Kingsbury v. Fulwood

• Decision Date: 05 November 2012
• Docket Number: Civil Action No. 11–0884 (RBW).
• Citation: 902 F.Supp.2d 51
• Parties: Vance KINGSBURY, Plaintiff, v. Isaac FULWOOD, Jr., et al., Defendants.
• Court: U.S. District Court — District of Columbia

902 F.Supp.2d 51

Vance KINGSBURY, Plaintiff,

v.Isaac FULWOOD, Jr., et al., Defendants.

Civil Action No. 11–0884 (RBW).

United States District Court, District of Columbia.

Nov. 5, 2012.

Vance Kingsbury, White Deer, PA, pro se.

Kenneth A. Adebonojo, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

REGGIE B. WALTON, District Judge.

This matter is before the Court on the defendants' motion to dismiss. For the reasons discussed below, the motion will be granted.

I. BACKGROUND ¹

A. The Plaintiff's Criminal Convictions

On December 15, 1975, while on probation for a 1974 burglary conviction, the plaintiff murdered the manager of a Peoples Drug Store in the course of a robbery.² Complaint (“Compl.”), Exhibit (“Ex.”) 1 (D.C. Adult Initial Hearing Summary dated July 17, 2001) at 1 (exhibit numbers were not provided and have been designated by the Court). The plaintiff was convicted of felony murder in the rearrest case, and on September 27, 1977, the Superior Court of the District of Columbia (“Superior Court”) imposed a sentence of 20 years to life imprisonment in that case. Compl. at 9. He became eligible for parole on February 1, 2000. Id.

B. Parole Regulations and Guidelines

1. Indeterminate Sentencing

Generally, a Superior Court offender sentenced “for a maximum period not exceeding the maximum fixed by law, and for a minimum period not exceeding one-third of the maximum sentence imposed, ... may be released on parole ... at any time after having served the minimum sentence.” D.C.Code § 24–403(a) (2001) (emphasis added). An offender was sentenced to a range, such as 20 years to life imprisonment, and his parole eligibility was “established by the sentencing court.” Cosgrove v. Thornburgh, 703 F.Supp. 995, 997 (D.D.C.1988). Under District of Columbia law, parole may be granted when it appears that “there is a reasonable probability that a prisoner will live and remain at liberty without violating the law, that his ... release is not incompatible with the welfare of society, and that he ... has served the minimum sentence imposed or the prescribed portion of his sentence, as the case may be.” D.C.Code § 24–404(a) (2001).

2. The Parole Board's 1987 Regulations and 1991 Policy Guideline

When the plaintiff committed his crimes, the District of Columbia Board of Parole (“Parole Board”) made all parole-related decisions for District of Columbia Code offenders. See Austin v. Reilly, 606 F.Supp.2d 4, 8 (D.D.C.2009). Initially there was “no formalized scoring system” in place, and the Parole Board only “was required by regulation to consider factors such as the inmate's offense, prior history of criminality, personal and social history, ... [and] institutional experience, ... when exercising its discretion to authorize parole.” Davis v. Henderson, 652 A.2d 634, 635 (D.C.1995). In short, “parole eligibility was determined by a ... Board that operated with nearly complete discretion.” Wilson v. Fullwood, 772 F.Supp.2d 246, 252 (D.D.C.2011) (citing Austin, 606 F.Supp.2d at 8).

The Parole Board subsequently developed and published regulations, see D.C. Mun. Regs. tit. 28, § 100 et seq. (1987) (repealed Aug. 5, 2000) (“1987 Regulations”), in an effort to “mak[e] explicit those factors that [would] be considered in each [individual] case.” Sellmon v. Reilly, 551 F.Supp.2d 66, 69 (D.D.C.2008) (citations omitted and emphasis removed). In December 1991, it issued a policy guideline (“1991 Policy Guideline”) to define certain terms used in the appendices to the 1987 Regulations. Id. at 71.

3. The USPC's 2000 Guidelines

Pursuant to the National Capital Revitalization and Self–Government Improvement Act of 1997 (“Revitalization Act”), Pub. L. No. 105–33, 111 Stat. 712 (1997), the Parole Board was abolished, seeD.C.Code § 24–131(b) (2001), and the United States Parole Commission (“USPC”) was authorized to grant, deny, impose or modify conditions of, and revoke parole for District of Columbia Code felony offenders, as well as to promulgate and apply its own regulations for implementing the District of Columbia's parole laws. SeeD.C.Code § 24–131(a) (2001). “Between 1998 and 2000, the USPC drafted new parole regulations and guidelines (‘the 2000 Guidelines') that it applied to any offender who received an initial parole hearing after August 5, 1998.” Sellmon, 551 F.Supp.2d at 72.

The 2000 Guidelines first call for the calculation of an offender's salient factor score (“SFS”), see28 C.F.R. § 2.80(c), and the offender's SFS places him in one of four risk categories, see id. § 2.80(f). Points are assigned to each risk category, from 0 (very good risk) to 3 (poor risk). Id. Next, the offender's “[t]ype of [r]isk” is determined based on the offender's history of violence, use of weapons, and death of a victim. Id. Points for the type of risk are added to the offender's SFS to determine the “base point score,” which in turn correlates to a “base guideline range” in months. Id. § 2.80(h).

