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Ford v. Massarone

United States District Court, District of Columbia

September 13, 2016

EDWARD J.X. FORD, JR., Plaintiff,
CHARLES MASSARONE, et al., Defendants.


          COLLEEN KOLLAR KOTELLY, United States District Court Judge.

         This matter is before the Court on Defendants Motion for Summary Judgment [ECF No. 48]. For the reasons discussed below, the motion will be granted.

         I. BACKGROUND

         A. Plaintiff's Criminal Convictions

         Plaintiff has been convicted of three murders, see Mem. of P. & A. in Support of Defs.' Mot. for Summ. J. [ECF No. 48] (“Defs.' Mem.”), Decl. of JoAnn Kelley (“Kelley Decl.”) ¶ 3, and has “been in continuous custody since May 23, 1980, ” Compl. [ECF No. 1] ¶ 48, the date on which he “pistol-whipped” a man “and then shot him to death, ” Movant's Mem. of Law with P. & A. in Support of Pl.'s Mot. in Opp'n to Defs.' Mot. to Dismiss [ECF No. 16] (“Pl.'s First Opp'n”), Ex. A (Notice of Action dated August 25, 2005). This “Federal conviction for First Degree Murder . . . entailed [plaintiff and his accomplices] unlawfully entering the Minimum Security Correctional Complex at Lorton, Virginia and murdering the victim, who was confined at the facility.” Kelley Decl., Ex. C (Hearing Summary dated October 9, 2012) at 2. According to plaintiff, the victim twice had attempted to kill him, first by shooting him while he sat in his vehicle, and later by “throw[ing] several gasoline fire bombs against his door[] while firing weapons to keep the [him] and his family trapped inside.” Pl.'s Mot. in Opp'n to Defs.' Mot. to Dismiss and/or Summ. J. with Mem. of Law with P. & A. in Support [ECF No. 51] (“Pl.'s Second Opp'n”) at 37; Compl. ¶ 63. He claimed to have killed the victim out of “[f]ear[] for his safety and the safety of his family[.]” Kelley Decl., Ex. C at 2. On September 15, 1980, the United States District Court for the Eastern District of Virginia imposed concurrent sentences of life imprisonment for first degree murder and fifteen years for conspiracy to commit first degree murder. Compl. ¶ 45; Kelley Decl., Ex. A (Sentence Monitoring Computation Data) at 1-2. The presumptive parole date on plaintiff's federal sentence was November 22, 2005. Kelley Decl., Ex. B at 1.

         Plaintiff shot and killed his second victim in Northeast Washington on February 3, 1980. See Kelley Decl., Ex. B (DC Board of Parole Guideline Rehearing Assessment dated October 1, 2012) at 1. The victim allegedly “had raped and utterly terrorized [plaintiff's] aunt, ” who at that time “was dying from throat cancer[.]” Pl.'s Second Opp'n at 37; Compl. ¶ 63. An accomplice “met the victim . . . on the street [and] led him to [plaintiff's] car where he was forced to get into the car. The victim was shot in the head inside the car then pushed out of the car into an alley.” Kelley Decl., Ex. B at 1. On June 4, 1982, the Superior Court of the District of Columbia imposed concurrent sentences of 20 years to life imprisonment for one count of first degree murder while armed, 10 years for kidnapping while armed, and an unspecified term for carrying a pistol without a license. See Compl. ¶ 47; Kelley Decl. ¶ 3. Plaintiff's D.C. sentence was to be served consecutively to the federal sentence, Pl.'s Second Opp'n, Ex. A (Memorandum to plaintiff from G.C. Nye, Inmate Systems Manager, dated May 15, 1990), and his aggregate minimum sentence was 20 years imprisonment, id., Ex. (Sentencing Monitoring Computation Data) at 3; see Compl. ¶ 46.

         On February 26, 1980 in Prince George's County, Maryland, plaintiff reportedly shot and killed a friend. Kelley Decl., Ex. B at 1. Plaintiff “admitted that he was convicted of the offense [while denying that he actually had] commit[ed] the offense.” Id., Ex. C at 2. According to plaintiff, “he was implicated in the murder by . . . members of a rival drug gang[] in retaliation for his committing the murder on the Lorton Complex.” Id., Ex. C at 2. On June 18, 1981, “[h]e was sentenced . . . to a naturalized life term consecutive to any other sentence.” Id., Ex. B at 1 (emphasis removed). A detainer has been lodged. Id. ¶ 3; see id., Ex. A at 5. If plaintiff were to be paroled from the D.C. sentence, he would be handed over to the Maryland authorities. See id., Ex. C at 3; Compl. ¶ 64 (remarking that parole on the D.C. sentence means “getting paroled to another life sentence, which awaits [plaintiff] in the State of Maryland”).

         In addition to these murder convictions, plaintiff's criminal history includes a robbery conviction in 1965 and a drug conviction in 1977. Compl. ¶ 84.

         B. Parole Authority for D.C. Code Offenders

         At all times relevant to the Complaint, the Superior Court imposed on an offender an indeterminate sentence “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.” D.C. Code § 24-403(a). “[A]ny person so convicted and sentenced may be released on parole . . . at any time after having served the minimum sentence.” Id. (emphasis added). 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) (formerly codified at D.C. Code § 24.204(a) (1989)).

