SHERI PYM, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Margaret M. Morrow, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
On January 14, 2013, petitioner Darryl J. Smith, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. §§ 2241(c)(3) and (d)(3), and 28 U.S.C. § 2243 challenging his criminal conviction and sentence in the Superior Court of the District of Columbia as well as the administration of his parole by the United States Parole Commission. At the time he filed the Petition, petitioner was incarcerated at the United States Penitentiary in Victorville, California.
Construing the Petition liberally, petitioner alleges that: (1) he was denied his right to due process and his trial counsel was ineffective for refusing to allow petitioner to testify; (2) his trial counsel was ineffective for failing to object to the exclusion of alibi witness testimony; (3) the D.C. Court of Appeals erred when it upheld his conviction and sentence; and (4) the United States Parole Commission erred by denying petitioner immediate parole even though the relevant parole guidelines recommended release. Pet. at 3-4; Pet. Attach. at 1-24. On January 30, 2013, petitioner filed a Request to File Amended Petition. The court has construed the Request to File Amended Petition as a supplement to the original Petition. In that Request, petitioner seeks to newly allege one claim that his appellate counsel was ineffective, and also adds additional legal argument regarding the claims in the original petition. Amend. Pet. at 3-15.
Respondents moved to dismiss the Petition, contending that petitioner cannot challenge his convictions and sentence in the D.C. Superior Court by way of a federal habeas petition, and that petitioner's claims regarding the United States Parole Commission's denial of parole fail as a matter of law. The court agrees.
This court lacks jurisdiction to consider petitioner's challenges to his conviction and sentence in his Petition, and similarly lacks jurisdiction to consider petitioner's proposed ineffective assistance of appellate counsel claim in his Request to File Amended Petition. And because petitioner has filed to show any due process violation in the United States Parole Commission's discretionary decision to deny him parole, his parole claims are not cognizable on federal habeas review. Accordingly, respondents' motion to dismiss should be granted.
On July 25, 1991, following a jury trial in the Superior Court of the District of Columbia, petitioner was found guilty of felony murder while armed (Count G) and distribution of cocaine (Count E).
Petitioner appealed his conviction to the District of Columbia Court of Appeals. Amend. Mot. Ex. 3; Smith v. United States, 665 A.2d 962 (D.C. 1995). While petitioner's appeal was pending in that court, he also filed a motion in the trial court to vacate his sentence pursuant to D.C. Code § 23-110 (1989).
In 1996, upon remand, the trial court conducted a review of the evidence and found no Brady violation. Amend. Mot. Ex. 10 at 7. In 1997, petitioner filed a motion for reconsideration of the ruling that there had been no Brady violation as well as a motion for leave to file an untimely appeal. Id. In 1998, those motions were both denied. Id.
On April 1, 2002, petitioner filed a Motion to Vacate, Set Aside or Correct Sentence Pursuant to the Provisions of Title 16 D.C. Code, § 1901(B) in the Superior Court of the District of Columbia. Id. at 1. The Superior Court construed this motion as a motion under D.C. Code § 23-110 and the motion was denied on May 30, 2003 in a reasoned decision. Id. at 1 n.1, 11. On June 13, 2003, petitioner filed a Motion for Reconsideration and/or in the Alternative Petitioner's Notice of Appeal in the Superior Court. Amend. Mot. Ex. 4 at 1. Again construing this motion as a motion pursuant to D.C. Code § 23-110, the motion was also denied by the Superior Court in a reasoned decision on October 28, 2003. Id.
