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Void v. Smoot

United States District Court, District of Columbia

October 31, 2016

BRUCE E. VOID, Plaintiff,
v.
J. PATRICIA WILSON SMOOT, et ah, Defendants.

          MEMORANDUM OPINION

          RUDOLPH CONTRERAS United States District Judge

         This matter is before the court on Defendants' Motion to Dismiss, ECF No. 9.[1] For the reasons discussed below, the motion will be granted.

         I. BACKGROUND

         A. Parole for D.C. Code Felony Offenders

         At all times relevant to the Complaint, the Superior Court of the District of Columbia 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)). The United States Parole Commission (“USPC”) now has 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 from former District of Columbia Board of Parole to USPC).

         B. The 1987 Regulations

         For offenders such as plaintiff who committed offenses in 1987 and 1989, the USPC applies 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 v. Fulwood, 616 F.3d 577, 580 n.2 (D.C. Cir. 2010). There are “criteria consist[ing] of pre[-] and post-incarceration factors which enable[ the USPC] 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.

         First, the 1987 Regulations call 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 USPC considers 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 assigns 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 USPC counts “[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 [USPC] determines 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 v. Reilly, 551 F.Supp.2d 70 (D.D.C. 2008); see 28 D.C.M.R. § 204.17 & app. 2-1 (POINT ASSIGNMENT GRID ADULT OFFENDERS). “The [USPC takes] the base point score and adjust[s] 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 factors assess the type of risk the candidate poses. Id.; see 28 D.C.M.R. § 204.18(a)-(g). If the candidate's current offense or a past conviction 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, one point () is added 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 are the candidate's institutional behavior and sustained program achievement. See 28 D.C.M.R. § 204.18(h)-(i). The USPC may add one point to a candidate's base point score () if he committed serious disciplinary infractions, and it may 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 is zero, one or two, the 1987 Regulations provide 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 is 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 USPC takes 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 is zero, one, two or three, parole ordinarily is 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 is four or five, parole is “denied and a rehearing date scheduled.” 28 D.C.M.R. § 204.21(b).

         The 1987 Regulations provide that the USPC 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 USPC 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 USPC could find him a better risk than application of the 1987 Regulations would suggest and thus could parole. 28 D.C.M.R. § 204, app. 2-1 (DECISION WORKSHEET: INITIAL HEARINGS for BETTER RISK). In these circumstances, the USPC is 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.

         C. Plaintiff's Criminal History

         On September 9, 1991, the Superior Court of the District of Columbia sentenced plaintiff to a term of 20 years to life imprisonment for first degree murder while armed, and a consecutive term of three to nine years imprisonment for conspiracy. See Mot. of Pl. for Partial Summ. J. on his Ex Post Facto Claim, ECF No. 15 (“Pl.'s Mot.”), Ex. 3 (Judgment and Commitment Order, United States v. Void, No. F 10343-90 (D.C. Super. Ct. Sept. 6. 1991)). The conspiracy conviction pertained to plaintiff's distribution and possession with intent to distribute PCP and cocaine in or about November 1987. See id., Ex. 1 (DC Board of Parole Guideline Prehearing Assessment dated December 6, 2011) at 1. The murder conviction was not the plaintiff's first - he had been “previously convicted of a Murder (Conspiracy After the [F]act) in Prince George's County, Maryland[, ] and sentenced to a term of 5 years” imprisonment.[2] Id., Ex. 2 (Hearing Summary dated December 12, 2011) at 3. In addition, plaintiff had been convicted of robbery in 1989. See id., Ex. 1 at 2.

         D. ...


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