         When plaintiff committed the crimes for which he currently is imprisoned and when the Superior Court imposed his sentence, “authority for parole decisions for D.C. Code violations was vested in the District of Columbia Parole Board (the ‘Parole Board').” Compl. ¶ 5. The Parole Board was authorized to “[d]etermine if and when it is in the best interest of society and the offender to release him . . . on parole[.]” D.C. Code § 24-401.02(a) (formerly codified at D.C. Code § 24-201.2 (1989)). Consistent with the statute, the Parole Board's regulations provided:

[T]he [Parole] Board shall be authorized to release a prisoner on parole in its discretion after he . . . has served the minimum term or terms of the sentence imposed or after he . . . has served one-third (1/3) of the term or terms for which he . . . was sentenced, as the case may be, if the following criteria are met:
(a) The prisoner has observed substantially the rules of the institution;
(b) There is a reasonable probability that the prisoner will live and remain at liberty without violating the law; and
(c) In the opinion of the [Parole] Board, the release is not incompatible with the welfare of society.

28 D.C.M.R. § 200.1 (emphasis added).[1] “Once a prisoner became eligible for parole, the . . . Parole Board would then determine whether he . . . was suitable for parole.” Sellmon v. Reilly, 551 F.Supp.2d 66, 69 (D.D.C. 2008) (emphasis in original) (footnote omitted).

         The Parole Board since has been abolished, see D.C. Code § 24-131(b), pursuant to the National Capital Revitalization and Self-Government Improvement Act of 1997, Pub. L. No.105-33, § 11231(a)-(c), 111 Stat. 712, 745 (1997). The Revitalization Act also transferred to the United States Parole Commission (“Commission”) the authority to grant, deny, impose or modify conditions of, and revoke parole for District of Columbia Code felony offenders. D.C. Code § 24-131(a); see Franklin v. District of Columbia, 163 F.3d 625, 632 (D.C. Cir. 1998) (discussing transfer of parole authority). For D.C. Code offenders such as plaintiff who found themselves in federal custody prior to the Revitalization Act, “the Commission administered their parole hearings, but in such circumstances, [it] was required to apply the Parole Board's regulations, guidelines, policies, and practices[.]” Compl. ¶ 12.

         C. Parole Regulations and Guidelines

         1. 1972 Guidelines

         The Parole Board's early regulations, issued in 1972, “listed a set of factors that included, ‘[a]mong others, ' the nature of the prisoner's offense, his prior criminal history, his personal and social history, and his institutional experience (including behavior in prison, involvement in academic and vocational programs, etc.).” Daniel v. Fulwood, 766 F.3d 57, 58-59 (D.C. Cir. 2014) (citing 9 D.C.R.R. § 105.1 (1972)). They provided no “way to translate the factors into a parole release date, ” however, Phillips v. Fulwood, 616 F.3d 577, 579 (D.C. Cir. 2010), and the Parole Board then “operated with discretion that was ‘almost unbridled, '” Wilson v. Fullwood, 772 F.Supp.2d 246, 267 (D.D.C. 2011) (citing Sellmon, 551 F.Supp.2d at 86 n.15).

         2. 1987 Regulations

         The Parole Board made its parole decisions for D.C. Code offenders using guidelines “promulgated in 1985, see 32 D.C. Reg. 940 (Feb. 15, 1985), ” which have become known “as the 1987 [R]egulations because of their year of publication[.]” Phillips, 616 F.3d at 580 n.2. It adopted “criteria consist[ing] of pre[-] and post-incarceration factors which enable[d it] to exercise its discretion when, and only when, release is not incompatible with the safety of the community.” 28 D.C.M.R. § 204.1. Plaintiff has conceded “that the crimes for which he was tried, convicted, and sentence[d] did occur well-before the 1987 [Regulations] were enacted, ” Pl.'s Second Opp'n at 3, yet maintains that the 1987 Regulations apply to him, see, e.g., Compl. ¶¶ 15-16.

         First, the 1987 Regulations called for the calculation of a salient factor score (“SFS”), 28 D.C.M.R. § 204.2, described as “an actuarial parole prognosis aid to assess the degree of risk posed by a parolee, ” 28 D.C.M.R. § 204.3. To calculate the SFS, the Parole Board considered six pre-incarceration factors: (1) prior convictions and adjudications (Item A); (2) prior commitments of more than 30 days (Item B); (3) age at the commission of current offense (Item C); (4) recent commitment-free period (Item D); (5) the offender's status (e.g., as a parolee or probationer) at time of current offense (Item E); and (6) a history of heroin or opiate dependence (Item F). See 28 D.C.M.R. §§ 204.4-204.16. Then it assigned a numerical value to each factor. See 28 D.C.M.R. § 201 app. 2-1 (SALIENT FACTOR SCORE). With respect to the first factor, and with exceptions not relevant here, the Parole Board counted “[a]ll convictions . . . for criminal offenses . . . other than the current offense.” 28 D.C.M.R. § 204.5(a).

