KEVIN F. McDONALD, Magistrate Judge.
This matter is before the court on the respondents' motion for summary judgment (doc. 8). The petitioner, a federal prisoner proceeding pro se, seeks habeas corpus relief pursuant to Title 28, United States Code, Section 2241. Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), this magistrate judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the district court.
The respondents filed their motion for summary judgment on May 31, 2018 (doc. 8). On June 1, 2018, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4
The petitioner is an inmate currently incarcerated in the Federal Medical Center in Butner, North Carolina (doc. 16). At the time of the filing of his petition, he was incarcerated in the Federal Correctional Institution ("FCI") Williamsburg in Salters, South Carolina (doc. 1 at 1).
On August 18, 1987, the United States District Court for the Middle District of North Carolina sentenced the petitioner to a total of 30 years imprisonment for several bank robberies (doc. 8-1 at 5-8; doc. 8-2). Between April 23 and June 15, 1987, the petitioner had robbed four banks near Greensboro, North Carolina using a toy pistol for a total of $43,832.25 (doc. 8-3).
On February 11, 1988, the petitioner pled guilty and was sentenced by the State of North Carolina to a ten year term of imprisonment for several common law robberies "to run at the expiration of Federal Sentences now serving" (doc. 8-4).
On June 16, 1997, the petitioner was released on parole with 7,305 days remaining on his sentence (doc. 8-5 at 1).
On July 27, 2000, the United States Probation Office in the Middle District of North Carolina notified the United States Parole Commission ("Commission") that the petitioner had been arrested by the Federal Bureau of Investigation ("FBI") on May 24, 2000, and charged with robbing 11 banks between March 2, 1999, and May 24, 2000 (doc. 8-6). The petitioner was indicted on all of the charges in the United States District Court for the Middle District of North Carolina (id.). He pled guilty to all counts, and on December 5, 2000, was sentenced to 235 months imprisonment to be followed by a five year term of supervised release (doc. 8-7).
On July 23, 2001, the Commission issued a warrant charging a law violation for bank robbery, 11 counts, based on the new charges (doc. 8-8). The warrant was lodged as a detainer on September 12, 2001 (doc. 8-1 at 5). On June 27, 2014, the Commission ordered that the detainer stand (doc. 8-9).
On June 14, 2017, the petitioner completed his term of imprisonment on the 2000 bank robbery charges and was released to the custody of the Commission's violator warrant/detainer (doc. 8-1 at 4-5).
On August 16, 2017, a Hearing Examiner found probable cause for the bank robbery charges based on the conviction and prepared a prehearing assessment for the petitioner (doc. 8-10). On September 20, 2017, a Hearing Examiner conducted an institutional revocation hearing (doc. 8-11). The petitioner admitted to the charged violations and said that he committed the robberies because he could not get a job. He said that he used the proceeds from the robberies to start small businesses, including a car wash, flea market, and car lot. The petitioner said that he had taught other inmates, but he had not completed any victim impact programming. He also had not committed any infractions during his 17 years in custody. The Hearing Examiner also considered documents submitted by the petitioner's attorney, including a letter of support, medical records, and an inmate transcript (id. at 1-2). The Hearing Examiner made findings on the 11 robberies charged as law violations and determined the sentencing guideline range to be 78-110 months, based on a category seven offense severity rating and a salient factor score of five (id. at 2). She noted that the petitioner had been in custody for 208 months, which would be credited toward his guidelines, and recommended that the Commission continue his sentence to a presumptive parole on May 23, 2016, after service of 216 months to allow for release planning
The Executive Reviewer disagreed with the Hearing Examiner's recommended presumptive parole date and recommended a presumptive reparole date of May 23, 2025, after service of 300 months (id. at 3). The Commission agreed with the Executive Reviewer, and on October 10, 2017, issued a notice of action containing an order to revoke parole, forfeit the petitioner's time spent on parole, and to continue to a presumptive parole on May 23, 2025, with special drug aftercare and GPS monitoring as conditions of supervision (doc. 8-12). The Commission included in the notice of action a lengthy recitation of the reasons for the departure (id. at 2). The Commission found the petitioner to be a more serious risk than indicated by the guidelines because of his "history of committing violent robberies and lack of programming to reduce the risk that this will re-occur" (id.). The Commission pointed out that the petitioner was on parole for four bank robberies he committed in 1987 and then, less than six months later, he committed another 11 robberies. The Commission noted also that during his 17 years in prison, he completed only four hours of educational programming and had not completed a victim impact program. The Commission concluded, "In sum, the Commission finds that your history of committing similar violent crimes and lack of programming to address the cause of your underlying behavior demonstrates that you are a high risk to re-offend in a similar manner if released in the near future" (id.).
