Nkosi v. Warden FCI-Allenwood Low

• Decision Date: 10 November 2022
• Docket Number: 1:21-cv-02166
• Parties: PHARAOH OJORE NKOSI, Petitioner v. WARDEN FCI-ALLENWOOD LOW, Respondent
• Court: U.S. District Court — Middle District of Pennsylvania

PHARAOH OJORE NKOSI, Petitioner
v.
WARDEN FCI-ALLENWOOD LOW, Respondent

No. 1:21-cv-02166

United States District Court, M.D. Pennsylvania

November 10, 2022

MEMORANDUM

Kane, Judge

This habeas corpus action has been brought pursuant to the provisions of 28 U.S.C. § 2241 (“Section 2241”) by pro se Petitioner Pharaoh Ojore Nkosi, a/k/a Brian Keith Garries (“Petitioner”), a federal prisoner who is currently incarcerated at Allenwood Low Security Correctional Institution in White Deer, Pennsylvania (“LSCI Allenwood”). (Doc. Nos. 1, 2.) Petitioner claims that he should have been assessed under the United States Parole Commission (“Commission”)'s youth guidelines as they existed in 1981 when he committed his underlying offense. (Id.) Petitioner further claims that the Commission's failure to assess him under those guidelines and to, instead, retroactively assess him under the adult guidelines violates the Ex Post Facto Clause of the United States Constitution and constitutes an abuse of discretion. (Id.) The Court, having reviewed Petitioner's claims, as well as the Respondent's response thereto, the record in this matter, and relevant authorities, will deny the petition.

I. BACKGROUND

On March 17, 1983, at a United States Air Force General Court-Martial, Petitioner was convicted of premeditated murder in violation of Article 118, Uniform Code of Military Justice. (Doc. No. 12-1 at 4; Doc. No. 2 at 2.) The victim was Petitioner's wife, Airman First Class Camille Garries. See United States v. Garries, 22 M.J. 288, 289 (C.M.A. 1986). Her body was discovered in a ditch located in Colorado Springs, Colorado. See id. She was in the seventh

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month of her pregnancy, and her death resulted in the asphyxiation of the fetus. See id. As a result of his conviction, Petitioner was sentenced to, among other things, confinement for life and a dishonorable discharge from the Air Force. See id. at 290; (Doc. No. 12-1 at 4). Since then, the Air Force Clemency and Parole Board has subsequently reduced Petitioner's life sentence to eighty-nine (89) years. (Id.) His projected release date is June 26, 2038. (Id.)

Although Petitioner was originally confined in military facilities, he was transferred to the custody of the United States Bureau of Prisons (“BOP”) on November 2, 1998. (Id.) Once

Petitioner was transferred to the BOP, the Commission assumed responsibility for considering

Petitioner for parole pursuant to 10 U.S.C. § 858(a). That statute authorizes the transfer of military prisoners, such as Petitioner, to BOP facilities and mandates that they are to be treated the same as non-military prisoners incarcerated in those facilities. See 10 U.S.C. § 858(a). More specifically, the statute provides as follows:

Under such instructions as the Secretary concerned may prescribe, a sentence of confinement adjudged by a court-martial or other military tribunal, whether or not the sentence includes discharge or dismissal, and whether or not the discharge or dismissal has been executed, may be carried into execution by confinement in any place of confinement under the control of any of the armed forces or in any penal or correctional institution under the control of the United States, or which the United States may be allowed to use Persons so confined in a penal or correctional institution not under the control of one of the armed forces are subject to the same discipline and treatment as persons confined or committed by the courts of the United States or of the State District of Columbia, or place in which the institution is situated

See id. The Commission's Rules and Procedures Manual expands on this statute as follows:

2.2-03. Military Prisoners (10 U.S.C. 858; Uniform Code of Military Justice., Art. 58).

(a) Prisoners sentenced by military courts-martial and then transferred to a federal institution come under the exclusive jurisdiction of the United States Parole Commission for parole purposes. Military authorities retain jurisdiction for clemency purposes and may reduce the maximum term to be served.

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See United States Parole Commission Rules and Procedures Manual (“Commission's Manual”), 2.2.-03, Military Prisoners, https://www.justice.gov/d9/uspc/legacy/2010/08/27/uspc-manual111507.pdf.