On May 17, 2011, the United States Parole Commission ("the Commission") conducted petitioner's first parole hearing. Amend. Mot. Ex. 5 at 1. Though petitioner's "Grid Point Score" recommended parole, the hearing examiner recommended that plaintiff be denied parole. Id. at 3. The Commission's decision regarding's petitioner parole was deferred on July 8, 2011 and on October 12, 2011, pending the receipt of additional information and for remand for a new parole hearing. Amend. Mot. Ex. 6, Ex. 7. On April 9, 2012, the Commission conducted a second parole hearing upon remand from the first hearing. Amend. Mot. Ex. 8 at 1. On June 12, 2012, petitioner was denied parole. Amend. Mot. Ex. 9. The hearing examiner found that though petitioner's "grid score" recommended a grant of parole, a departure from the guidelines was warranted because petitioner had been found guilty of twenty-two disciplinary infractions while incarcerated, had not accepted responsibility for his crimes, and had not undertaken any programming to address the crimes of conviction. Id.; Amend. Mot. Ex. 8 at 6. The Commission scheduled petitioner's next parole hearing for April 2014. Id.
Petitioner filed the instant Petition on January 14, 2013. On January 30, 2013, petitioner filed a Request to File Amended Petition. On February 4, 2013, in a related case, petitioner filed a request for an evidentiary hearing concerning the parole examiners, which has been filed and considered in this case as a supplement to the Petition. On February 15, 2013, respondents filed a Motion to Dismiss. Respondents filed an Amended Motion to Dismiss on March 1, 2013.
Petitioner was convicted and sentenced in the Superior Court of the District of Columbia in 1991. As such, he is subject to the provisions of the District of Columbia Reform and Criminal Procedure Act of 1970 ("Court Reform Act"). See Byrd v. Henderson, 119 F.3d 34, 36 (D.C. Cir. 1997).
Id. at 36-37. The remedy created by the Court Reform Act as codified in D.C. Code § 23-110(a) states in part:
D.C. Code § 23-110(a). Section 23-110 goes on to provide:
D.C. Code § 23-110(g).
Section 23-110 is an "unequivocal statutory command to federal courts not to entertain an application for habeas corpus after the applicant has been denied collateral relief in the Superior Court. . . ." Swain v. Pressley, 430 U.S. 372, 377, 97 S.Ct. 1224, 51 L. Ed. 2d 411 (1977). Thus, § 23-110 has "entirely divested the federal courts of jurisdiction to hear habeas corpus petitions by prisoners who had a section 23-110 remedy available to them, unless the petitioner could show that the section 23-110 remedy was `inadequate or ineffective'. . . ." Blair-Bey, 151 F.3d at 1042. The Supreme Court has upheld this statutory scheme, given the availability of review where a remedy provided by an § 23-110 was "inadequate or ineffective," finding that "the substitution of a collateral remedy which is neither inadequate nor ineffective to test the legality of a person's detention does not constitute a suspension of the writ of habeas corpus." Swain, 430 U.S. at 381.
Consequently, in order for this court to have jurisdiction over petitioner's first three claims for habeas relief, petitioner must show that filing a motion pursuant to § 23-110 would be "`inadequate or ineffective' to test the legality of his detention." See Garris v. Lindsay, 794 F.2d 722, 726 (D.C. Cir. 1986). He has not done so.
Petitioner has made at least three motions pursuant to § 23-110: one during the pendency of his direct appeal, the second in May 2003, and the third in October 2003, all of which have been denied. See Amend. Mot. Ex. 3 at 4 n.3, Ex. 4 at 1 (noting that "this is defendant's third post-appeal motion pursuant to D.C. Code § 23-110"), Ex. 10 at 1. In those previous motions, petitioner made similar arguments regarding the effectiveness of this trial counsel and the propriety of his sentence and conviction. See Amend. Mot. Ex. 10 at 2-3. The trial court conducted an evidentiary hearing in response to his first § 23-110 motion, but ultimately denied it. Amend. Mot. Ex. 3 at 4 n.3. The second motion was denied in an eleven page written decision. See Amend. Mot. Ex. 10. The third was also denied in a written decision. See Amend. Mot. Ex. 4. It is apparent from this record that the § 23-110 remedy was procedurally available to petitioner — repeatedly — but each time the Superior Court found petitioner was not entitled to relief.
