Fletcher v. Reilly

• Decision Date: 06 January 2006
• Docket Number: No. 03-5359.,03-5359.
• Citation: 433 F.3d 867
• Parties: Thaddeus A. FLETCHER, Appellant v. Edward F. REILLY, Jr., Chairman, United States Parole Commission and Dennis Harrison, Warden, D.C. Department of Corrections, Central Facility, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

433 F.3d 867

Thaddeus A. FLETCHER, Appellant v. Edward F. REILLY, Jr., Chairman, United States Parole Commission and Dennis Harrison, Warden, D.C. Department of Corrections, Central Facility, Appellees.

No. 03-5359.

United States Court of Appeals, District of Columbia Circuit.

Argued October 11, 2005.

Decided January 6, 2006.

Appeal from the United States District Court for the District of Columbia (No. 01cv02058).

Timothy P. O'Toole argued the cause and filed the briefs for appellant. Catharine F. Easterly entered an appearance.

John P. Mannarino, Assistant U.S. Attorney, argued the cause for appellee Edward F. Reilly, Jr. With him on the brief were Kenneth L. Wainstein, U.S. Attorney, John R. Fisher, Assistant U.S. Attorney at the time the brief was filed, and Robert D. Okun and Roy W. McLeese, III, Assistant U.S. Attorneys.

Robert J. Spagnoletti, Attorney General, Office of Attorney General for the District of Columbia, Edward E. Schwab, Deputy Attorney General, and Mary L. Wilson, Senior Assistant Attorney General, were on the brief of appellee Dennis Harrison.

Before: GINSBURG, Chief Judge, ROGERS, Circuit Judge, and EDWARDS,^* Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge EDWARDS.

HARRY T. EDWARDS, Senior Circuit Judge.

The National Capital Revitalization and Self-Government Improvement Act of 1997 transfers responsibility for the imprisonment of all felons convicted under the District of Columbia ("D.C.") Code from the city to the federal government. The Act also transfers authority over parole and reparole decisions from the District of Columbia Board of Parole ("Board") to the United States Parole Commission ("Commission"). Pursuant to the Act, the Commission promulgated new federal regulations to replace the Board's parole and reparole regulations covering D.C.Code offenders. The D.C. Board's regulations had been importantly different from the federal parole/reparole regulations, because the Board had placed significant weight on post-incarceration behavior, including rehabilitative accomplishments, in making release determinations. Taking this difference into account, the new federal regulations adopted by the Commission mirrored the rehabilitative focus of the Board's former regulations covering parole. The Commission, however, did not adopt the Board's regulations covering decisions to grant reparole to D.C.Code offenders.

The difference between the Commission's new regulations governing parole and reparole for D.C.Code offenders is at the heart of this appeal from the District Court's dismissal of Thaddeus Fletcher's petition for a writ of habeas corpus. Fletcher's petition alleges, inter alia, that the Commission's retroactive application of the new federal regulations during his reparole hearing in 2000 violated the Ex Post Facto Clause of the United States Constitution, U.S. Const. art. I, § 9, cl. 3, and entitles him to habeas relief. We agree with Fletcher that the District Court erred in dismissing his petition.

Fletcher was convicted of a felony under the D.C.Code in 1980, and was subsequently released on parole by the Board. In 1998, during the period when authority over D.C.Code offenders was in the process of being transferred to the Commission, the Board revoked Fletcher's parole after he was convicted of a new felony in Maryland. By the time Fletcher came up for reparole in 2000, the Commission had assumed all responsibility for the parole and reparole of felons convicted under the D.C.Code. In considering Fletcher's case for reparole, the Commission applied the new federal regulations, not the displaced D.C. Board regulations. This meant that, in accordance with the federal regulations, because Fletcher's parole had been revoked for an offense that was not a D.C.Code offense, the Commission declined to consider his post-incarceration behavior, such as rehabilitative accomplishments, in weighing his entitlement to reparole. Fletcher claims that his rehabilitative accomplishments would have been taken into account under the D.C. Board's regulations for reparole.

Fletcher's pro se habeas petition alleges, among other things, that the retroactive application of the federal reparole regulations, rather than the Board's regulations, during his 2000 reparole hearing, created a significant risk of increased punishment, and is thus an unconstitutional ex post facto law. The District Court denied Fletcher's habeas petition. Appellant appears before us seeking a reversal, and a remand with instructions that he is entitled to "sufficient discovery" to support his efforts to demonstrate that, as applied to him, the federal regulations, in their practical operation, create a significant risk of increased punishment.

