Blair-Bey v. Quick

• Decision Date: 24 July 1998
• Docket Number: No. 96-5280,BLAIR-BE,A,96-5280
• Citation: 151 F.3d 1036,331 U.S. App. D.C. 362
• Parties: Clarence E.ppellant, v. Margaret QUICK, Chairperson, District of Columbia Board of Parole, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1036

151 F.3d 1036

331 U.S.App.D.C. 362

Clarence E. BLAIR-BEY, Appellant, v. Margaret QUICK, Chairperson, District of Columbia Board of

Parole, et al., Appellees.

No. 96-5280.

United States Court of Appeals, District of Columbia Circuit.

Argued May 11, 1998.

Decided July 24, 1998.

Appeals from the United States District Court for the District of Columbia (No. 96cv01593).

Thomas L. Cubbage, III, appointed by the Court, argued the cause for appellant Clarence E. Blair-Bey, with whom Timothy C. Hester was on the briefs.

Mary L. Wilson, Assistant Corporation Counsel, argued the cause for the District of Columbia appellees, with whom John Ferren, Corporation Counsel, and Charles L. Reischel, Deputy Corporation Counsel, were on the briefs. Jo Anne Robinson, Principal Deputy Corporation Counsel, entered an appearance.

William F. Gould, Assistant United States Attorney, argued the cause for appellee United States Parole Commission, with whom Wilma A. Lewis, United States Attorney, John R. Fisher, Elizabeth Trosman, and Silvia Gonzalez Roman, Assistant United States Attorneys, were on the brief.

Before: WALD, WILLIAMS and TATEL, Circuit Judges.

WALD, Circuit Judge:

This case is one of three companion cases that we decide today; the three cases address interrelated issues bearing on prisoner litigation.

In this action, Clarence Blair-Bey, a prison inmate in the custody of the D.C. Department of Corrections, filed a habeas corpus petition challenging the procedures by which he was denied parole, on due process and ex post facto clause grounds. He named as defendants (among others) the D.C. Board of Parole and the United States Parole Commission. The district court dismissed Blair-Bey's petition, finding that the federal courts are precluded by a provision of the D.C.Code, section 16-1901, from entertaining habeas corpus petitions filed by D.C. prisoners, and that Blair-Bey's claims also failed on their merits. Blair-Bey appealed these two rulings. In this court, the District defends those rulings, and also contends that Blair-Bey is required, under the filing-fee provisions of the recently-enacted Prison Litigation Reform Act ("PLRA"), 28 U.S.C. § 1915(d), to pay a partial filing fee before his appeal may proceed. The United States Parole Commission agrees with the District on the grounds for dismissal but not as to the applicability of the PLRA's filing fee provisions; it also asserts that it should be dismissed as a party.

We conclude that Blair-Bey's action, as a habeas corpus petition, is not subject to the PLRA's filing-fee requirements; that this court has jurisdiction to entertain Blair-Bey's petition; that the United States Parole Commission is not a proper defendant; and that although Blair-Bey's due process claim is meritless, his ex post facto claim might have merit if certain facts are shown, and must be remanded to the district court for further consideration.

I. BACKGROUND

Blair-Bey was born in 1958. Between the ages of thirteen and fifteen, he committed a number of serious offenses, including rape, receiving stolen property, destruction of property, and two counts of unauthorized use of a motor vehicle. As a result, he spent much of his youth at the District of Columbia's juvenile detention facility, Cedar Knoll. Blair-Bey also had psychological and substance-abuse problems during this period, and so was confined part of this time at St. Elizabeths Hospital. In 1975, at the age of sixteen, he escaped from Cedar Knoll and committed a murder. Appendix ("App.") at 31, 44. Blair-Bey pleaded guilty to a D.C.Code offense of second-degree murder, and was given a sentence of from ten years to life. In 1980, while serving his sentence, he killed another inmate; he pleaded guilty to second-degree murder in violation of 18 U.S.C. § 1111, and was sentenced to a term of ten years to life to be served consecutively with his prior sentence. He was then transferred to a federal correctional facility and began to serve his second (U.S.Code) sentence.

In 1991, the United States Parole Commission ("USPC") held a parole hearing on Blair-Bey's federal offense, denied parole, and scheduled another hearing for 1993. The USPC said in its order that at the next proceeding Blair-Bey would also receive a parole hearing for his D.C.Code offense. The USPC and the D.C. Board of Parole ("DCBOP") have an arrangement under which the USPC conducts parole hearings (under D.C. parole rules) for those D.C.Code offenders being held in federal prison.

