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Morton v. United States Parole Commission

United States District Court, District of Columbia

July 6, 2018

WALTER BERNARD MORTON, JR., Plaintiff,
v.
UNITED STATES PAROLE COMMISSION, et al., Defendants.

          MEMORANDUM OPINION

          RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE

         Plaintiff Walter Bernard Morton, Jr., proceeding pro se, is currently serving a parole-eligible sentence imposed under the D.C. Code. Describing his action as a petition for a writ of habeas corpus and challenge under 42 U.S.C. § 1983, he brings suit to contest the April 28, 2016 decision of the United States Parole Commission (“the Commission”) to deny him parole until at least April 2019.[1] Dkt. 1 at 1, 27, 54. Morton alleges that when considering whether to grant him parole, the Commission unlawfully (and surreptitiously) applied guidelines first promulgated in 2000, rather than the regulations issued in 1987 and a policy guideline issued in 1991 that the parties agree should have governed the determination. Id. at 26.

         This matter is currently before the Court on Morton's motion for summary judgment, Dkt. 13, and the Commission's cross-motion to dismiss or, in the alternative, to transfer, Dkt. 14. The Commission argues that Morton has brought a habeas petition and that the Court lacks jurisdiction over such a petition because Morton is currently incarcerated in Beaumont, Texas. Dkt. 14-1 at 6. It asserts, moreover, that dismissal rather than transfer is appropriate because Morton's habeas action is unlikely to succeed on the merits. Id. at 13. To the extent Morton's action can be characterized as seeking his release from prison through the writ, that aspect of this matter is fairly straightforward: the Court agrees with the Commission. Morton appears, however, to request a new parole hearing and that the hearing be conducted according to the procedures the parties agree govern his release. Dkt. 1 at 26-27. Whether framed as a § 1983 claim, a freestanding challenge under the Ex Post Facto Clause, or as a petition for a writ of habeas corpus, this aspect of Morton's suit presents a more complicated question. For the reasons set forth below, the Court concludes that Morton has failed to state a § 1983 or Ex Post Facto Clause claim, that the Court lacks jurisdiction over any habeas petition he seeks to bring, and that transferring the case would not be in the interest of justice. The Court will, accordingly, GRANT in part and DENY in part Defendants' motion and will DISMISS on its own motion the remainder of the complaint. The Court will also DENY Morton's motion for summary judgment because it fails to overcome the threshold issues raised by Defendants' motion to dismiss or transfer.

         I. BACKGROUND

         On a motion to dismiss, the Court accepts the plaintiff's “well-pleaded factual allegations” as true. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The Court also considers the attachments to the complaint, see EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 & n.3 (D.C. Cir. 1997), and takes judicial notice of the decisions, regulations, and guidelines of the Commission, the now-defunct D.C. Parole Board, and the Federal Bureau of Prisons, see Abhe v. Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007). The Court considers the remaining materials in the record insofar as they assist in determining whether it has jurisdiction. See Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).

         On July 25, 1996, a D.C. Superior Court judge sentenced Morton to twenty-one years to life in prison for second degree murder (along with various firearm offenses related to his possession of the murder weapon). Dkt. 1 at 2-3. Under the sentencing scheme then in place, a prisoner must serve at least the lower bound of an indeterminate sentence prior to becoming eligible for parole. See Sellmon v. Reilly, 551 F.Supp.2d 66, 69 & n.3 (D.D.C. 2008). On or shortly before a prisoner reaches that parole-eligible date, the Commission holds an initial hearing. See Bailey v. Fulwood, 793 F.3d 127, 129 (D.C. Cir. 2015). For prisoners sentenced under the D.C. Code who committed their offenses between March 4, 1985 and August 4, 1998-as did Morton-a set of regulations promulgated by the D.C. Parole Board in 1987 govern the proceedings. See Id. at 131; see also D.C. Mun. Regs. tit. 28, § 100 et seq. (1987) (“1987 Guidelines”). These regulations were issued pursuant to D.C. Code § 24-204, which stated:

Whenever it shall appear to the Board of Parole 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, the Board may authorize his release on parole upon such terms and conditions as the Board shall from time to time prescribe.

D.C. Code. § 24-204(a), superseded by § 24-404(a) (2009); see also Bailey, 793 F.3d at 130. Most relevant to Morton's situation, the 1987 Guidelines “created a point system focused on offender history, offense characteristics, and behavior while in prison, ” with “[t]he resulting point total determin[ing] whether parole would be granted.” Bailey, 793 F.3d at 130. “However, the [1987] Guidelines also allowed the [D.C. Parole] Board to override the point-based determination in ‘unusual circumstances.'” Id. (quoting D.C. Mun. Regs. tit. 28 § 204.22). In 1991, the D.C. Parole Board issued an additional “unpublished policy guideline that provided definitions of criteria, parameters, and terms used in the 1987 Guidelines.” Id.; see also Policy Guideline, D.C. Board of Parole (Dec. 16, 1991) (“1991 Policy Guideline”). The Commission also refers to the 1991 Policy Guideline when evaluating parole for prisoners in Morton's position. See Bailey, 793 F.3d at 130-32.

         After serving twenty-one years in prison, Morton became eligible for parole on January 16, 2016. Dkt. 1 at 31. He had his initial hearing several months before that date. Id. At the hearing, the examiner determined that Morton had “a total point score of 2 under the 1987 Board of Parole guidelines for D.C. Code offenders.” Id. That score “indicate[d] that parole should be granted.” Id. The examiner, however, overrode that outcome for multiple reasons. Id. Most notably, he found that Morton had shown “total disregard for the welfare of [the man he murdered] by not calling for medical help as soon as [Morton] shot him, ” instead “allowing [the victim] to suffer for at least an hour before [Morton] finally summoned medical help.” Id. The examiner concluded that Morton's actions constituted “unusual cruelty to the victim, ” id., an aggravating circumstance under the 1987 Guidelines, see Sellmon, 551 F.Supp.2d at 71. When a hearing examiner determines that an aggravating circumstance exists, he may override the recommendation produced by the prisoner's point score. See Id. The examiner did so in Morton's case and “recommend[ed] [that] parole be denied” and that a rehearing be set for twelve months after Morton's eligibility date. Dkt. 1 at 32.

