Austin v. Reilly

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA L E D
MAR 2 5 2009
RoMEs AUSTIN, § N""°'H§Y'§,’,‘S“,',*,*,‘,f.}"c‘@m%~.ctcax
Plaintiff, §
v. § Civil Action N0. 03-553 (RCL)
EDWARD F. REILLY, JR., §
Defendant. §
)
MEMORANDUM OPINION
Plaintiff filed this pro se civil rights complaint under 42 U.S.C. § 1983, alleging that the
parole authority violated his constitutional protection against ex post faczo laws. The defendant
filed a motion to dismiss the complaint or, in the alternative, for summary judgment Because
the complaint fails to state an ex post facto claim upon which relief may be granted, the
defendant’s motion to dismiss the complaint will be granted and all other pending motions will
be denied as moot.
I. BACKGROUND
Plaintiff Romes Austin was convicted in 1982 of assault with intent to rob, a violation of
the D.C. Code that involved Austin shooting two people during the crime. Compl. 11 l. He was
convicted again in 1984 for for "Murder II" in violation of the D.C. Code, a crime that involved a
murder for hire. Ia'. 1[ 2. In the aggregate, the Austin was sentenced to serve a minimum of 21
and a maximum of 75 years. Id. 111 1-2. He is incarcerated in a federal prison facility, having not
yet been released on parole.
Austin’s initial parole eligibility date was November 14, 1997. Ia'. 11 3. His first parole
hearing was held before the District of Columbia Board of Parole ("Board") in 1997, which
applied guidelines and a numerical scoring system that had been adopted by the District of
Columbia in 1985 and published in 1987 ("1987 Guidelines"). Ia'. 11 5; see also Sellmon v. Reilly
("Sellmon 1"), 551 F. Supp. 2d 66, 69-72 (D.D.C. 2008) (describing the 1987 Guidelines).
Although the numerical score calculated from the 1987 Guidelines suggested that Austin was
suitable for release, the Board denied him parole due to his "prior failure under community
supervision; ongoing or repetitive criminal behavior; and need for programming to remain crime-
free in the community." Id. 11 5 & Ex. 1, D.C. Bd. of Parole, Notice of Board Order, Nov. 7,
1997.
At each of Austin’s three subsequent parole hearings, in 200l, 2004, and 2007, the parole
authority' expressly applied the 1987 Guidelines, calculated a numerical score for Austin that
suggested he was suitable for release to the community, but nonetheless denied him parole. See
id., Ex. 1, USPC Notice of Action ("NOA"), Jan. 18, 2002; USPC NOA Dec. 23, 2004; and
USPC NOA Dec. 14, 2007. In each instance, the recorded justifications for departing from the
1987 Guidelines presumption of suitability for release emphasized the nature of Austin’s
offenses as they related to a perceived risk for the community, For example, in its first NOA, the
Commission noted that the offenses for which Austin was serving time were "particularly
aggravated," involving a robbery in which Austin "shot not only [his] codefendant but also an
1 Since August 5, 1998, the United States Parole Commission ("USPC" or
"Commission") has been the parole authority for all persons convicted of criminal violations
under the D.C. Code. Before that time, the parole authority was the Board. See Sellmon I, 551 F.
Supp. 2d at 68-69.
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innocent victim" and was "subsequently involved in a murder for hire in which [Austin was] paid
to murder the husband of a woman for money." USPC NOA, Jan. 18, 2002. The Commission
concluded that Austin’s offense history made him "a more serious risk to commit further violent
behavior in the community," and that coupled with his failure to attain a GED or complete a
course of vocational training, "continued programming and counseling" was warranted. Ia'.
Similarly, in 2004, using language identical to some it had used in the 2002 NOA, the
Commission explained that it was deviating from the Guidelines to deny parole because
you were involved in a robbery, [during] which you shot two people, and you
were subsequently involved in a murder for hire in which you were paid to murder
the husband of a woman for money. The commission of these multiple violent
acts makes you a more serious risk to commit further violent behavior in the
community if released at this time.
