Ford v. Massarone

• Decision Date: 04 September 2018
• Docket Number: No. 16-5298,16-5298
• Citation: 902 F.3d 309
• Parties: Edward J. X. FORD, Jr., Appellant, v. Charles MASSARONE, Commissioner of the United States Parole Commission, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

902 F.3d 309

Edward J. X. FORD, Jr., Appellant,

v.Charles MASSARONE, Commissioner of the United States Parole Commission, et al., Appellees.

No. 16-5298

United States Court of Appeals, District of Columbia Circuit.

Argued April 26, 2018

Decided September 4, 2018

Zachary C. Schauf, appointed by the court, argued the cause and filed briefs as amicus curiae in support of appellant. With him on the briefs was David W. DeBruin, Washington, appointed by the court.

Edward J.X. Ford Jr., pro se, filed briefs for appellant.

Peter C. Pfaffenroth, Assistant U.S. Attorney, argued the cause for appellees. With him on the brief were Jessie K. Liu, U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney. Fred E. Haynes and Alessio D. Evangelista, Assistant U.S. Attorneys, entered appearances.

Before: Garland, Chief Judge, and Griffith and Srinivasan, Circuit Judges.

Srinivasan, Circuit Judge:

Edward Ford, Jr. is a federal prisoner serving several criminal sentences, including one for murder in violation of federal law and another for a separate murder in violation of D.C. law. In 2013, Ford sued the members of the U.S. Parole Commission, alleging (among other things) that the Commissioners had unlawfully delayed his first hearing for parole from his D.C. sentence.

Generally, once a D.C. offender has served the minimum term of his court-imposed sentence, he is eligible for parole and has a parole hearing at that time. The rule is different, though, for the small number of offenders like Ford who are serving sentences for both a D.C. crime and a federal crime committed before federal parole was abolished. In that situation, if an offender’s eligibility for parole from his D.C. sentence comes before his projected parole date on his federal sentence, a federal regulation calls for delaying his first D.C. parole hearing until shortly before his projected federal parole date. The central question in this case is whether the federal regulation’s mandate to delay the first D.C. parole hearing in that situation conflicts with D.C. law.

The district court granted summary judgment to the Commissioners on that claim as well as several others pressed by Ford. We conclude that Ford’s first D.C. parole hearing was unlawfully delayed. We therefore reverse and remand for entry of summary judgment in Ford’s favor on that issue, but we otherwise affirm the district court.

I.

In 1980, Ford committed three murders in three jurisdictions in the space of three months. Ford’s final victim was an inmate at a federal prison in Northern Virginia, whom Ford broke into the facility to kill.

Ford was first convicted of the prison murder and conspiracy to commit that murder, both in violation of federal law. He received concurrent sentences of life imprisonment for the murder and 15 years for the conspiracy offense. Ford was next convicted of murder while armed, kidnapping while armed, and carrying a pistol without a license, all in violation of D.C. law. He received a sentence of 20 years to life for the murder, 10 years for the kidnapping, and an unspecified term for the gun offense—all concurrent to each other, but consecutive to his federal sentences.

Ford is currently serving his D.C. and federal sentences in federal prison. If paroled, he will begin serving another life sentence for a third murder he committed in Maryland.

Since 1997, when the D.C. Board of Parole was abolished, the U.S. Parole Commission has conducted parole proceedings for both D.C. and federal offenders. See Daniel v. Fulwood , 766 F.3d 57, 59 (D.C. Cir.2014). In December 2001, the Commission held Ford’s initial federal parole hearing.

The Commission applied the federal parole guidelines and determined that, barring disciplinary infractions in prison, Ford would be paroled from his federal sentence on November 22, 2005. The Commission also concluded that Ford would become eligible for parole from his D.C. sentence before his projected parole date for his federal sentence. Applying the federal regulation that governs the timing of D.C. parole hearings for offenders serving both D.C. and federal sentences, 28 C.F.R. § 2.65, the Commission set the deadline for Ford’s first D.C. parole hearing as July 22, 2005—four months before his projected federal parole date.

Ford had his first D.C. parole hearing shortly after that date, on August 10, 2005. He was denied parole. Since then, Ford has had three rehearings—in October 2010, October 2012, and February 2016—and has been denied parole each time. His next rehearing is scheduled for February 2019.

In 2013, before Ford’s most recent rehearing, he filed a pro se complaint against the members of the Commission. Ford raised claims under 42 U.S.C. § 1983, including a claim that the Commissioners had violated the Ex Post Facto Clause by delaying his first D.C. parole hearing until his projected federal parole date (in 2005) instead of holding the hearing as soon as he became eligible for parole from his D.C. sentence (in 2000). The Commissioners argued in response that they had properly applied 28 C.F.R. § 2.65(e) when setting the date of Ford’s first D.C. parole hearing.