After his transfer to BOP custody, the Commission conducted an initial parole hearing in Petitioner's case on February 1, 1999. (Doc. No. 12-2 at 2.) Under the federal parole guidelines in effect at the time, each prisoner's crime was classified under one of eight (8) offense severity categories. See 28 C.F.R. § 2.20 (July 1, 1995). Category Eight was applied to the most serious offenses, including homicide offenses such as “[m]urder[,] resulting in the death of a person other than a participating offender[.]” See id. In addition, each prisoner was assigned a salient factor score. See id. The salient factor score “serve[d] as an aid in determining the parole prognosis (potential risk of parole violation).” See id. At Petitioner's initial parole hearing, the Commission classified the severity of Petitioner's offense as Category Eight and assigned him a salient factor score of eight (8), which was a “[v]ery [g]ood” rating.^[1](Doc. No. 12-2 at 2.)

Thus, because the Commission classified the severity of Petitioner's offense as a Category Eight offense and assessed him with a salient factor score of eight (8), this resulted in a guidelines range of one-hundred (100) plus months (i.e., “100+”) with no upper limit to be served before parole. See 28 C.F.R. § 2.20 (July 1, 1995). In this regard, the federal parole regulations specifically explain that, with respect to Category Eight offenses, “no upper limits are specified” because of “the extreme variability of the cases within this category.” See id. n.1. The federal parole regulations further explain that, “[f]or decisions exceeding the lower limit of the applicable guideline category by more than 48 months, the Commission will specify the

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pertinent case factors upon which it relied in reaching its decision[.]” See id. (explaining that “[t]his procedure is intended to ensure that the prisoner understands that individualized consideration has been given to the facts of the case, and not to suggest that a grant of parole is to be presumed for any class of Category Eight offenders”). In Petitioner's case, the Commission stated as follows: “the decision more than 48 months above the lower end of the Category Eight range was merited because the victim was 7 months pregnant and premeditation was involved.” (Doc. No. 12-2 at 2.) Thus, as a result of these findings, the Commission denied Petitioner parole at his initial hearing and ordered that he have a fifteen (15)-year reconsideration hearing in February of 2014. (Id.)

Subsequently, in 2001, 2003, 2005, 2007, and 2012, the Commission held statutory interim hearings. (Id.) These interim hearings are required by 18 U.S.C. § 4208(h), and their purpose is “to consider any significant developments or changes in the prisoner's status that may have occurred subsequent to the initial hearing.” See Commission's Manual, 2.14, Subsequent Proceedings, available at https://www.justice.gov/d9/uspc/legacy/2010/08/27/uspc-manual111507.pdf. Depending on the circumstances of the prisoner's case, these interim hearings are held either every eighteen (18) or twenty-four (24) months. See id. Petitioner acknowledges that he was scheduled for interim hearings every twenty-four (24) months after he was denied parole at his initial hearing. (Doc. No. 2 at 2, 3.) Ultimately, however, after each of these interim hearings, the Commission ordered no change to the fifteen (15)-year reconsideration hearing that was previously scheduled for February of 2014. (Doc. No. 12-2 at 2.)

Then, on March 2, 2013, before Petitioner could be reconsidered for parole at the fifteen (15)-year reconsideration hearing, he reached his two-thirds date as calculated by the BOP. (Id.

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at 2-3.) Respondent notes that this two-thirds date entitled Petitioner to be heard under the standards set forth in 18 U.S.C. § 4206(d) and 28 C.F.R. § 2.53(a). (Doc. No. 12 at 4-5.) Respondent also notes that the Commission used to refer to these types of hearings as “‘mandatory parole' hearings, but later changed the term to ‘two-thirds' parole hearings [in order] to avoid confusion because parole was not in fact mandatory.” (Id. at 5 n.3.) Respondent is correct in that 18 U.S.C. § 4206(d) does not automatically require a prisoner to be released upon reaching his “two-thirds” date. See 18 U.S.C. § 4206(d). Rather, the statute provides as follows:

(d) Any prisoner, serving a sentence of five years or longer, who is not earlier released under this section or any other applicable provision of law, shall be released on parole after having served two-thirds of each consecutive term or terms, or after serving thirty years of each consecutive term or terms of more than forty-five years including any life term, whichever is earlier: Provided, however, [t]hat the Commission shall not release such prisoner if it determines that he has seriously or frequently violated institution rules and regulations or that there is a reasonable probability that he will commit any Federal, State, or local crime.

See id. (emphasis in original).

Some federal courts of appeals have discussed this statutory language and characterized it as a rebuttable presumption in favor of parole. See, e.g., Dufur v. United States Parole Comm'n, 34 F.4th 1090, 1098 (D.C. Cir. 2022) (explaining that “[t]he Commission treats § 4206 as creating a rebuttable presumption in favor of parole[,]” and that this presumption “is rebutted, and the Commission ‘shall not' release a prisoner otherwise eligible for parole under this provision, if it finds either that he has ‘seriously or frequently violated institution rules' or that ‘there is a reasonable...