USPC NOA, Dec. 23, 2004. In 2007, after Austin’s most recent parole hearing, the Commission
again denied parole despite a favorable numerical score (which incorporated an unfavorable
rating for poor institutional behavior). USPC NOA, Dec. 14, 2007. The Commission rested its
deviation from the Guidelines on the "aggravating circumstances" attendant to his offenses for
robbery and murder for hire. Id.
Plaintiff filed this complaint, seeking a declaratory judgment that the Commission had
created a liberty interest for him "by [repeatedly] stating on paper that it was applying D.C.’s
1987 Guidelines." Compl. at 36. The complaint also alleges that by actually applying the 2000
Guidelines instead of the 1987 Guidelines, the Commission violated his constitutional protection
from ex post facto laws. Ia’. at 5, 711 9, 36. The complaint seeks a temporary and pennanent
injunction against using the 2000 Guidelines in Austin’s parole decisions, and money damages.
Id. at 36-37.
II. DISCUSSION
Rule l2(b)(6) of the Federal Rules of Civil Procedure authorizes dismissal of a complaint
that fails to state a claim upon which relief can be granted. See Fed. R. Civ. P. l2(b)(6). A court
considering a Rule 12(b)(6) motion to dismiss assumes all factual to be true, even if they are
doubtful. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1965 (2007); Kowal v. MCI Communc'ns
Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994) (noting that a court must construe the complaint
"liberally in the plaintiffs’ favor" and "grant plaintiffs the benefit of all inferences that can be
derived from the facts alleged"). A court need not, however, "accept inferences drawn by
plaintiffs if such inferences are unsupported by the facts set out in the complaint. Nor must [a]
court accept legal conclusions cast in the form of factual allegations." Kowal, 16 F.3d at 1276.
"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual
allegations, . . . a plaintiffs obligation to provide the grounds of his entitle[ment] to relief
requires more than labels and conclusions, and a forrnulaic recitation of the elements of a cause
of action will not do[.]" Twombly, 127 S. Ct. at 1964-65 (internal citations and quotations
omitted) (alteration in original). "Factual allegations must be enough to raise a right to relief
above the speculative level, . . . on the assumption that all the allegations in the complaint are
true . . . ." ]a'. at 1965 (citations and footnote omitted).
A. Plaintiff’ s Ex P0st Facto Claim
The constitution prohibits Congress from passing any ex post facto law. U.S. CONST. art.
I, § 9. cl. 3. To violate the prohibition, the "law must be retrospective, that is, it must apply to
events occurring before its enactment, and . . . must disadvantage the offender affected by it."
Miller v. Florida, 482 U.S. 423, 430 (1987); see also Collz`ns v. Youngblooa', 497 U.S. 37, 42-43
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(1990) (stating that "‘any statute . . . which makes more burdensome the punishment for any
crime, after its commission . . . is prohibited as ex post facto"’) (quoting Beazell v. Ohio, 269
U.S. 167, 169-70 (1925)). "Critical to relief under the Ex Post Facto Clause is not an
individual’s right to less punishment, but the lack of fair notice and governmental restraint when
the legislature increases punishment beyond what was prescribed when the crime was
consummated." Weaver v. Graham, 450 U.S. 24, 30 (1981). As applied to parole decisions, a
plaintiff may invoke an ex post facto protection only on the basis of the parole regime that was in
effect at the time he committed his offense. Sellmon I, 551 F. Supp. 2d at 85 (citing Weaver, 450
U.S. at 30).
At the time Austin committed the offenses for which he is still under sentence, parole
eligibility was determined by a statute in effect since 1932, which provided in pertinent part that:
in imposing sentence on a person convicted in the District of Columbia of a
felony, the justice or judge of the court imposing such sentence shall sentence the
person for a maximum period not exceeding the maximum fixed by law, and for a
minimum period not exceeding one-third of the maximum sentence imposed, and
any person so convicted and sentenced may be released on parole as herein
provided at any time after having served the minimum sentence.
D.C. Code § 24-403(a) (2001) (forrnerly codified as 24-203(a) (1981)). The parole authority
operated pursuant to a statute, also in effect since 1932, which provided that:
[w]henever 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 § 24-404(a) (2001) (formerly codified as § 24-204(a) (1981)).