In dismissing Fletcher's habeas petition, the District Court assumed that parole/reparole regulations are not "laws" for ex post facto purposes. We squarely rejected this position. Fletcher v. District of Columbia, 391 F.3d 250, 251 (D.C.Cir.2004) ("Fletcher II"), granting reh'g and vacating in part, 370 F.3d 1223 ("Fletcher I"). Fletcher II makes it clear that, under Garner v. Jones, 529 U.S. 244, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000), the critical question in ex post facto challenges to retroactively applied parole/reparole regulations is whether, as a practical matter, the retroactive application creates a significant risk of prolonging an inmate's incarceration. We must remand this case to afford the District Court an opportunity to review Fletcher's petition under this analytical framework.

It appears that the District Court also may have read Fletcher's petition too narrowly, countenancing only Fletcher's claim that the retroactive application of the federal regulations would delay the date on which he became eligible for reparole. Fairly construed, Fletcher's habeas petition alleges a stronger claim. He asserts that the federal reparole regulations, unlike the Board's former regulations, are primarily concerned with punishment and recidivism, and do not factor evidence of post-incarceration rehabilitation into reparole determinations. This difference, he argues, creates a significant risk that he will linger in prison for longer than he reasonably assumed when his parole was revoked, because he will not be granted reparole under the new federal regulations. Fletcher has presented a viable claim which is entitled to fair consideration. The decision of the District Court is therefore reversed, and the case remanded for further proceedings consistent with this opinion.

(The parties and the case law make reference to "regulations," "rules," and "guidelines," interchangeably, in discussing the Board's and the Commission's parole/reparole regimes. These labels are insignificant to our disposition of this appeal.)

I. BACKGROUND

A. Changes to Parole and Reparole Regulations for D.C.Code Offenders

In 1997, Congress transferred responsibility for the imprisonment of all felons convicted under the D.C.Code from the District of Columbia to the federal government. National Capital Revitalization and Self-Government Improvement Act of 1997 ("Revitalization Act" or the "Act"), Pub.L. No. 105-33, 111 Stat. 712, 734-37 (codified at D.C. CODE §§ 24-101 et seq. (2001 & Supp.2005)). As part of the Revitalization Act, Congress transferred authority over "any imprisoned felon who is eligible for parole or reparole under the [D.C.] Code" from the D.C. Board of Parole to the U.S. Parole Commission. § 11231, 111 Stat. at 745. The U.S. Parole Commission was required to begin the process of assuming its new jurisdiction by August 5, 1998. Id. The Act provided that the D.C. Board of Parole would be abolished once the transfer of authority to the Commission was completed. Id.

Under the Act, the Commission is vested with "exclusive authority to amend or supplement any regulation interpreting or implementing the parole laws of the District of Columbia with respect to felons, provided that the Commission adheres to [statutory] rulemaking procedures." Id. In 1998 and 2000, the Commission undertook two rounds of rulemaking which resulted in the regulations applied by the Commission at Fletcher's reparole hearing in 2000.

Prior to the Commission's adoption of new regulations, parole and reparole determinations for D.C.Code offenders were guided by the D.C. Board's regulations. See D.C. MUN. REGS. tit. 28, §§ 100 et seq. (1987) (repealed Aug. 5, 2000). Under these regulations, a person whose parole was revoked "based on one or more new felony charges or convictions" was entitled to an initial reparole hearing within nine to twenty-four months depending on the number of years remaining on the maximum sentence. D.C. MUN. REGS. tit. 28, § 104.8-104.9. The Board, however, reserved its discretion to "order a parole reconsideration date it determine[d] to be appropriate." D.C. MUN. REGS. tit. 28, § 104.11.

At D.C. Board reparole hearings, release decisions were based on the same criteria used in connection with parole determinations. D.C. MUN. REGS. tit. 28, § 204.1. To "determin[e] whether an incarcerated individual [would] be paroled or reparoled," the D.C. Board employed an analytic framework that relied on both "pre and post-incarceration factors." Id. The Board would first consider the following pre-incarceration factors: prior convictions and adjudications, prior commitments of more than 30 days, age at commission of current offense, recent commitment-free period, status of prisoner at time of current offense, and history of heroin or opiate dependence. D.C. MUN. REGS. tit. 28, § 204.4-204.16. The pre-incarceration factors were then weighed by a formula to determine the candidate's risk category, called a "salient factor score." D.C. MUN. REGS. tit. 28, § 204.17 & Appendix 2-1. The Board would then consider pre— and post-incarceration factors to determine whether the candidate should be reparoled. D.C. MUN. REGS. tit. 28, § 204.18. Two post-incarceration...