The petitioner filed an administrative appeal of the decision to the Commission's National Appeals Board on December 8, 2017 (doc. 8-13). He challenged the upward departure from the guideline range as excessive and unjustified because of the time he had already served in prison, his programming and employment in the institution, and his time spent mentoring younger inmates. The petitioner claimed that the Commission lacked good cause for the decision above the guidelines because it had "double counted" his prior convictions and violation conduct to determine his guideline range and as grounds for a departure. The petitioner also noted that he would be 53 years old upon release and that he has diabetes, high blood pressure, and had recently had surgery for a torn tendon (id. at 5-10).
On February 15, 2018, the National Appeals Board affirmed the Commission's decision. The Board found the Commission had good cause for the departure, because only six months after the petitioner's release on parole for four bank robberies, he committed 11 new bank robberies. The Board also noted that the meetings and discussions the petitioner led and participated in during the 17 years that he was serving on the new federal sentence did not appear to be a sufficient substitute for the formal programs coordinated by the Bureau of Prisons. The Board also found the petitioner's double counting claim had no merit because the salient factor score does not account for the number or the nature of the offenses he committed, "which instilled fear in [his] victims and which continues to have a lingering effect on their lives." The Board found that the Commission provided clear reasons for its decision in compliance with 18 U.S.C. § 4206. Finally, the Board noted that the Commission took into account the petitioner's health issues, but found that they did not justify a more lenient decision (doc. 8-14 at 1-2).
Federal Rule of Civil Procedure 56 states, as to a party who has moved for summary judgment: "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). As to the first of these determinations, a fact is deemed "material" if proof of its existence or nonexistence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is "genuine" if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the district court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings; rather, he must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. at 324. Under this standard, the existence of a mere scintilla of evidence in support of the petitioner's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Id. at 248. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id.
In his Section 2241 petition, the petitioner alleges that the Commission engaged in impermissible double counting by using his prior convictions to determine his salient factor score as well as grounds for the decision above the guideline range ("Ground One") (doc. 1 at 5; doc. 1-1 at 2-5). He also alleges that the Commissioner denied his right to due process by waiting until he completed his new federal sentence before providing him a revocation hearing, and that his original sentence should have run concurrently with the 235-month term he served on the new sentence ("Ground Two") (doc. 1 at 5; doc. 1-1 at 5-6). In his responses to the motion for summary judgment, the petitioner argues that the Hearing Examiner's recommendation that the Commission continue his sentence to a presumptive parole after service of 216 months should have been adopted by the Commission and that the Commission's decision of service of 300 months was irrational and unreasonable (docs. 19, 20). The petitioner asks that the court order that he have a new parole hearing (doc. 20 at 3).
The respondent does not contest that the petitioner's claims may be brought pursuant to Section 2241 (see doc. 8 at 5-6). See Meli v. Warden, C.A. No. 92-305, 1992 WL 512461, at *2 (E.D. Va. Oct. 26, 1992) ("After exhaustion of administrative remedies, a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 is the means for challenging actions of the Federal Parole Commission, whether the relief sought is release or another parole hearing.") (citations omitted).
Under 18 U.S.C. § 4206(a), if a prisoner has "substantially observed the rules of the institution" and if the Commission determines "that release would not depreciate the seriousness of [the] offense or promote disrespect for the law" and "release would not jeopardize the public welfare," then that prisoner shall be released. In applying this criteria, the Commission considers the "nature and circumstances of the offense and the history and characteristics of the prisoner." 18 U.S.C. § 4206(a); Garcia v. Neagle, 660 F.2d 983, 991 (4th Cir. 1981).