At that time, the Board made parole decisions according to guidelines it had promulgated in
1981, which required it to take into account the following six factors in making its parole
determination:
(a) The offense, noting the nature of the violation, mitigating or aggravating
circumstances and the activities and adjustment of the offender following arrest if
on bond or in the community under any presentence type arrangement.
(b) Prior history of criminality noting the nature and pattern of any prior offenses
as they may relate to the current circumstances.
(c) Personal and social history of the offender, including such factors as his family
situation, educational development, socialization, marital history, employment
history, use of leisure time and prior military experience, if any.
(d) Physical and emotional health and/or problems which may have played a role
in the individual’s socialization process, and efforts made to overcome any such
problems.
(e) lnstitutional experience, including information as to the offender's overall
general adjustment, his ability to handle interpersonal relationships, his behavior
responses, his planning for himself, setting meaningful goals in areas of academic
schooling, vocational education or training, involvements in self-improvement
activity and therapy and his utilization of available resources to overcome
recognized problems. Achievements in accomplishing goals and efforts put forth
in any involvements in established programs to overcome problems are carefully
evaluated.
(f) Community resources available to assist the offender with regard to his needs
and problems, which will supplement treatment and training programs begun in
the institution, and be available to assist the offender to further serve in his efforts
to reintegrate himself back into the community and within his family unit as a
productive useful individual.
Glascoe v. Bezy, 421 F.3d 543, 544-45 (7th Cir. 2005) (quoting 9 D.C.R.R. § 105 (1981)). While
the 1981 guidelines listed factors to consider, they "offered no guidance as to how these factors
should be weighted in [any] decision." Sellmon I, 551 F. Supp. 2d 66, 86 n.15 (D.D.C. 2008)
(discussing 9 D.C.R.R. § 105.1). Under that regime,
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the Board had no formalized scoring system, but was required by regulation to
consider factors such as the inmate's offense, prior history of criminality, personal
and social history, physical and emotional health, institutional experience, and
availability of community resources, when exercising its discretion to authorize
parole. . . . The decision to grant parole remained within the discretion of the
Board, provided "there [was] a reasonable probability that a prisoner w[ould] live
and remain at liberty without violating the law, [and] that his release [was] not
incompatible with the welfare of society," . . . a provision that mirrored the parole
statute then in effect.
Davis v. Henderson, 652 A.2d 634, 635 (1995) (citing 9 D.C.R.R. § 105.1(a) - (f) (1981)). The
Board’s discretion under this regime has been described as "almost unbridled" Sellmon I, 551 F.
Supp. 2d at 86 n.l5, and "totally unfettered," Sellmon v. Reilly ("Sellmon II"), 561 F. Supp. 2d
46, 50 (D.D.C. 2008).
In l985, the D.C. Board of Parole adopted guidelines to channel its discretion; these
guidelines were published and codified in 1987. Sellmon I, 551 F. Supp. 2d at 69 - 71
(discussing the purpose and operation of the 1987 Guidelines). Ostensibly, these are the
guidelines that the Commission now uses when considering Austin’s parole applications. Austin
does not, however, claim that the parole authority’s use of the 1987 Guidelines violates his ex
post facto protection. Such a claim was addressed and squarely rejected in this district in
Sellmon. See Sellmon I, 551 F. Supp. 2d at 86 (dismissing ex post facto claims of plaintiff
Charles Phillips); Sellmon II, 561 F. Supp. 2d at 50 (denying plaintiff Charles Phillips’ motion
for reconsideration). Rather, Austin alleges that in fact, in making his parole determinations the
Commission merely claims to use the 1987 Guidelines when it actually uses the 2000 Guidelines,
and that he is thereby disadvantaged. See Compl. at 5, 7 11 9, 36.