The district court agreed, and granted summary judgment to the Commissioners on that issue and Ford’s remaining claims. Ford v. Massarone , 208 F.Supp.3d 91, 106, 108 (D.D.C. 2016). Ford appealed, and we appointed amicus counsel to present arguments favoring Ford’s position.

II.

Before addressing the merits of the claims Ford has preserved, we consider various threshold arguments advanced by the Commissioners as to why we should decline to reach some or all of Ford’s claims. On the merits of the properly preserved claims, we hold that the Commissioners unlawfully delayed Ford’s first D.C. parole hearing. We rule in the Commissioners’ favor on the remaining claims.

A.

As an initial matter, the Commissioners argue that Ford’s action is barred by res judicata and by a federal statute restricting second or successive habeas actions. The Commissioners further contend that, insofar as Ford’s action can proceed, he forfeited certain of his claims by failing to raise them before the district court.

1. The Commissioners argue that res judicata bars Ford’s action because, in 2001, he filed a habeas petition in which he alleged (among other things) that the Commissioners had unlawfully delayed his first D.C. parole hearing. Ford v. Attorney General , No. 02-302 (D. Colo. Apr. 9, 2004). Res judicata, however, is an "affirmative defense" that "must [be] plead[ed] ... in the answer to the complaint." Brown v. District of Columbia , 514 F.3d 1279, 1285 (D.C. Cir.2008) ; see also Fed. R. Civ. P. 8(c)(1). The Commissioners failed to plead the defense here, so it is forfeited. And while we can overlook forfeiture and consider an issue not raised before the district court in "extraordinary circumstances," see Lesesne v. Doe , 712 F.3d 584, 588 (D.C. Cir.2013), the Commissioners identify no such circumstances here.

2. The Commissioners next contend that Ford’s action is barred by 28 U.S.C. § 2244(a), which provides that "[n]o circuit or district judge shall be required to entertain an application for a writ of habeas corpus" filed by a federal prisoner "if it appears that the legality" of his or her "detention has been determined by [a federal court] on a prior application for a writ of habeas corpus, except as provided in section 2255." In turn, § 2255 provides that a prisoner cannot bring a "second or successive" habeas petition unless a federal court of appeals certifies that the petition meets certain criteria not relevant here. 28 U.S.C. § 2255(h) ; see also id. § 2244(b)(3).

The Commissioners’ argument based on § 2244(a) again relies on Ford’s 2001 habeas petition. While Ford’s instant action is styled as a § 1983 suit, the Commissioners contend that it is subject to § 2244(a) because it is in substance a second habeas suit. And because no court of appeals has certified that the instant suit meets the criteria laid out in § 2255(h), the Commissioners argue, the suit is barred by § 2244(a).

Although the Commissioners did not raise their § 2244(a) argument in the district court, the argument cannot be forfeited because the requirement to obtain authorization for a second or successive habeas petition is a jurisdictional prerequisite. See Burton v. Stewart , 549 U.S. 147, 153, 127 S.Ct. 793, 166 L.Ed.2d 628 (2007) (certification is a jurisdictional requirement for state prisoners, under § 2244(b)(3) ); United States v. Springer , 875 F.3d 968, 982 (10th Cir.2017) (same for federal prisoners, under § 2255(h) ).

The Commissioners’ § 2244(a) argument fails on the merits, however. The Commissioners correctly note that certain claims can be raised only in a habeas suit: those that, if successful, "would necessarily demonstrate the invalidity of [the prisoner’s] confinement or its duration." Wilkinson v. Dotson , 544 U.S. 74, 82, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005). On the other hand, "claims with only a probabilistic impact on custody" can be raised through § 1983. Davis v. U.S. Sentencing Comm’n , 716 F.3d 660, 665 (D.C. Cir.2013). And claims properly raised through § 1983 are not precluded by the bar against second or successive habeas petitions. See Hill v. McDonough , 547 U.S. 573, 576, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006) ; Nelson v. Campbell , 541 U.S. 637, 642-43, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004).

If Ford prevails here, then the only relief he will receive is "a new parole hearing at which ... parole authorities may, in their discretion, decline to shorten his prison term." Wilkinson , 544 U.S. at 82, 125 S.Ct. 1242. Ford’s claims, then, have only a probabilistic impact on his custody, which means they were properly raised in a § 1983 suit. Section 2244(a) thus does not bar Ford’s instant suit.

3. The Commissioners next contend that Ford forfeited several arguments advanced by appointed amicus by failing to raise them below. When a plaintiff represents himself in the district court, we hold...