The Court of Appeals for the Fourth Circuit has explicitly held that "the Parole Act specifically commits the decision to grant or deny parole to the unreviewable discretion of the Parole Commission." Garcia, 660 F.2d at 988 (citation omitted). "In general, even where action is committed to absolute agency discretion by law, courts have assumed the power to review allegations that an agency exceeded its legal authority, acted unconstitutionally, or failed to follow its own regulations." Id. (citations omitted). "Where the controlling statute indicates that particular agency action is committed to agency discretion, a court may review the action if there is a claim that the agency has violated constitutional, statutory, regulatory or other restrictions, but may not review agency action where the challenge is only to the decision itself." Id. (citation omitted).
As set out above, the petitioner first contends that the Commission engaged in impermissible "double counting" and did not have good cause for a departure above the guideline range (doc. 1 at 5; doc. 1-1 at 2-5). The respondents do not dispute that the petitioner has exhausted his administrative remedies with respect to this ground. For the reasons set forth below, the undersigned finds that summary judgment should be granted to the respondents on Ground One.
To assist in evaluating a prisoner's suitability for parole, the Commission promulgated guidelines to determine "the customary range of time to be served before release for various combinations of offense (severity) and offender (parole prognosis) characteristics." 28 C.F.R. § 2.20(b); see also id. § 2.21 (Reparole consideration guidelines). The guideline range is determined based on a "salient factor score," a categorical, numerical assessment of an offender's history and characteristics to determine risk for violating parole, and an "offense severity rating" based on an assessment of nature and circumstances of the offense. Id. C.F.R. § 2.20(b). The salient factor score assists in determining the risk for recidivism, but "where circumstances warrant, clinical evaluation of risk may override this predictive aid." Id. § 2.20(e).
The Commission determines a prisoner's guideline range in every case, but may render a decision above the applicable guideline range if the Commission can identify "good cause," meaning aggravating circumstances about the offense or the offender not accounted for in the guideline range. 18 U.S.C. § 4206(c); 28 C.F.R. § 2.21(d) (the Commission may depart from established guidelines "when circumstances warrant"). When issuing a decision outside of the guideline range, the Commission, as in this case, provides written notice to the parolee "stating with particularity the reasons for the determination, including a summary of the information relied upon." 18 U.S.C. § 4206(c). The substantive basis for the Commission's finding that "good cause" for a departure is warranted, therefore, is committed to the Commission's discretion and not subject to review on the merits. A court "cannot substitute its judgment for that of the Parole Commission as to what constitutes `good cause' for departing from the guidelines." Hackett v. U.S. Parole Comm'n, 851 F.2d 127, 131 (6th Cir. 1987) (citing Maddox v. U.S. Parole Comm'n, 821 F.2d 997, 1000 (5th Cir. 1987) and H.R. Conf. Rep. No. 94-838, 94th Cong., 2nd Sess. 27). "Good cause" is any "`substantial reason and includes only those grounds put forward by the Commission in good faith and which are not arbitrary, irrational, unreasonable, irrelevant or capricious.'" Solomon v. Elsea, 676 F.2d 282, 287 (7th Cir. 1982).
Here, as argued by the respondents, the Commission had good cause for the departure based on its finding that the petitioner posed a high risk of offending again as demonstrated by his history of committing violent robberies, his violation behavior, and his lack of programming while in prison (doc. 8-12). The National Appeals Board reviewed the Commission's reasons and affirmed the Commission's finding that releasing the petitioner sooner would "jeopardize public welfare" (doc. 8-14). The Commission complied with the statute and regulations and provided a rational basis for the departure. Hawkins v. United States Parole Comm'n, 511 F.Supp. 460, 463 (E.D. Va. 1981) (finding that notice of action stating that "you have a repetitive history of assaultive behavior" fulfills the statutory and constitutional requirements for a written statement of reasons for a decision above the guidelines).