         The examiner also made other findings related to Morton's post-incarceration behavior that further influenced his decision to recommend continuing the parole hearing for a year. In concluding that it was appropriate to override Morton's point score, the examiner found that Morton “need[ed] additional programming to remain crime-free once released to the community.” Id. at 31. He then explained that Morton had incurred eleven disciplinary infractions while in custody, most recently in 2014, that Morton had completed only a “moderate” level of programming while in prison, and that he had not participated in classes “concerning victims of crimes.” Id. at 32. In light of this history, the examiner concluded that Morton “need[ed] to engage in a victim impact program and . . . need[ed] a sustained period of clear conduct” before being released on parole. Id.

         The hearing officer's recommendation was then submitted to an executive reviewer, who recommended that the Commission reject the hearing officer's conclusions. Id. at 36. The reviewer found that the examiner had inadequately justified the application of the unusual cruelty aggravating factor. Id. Specifically, he concluded that Morton's actions were not “any more cruel than needed to sustain a conviction for second degree murder.”[2] Id. at 37. Although the reviewer recognized that post-incarceration behavior had also factored into the decision to recommend denying parole, he noted that the “primary reason” was the unusual cruelty determination. Id. at 37-38. The Commission, however, ultimately sided with the examiner, denied parole, and set a rehearing date for January 2017. Id. at 40. At the request of Morton's attorney, the Commission moved the hearing date up to August 2016, which was a year from his last hearing rather than a year from his eligibility date. Id. at 41-43. That date was then further advanced to April 7, 2016, to accommodate victim impact statements from the sisters of the man Morton murdered. Id. at 47; Dkt. 19 at 3.

         At that second hearing, the examiner again determined that Morton's numerical score under the 1987 Guidelines indicated that parole should be granted, but, again, declined to recommend release. Id. at 49. Specifically, the examiner found that Morton had committed a disciplinary infraction on December 9, 2015. Id. at 48. On that date, at least one sharpened piece of metal was found wedged behind a locker in Morton's cell. Id. Morton denied that the weapon was his and presented evidence corroborating his account, but “acknowledged . . . that someone has to be held responsible.” Id. The examiner recommended denying parole because “the seriousness and recent occurrence of [Morton's] serious negative institutional behavior, including [his] pattern of possessing dangerous weapons, is evidence [Morton] [was] not ready to remain crime-free in the community and [his] continued incarceration . . . [was] necessary to protect the public.” Id. at 49.

         Morton's attorney raised several objections, including that the victim's family had been allowed to speak at the hearing. Id. at 50. In response, the examiner clarified his findings:

I advised [Morton's attorney that] my recommendation was not even based on the testimony of the victims. Rather, it was entirely based on the fact that, in the 8 months since his last hearing, he has incurred a very serious disciplinary infraction of possessing dangerous weapons. I told him I found the subject's claim of innocence lacked credibility as this is now the third time the subject has been found guilty for possessing weapons. When you couple that with the Stalking infraction of 2014 and prior infractions for Threats, Insolence, and Refusing to Obey Orders, I found it sufficient evidence he is not ready to remain crime-free in the community. I also advised of my finding a new term of incarceration beyond the ordinary rehearing guideline was necessary to protect the public due to the recentness and severity of the weapons infraction.

Id. On April 28, 2016, the Commission adopted that recommendation in full, reiterating that earlier disciplinary infractions for possession of weapons in 2003 and 2004 meant that Morton's denials “lack[ed] credibility, ” and noting that other disciplinary infractions that had occurred prior to Morton's initial hearing supported denying parole. Id. at 54.

         Later that year, the corrections officer who originally reported Morton for possession of the weapon in 2015 formally requested that the disciplinary incident be expunged from Morton's record. Id. at 63. The officer stated that Morton “was wrongfully charged with the possession of a dangerous weapon” because further searches behind lockers elsewhere in the prison had uncovered vast quantities of similar weapons in identical locations, suggesting that the weapons had accumulated over time. Id. Morton's lawyer requested that the Commission reopen his hearing on the basis of this new information. Dkt. 14-2 at 3. The Commission then contacted the prison where Morton was being held, which relayed that the Disciplinary Hearing Officer who found Morton guilty “ha[d] no intention of expunging the incident report based upon the [staff member's] recommendation.” Dkt. 14-5 at 3. Instead, the only way to have the disciplinary infraction expunged was through an administrative appeals process. Id. Morton had in fact already attempted to utilize that procedure, but his appeal was denied prior to the investigator's request that the Bureau of Prisons expunge the disciplinary incident. Id. After the investigator's recommendation, Morton once more sought administrative expungement. Id. That request was, again, denied. Id.

         Because the Commission's policy is that an adverse finding under prison disciplinary procedures “is considered conclusive evidence of guilt, ” the result of Morton's administrative appeals led the Parole Commission hearing examiner to recommend against reopening Morton's parole hearing. Id. The examiner further noted that he was “not swayed by” the corrections officer's request for expungement, concluding “that the subject's history of possessing weapons makes him a risk to the community.” Id. The Commission concurred in that recommendation on December 16, 2016. Id. at 4. Shortly thereafter, Morton commenced this action. Dkt. 1 at 27. His next parole rehearing is scheduled for April 2019. Id. at 54.

         II. ...


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