United States District Court, D. Arizona
REPORT AND RECOMMENDATION
LESLIE A. BOWMAN, Magistrate Judge.
On November 26, 2012, Ervin Rogers, an inmate confined in the Federal Correctional Institution in Tucson, AZ, filed a Petition for Writ of Habeas Corpus pursuant to Title 28, United States Code, Section 2241. (Doc. 1); but see Hunter v. U.S. Parole Com'n, 2011 WL 4528469 (M.D.Pa.2011) (A petitioner whose sentence was imposed by the Superior Court of the District of Columbia must proceed pursuant to 28 U.S.C. 2254.). Rogers claims the U.S. Parole Commission's decision to deny him parole violated procedural due process and "ex-post factor law." Id.
Pursuant to the Rules of Practice of this court, this matter was referred to Magistrate Judge Bowman for report and recommendation. LRCiv 72.2(a)(2).
The Magistrate Judge recommends the District Court, after its independent review of the record, enter an order denying the petition on the merits.
Summary of the Case
Rogers was convicted in the Superior Court of the District of Columbia of first degree felony murder. (Doc. 9, p. 11) On August 19, 1993, the trial court imposed a sentence of imprisonment of twenty years to life. Id. At that time, parole decisions were made by the District of Columbia Board of Parole. Hunter v. U.S. Parole Com'n, 2011 WL 4528469, *2, n. 5 (M.D.Pa. 2011).
District of Columbia inmates were subsequently transferred to the BOP pursuant to the Revitalization Act of 1997. Hunter at *7, n. 7; D.C.Code § 24-101. "Thus, as the BOP was vested with the legal custody of D.C.Code offenders, they too are subject to the disciplinary regulations of the BOP." Hunter at *7, n. 7. The respondents concede that under the old D.C. Bureau of Prison regulations, inmates were entitled to counsel at disciplinary hearings. The BOP does not grant inmates this right.
At about the same time, parole jurisdiction passed from the District of Columbia Board of Parole to the U.S. Parole Commission (USPC). Hunter at *2, n. 5; D.C.Code § 24-131. To avoid ex-post facto concerns, the USPC employs the old 1987 D.C. parole scoring system for certain inmates, such as Rogers. See Sellmon v. Reilly, 551 F.Supp.2d 66 (D.D.C. 2008).
On November 30, 2011, Rogers received his first parole hearing from the U.S. Parole Commission (USPC). (Doc. 9, p. 19) In accordance with the D.C. Parole Board 1987 regulations, information about Roger's pre-incarceration status, his offense, and his post-incarceration behavior was entered into an numerical calculation to guide the parole determination. (Doc. 9, p. 17).
First, Roger's Salient Factor Score was determined from his prior convictions, his prior commitments of more than 30 days, his age at the time of the offense, his recent commitment free period, his institutional status at the time of the offense, and his opiate dependence. (Doc. 9, p. 17). His Salient Factor Score was determined to be 4, which put Rogers in the Risk Group: Moderate. (Doc. 9, p. 18) Rogers does not dispute that determination.
This Risk Group finding was then incorporated into Rogers's guideline point score, which was used to inform the ultimate parole determination. The "Moderate" finding resulted in a addition to Rogers's guideline point score. (Doc. 9, p. 18) An additional point was added for both Type of Risk and Negative Institutional Behavior. (Doc. 9, p. 18) Rogers's Negative Institutional Behavior point resulted from his 33 DHO (discipline hearing officer) level infractions, 16 of which occurred within 12 months of the hearing. (Doc. 9, p. 15) Rogers's total guideline point score was 4. (Doc. 9, p. 18) Parole ordinarily is denied if the total point score is 3-5. (Doc. 9, p. 18) Rogers was not granted parole. (Doc. 9, p. 19)
In his petition, Rogers argues the USPC violated his rights under the Due Process Clause and the Ex-Post Facto Clause by considering disciplinary infractions adjudicated under the BOP regulations rather than the old D.C. Department of Corrections regulations. (Doc. 1) Specifically, he argues he was not given the right to be represented by an attorney at his disciplinary hearings as the old D.C. regulations allowed. (Doc. 1, p. 4)
Rogers also notes in his petition that the BOP allows ten days to file an appeal, while the D.C. regulations allowed only 3 days. Id. The court assumes Rogers is simply highlighting a difference between the two regimes and ...