Weems v. Cushwa ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TONY WEEMS,
Plaintiff,
v. Civil Action No. 1:20-cv-00726 (CJN)
PATRICIA CUSHWA, Commissioner of the
United States Parole Commission, et al.,
Defendants.
MEMORANDUM OPINION
Tony Weems pleaded guilty to various criminal offenses in 1991, was sentenced to a period
of incarceration of forty-five years to life, and became eligible for parole in 2019. Compl., ECF
No. 1 at 21. At his parole hearing, the U.S. Parole Commission denied Weems’s parole request
and scheduled his rehearing for July 2024. See generally Compl. Weems alleges that the
Commission violated the Ex Post Facto Clause and his due process rights by applying the wrong
guidelines. See generally Compl.1 Because the Commission applied the proper guidelines (and
did so correctly), the Court grants Defendants’ Motion to Dismiss and denies Weems’s Motion to
Compel.
I. Background
Prior to its abolishment in 1997, the D.C. Parole Board (“Board”) conducted parole
hearings for individuals sentenced under the D.C. Code. Bailey v. Fulwood, 793 F.3d 127, 130
(D.C. Cir. 2015). Generally, the Board had broad discretion to make parole determinations and
1
Weems also purports to move for summary judgment, see Pl.’s Reply Mot. to Defs.’ Mot. to Dismiss, ECF No. 29
at 1, but his filing fails to conform in form and substance to a motion under Federal Rule of Civil Procedure 56. The
Court therefore construes this submission as Weems’s Opposition (“Pl.’s Opp’n”) to Defendants’ Motion to Dismiss.
1
“consider[ed] factors such as the inmate’s offense, prior history of criminality, personal and social
history, . . . [and] institutional experience, . . . when exercising its discretion to authorize parole.”
Davis v. Henderson, 652 A.2d 634, 635 (D.C. 1995). In 1987, the Board promulgated guidelines
(the “1987 Regulations”)
to govern its evaluation of a prisoner’s suitability for parole. [D.C. Mun. Regs. tit.
28, §§ 100 et seq. (1987) (repealed Aug. 5, 2000)]. The 1987 [Regulations] created
a point system focused on offender history, offense characteristics, and behavior
while in prison. The resulting point total determined whether parole would be
granted. However, the [Regulations] also allowed the Board to override the point-
based determination in unusual circumstances. In 1991, in an effort to facilitate
consistency in . . . application, the Board also issued an unpublished policy
guideline that provided definitions of criteria, parameters, and terms used in the
1987 [Regulations].
Bailey, 793 F.3d at 130 (citations and quotation marks omitted). If the Board determined that
“unusual circumstances” justified “overrid[ing] the point-based determination,” id., it was required
to “specify in writing those factors which it used to depart from the strict application of [the
Regulations].” D.C. Mun. Regs. tit. 28, § 204.22 (1987). For an offender denied parole serving a
maximum sentence of five or more years, the Board typically scheduled a rehearing one year after
“the last action taken by the Board.” D.C. Mun. Regs. tit. 28, § 103.2 (1985). But the Board had
the authority to “order a parole reconsideration date it determine[d] to be appropriate,” Hall v.
Henderson, 672 A.2d 1047, 1052 (D.C. 1996) (quoting D.C. Mun. Regs. tit. 28, § 104.11)), and
could impose a later set-off2 in cases involving “aggravating factors,” such as offenses of
conviction “involv[ing] unusual cruelty to victim(s)[.]” D.C. Board of Parole 1992 Policy
Guideline § VI.A.2.f.
2
A set-off is the period of time for the offender to remain incarcerated before being reconsidered for parole.
2
A. The Revitalization Act and 2000 Guidelines
On August 5, 1997, Congress enacted the National Capital Revitalization and Self-
Government Improvement Act, which abolished the Parole Board and directed the U.S. 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, 68–69 (D.D.C.
2008) (quotation omitted). In 2000, the Commission promulgated its own parole guidelines (the
“2000 Guidelines”). Id. at 72. It initially applied the 2000 Guidelines to any offender who received
an initial parole hearing after August 5, 1998, id., but later clarified that the 1987 Regulations
continued to apply to offenders, like Weems, who committed D.C. Code offenses between March
4, 1985 and August 4, 1998, see Bailey, 793 F.3d at 130–31 (citing 28 C.F.R. § 2.80(o)).
B. Weems’s Parole Hearing
In 1991, Weems pleaded guilty in D.C. Superior Court to charges of second-degree
burglary, assault with intent to rape, kidnapping while armed, rape while armed, and robbery for
offenses that he committed between April 23, 1989, and August 4, 1989. Compl. at 2; see Defs.’