“[B]oth the 1987 Regulations and the 2000 Guidelines allow the USPC to deny parole to a presumptively suitable prisoner if there are ‘unusual circumstances.’ ” Cole v. Fulwood, 879 F.Supp.2d 60, 61 (D.D.C.2012) (quoting Sellmon, 551 F.Supp.2d at 73). The following summary of major differences in the two sets of guidelines is relevant to this case:

[T]he 2000 Guidelines allow departure from the decision reached based on the SFS [salient factor score] “on any basis ... [not] ‘fully taken into account in the guidelines.’ ” [Sellmon, 551 F.Supp.2d at 73] (quoting 28 C.F.R. § 2.80(n)). Additionally, under the 2000 Guidelines, the USPC is encouraged to consider “offense accountability” when making parole decisions. Id. at 88. Unlike the 2000 Guidelines, “the 1987 Regulations presume that the minimum sentence imposed by the sentencing court appropriately accounts for a parole candidate's offense severity and accountability and that the parole decision should be limited to consideration of the offender's risk of recidivism and institutional conduct.” Id. The 1987 Regulations required any departure from the presumption to be justified by reference to one or more of an enumerated list of possible reasons, which were intended to identify prisoners who were a greater risk for parole than indicated by their SFS. Id. at 71. The permissible factors justifying the denial of parole to a presumptively eligible prisoner, under the 1987 Regulations, are listed in Appendices 2–1 and 2–2. D.C. Mun. Regs., tit. 28, § 204.1; id. apps. 2–1 & 2–2. Appendix 2–1 lists: (1) “repeated failure under parole supervision;” (2) “ongoing criminal behavior;” (3) “a lengthy history of criminally related alcohol abuse;” (4) “a history of repetitive sophisticated criminal behavior;” (5) “an unusually extensive and serious prior record;” or (6) “unusual cruelty to victims.” Id. app. 2–1. Appendix 2–2 is entitled “Rehearing Guidelines—Point Assessment Grid and Findings Worksheet for Rehearings.” Id. app. 2–2. It lists three factors which can justify a departure from the guidelines: (1) “change in the availability of community resources leading to a better parole prognosis;” (2) “poor medical prognosis;” or (3) “other change in circumstances.” Id.

Cole, 879 F.Supp.2d at 61–62.

C. The Plaintiff's Parole Hearings

The plaintiff's initial parole hearing took place on November 30, 2000. Compl., Ex. 1 at 1. Although the hearing examiner recommended that parole be denied, it later “was decided that another hearing should be conducted in order to discuss with the [plaintiff] the details discovered” on review of “the evaluation section of the [presentence investigation report] and the Murder/Robbery case,” as well as “information about the assault with a Deadly Weapon, Robbery, Obstruction of Justice and even the earlier burglary case.” Id. The assault with a deadly weapon and obstruction of justice offenses apparently arose from the plaintiff's “attempt[ ] to kill a female who testified against him in the 1974 burglary case.” Id. at 2. The plaintiff injured the female and the small children and teenager who were present “when [the plaintiff] fired a shotgun at them.” Id. All four victims sustained injuries, although there was “no indication about the seriousness of the injuries.” Id.

Hearing examiner Rob Haworth (“Haworth”) conducted a second hearing on July 17, 2001, and recommended that parole be denied:

This prisoner claims to be innocent of the murder and the robbery at the Peoples Drug Store, 12/15/75. He admits being involved in a shooting but states it was only to scare the victim. The [presentence investigation report] indicates otherwise and shows that several people including children were injured from the shotgun blast. Subject admits he committed a residential burglary.

Parole eligibility came after 24 years, 2/1/2000. Subject did not have his first Initial Hearing until November or [sic] 2000 and is now having this new hearing in July 2001. Any set off given at this time should be from the parole eligibility date....

Subject has been in custody 25 1/2 years, 306 months as of 7/21/2001. Based on the extremely serious crimes he committed, it is recommended that he not be seriously considered for release until he serve [sic] 35–40 years. This examiner is recommending that parole be denied and that subject be set off for 5 years.

Id., Ex. 1 at 3. Haworth declined to apply the USPC's 2000 Guidelines because the plaintiff's initial hearing took place before the 2000 Guidelines took effect. Id.

The plaintiff's parole reconsideration hearing took place on November 17, 2004. Compl. at 10. Applying the 2000 Guidelines, hearing examiner Joseph M. Pacholski (“Pacholski”) determined that “[a] decision above the guidelines [was] warranted,” given that the plaintiff had “injured [a] female and two children and a teenager with a shotgun blast,” and “also [committed] murder.” Id., Ex. 2 (Hearing Summary dated November 17, 2004) at 2. Pacholski “struggled with the idea of giving...