Hall v. Henderson, 94-SP-868.
| Decision Date | 27 February 1996 |
| Docket Number | No. 94-SP-868.,94-SP-868. |
| Parties | Anthony T. HALL, Appellant, v. John S. HENDERSON, et al., Appellees. |
| Court | D.C. Court of Appeals |
Alan Dumoff, appointed by this court, Washington, DC, for appellant.
Mary L. Wilson, Assistant Corporation Counsel, with whom Charles F.C. Ruff, Corporation Counsel, and Charles L. Reischel, Deputy Corporation Counsel, were on the brief, for appellees.
Before FERREN, STEADMAN, and KING, Associate Judges.
On January 28, 1994, the Board of Parole ("Board") denied appellant Anthony T. Hall parole and set his next parole hearing five years hence (a five year "set-off"). Hall challenged that decision by petitioning the Superior Court, pro se, for a writ of habeas corpus, which was denied without a hearing on June 28, 1994. Hall principally contends on appeal that the Board of Parole's Policy Guidelines ("Guidelines") confer a liberty interest in the parole set-off decision, and that the Board thereby violated due process, as well as its own Guidelines, when it scheduled his next parole hearing for December 6, 1998. We affirm.
On July 2, 1981, Hall, while on parole from a nine year sentence for distributing narcotics, shot a man and a woman with a .38 caliber revolver after Hall and a companion confronted them about a debt. Hall pled guilty on September 20, 1982, to charges of assault with intent to kill while armed, D.C.Code §§ 22-501, -3202 (1989 Repl.) armed burglary, id. §§ 22-1801, -3202, and carrying a pistol without a license, id. § 22-3203. On August 31, 1982, before his sentencing, Hall was convicted in federal district court of possession of a postal service key with intent to use, 18 U.S.C. § 1704 (1994), and unlawful and knowing possession of stolen mail matter, id. § 1708.
On November 2, 1982, Hall was sentenced to a term of fifteen years to life in prison for the charges arising from the July 2, 1981, armed assault. On December 3, 1982, a federal court sentenced Hall to a prison term of ten years for the federal offenses to run consecutively to Hall's earlier, Superior Court sentence. Based on his aggregated sentences, Hall was required to serve a minimum of eighteen years and four months in prison. Because of the possibility of educational and good behavior credits, Hall's parole hearing originally was scheduled for October 15, 1993.
After initial incarceration in the District's Lorton Reformatory, Hall was transferred to a number of federal correctional facilities, including penitentiaries in Oxford, Wisconsin; Terre Haute, Indiana; and Leavenworth, Kansas. Hall remained in federal custody until July 1993, when he was transferred to the District's Occoquan Facility at Lorton, Virginia. Hall's parole hearing was then rescheduled for December 23, 1993. Before presenting his parole request to the District's Board of Parole, Hall met with a hearing officer who, upon review of Hall's case, recommended denial of parole and a two-year set-off entitling Hall to a parole hearing on December 23, 1995.
At the hearing on December 23, 1993, Hall presented evidence that he had successfully completed various educational programs while in prison, had a favorable work history, and had a good relationship with staff. The Board also was informed, however, that Hall had continued to abuse drugs despite his incarceration, and that under the District's scoring system for determining parole eligibility, Hall should not be paroled at that time. The Board also considered the nature of the local and federal crimes Hall had committed.
On January 28, 1994, the Board denied Hall's request for parole. A majority of the Board refused to adopt the hearing officer's recommendation of a two year set-off; instead, the Board scheduled a five year set-off entitling Hall to a parole rehearing in 1998. Pursuant to its own Policy Guidelines, the Board identified two factors governing its decision to schedule a five-year set-off: (1) Hall's repeated or extremely serious negative institutional behavior, i.e., his continued use of drugs, and (2) his unusual cruelty to the victims in the armed offenses. The Board also instructed Hall to participate in psychological counseling and in an intensive drug rehabilitation program.
Hall sought a writ of habeas corpus in Superior Court challenging the Board's decision to schedule a five year set-off. He argued that application of municipal regulations governing parole set-offs enacted after his 1982 convictions violated the Ex Post Facto Clause of the Constitution, and that the set-off violated both the Due Process Clause and the Guidelines. Hall's petition was denied without a hearing. He noted a timely appeal, contending only that the Board's set-off determination violated due process and the Board's Guidelines.