Mem. Supp. Mot. to Dismiss (“Defs.’ Mem.”), ECF No. 14-1 at 1. The Court sentenced Weems
to a period of incarceration of forty-five years to life. Compl. at 21; see generally Defs.’ Mot. Ex.
1 (“Ex. 1”), ECF No. 14-2.3
Weems became eligible for parole on September 28, 2019. See Ex. 1 at 4. Prior to his
parole hearing, the Commission determined that Weems had a total grid score of two. Defs.’ Mot.
Ex. 2 (“Ex. 2”), ECF No. 14-2 at 11. Weems was classified as a “fair” risk due to his convictions
for crimes involving violence and a dangerous weapon. See id. at 10. He also received one point
3
“In determining whether a complaint fails to state a claim, [the Court] may consider only the facts alleged in the
complaint, any documents either attached to or incorporated in the complaint, [and] matters of which [the Court] may
take judicial notice.” EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).
3
(for negative institutional behavior stemming from a fight with other inmates) that was negated by
a point he received for program achievement. Id. at 10–11.
Weems’s parole hearing was held on July 9, 2019. Ex. 2 at 18; Compl. at 21. The Examiner
considered Weems “an untreated sex offender with a demonstrated pattern of predatory sexual and
physical violence toward women” whose “grid score greatly underestimate[d his] overall risk” to
the community if he were released on parole. Ex. 2 at 17. Although offenders with a grid score
of two are normally paroled “at the initial hearing with the highest level of supervision required,”
id. at 11, the Examiner recommended that parole be denied and that Weems be reconsidered “in
July 2024 after the service of an additional 60 months.” Id. at 17. The Commission adopted this
recommendation in its Notice of Action, informing Weems that
[a]fter consideration of all factors and information presented, at this time, a decision
to deny parole despite the guideline to grant parole and to exceed the normal
rehearing schedule is warranted because the [Commission] finds there is a
reasonable probability that you would not obey the law if released and your release
would endanger public safety. You are a more serious risk than shown by your
point score because your grid score greatly underestimates your overall risk.
Specifically, your overall offense behavior is highly aggravated because it was
committed over a four month period and involved at least four female victims [into
whose homes] you broke into . . . at night and burglarized, robbed, raped,
sodomized, and assaulted . . . multiple times each . . . . Any one of these crimes
alone could have resulted in your initial grid score of 2. Based on the fact your
base offenses involve[] four brutal attacks, the [Commission] concludes your
overall risk is not adequately captured by the grid score. Also, the [Commission]
find the facts that at least two of the Rape/Robbery/Assaults were committed in the
presence of young children and one of the victims was raped, kidnapped, robbed,
returned home, and raped again, . . . demonstrates your crimes involved unusual
cruelty to the victims, including physical, mental and emotional abuse beyond the
degree needed to sustain convictions. Lastly, the [Commission] finds you require
additional programming to remain crime-free in the community. Specifically, your
base offense behavior involves a predatory pattern of sexual and physical violence
toward women[, and] you have not participated in any meaningful programming
that targets the underlying causes of your offense behavior and your risk of re-
offense . . . . The [Commission] finds the highly aggravating factors described
above create a reasonable probability you would not obey the law if released and
your current status as an untreated sex offender speaks to your current
dangerousness. Lastly, the [Commission] finds your continued incarceration,
4
beyond the ordinary 12-month rehearing guideline, is necessary to both protect the
public and to allow sufficient time for completion of recommended programming.
Defs.’ Mot. Ex. 3 (“Ex. 3”), ECF No. 14-2 at 21.
Weems filed this lawsuit on March 12, 2020, alleging that the decision to deny parole was
improper because the Commission applied the 2000 Guidelines instead of the 1987 Regulations;
because the Commission incorrectly computed his total grid score; and because the five-year set-
off “increased his statutory minimum [sentence] by sixty (60) months.” See generally Compl.
II. Analysis
A. Ex Post Facto Claim
The Ex Post Facto Clause prohibits any state from passing an “ex post facto Law.” U.S.
Const. art. 1, § 9, cl. 3. The Clause “is aimed at laws that ‘retroactively alter the definition of
crimes or increase the punishment for criminal acts.’” Cal. Dep’t of Corr. v. Morales, 514 U.S.