"The question of whether the § 23-110 remedy is inadequate or ineffective is not determined by the fact that the Superior Court of the District of Columbia denied relie[f]." James v. Smith, 2008 WL 5329954, at *2 (E.D. Cal. Dec. 19, 2008) (citing Garris, 794 F.2d at 727). Petitioner has provided no evidence to suggest, nor is there any reason to find, that his prior motions pursuant to § 23-110 have been an "inadequate or ineffective" vehicle to address his first three habeas claims. Because petitioner has not made the requisite showing that a motion under § 23-110 would be "inadequate or ineffective" to address his claims, this court lacks jurisdiction to adjudicate his first three grounds for habeas relief. Accordingly, petitioner's first three claims for habeas relief should be dismissed.
Petitioner makes three related arguments in his fourth claim for habeas relief. First, petitioner generally argues that the United States Parole Commission lacks jurisdiction over him. Pet. Attach. at 21-24. Second, he argues that he is entitled to immediate parole under the Commission's guidelines because the Commission admitted as much. Pet. at 4; Pet. Attach. at 18-22. Finally, petitioner complains that the Commission's decision to schedule his next parole hearing in two years was improper. Pet. at 4; Pet. Attach. at 22. All of petitioner's claims relating to the Commission's administration of his parole hearings are without merit and are not cognizable claims for habeas relief.
Petitioner claims that because he has committed no federal crime, he is not properly under the jurisdiction of the United States Parole Commission. Pet. Attach. at 21-24. But there is no doubt that the Commission has jurisdiction over petitioner. Petitioner was convicted in the Superior Court of the District of Columbia in 1991. Pet. at 2; Amend. Mot. Ex. 2. "It is well settled that the Commission has had jurisdiction over parole matters of District of Columbia felons since August 1998." Watson v. U.S. Parole Comm'n, 869 F.Supp.2d 145, 149 (D.D.C. 2012) (quotation marks omitted). "[The Commission] may grant, deny, or revoke parole, and it may impose or modify conditions of parole for any felon who is eligible for parole or reparole under District of Columbia law."
Petitioner also argues that he is entitled to be immediately paroled and that the United State Parole Commission admitted as much. Pet. at 18-24. This court's ability to review a decision of the Commission is limited. The court may only consider "whether the Commission exceeded its statutory authority or acted so arbitrarily as to violate due process." Benny v. U.S. Parole Comm'n, 295 F.3d 977, 981-82 (9th Cir. 2002). So long as the decision of the Commission was not "arbitrary, irrational, unreasonable, irrelevant or capricious," the court may not disturb a decision of the Commission. See Wallace v. Christensen, 802 F.2d 1539, 1551 (9th Cir. 1986). Indeed, "[j]udgments `involving a broad range of factors' that the Commission takes into account in arriving at its decision are committed to the Commission's discretion and are unreviewable even for abuse of discretion." Benny, 295 F.3d at 982. Such is the case here.
When determining whether an inmate convicted in the Superior Court of the District of Columbia is eligible for parole, the Commission must use the District of Columbia guidelines in place at the time the offense was committed. See Sellmon, 551 F. Supp. 2d at 68. The 1987 "DC Guidelines" that determined petitioner's parole availability use a multi-factor scoring system to assist in the determination of whether parole should be granted. Ellis v. Dist. of Columbia, 84 F.3d 1413, 1415 (D.C. Cir. 1996); Sellmon, 551 F. Supp. 2d at 69-73. "Each parole candidate is assigned a `Salient Factor Score' to assist in determining the risk of releasing the prisoner." Ellis, 84 F.3d at 1415. The Salient Factor Score is modified by pre- and post-confinement factors, such as the circumstances of the crime or program achievement while in prison, to create a "total point score" that can range from zero to five. Id. For adults, a "total point score" of zero to two indicates that the prisoner "shall be paroled." Id.
