United States District Court, District of Columbia
BERMAN JACKSON UNITED STATES DISTRICT JUDGE
a prisoner appearing pro se, filed this action
against the former Chairperson of the United States Parole
Commission, two named Commissioners, and a named Examiner,
all in their official capacities. Compl. at 2. He claims that
the Commission violated the Constitution's ex post
facto and due process clauses by not determining his
suitability for parole under the former D.C. Board of
Parole's 1972 guidelines. Defendants have moved to
dismiss under Federal Rule of Civil Procedure 12(b)(6) on the
grounds of res judicata and failure to state a claim
upon which relief may be granted. The Court does not find the
doctrine of res judicata to be applicable, but it
agrees that plaintiff's claim fails on the merits. So it
will grant defendants' motion for the reasons explained
more fully below.
is serving aggregate sentences imposed for a crime spree in
1975 consisting of kidnaping, robbery, burglary, rape, and
first-degree murder, in violation of various portions of the
District of Columbia Code, as well as for a 1978 violation of
the United States Code for possession of a controlled
substance in prison.” Wilson v. Fulwood, 772
F.Supp.2d 246, 250 (D.D.C. 2011) (Wilson I).
Plaintiff had parole hearings in 2001, 2004, 2005, and 2008,
which were the subject of prior court actions. See
Wilson, 772 F.Supp.2d at 251-56 (providing comprehensive
discussion of the District's parole regulatory framework
and the history of plaintiff's first four parole
hearings); id. at 262, citing Wilson v. U.S.
Parole Com'n, 2010 WL 569554 (M.D. Pa. Feb. 11,
2010) (“the Middle District of Pennsylvania adjudicated
on the merits a habeas petition” where plaintiff
“only challenged his 2004 and 2005 proceedings”).
addition, plaintiff had parole hearings in October 2010,
September 2012, February 2015, and February 2018. Each time,
the Commission applied the D.C. Board's 1987 guidelines,
departed from the score indicating that plaintiff should be
paroled, and denied parole upon concluding that plaintiff was
“a more serious risk than shown by [his] point
score.” Def's Exs. AD, Notices of Action
(“NOA”) [Dkt. # 14-2].
Origin of Claim
U.S. Parole Commission assumed responsibility over D.C.
prisoners in 1998 as a result of the National Capital
Revitalization and Self-Government Improvement Act of 1997,
Pub.L. No. 105-33, 111 Stat. 712, 734-37 (codified at D.C.
Code §§ 24-101-142). See Fletcher v.
Reilly, 433 F.3d 867, 870 (D.C. Cir. 2006) (discussing
“Changes to Parole and Reparole Regulations for D.C.
Code Offenders”). In May 2010, D.C. Code offenders who
committed crimes before March 3, 1985, filed suit challenging
on due process and ex post facto grounds the
Commission's retroactive application of its 2000
guidelines to their parole proceedings, “instead of . .
. the guidelines that were in place at the time of their
offenses.” Daniel v. Fulwood, 766 F.3d 57, 58
(D.C. Cir. 2014). The district court granted the
Commission's motion to dismiss, and the plaintiffs
appealed. The D.C. Circuit held that the plaintiffs had
plausibly claimed “that the 2000 Guidelines create a
significant risk of prolonging their incarceration in
comparison to the 1972 Guidelines” and remanded the
case to the district court for factual development.
Id. at 66. That decision “set in motion a
series of events that ultimately ended with the Settlement
Agreement” in which “the Commission through
rulemaking agreed to apply the 1972 Guidelines to
Plaintiffs.” Daniel v. Smoot, 316 F.Supp.3d
79, 84-85 (D.D.C. 2018).
letter to plaintiff dated November 9, 2015, the Washington
Lawyers' Committee informed plaintiff that the Commission
had identified him “as someone who may be eligible to
receive a new parole hearing using the 1972 DC Board of
Parole guidelines.” Compl. Ex. A. The letter provided
information about the Daniel case, listed the
criteria for eligibility, and explained the procedures for
obtaining a “special re-hearing” and requesting
representation. Id. In a Notice of Action dated
December 1, 2015, the Commission identified plaintiff as
“eligible for a new determination;” voided the
April 1, 2015 NOA that had scheduled plaintiff's
“reconsideration hearing in February 2018;” and
scheduled “a new rehearing . . . for the week of
January 11, 2016, ” at which plaintiff's
“case” would “be considered using the
parole guidelines in the 1972 regulations of the former
District of Columbia Board of Parole.” Compl. Ex. B.
alleges that shortly after receiving the Commission's
NOA, he completed the form application for parole. Compl. at
4. His case manager then informed him that she would
“do a progress report, ” and the documents
comprising the “parole package” were sent to the
Commission. Compl. at 4; Ex. C. But “a few days
before” the scheduled hearing in January,
plaintiff's case manager told him that he was not on the
docket to see the Commission, but she had no explanation for
the omission. Compl. at 4. Plaintiff alleges that the
Commission failed to respond to the case manager's email
inquiry and his written inquiries regarding the cancelled
hearing. Id. An NOA dated November 2, 2016, shows
that the Commission voided the December 1, 2015 action and
reinstated the April 1, 2015 NOA, listing as
“Reasons:” “[p]er 28 C.F.R. §
2.80(p)(7), the Commission will continue to apply the D.C.
Board of Parole's 1987 guidelines to your case.”
Def.'s Ex. E at 2.
a hearing on February 1, 2018, the Commission denied parole
to plaintiff and scheduled a rehearing for three years later,
in January 2021. Compl. Ex. E, Feb. 15, 2018 NOA. Plaintiff
“continue[d] to be scored under the [D.C. Board's]
1987 guidelines.” Id. In a handwritten note on
the foregoing exhibit, plaintiff stresses: “The
pertinent part is the use of the 1987 guidelines in
instant complaint filed on June 18, 2018, plaintiff seeks:
(1) a declaratory judgment stating “that the
defendants' acts, policies, practices and guidelines . .
. violated” his constitutional rights; (2) “class
action status under the Daniel v. Fulwood ruling, as
an ex post facto member of that class” and a
declaration that he is “a member of the settlement
agreement”; and (3) “a new initial parole hearing
from the defendants, using the 1972 guidelines in accordance
with due process, and the settlement agreement, retroactively
from the date of the December 1, 2015, notice of
action.” Compl. at 8.