Blair-Bey finished serving the federal portion of his sentence on October 5, 1991, and was transferred back to a D.C. prison in 1993. Apparently in error, a USPC hearing examiner nevertheless conducted a parole hearing for him at the D.C. Jail on September 8, 1993. The examiner found that Blair-Bey had a favorable score under the D.C. scoring system (a "point assigned grid score," or PAGS, of 2, which corresponds to "parole shall be granted"), but nevertheless recommended to the USPC that Blair-Bey be denied parole. The hearing examiner cited the seriousness of Blair-Bey's crimes, his lack of remorse, his drug use while in prison, and lies he told about his movements while on work-release. App. at 34-36. The examiner recommended that Blair-Bey receive a rehearing in September 1995.

Before the USPC could formally adopt these recommendations, the USPC and DCBOP decided that it was in fact the DCBOP that had jurisdiction over Blair-Bey. The USPC sent a copy of its file and recommendations to the DCBOP, which conducted a de novo parole hearing on October 29, 1993. Unlike the USPC, the DCBOP found that Blair-Bey had an unfavorable score under the D.C. system, giving him a PAGS score of 4, which corresponds to denying parole. (The DCBOP seems to have counted Blair-Bey's numerous juvenile offenses in making its calculation, App. at 47-48; the USPC did not count these offenses.) Citing his use of drugs, work-release misconduct, and diagnosis (while in prison) of paranoid schizophrenia, the hearing examiner decided that Blair-Bey was a threat to the community. He recommended that parole be denied, and that no new hearing be scheduled until October 29, 1998. This represented a five-year "set-off," or delay until Blair-Bey's next hearing, longer than the usual set-off of twelve months (or less) provided for in the D.C. guidelines. See D.C. Mun. Regs. tit. 28, § 104.2, 35 D.C.Reg. 455 (1988). The DCBOP adopted this recommendation in full, noting (through checkmarks on a form) that Blair-Bey's convictions reflect "on-going criminal behavior" and that Blair-Bey "has engaged in repeated or extremely serious negative institutional behavior." The DCBOP's form also noted that "[t]he set-off is outside the guidelines for the same countervailing factors checked below." App. at 56.

Blair-Bey filed a habeas corpus petition in D.C. Superior Court, claiming that the DCBOP acted illegally in denying him parole and in establishing a five-year set-off. The Superior Court denied the petition, and the D.C. Court of Appeals summarily affirmed. Blair-Bey v. Quick, No. 96-1593, slip op. at 1 (D.C. Sept. 28, 1995). Blair-Bey then filed a similar petition in federal district court, listing as defendants the warden of Occoquan, the chair of the DCBOP, his DCBOP hearing examiner, and the USPC.

The district court dismissed Blair-Bey's petition sua sponte for lack of jurisdiction, concluding that, under D.C.Code § 16-1901, only the courts of the District of Columbia have jurisdiction over petitions like Blair-Bey's. In the alternative, the district court found that Blair-Bey's claims failed on their merits, as he had no constitutional right to release on parole.

Blair-Bey appealed, challenging both of these conclusions. Blair-Bey's appeal was argued together with two other appeals brought by prison inmates, Anyanwutaku v. Moore, No. 96-7259, and Crowell v. Walsh, No. 96-7192, because they raised related issues; we decide all three of these cases (in separate opinions) today. The District asserts, first, that Blair-Bey's appeal is subject to the filing-fee requirements of the PLRA, and that Blair-Bey should therefore be required to pay a (partial) filing fee before we proceed. We reject this claim, finding that Blair-Bey's action, as it is a habeas petition, is outside the filing-fee provisions of the PLRA. Second, the District contends that the district court was correct in concluding that the federal courts lack jurisdiction over Blair-Bey's petition; again, Blair-Bey wins the day. Finally, as to the merits of Blair-Bey's claims, we find that his due process claim is meritless, but that his ex post facto claim requires further development on remand.

II. ANALYSIS

At the outset, it is clear that the United States Parole Commission is not a proper party to this action. "[T]he appropriate defendant in a habeas action is the custodian of the prisoner." Chatman-Bey v. Thornburgh, 864 F.2d 804, 810 (D.C.Cir.1988) (en banc). When a prisoner seeks to challenge parole-related decisions, the warden of the prison and not the United States Parole Commission is the prisoner's "custodian." See id. at 810-11 (citing Guerra v. Meese, 786 F.2d 414, 416 (D.C.Cir.1986)). Thus, the USPC, the DCBOP, and their officers and employees are not proper parties to this action; only John S. Henderson, the warden of Occoquan, is a proper party. ¹

A. The Prison Litigation Reform Act

In 1996, Congress enacted the Prison Litigation Reform Act, Pub.L. No. 104-134 (1996), which made a number of changes in the law governing prison-related litigation. The portion of the PLRA that concerns us here is section 804, which amended the statute governing proceedings in forma pauperis ("IFP") to require that, "if a prisoner brings a civil action or files an appeal in forma pauperis," he must pay the fee over time; payments are deducted from the plaintiff's prison account. 28 U.S.C. § 1915(b)(1)-(3). (A prisoner will not, however, be prevented...