The "total point score" will not solely determine if parole will be granted, however. Ultimately, the decision to grant or deny parole is within the discretion of the Commission. McRae v. Hyman, 667 A.2d 1356, 1360 (D.C. 1995) ("Although a numerical scoring system is [used] to guide [the Commission] in making the decision whether to grant or deny parole, the purpose of the system is `to enable [the Commission] to exercise its discretion.'"). Indeed, "even if a prisoner establishe[s] everything the statute requires, [the Commission still has] discretion to deny parole." Ellis, 84 F.3d at 1415. When the "unusual circumstance" arises where the Commission recommends a denial of parole when an inmate's "total point score" would recommend parole, the Commission must indicate the reasons why in a written response. McRae, 667 A.2d at 1361.
Here, petitioner was convicted in 1991. His first parole hearing was conducted on May 17, 2011. During that hearing, the hearing examiner assessed petitioner a "total point score" of two. Amend. Mot. Ex. 5 at 2. Despite the fact that this score would entitle petitioner to parole under the guidelines, the hearing examiner recommended that petitioner be denied parole. Id. at 3. The hearing examiner reasoned that parole should be denied because petitioner has not accepted responsibility for his crimes, has little insight regarding his offense behavior, and needs additional programming to be suitable for parole. Id. Ultimately, petitioner's parole determination was deferred so the Commission could obtain additional information about the murder for which petitioner was incarcerated. See id. at 4; Amend. Mot. Ex. 5, Ex. 6.
On April 9, 2012, a new parole hearing was conducted with petitioner. Amend. Mot. Ex. 8. During this hearing petitioner was again assessed a "total point score" of two, and the examiner again recommended against parole. Id. at 5. The hearing examiner reasoned that petitioner should be denied parole because he did not take responsibility or express remorse for his crimes, because he had committed twenty-two disciplinary infractions while incarcerated, including an assault in 2010, and because he requires additional programing. Id.
It was within the Commission's discretion to deny parole to petitioner. "There is no right under the Federal Constitution to be conditionally released before the expiration of a valid sentence, and the States are under no duty to offer parole to their prisoners." Swarthout v. Cooke, ___ U.S. ___, 131 S.Ct. 859, 862, 178 L. Ed. 2d 732 (2011) (citing Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L. Ed. 2d 668 (1979)). When a state creates a liberty interest in parole, the deprivation of that liberty interest is examined under the Due Process clause. Swarthout, 131 S. Ct. at 862. Under the Due Process clause, "[w]e first ask whether there exists a liberty or property interest of which a person has been deprived, and if so we ask whether the procedures followed by the State were constitutionally sufficient." Id. at 861. Here, however, the District of Columbia parole scheme creates no such liberty interest or expectancy in parole; the Commission has broad discretion to grant or deny parole. Ellis, 84 F.3d at 1419-20 (the statute and the regulations vest substantial discretion in [the Commission] to grant or deny parole and that the regulations lack the sort of "mandatory character" needed to support a liberty interest"); Blair-Bay, 151 F.3d 1036 at 1047-48. Thus, petitioner had no liberty interest in parole and the decision whether he would be paroled or not fell within the discretion of the Commission.
Nor is there any evidence that the Commission acted in an arbitrary or capricious manner. On the contrary, the Commission gave petitioner two separate in-person parole hearings and the hearing examiner at the first hearing recommended that petitioner's parole determination be deferred until there was more evidence in the record. Amend. Mot. Ex. 8 at 1, Ex. 9. After receipt of that additional information, the Commission ultimately decided that petitioner should not be released on parole. Amend. Mot. Ex. 9. Upon making that decision, the Commission provided a petitioner with a detailed summary explaining the reasons why it was deviating from the guidelines and denying him parole, as discussed above. Id.
Accordingly, petitioner's arguments that the Commission inappropriately denied him immediate release on parole are without merit. Further, because petitioner has failed to show any due process violation, his claim regarding the Commission's denial of parole is not cognizable on federal habeas review.
Finally, petitioner argues that in was improper for the United States Parole Commission to "sanction[] [him] to a 2 year federal parole hit. . . ." Pet at 18-24 (capitalization omitted). The court construes petitioner's argument as a claim that his due process rights were violated when the Commission gave him a two-year parole rehearing "set-off," that is, when it scheduled his next parole hearing two years later instead of twelve months later, as recommended by the relevant guidelines. This argument is also without merit.