499, 504 (1995) (quoting Collins v. Youngblood, 497 U.S. 31, 43 (1990)). “In the parole context,
a retroactively applied parole . . . regulation or guideline violates the Ex Post Facto Clause if it
‘creates a significant risk of prolonging an inmate’s incarceration.’” Short v. Fulwood, 742 F.
Supp. 2d 133, 136 (D.D.C. 2010) (quoting Fletcher v. Reilly, 433 F.3d 867, 870 (D.C. Cir. 2006)).
Weems asserts that the Commission violated the Ex Post Facto Clause by applying the
2000 Guidelines at his parole hearing, thereby “increas[ing] the risk that [he] will be incarcerated
longer” than the 1987 Regulations would allow. Compl. at 27. To the extent that Weems argues
that the 2000 Guidelines and 1987 Regulations are “substantially different” such that they create
“a significant risk of prolonging an inmate’s incarceration,” he is correct. See Bailey, 793 F.3d at
130. But Weems’s claim fails because the Commission actually applied the 1987 Regulations at
his parole hearing. See Ex. 3; Wellington v. Fulwood, No. 12-0209, 2013 WL 140254, at *3
(D.D.C. Jan. 11, 2013) (rejecting an ex post facto claim where Notices of Action demonstrated that
5
the Commission properly applied the 1987 Regulations instead of retroactively applying the 2000
Guidelines to prisoner’s case). Weems must therefore demonstrate that the Commission’s
determinations were impermissible under the 1987 Regulations.
B. Point Calculation
Weems argues that the Commission incorrectly calculated his total grid score because (1) it
should not have added a point for fighting with other inmates, Compl. at 25; (2) should not have
considered the “accountability factor,” id. at 26; and (3) did not credit him for “[s]uperior
[p]rogram[] achievement,” id. at 24–25. With respect to the decision to assess a point for “negative
institutional behavior,” Weems asserts that his 2014 disciplinary infraction did not rise to the level
of “negative institutional behavior” as defined by a 1991 Policy Guideline. Compl. at 22. But
Weems’s reliance on that Guideline is misplaced: Weems committed his offenses in 1989—
roughly two years before the Parole Board adopted the 1991 Policy Guideline—so it is
inapplicable. See Bailey, 793 F.3d at 127; cf. Sellman, 551 F. Supp. 2d at 86. And the
Commission’s point allocation was proper under the 1987 Regulations, which permit consideration
of “[w]hether the parole candidate has committed serious disciplinary infractions . . . while under
confinement for the current offense.” D.C. Mun. Regs. tit. 28, § 204.18(h) (May 1987).
As for Weems’s contention that the Commission improperly considered the “accountability
factor,” the 1987 Regulations treat this factor differently than the 2000 Guidelines:
[T]he 2000 Guidelines, unlike the 1987 Regulations, explicitly permit the USPC to
consider offense accountability when determining whether a candidate is suitable for
parole. The 1987 Regulations presume that the minimum sentence imposed by the
sentencing court appropriately accounts for a parole candidate’s offense severity and
accountability and that the parole decision should be limited to consideration of the
offender’s risk of recidivism and institutional conduct. Under the Guidelines, the
USPC can overrule this presumption in “exceptional cases” based on the “gravity of
the offense,” a factor that the Board purposefully did not consider under the 1987
Regulations.
6
Sellmon, 551 F. Supp. 2d at 88. Here, the Commission reached its conclusions based on its
evaluation of Weems’s risk of recidivism, not a perceived lack of accountability. See generally
Ex. 2; Ex. 3. In fact, the Commission’s findings are devoid of any indication that Weems has not
taken accountability for his conduct, let alone reliance on such a conclusion. See generally Ex. 2;
Ex. 3. Weems’s assertion that the Commission considered an “accountability factor” is therefore
without merit.
The Commission’s determination that Weems should participate in sex offender
programming was also permissible under the 1987 Regulations, which instruct the Commission to
consider whether an inmate’s “release is not incompatible with the welfare of society.” D.C. Mun.
Regs. tit. 28, § 200.1(c) (May 1987). Here, the Commission concluded that, in light of the
“predatory pattern of sexual and physical violence toward women” involved in Weems’s
underlying offenses, Weems posed a risk of reoffending and “ha[d] not participated in any
meaningful programming that targets the underlying causes of [his] offense behavior and . . . risk
of re-offense,” Ex. 3 at 22. This determination was certainly relevant to the assessment of whether
Weems’s release was “incompatible with the welfare of society.” D.C. Mun. Regs. tit. 28,
§ 200.1(c) (May 1987). And, to the extent that Weems argues that he did not receive sufficient
credit for the programming in which he has participated, that argument must fail because an
offender can only receive one point “credit” for program achievement (and Weems received that
credit). Id. § 201.18.