Hall contends that the Guidelines create a liberty interest in its parole set-off decision entitling him to due process protections under Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1978). It is well-settled that the District of Columbia's parole statute and related municipal regulations do not, under Greenholtz, confer upon an inmate a liberty interest in parole set-off decisions. See Brown-Bey v. Hyman, 649 A.2d 8, 10 (D.C.1994) (); White v. Hyman, 647 A.2d 1175, 1179-81 (D.C.1994) (); Jones v. Braxton, 647 A.2d 1116, 1117 (D.C.1994) (per curiam) (). We have never decided, however, whether the Guidelines confer such an interest. See Brown-Bey, 649 A.2d at 10 n. 6.
Although the Due Process Clause "shields from arbitrary or capricious deprivation those facets of a convicted criminal's existence that qualify as `liberty interests,'" Harper v. Young, 64 F.3d 563, 564 (10th Cir.1995), those interests are created, if at all, by state law unless they inhere in the Due Process Clause. See Sandin v. R.D. Conner, ___ U.S. ___, ___, 115 S.Ct. 2293, 2300, 132 L.Ed.2d 418 (1995); Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 460-61, 109 S.Ct. 1904, 1908-09, 104 L.Ed.2d 506 (1989). The right to a particular set-off date for a parole hearing is not inherent in the Due Process clause. Thus, the central question presented — whether a state has bestowed a protectable liberty interest under Greenholtz and succeeding cases — traditionally has turned on whether the regulation or statute in question places "substantive limitations on official discretion." Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 1747, 75 L.Ed.2d 813 (1983). In other words, does the regulatory language mandate a particular result, or is the decision essentially discretionary?
Recently, however, in Sandin, decided after the trial court ruled in this case, the Supreme Court announced that Greenholtz and cases applying it had "strayed from the real concerns undergirding the liberty protected by the Due Process Clause." ___ U.S. at ___, 115 S.Ct. at 2300. The Court accordingly rejected as misguided a liberty interest inquiry based solely upon an examination of statutory or regulatory language. Under Sandin, state-created liberty interests now "will be generally limited to freedom from restraint which ... imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id.
Specifically, Sandin addressed a situation in which the court of appeals had held that prison authorities had imposed disciplinary segregation for misconduct without complying with a prison regulation that permitted a finding of guilt only if based on substantial evidence. The Supreme Court reversed, holding that the state, through failure to comply with its regulation, could not be said to have violated due process because the prisoner's "discipline in segregated confinement did not present the type of atypical, significant deprivation in which a state might conceivably create a liberty interest." ___ U.S. at ___, 115 S.Ct. at 2301. Sandin accordingly put a limit on the kinds of regulations that can serve to create a liberty interest.
We have no occasion to consider whether Sandin has now provided room for a state-created liberty interest based on state action not grounded in formal regulations. We are satisfied that the exercise of official discretion over set-off dates for parole hearings, if done — as in this case — under a regime of policy guidelines established by the parole authorities themselves, cannot be held to create a liberty interest under Sandin if there is not a liberty interest under Greenholtz. Under any interpretation of Sandin, we see no possibility that scheduling of a set-off date can create an "atypical and significant hardship" unless the state can be said to have placed such a substantive limitation on the exercise of official discretion that an official failure to honor the prescribed limitation (in the form of mandatory scheduling) would be characterized as a deprivation of liberty under Greenholtz. If the official scheduling of a parole set-off date under the Guidelines is not subject to a substantive limitation on official discretion that would have created a liberty interest under Greenholtz, then there is no room for the possibility that Sandin's "atypical and significant hardship" test provides a broader constitutional protection for parole set-off decisions.
We therefore proceed with a traditional Greenholtz analysis, beginning with the relevant provisions of the Guidelines.
The Guidelines were adopted on April 27, 1992, "to ensure consistency and equity in the establishment of parole...
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...The guidelines do not appear in the record; they are, however, quoted extensively in the D.C. Court of Appeals's Hall v. Henderson opinion, 672 A.2d 1047 (1996), which also involved a challenge by a D.C. inmate to a five-year set-off. 10 The guidelines list a series of "aggravating" and "mi......
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