Under the guidelines, hearings for reconsideration of parole are generally held twelve months from the date of the last hearing. See Blair-Bey, 151 F.3d at 1038. But an inmate has no right to a twelve-month "set-off," and adherence to the twelve-month timeline is not mandatory. Id. at 1047 ("the applicable D.C. parole regulations say only that `reconsideration shall ordinarily occur within twelve (12) months'"). Instead, the Commission may set a date for parole reconsideration at any time it determines to be appropriate. Id.; Hall v. Henderson, 672 A.2d 1047, 1052 (D.C. 1996) ("Notwithstanding any other provision of this section, [the Commission] may order a parole reconsideration date it determines to be appropriate."). These guidelines were not enacted pursuant to state or local regulation, but instead are self-regulating and therefore do not create a liberty interest in a parole hearing at any predetermined interval. Id. at 1054. Because no liberty interest is created by the guidelines, petitioner cannot prevail on a due process claim predicated upon the Commission's alleged deviation from those guidelines. See Moor v. Palmer, 603 F.3d 658, 662 (9th Cir. 2010) (holding that no due process claim relating to parole can lie when there is no liberty interest implicated).
In any case, the Commission acted properly within its discretion in this respect too. Though courts have noted that the Commission must have "some basis" for deviating from the twelve-month set-off timeline, it has broad discretion to order longer set-offs. Hall, 672 A.2d at 1053 ("[The Commission], in its discretion, may schedule a reconsideration date later than the prescribed set-off if one or more aggravating factors are present.") (italics omitted). The Commission may consider factors in mitigation (to order a shorter set-off period) or factors in aggravation (to order a longer set-off period) when making its decision to order hearings for reconsideration of parole.
Accordingly, all of petitioner's claims regarding the Commission's administration of the parole hearing process are without merit. In addition, because petitioner has failed to show that his claims implicate the Due Process Clause, they are not cognizable claims for federal habeas relief.
Finally, in his Request to File Amended Petition, petitioner proposes an additional claim that his appellate counsel was ineffective for failing to file an appeal on petitioner's behalf because the District of Columbia Court of Appeal's decision upholding petitioner's conviction, aside from the Brady issue, was "clearly erroneous." Amend. Pet. at 1-15. Because the court lacks jurisdiction over this claim, there is no reason to allow petitioner to amend his Petition to add this claim.
As discussed above, federal courts lack jurisdiction to hear habeas claims brought by prisoners convicted in the Superior Court of the District of Columbia unless the petitioner can show that a motion pursuant to D.C. Code § 23-110 would be "inadequate or ineffective." Blair-Bey, 151 F.3d at 1042. But a motion under § 23-110 cannot be used to collaterally attack a sentence due to ineffective assistance of appellate counsel. Spencer v. United States, 806 F.Supp.2d 209, 213 (D.D.C. 2011). Rather, "[t]he proper procedure for such a claim requires first that a petitioner file a motion to recall the mandate in the D.C. Court of Appeals." Id. If a petitioner wishes to raise a claim of ineffective assistance of appellate counsel, but does not move to recall the mandate, he has not exhausted local remedies and the federal court lacks jurisdiction to hear a habeas claim predicated upon that theory. Id.
Here, petitioner has not pointed to any evidence, nor has the court found any evidence in the record, that petitioner moved to recall the mandate in the D.C. Court of Appeals. Therefore, the court lacks jurisdiction over petitioner's proposed claim of ineffective assistance of appellate counsel. Accordingly, petitioner's request to file an amended petition should be denied.
IT IS THEREFORE RECOMMENDED that the District Court issue an Order: (1) approving and accepting this Report and Recommendation; (2) denying Petitioner's Request to File Amended Petition; (3) granting respondents' Amended Motion to Dismiss; and (4) directing that Judgment be entered denying the Petition and dismissing this action with prejudice.
Hall, 672 A.2d at 1052 (quoting District of Columbia Board of Parole, Policy Guidelines § VI(A)(2) (April 27, 1992).