C. Parole Denial
In addition to his challenges to the point calculation, Weems argues that the Commission
should not have denied his parole request. Compl. at 27. An offender’s eligibility for parole does
not, of course, guarantee release on parole. See Bailey, at 793 F.3d at 133. And even though
7
Weems’s grid score suggested that parole would be granted, the Commission had the authority to
deny parole as long as it explained its reasons for doing so. See 28 D.C. Mun. Regs. § 204.22; see
also Phillips v. Fulwood, 616 F.3d 577, 582 (D.C. Cir. 2010) (noting that the 2000 Guidelines and
1987 Regulations “permit the [Commission], in ‘unusual circumstances,’ to depart upward based
on a prisoner’s risk to society”). Here, the Commission recounted Weems’s offenses and deemed
them “highly aggravated” because they occurred within a four-month period and were perpetrated
against at least four female victims whose homes Weems burglarized and whom he robbed,
sodomized, and assaulted. The Commission surely acted within its authority in denying parole in
these circumstances.
D. Five-Year Set-Off
Weems next contends that the Commission “increased his statutory minimum [sentence]
by sixty (60) months” by setting his rehearing for July 2024. Compl. at 25. But Weems mistakes
the significance of the five-year set-off. The Commission does not—and cannot—impose a prison
sentence. See, e.g., McCleod v. U.S. Parole Comm’n, 74 F. Supp. 3d 154, 157 (D.D.C. 2014)
(“The Parole Commission is not a court, and it cannot impose a criminal sentence.”); see also
McCallum v. U.S. Parole Comm’n, No. 12-CV-0702, 2012 WL 5378964, at *2 (D.D.C. Oct. 31,
2012) (concluding that “[the Commission] neither has imposed a new sentence for petitioner to
serve nor has it exercised judicial power as if it were a Superior Court judge” by revoking parole
and requiring plaintiff to serve additional time in custody as a sanction for parole violations). “In
granting or denying parole, the Parole Commission does not modify a trial court’s sentence, but
merely determines whether the individual will serve the sentence inside or outside the prison
walls.” Artez v. Mulcrone, 673 F.2d 1169, 1170 (10th Cir. 1982) (per curiam) (citations omitted);
see Watson v. U.S. Parole Comm’n, 869 F. Supp. 2d 145, 149 (D.D.C. 2012) (“The Commission
8
is not a court; it merely exercises administrative authority over the execution of a sentence.”).
Furthermore, a one-year set-off is not mandatory, as the applicable regulations “expressly
authorize[] the [Parole] Board to disregard the suggested timeframes.” Jones v. Braxton, 647 A.2d
1116, 1117 (D.C. 1994) (per curiam) (citing 28 D.C. Mun. Regs. §§ 104.2, 104.11); see Shakir v.
Fulwood, 108 F. Supp. 3d 1, 4 (D.D.C. 2015). Consistent with these requirements, the
Commission determined that Weems should serve the 2019–2024 period of his sentence inside the
prison walls.
E. Due Process Claim
Weems’s final challenge appears to raise a due process claim. Compl. at 4. But this claim
also fails because “[t]here is no constitutional or inherent right of a convicted person to be
conditionally released before the expiration of a valid sentence.” Greenholtz v. Inmate of Nebraska
Penal & Correctional Complex, 442 U.S. 1, 7 (1979). The D.C. Code “provides no substantive
limitations on the Board’s authority to grant parole which would create a liberty interest.” Price
v. Barry, 53 F.3d 369, 370 (D.C. Cir. 1995). And under the 1987 Regulations, “parole is never
‘required after the Board determines that the necessary prerequisites exist.’” Ellis v. District of
Columbia, 84 F.3d 1413, 1420 (D.C. Cir. 1996) (quoting Bd. of Pardons v. Allen, 482 U.S. 369,
376 (1987)) (emphasis in original); McRae v. Hyman, 667 A.2d 1356, 1361 (D.C. 1995)
(concluding that the 1987 Regulations do not give rise to a liberty interest in parole).
III. Conclusion
The U.S. Parole Commission properly applied the 1987 Regulations at Weems’s parole
hearing, justified its decision to deny parole, and was permitted to schedule his rehearing for July
2024. Defendants’ Motion to Dismiss is therefore granted and Weems’s Motion to Compel is
denied as moot. An Order will be entered contemporaneously with this Memorandum Opinion.
9
DATE: August 17, 2021
CARL J. NICHOLS
United States District Judge
10