         “The SFS placed the candidate into one of four risk categories (10-9 = low risk, 8-6 = fair risk, 5-4 = moderate risk, or 3-0 = high risk) from which the Parole Board would determine a baseline number of points (‘base point score') that provided 0 for low risk, 1 for fair risk, 2 for moderate risk, and 3 for high risk.” Sellmon, 551 F.Supp. 2d. at 70; see 28 D.C.M.R. § 204.17 & app. 2-1 (POINT ASSIGNMENT GRID ADULT OFFENDERS). “The [Parole] Board would then take the base point score and adjust it using the remaining pre-incarceration factor and . . . two-post incarceration factors to arrive at the Point Assignment Grid Score (‘total point score').” Sellmon, 551 F.Supp. 2d. at 70.

         The remaining pre-incarceration factor assessed the type of risk the candidate posed. Id.; see 28 D.C.M.R. § 204.18(a)-(g). If the candidate's current offense or a past convictions involved a felony causing death or serious bodily injury, a felony in which the candidate used a dangerous weapon, or a felony conviction for distribution or intent to distribute illegal drugs, the Parole Board added one point () to the candidate's base point score. See 28 D.C.M.R. § 204 app. 2-1 (TYPE OF RISK ASSESSMENT and POINT ASSIGNMENT GRID ADULT OFFENDERS).

         The post-incarceration factors were the candidate's institutional behavior and sustained program achievement. See 28 D.C.M.R. § 204.18(h)-(i). The Parole Board could add one point to a candidate's base point score () if he committed serious disciplinary infractions, and it could subtract one point from the candidate's base point score (-1) if the “offender demonstrated sustained achievement in the area of prison programs, industries, or work assignments during this period of incarceration.” 28 D.C.M.R. § 204 app. 2-1 (Post-Incarceration Factors).

         If the candidate's total point score was zero, one or two, the 1987 Regulations provided that “[p]arole shall be granted at the initial hearing” with an appropriate level of supervision. 28 D.C.M.R. § 204.19(a)-(c). If the candidate's total point score was three, four or five, parole was to be “denied at initial hearing and rehearing scheduled.” 28 D.C.M.R. § 204.19(d). On rehearing, the Parole Board took the candidate's “total point score from the initial hearing and adjust[ed] that score according to the institutional record of the candidate since the last hearing[.]” 28 D.C.M.R. § 204.21. If the candidate's score on rehearing was zero, one, two or three, parole ordinarily would be granted at the appropriate level of supervision. 28 D.C.M.R. § 204.21(a); see 28 D.C.M.R. § 204 app. 2-2 (POINT GRID FOR PAROLE REHEARINGS). If the candidate's score was four or five, parole was “denied and a rehearing date scheduled.” 28 D.C.M.R. § 204.21(b).

         The 1987 Regulations provided that the Parole Board could, “in unusual circumstances, waive the SFS and the pre[-] and post-incarceration factors . . . to grant or deny parole to a parole candidate.” 28 D.C.M.R. § 204.22. For example, if the candidate repeatedly had failed under parole supervision, had a history of repetitive sophisticated criminal behavior, had an unusually extensive and serious prior record, had displayed unusual cruelty to victims, or had “[r]epeated or [e]xtremely [s]erious [n]egative [i]nstitutional [b]ehavior, ” the Parole Board could deny parole. 28 D.C.M.R. § 204, app. 2-1 (DECISION WORKSHEET: INITIAL HEARINGS for WORSE RISK). If the candidate's criminal record resulted exclusively from trivial offenses or if he showed exceptional achievement in educational or vocational programs while incarcerated, the Parole Board could find him a better risk than application of the 1987 Regulations would suggest and thus could have granted parole. 28 D.C.M.R. § 204, app. 2-1 (DECISION WORKSHEET: INITIAL HEARINGS for BETTER RISK). In these circumstances, the Parole Board was required to “specify in writing those factors which it used to depart from the strict application” of the 1987 Regulations. 28 D.C.M.R. § 204.22.

         3. 1991 Policy Guideline

         In 1991, the Parole Board “adopted a policy guideline (‘1991 Policy Guideline') to define the terms used in the appendices” to the 1987 Regulations. Sellmon, 551 F.Supp.2d at 71. The 1991 Policy Guideline defined “negative institutional behavior” to exclude consideration of an infraction (other than murder, manslaughter, kidnapping, armed robbery, or first degree burglary) occurring more than three years before the initial parole hearing. Id. The term “sustained program or work assignment achievement” meant the “successful completion of one or more educational or vocational programs, or program levels, each of which enabled the [candidate] to develop an academic or job-related skill, OR enabled the offender to progress to a higher level of difficulty or skill in the program area.” Id. On rehearing, such accomplishments were “ordinarily . . . considered as sustained program or work assignment achievement where completion occurred since the preceding consideration for release on the sentence.” 1991 Policy Guideline sec. VI-A-2(b).

         The 1991 Policy Guideline also describes an unusually extensive or serious prior record as a record of at least five felony convictions for the commission or attempted commission of any one or any combination of specified crimes of violence:

a. Arson;
b. Assault, OR maliciously disfiguring another person, OR ...

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