United States District Court, S.D. West Virginia, Beckley Division
NORMAN R. JENKINS, Petitioner,
D.L. YOUNG, Warden, Respondent.
PROPOSED FINDINGS AND RECOMMENDATIONS
A. EIFERT, UNITED STATES MAGISTRATE JUDGE
before the Court are Petitioner's Petition for a Writ of
Habeas Corpus under 28 U.S.C. § 2241, (ECF No. 1), and
Respondent's Response, wherein Respondent moves for the
petition to be dismissed, (ECF No. 12). This case is assigned
to the Honorable Irene C. Berger, United States District
Judge, and was referred to the undersigned United States
Magistrate Judge by Standing Order for submission of proposed
findings of fact and recommendations for disposition pursuant
to 28 U.S.C. § 636(b)(1)(B). (ECF No. 4). For the
reasons that follow, the undersigned respectfully
RECOMMENDS that the Petition for a Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2241 be
DENIED, that Respondent's request for
dismissal be GRANTED, and that this action
be DISMISSED, with prejudice, and removed
from the docket of the Court.
January 1980, Petitioner was charged with shooting a man to
death in Washington, D.C. in the course of robbing him. (ECF
No. 12-1 at 45). Petitioner was later convicted of the crime,
and on September 1, 1983, was sentenced by the Superior Court
of the District of Columbia to a term of 20 years to life in
prison for murder in the first degree while armed. He also
received a concurrent sentence of 40 months to 10 years in
prison for carrying a pistol without a license. (ECF No. 12-1
at 44). At the time Petitioner committed the murder,
decisions regarding the parole of D. C. offenders were made
by the District of Columbia Board of Parole, using guidelines
generated in 1972 (the “1972 guidelines”).
See Daniel v. Fulwood, 766 F.3d 57, 58 (D.C. Cir.
2014). Under the 1972 guidelines, a prisoner became eligible
for parole upon completion of the minimum sentence imposed by
the sentencing court. The guidelines contained a nonexclusive
list of factors that the D. C. Board of Parole was expected
to consider when determining a prisoner's suitability for
release, but “contained no prescribed method for
‘translat[ing] the factors into a parole release
date.'” Id. at 59 (quoting Phillips v.
Fulwood, 616 F.3d 577, 579 (D.C. Cir. 2010)).
1997, Congress enacted the National Capital Revitalization
and Self-Government Improvement Act, which abolished the D.
C. Board of Parole and “directed the USPC [United
States Parole Commission] to conduct parole hearings for D.
C. Code offenders ‘pursuant to the parole laws and
regulations of the District of Columbia.'”
Sellmon v. Reilly, 551 F.Supp.2d 66, 68 (D.D.C.
2008) (quoting the National Capital Revitalization and
Self-Government Improvement Act, Pub. L. No. 105-33, §
11231(c), 111 Stat. 712, 734-37 (1997)). Three years
later, in 2000, the USPC issued its own guidelines to govern
decisions for D. C. offenders who became eligible for parole
on or after August 5, 1998 (the “2000
guidelines”). Id. In contrast to the 1972
guidelines, the 2000 guidelines involved a point system based
upon various factors; including the risk of recidivism
(salient factor score), the presence of violence in prior
offenses, and whether the current offense involved a
victim's death. “The sum of these points, called
the prisoner's ‘base point score, '
correspond[ed] to a range of months to be served by the
prisoner, called his ‘base guideline range.'”
Id. The range could be adjusted upward or downward
over time to account for disciplinary infractions and to
reward prisoners for “superior program
achievement.” Id. When considering parole, the
USPC used the adjusted guideline range, called the
“total guideline range, ” as the presumptive
sentence that a prisoner had to serve before becoming
suitable for parole. Id.
20, 2003, after serving 237 months in prison, Petitioner had
his first parole hearing. (ECF No. 12-1 at 4-9). Applying the
2000 guidelines, the USPC determined that Petitioner's
total guideline range was 374-416 months in prison. The total
guideline range included 240 months, which was the minimum
amount of time Petitioner had to serve before he was eligible
for parole, with another 110-140 months added to account for
his base point score of 9, and an additional 24-36 months for
disciplinary infractions incurred while in the prison
facility. After conducting the total guideline range
calculation, the USPC concluded that Petitioner had not
served enough time to be suitable for parole and did not
warrant a decision outside of the total guideline range.
(Id.). Accordingly, Petitioner was denied parole and
scheduled for a rehearing in May 2008.
