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Jenkins v. Young

United States District Court, S.D. West Virginia, Beckley Division

September 11, 2017

NORMAN R. JENKINS, Petitioner,
v.
D.L. YOUNG, Warden, Respondent.

          PROPOSED FINDINGS AND RECOMMENDATIONS

          CHERYL A. EIFERT, UNITED STATES MAGISTRATE JUDGE

         Pending 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.

         I. Relevant History

         In 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)).

         In 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.

         On May 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.

         On May 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.).

         Petitioner's 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.)

         In June 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).

         On 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. § 2.80(p).

         The 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. (Id.).

         On 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.

         On May 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 disposition.

         II. Petitioner's ...


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