These allegations, even if true, do not state a claim for a violation of the plaintiff’s ex post
facto protection. In order to state an ex post facto claim, plaintiff would have to allege that the
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parole authority is applying later-adopted laws that disadvantage him instead of the laws that
were in effect at the time he committed the offenses. Weaver, 450 U.S. at 30 ("Critical to relief
under the Ex Post Facto Clause is not an individual’s right to less punishment, but the lack of fair
notice and governmental restraint when the legislature increases punishment beyond what was
prescribed with the crime was consummated."). Plaintiff does not, and clearly does not intend to,
make such a claim. Accordingly, the plaintiff s ex post facto claim will be dismissed for failure
to state a claim upon which relief may be granted.
B. Plaintiff`s Libertv lnterest in the 1987 Guidelines
Plaintiff argues that because the parole authority has consistently acknowleged that it
applies the 1987 Guidelines in making his parole deterrninations, he has a liberty interest in the
1987 Guidelines, The plaintiffs concern with a liberty interest in connection with an ex post
facto claim is misplaced. A liberty interest is irrelevant to an ex post facto analysis. Weaver, 450
U.S. at 30 n.13. "The presence or absence of an affirmative, enforceable right is not relevant . . .
to the ex past facto prohibition, which forbids the imposition of punishment more severe than the
punishment assigned by law when the act to be punished occurred." Ia'. at 30. "When a court
engages in ex post facto analysis, which is concerned solely with whether a statute assigns more
disadvantageous criminal or penal consequences to an act than did the law in place when the act
occurred, it is irrelevant whether the statutory change touches any vested rights." Id. at 30 n.13.
Although a liberty interest may be critical to a due process claim, it does not appear that
the plaintiff intended to assert a claim for violation of due process, even though the Fifth and
Fourteenth Amendments are mentioned in the introductory and relief paragraphs of the
complaint. See Compl. at 1, 36. In any case, the District of Columbia Court of Appeals, which is
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the authoritative body regarding the interpretation and construction of the District of Columbia’s
laws, has determined that the 1987 Guidelines do not give rise to a liberty interest because both
the governing statute, D.C. Code § 24-404(a), and the 1987 Guidelines commit parole decisions
to the discretion of the parole authority. McRae v. Hyman, 667 A.2d 1356, 1361-62 (D.C.
1995)).
ln sum, the District's parole system is grounded in the exercise of discretion by the
Board, with a numerical system to aid in the exercise of that discretion. The
numerical system is not a rigid formula, however, because the Board is not
required to either grant or deny parole based upon the score attained. . . . [T]he
Board[ has] authority, in unusual cases, to ignore the results of the scoring system
and either grant or deny parole in the individual case, conditioned upon the
Board’s setting forth in writing those factors it relied on in departing from the
result indicated by the scoring system. Therefore, because the statute and
[r]egulation[s] vest in the Board substantial discretion in granting or denying
parole . . . they lack the mandatory character which the Supreme Court has found
essential to a claim that a regime of parole gives rise to a liberty interest.
Id. at 1362 (intemal quotation marks, footnotes, and citations omitted). See also Ellis v. District
of Columbia, 84 F.3d 1413, 1420 (D.C. Cir. 1996) (holding that the 1987 Guidelines "do not give
any prisoners a liberty interest in parole"). Plaintiff has not alleged facts demonstrating that the
parole decision under the 1987 Guidelines has a mandatory character that would give rise to a
constitutional liberty interest. To the contrary, the facts plaintiff has alleged demonstrate that the
parole authority does depart from the 1987 Guidelines in some cases, including in the plaintiffs
case. Accordingly, plaintiff has not shown that he has a liberty interest in the 1987 Guidelines,
and his request for a judgment declaring that he has a liberty interest in the 1987 Guidelines will
be denied for failure to state a claim upon which relief may be granted.
lIl. CONCLUSION
For the reasons stated, the plaintiff s complaint does not state an ex post facto claim upon
which relief may be granted and he has no liberty interest in the 1987 Guidelines, Accordingly,
the plaintiffs complaint will be dismissed, see 28 U.S.C. § 1915(e)(2)(B)(ii), and all other
pending motions will be denied as moot. A separate order accompanies this memorandum
opinion.
G&<»< C.
ROY E C. LAMBERTH
Date: ,b/’b>//D? Chief Judge