2, 2008, after serving 296 months in prison, Petitioner had
his second parole hearing. (Id. at 10-16). Again
applying the 2000 guidelines, the USPC calculated
Petitioner's total guideline range to be 386-444 months.
Petitioner's range had been adjusted upward in the
five-year interim to account for additional institutional
infractions. (Id.). Once again, Petitioner was
denied parole, because he had not served enough time and did
not warrant an out-of-range decision. His next parole hearing
was scheduled five years later in May 2013. (Id.).
third parole hearing was held on May 7, 2013. (ECF No. 12-1
at 17-23). By this time, his total guideline range was
398-468 months in prison. (Id.). Given that
Petitioner had served only 356 months, and his case did not
warrant a deviation from the guideline range, Petitioner was
denied parole. However, because he was only 42 months shy of
his minimum guideline sentence, his next parole hearing was
scheduled three years later in May 2016. (Id.)
2015, the USPC proposed changes to its rules governing parole
decisions for D. C. offenders. See 80 FR 34111-02,
2015 WL 3645501(F.R.). Pointing to the United States Supreme
Court's decision in Garner v. Jones, 529 U.S.
244 (2000), as well as a series of decisions rendered in the
D. C. circuit, the USPC conceded that applying the 2000
guidelines to D. C. prisoners who had committed crimes prior
to March 1985, might constitute a violation of the Ex
Post Facto Clause of the United States Constitution. 80
FR 34112-02, 2015 WL 3645501. To avoid ex post facto
problems, the USPC proposed making parole decisions for that
group of D. C. offenders by using the 1972 guidelines, which
were the governing guidelines in the District of Columbia
prior to March 1985. The rule changes became effective
October 19, 2015. See 28 C.F.R. § 2.80(p).
December 2, 2015, the USPC notified Petitioner that pursuant
to 28 C.F.R. § 2.80(p) he would receive an earlier
parole hearing, and his case would be considered under the
1972 guidelines. (ECF No. 12-1 at 42). The notice advised
Petitioner that his hearing would be held in January 2016,
rather than May 2016, and outlined the factors that the USPC
would consider in granting or denying parole. (Id.
at 42-43). As previously stated, the 1972 guidelines did not
employ a point system or involve the calculation of a
guideline range; rather, it required the USPC to evaluate a
number of factors concerning the offender's pre and
post-incarceration behavior and characteristics. 28 C.F.R.
§ 2.80(p). The notice also indicated that if parole was
not granted at the first hearing, the timing of a
reconsideration hearing would be at the USPC's
discretion; although, ordinarily, the rehearing would occur
one year later and could not be scheduled more than five
years after the date of the previous hearing. 28 C.F.R.
USPC conducted Petitioner's hearing on January 12, 2016.
(ECF No. 12-1 at 44-49). Hearing Examiner Joseph M. Pacholski
applied the 1972 guidelines and considered all of the factors
set forth in 28 U.S.C. § 2.80(p). On January 19, 2016,
the Hearing Examiner issued a hearing assessment and summary,
noting that Petitioner had been in prison 388 months and had
a total of 16 disciplinary events, with the last
institutional infraction occurring in 2012. (Id.).
After evaluating the other factors, the Hearing Examiner
recommended that Petitioner be paroled effective October 11,
2016, at which time he would have served 397 months in
prison. The Hearing Examiner added that Petitioner should be
required to participate in mental health treatment for
bipolar disorder and enroll in substance abuse treatment as
directed by the supervising probation officer.
February 8, 2016, the USPC issued a Notice of Action related
to Petitioner's January 2016 parole hearing. (ECF No.
12-1 at 50). Counter to the Hearing Examiner's
recommendation, the USPC denied parole. The USPC provided the
following reasons for its decision: Petitioner's past
history of convictions, his history of 16 disciplinary
infractions, his history of using weapons while in the
community, and his continued treatment for psychological
issues. The USPC concluded that these factors made Petitioner
“a serious risk” and releasing him “would
endanger the public safety.” (Id.). In
addition, the USPC found that Petitioner's situation
warranted a rehearing beyond the normal 12-month period and
scheduled him for reconsideration in January 2018.
10, 2016, Petitioner filed the instant petition for a writ of
habeas corpus under 28 U.S.C. § 2241. (ECF No. 1). In
July 2016, Respondent filed his response, and Petitioner
submitted a reply memorandum on September 14, 2016. (ECF Nos.
12, 13). Therefore, the matter is fully briefed and ready for