidelines that the District of Columbia published in 1991 (“1991 Policy Guidelines”) to supplement the 1987 Regulations (collectively, the “D.C. Guidelines”). Am. Compl., Ex. 2 at 6-9.

B. Plaintiffs

1. James Gambrell

In January 1991, James Gambrell was convicted of committing second-degree murder while armed and was sentenced by the D.C. Superior Court to a prison term of 12 years to life. Am. Compl. ¶ 41. Gambrell’s criminal record includes two prior convictions and two parole violations. Defs.’ Mot. to Dismiss (“Defs.’ Mot.”), Ex. 15 at 5. robbery-rape in 1968, received parole in 1973, and while on parole committed a kidnapping and bank robbery by assault with a deadly weapon. Id. After serving a period of incarceration, Gambrell again received parole in 1985, only to violate parole yet again by committing the robbery-murder for which he currently serves time. Id.

In June 1998, the Board denied Gambrell parole based on his (1) previous failure under community supervision, (2) ongoing and repetitive criminal history, (3) prior record of violence, and (4) unusual cruelty to his victim. Am. Compl. ¶ 43.

In December 1999, the Commission held its first parole hearing for Gambrell. Id. ¶ 45. Like the Board, the Commission departed from the D.C. Guidelines and denied him parole, emphasizing that Gambrell’s criminal history demonstrated an “unusually extensive or serious prior record.” Id. ¶ 46. The Commission further required Gambrell to wait three and a half years before he could again request parole, a period of time referred to as a “set-off.” Id.

In July 2003 and July 2005, the Commission again denied parole based on Gambrell’s prior criminal convictions. Id. ¶¶ 47-48. However, the Commission lowered the set-off period to three years in 2003 and to one year in 2006. Id.

In July 2007, [3] the Commission denied Gambrell parole based on his prior criminal convictions and increased his set-off to five years. Id. ¶¶ 50-53. The Commission reasoned that,

[nineteen] years is simply not enough time for an individual to serve in a crime of this nature, and [the Commission] believe[s] that release at this time, or any time in the near future, would depreciate the seriousness of the offense behavior and promote disrespect for the law.

Id. ¶ 52.

In response, Gambrell filed a lawsuit challenging the July 2007 parole denial. Id. ¶ 54. In Sellmon v. Reilly, Judge Huvelle determined that the Commission denied parole by relying on a reason that, although allowed under the federal parole guidelines, was not a “legitimate rationale” for departure under the D.C. Guidelines. Sellmon v. Reilly, 551 F.Supp.2d 66, 97 (D.D.C. 2008) (citing 28 C.F.R. § 2.18). Judge Huvelle concluded that the application of a new rule that was facially different and that created a risk of prolonging Gambrell’s incarceration resulted in a violation of the Ex Post Facto Clause. Id. at 97-98. The Sellmon court directed the Commission to hold a new parole hearing for Gambrell and to correctly apply the D.C. Guidelines. Id. at 99.

Pursuant to Sellmon, the Commission conducted a special reconsideration hearing for Gambrell in June 2008. Am. Compl. ¶ 57. Gambrell’s TPS indicated that parole should be granted, and the Commission’s Hearing Examiner recommended parole. Defs.’ Mot., Ex. 15 at 4. However, the Commission’s Executive Reviewer disagreed, reasoning that Gambrell remained a danger to the public safety due to his criminal history and his repeated parole violations. Id. In the end, the Commission denied Gambrell parole and issued a four-year set-off in July 2008. Id. at 6.

2. Kenneth Easton

In July 1994, Easton was convicted of second-degree murder while armed and was sentenced to life in prison. Defs.’ Mot., Ex. 18. According to a witness, the victim told Easton, “I don’t have any money, I gave you all of it.” Defs.’ Mot., Ex. 19 at 1. The witness further testified that Easton reached into the victim’s pocket before stepping back and shooting the victim at close range. Id.

The Commission first denied Easton parole in April 2005. Defs.’ Mot. at 7. Then in March 2010, even though Easton’s TPS indicated that parole should be granted, the Commission again denied parole because his “offense involved exceptional cruelty to a victim.” Id. In support of its decision, even though Easton had performed well and maintained good behavior, the Commission considered Easton to be a danger to the community ...


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