The petitioner's claim that the Commission "double counted" by considering his criminal history and violation behavior to determine both the guideline range and as grounds for a departure has no merit (doc. 1-1 at 2-5). "Double counting occurs when the Commission considers as a basis for departing from the guidelines the same factors it used either to place the inmate in a particular severity category or to calculate his salient factor score, or both." Muhammad v. Mendez, 200 F.Supp.2d 466, 472 (M.D. Pa. 2002) (citation omitted). "However, the nature and chronology of an offense and the similarity of . . . offenses as well as the proximity of the current offense to the prior offenses may be taken into account to justify a decision above the guidelines even though the offense was also counted in a determination of the salient factor score." Harris v. Stansberry, C.A. No. 1:10cv1337 JCC/TRJ, 2012 WL 27437, at *6 (E.D. Va. Jan. 4, 2012) (internal quotations and citations omitted). See Bialkin v. Baer, 719 F.2d 590, 594 (2nd Cir.1983) ("[W]e think the Commission properly considered other appropriate aggravating factors in Bialkin's case, including the nature, frequency, severity and similarity of his offenses as well as the proximity of the current offense to prior offenses.") (citation omitted); Page v. Pearson, 261 F.Supp.2d 528, 532 (E.D. Va. 2003) (Commission may consider unusual circumstances to depart from the guidelines); Muhammad, 200 F. Supp.2d at 473 ("It is equally well-settled that the Commission can use the nature of a prisoner's conviction as a basis for exceeding the guidelines, even though those same convictions were also used in his sentence computation pursuant to the guidelines.") (emphasis in original) (citation omitted).
The calculation of the salient factor score "serves as an aid in determining the parole prognosis (potential risk of parole violation)." 28 C.F.R. § 2.20(e). A prisoner's salient factor score is derived from the total score of six items, including the number of prior convictions, the number of prior commitments of more than 30 days, and the offender's age at the time of the offense (doc. 8-12 at 3). The petitioner's salient factor score of five placed him in the "fair risk" category of offenders (id.). See 28 C.F.R. § 2.20, Guidelines for Decisionmaking. The petitioner's parole violation behavior was rated as criminal conduct category of seven severity because it involved an excess of five bank robberies (doc. 8-12 at 3). The salient factor score and the rating of offense conduct yielded a guidelines range of 78-110 months, but the Commission determined that "a decision above the guidelines [was] warranted because you are a more serious risk than your salient factor score based on your history of committing violent robberies and lack of programming to reduce the risk that this will re-occur" (id.). The petitioner's extensive record of robberies was not fully taken into account in determining his guideline range because the salient factor score reflects the number of actual convictions and not the nature or similarity of the offense behavior underlying those convictions. See Harris, 2012 WL 27437, at *7 (finding Commission's decision to depart from guidelines given "unusual circumstances" was justified and did not amount to double counting where the Commission considered the nature and similarity of the convictions, finding that all were robberies, and the proximity of the current offenses to the prior offenses, by noting that the petitioner committed four robberies within 14 months of being released on parole). As the Commission explained in finding the petitioner to be a more serious risk for re-offending, during the same period in 1987 when he committed the four bank robberies that resulted in his federal conviction, the petitioner committed four strong armed robberies of convenience stores that resulted in a state conviction in North Carolina (doc. 8-12 at 2). In 1999, within six months of his release from the state and federal sentences, petitioner committed another 11 robberies (id.). Further, as the Commission noted, the salient factor score's assessment of the petitioner's risk to the public did not take into account his minimal programming during his 17 years in prison. Accordingly, the petitioner's claim of double counting is without merit.
Based upon the foregoing, summary judgment is appropriate on this ground for relief as the petitioner has not shown that the Commission exceeded its legal authority, acted unconstitutionally, or failed to follow its own regulations. Garcia, 660 F.2d at 988 (citation omitted).
The petitioner contends that he had a right to serve the balance of his original federal sentence concurrently with the time he was serving on the new federal sentence. He further claims that the Commission had no authority to stop his sentence from running by lodging the detainer instead of allowing him to serve the remainder of his original sentence concurrently with his new federal sentence (doc. 1-1 at 5-6). The respondents argue that summary judgment should be granted on this ground as the petitioner failed to exhaust his administrative remedies by raising this issue in his appeal to the National Appeals Board.
"A prisoner challenging a Parole Commission decision is required to exhaust his administrative remedies before seeking habeas relief in federal court under 28 U.S.C. § 2241." Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994). On December 8, 2017, the petitioner filed an administrative appeal of the Commission's revocation decision of October 10, 2017, to the Commission's National Appeals Board, pursuant to 18 U.S.C. § 4215 and 28 C.F.R. § 2.26 (doc. 8-13). As noted by the respondents, the petitioner's only claim on appeal was a challenge to the Commission's reasons for a decision exceeding the guidelines (doc. 8-13). He made no claim regarding the timing of his revocation hearing, and he did not assert that he had a right to serve his old and new sentences concurrently (see generally id.). The petitioner does not respond to this argument in his responses in opposition to the motion for summary judgment (see generally docs. 19, 20). The petitioner's failure to exhaust available administrative remedies after the Commission revoked his parole procedurally bars him from advancing the same issue in a petition for writ of habeas corpus, and therefore this claim should be dismissed.
Furthermore, even if the petitioner had exhausted his administrative remedies, he has no right to have his parole violation sentence, which was lodged as a detainer in September 2001, run concurrently with the 235 month sentence for the offense he committed on parole. Congress granted the Commission the exclusive authority to determine whether to run the balance of the original sentence concurrently with, or consecutively to, a new sentence for an offense the parolee committed while on parole. 18 U.S.C. § 4210(b)(2). See Moody v. Daggett, 429 U.S. 78, 87 (1976) (if revocation hearing is held after completion of intervening sentence, Commission has the discretion to provide retroactive release order to run sentences concurrently); Gaddy v. Michael, 519 F.2d 669, 678 (4th Cir. 1975) (the decision to run the original sentence concurrently with the new sentence is "a matter exclusively in the province of the Board"). Further, an alleged parole violator serving a sentence for a crime he committed while on parole is not entitled to have a revocation hearing while in custody on the new sentence. See Moody, 429 U.S. at 86-89 (upholding decision to delay revocation hearing until completion of the new sentence). Gaddy, 519 F.2d at 674 (a properly issued warrant need not be executed until after a parole violator serves an intervening sentence); Murphy v. Fulwood, C.A. No. 0:11-cv-01723-RBH, 2011 WL 5357827, at *2 (D.S.C. Oct. 6, 2011) (discussing Moody: no due process requirement for revocation hearing while prisoner is in custody on a new sentence and warrant has been properly lodged as a detainer), R&R adopted by 2011 WL 5357813 (D.S.C. Nov. 4, 2011).
The Commission has the discretion to decide when to initiate parole revocation proceedings and may defer making a revocation decision until all relevant information is available. See 18 U.S.C. § 4214(a)(1)(A)(i); Moody, 429 U.S. at 87; 28 C.F.R. § 2.44(d) ("The issuance of a warrant under this section operates to bar the expiration of the parolee's sentence and maintains the Commission's jurisdiction to retake the parolee either before or after the normal expiration date of the sentence and to reach a final decision as to revocation of parole and forfeiture of time pursuant to 2.52(c)."). As argued by the respondents, the petitioner's loss of liberty before the warrant was executed was due to his new sentence, not the Commission's detainer. Therefore, the due process protections for parole violators under Morrissey v. Brewer, 408 U.S. 471 (1972) and its progeny had not come into play. Only the execution of a parole violator warrant, not its issuance, triggers the due process requirement of a hearing. See Moody, 429 U.S. at 89. Furthermore, it is the Commission's general policy to lodge a warrant as a detainer when a parolee is serving a new sentence for an offense committed while on parole and to defer executing a warrant upon release from the new sentence. See 28 C.F.R. § 2.47(b)(1).
Based upon the foregoing, this ground for relief is unexhausted and also fails on the merits, and, therefore, it should be dismissed.
Wherefore, based upon the foregoing, this court recommends that the respondents' motion for summary judgment (doc. 8) be granted.
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must `only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
