Phillips v. Fulwood, 08-5385.

• Decision Date: 06 August 2010
• Docket Number: No. 08-5385.,08-5385.
• Parties: Charles A. PHILLIPS, Appellant v. Isaac FULWOOD, Jr., Chairman of the United States Parole Commission, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

616 F.3d 577

Charles A. PHILLIPS, Appellant

v.Isaac FULWOOD, Jr., Chairman of the United States Parole Commission, et al., Appellees.

No. 08-5385.

United States Court of Appeals,District of Columbia Circuit.

Argued Oct. 6, 2009.

Decided Aug. 6, 2010.

Appeal from the United States District Court for the District of Columbia (No. 1:06-cv-01650).

Christopher F. Branch argued the cause for appellant. With him on the briefs was Jason D. Wallach.

Elizabeth H. Danello, Assistant U.S. Attorney, argued the cause for appellees. With her on the brief were Roy W. McLeese III and Kenneth Adebonojo, Assistant U.S. Attorneys. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.

Before: GARLAND, BROWN, and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge:

Appellant Charles Phillips is in prison for murdering two people in 1977. Although he has been eligible for parole since 2003, the United States Parole Commission-applying regulations it issued in 2000-has repeatedly found him unsuitable for release. Phillips contends that the Commission should have applied the parole rules that were in effect when he committed his crimes, and that its failure to do so violated the Ex Post Facto Clause of the Constitution. Finding no significant risk that application of the 2000 regulations has prolonged Phillips' incarceration, Garner v. Jones, 529 U.S. 244, 255, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000), we reject his challenge and affirm the decision of the district court.

I

The first of the crimes for which Phillips is imprisoned took place in May 1977. After learning that his former girlfriend was involved in another relationship, Phillips forced her to lure the new boyfriend to her apartment by telling him she was sick. Once the boyfriend arrived, Phillips stabbed him to death. Phillips next turned his attention to his former girlfriend, stabbing her in the side and wrist but not killing her. Although he was arrested for these crimes the next day, Phillips was soon released on bond. Seven months later, and now armed with a gun, he broke into the same ex-girlfriend's apartment and discovered her with another man. Phillips shot and killed the man, who turned out to be a police officer. He was convicted of both murders in the Superior Court of the District of Columbia. In 1978, the court sentenced him to imprisonment for an aggregate term of 35.5 years to life.

In February 2003, after serving 302 months, Phillips became eligible for parole. See D.C. Adult Initial Hr'g Summ. at 1-2 (Nov. 19, 2002) (noting that his minimum sentence was reduced to 302 months due to good time credits). His initial hearing was conducted by the United States Parole Commission, which assumed responsibility for D.C. prisoners when Congress abolished the D.C. Board of Parole in 1998. National Capital Revitalization and Self-Government Improvement Act of 1997, Pub.L. No. 105-33, tit. XI, § 11231(a), (b), 111 Stat. 712, 745 (providing that the Commission shall replace the Board no later than one year after the date of enactment); see Fletcher v. Reilly, 433 F.3d 867, 870 (D.C.Cir.2006). The Commission's 2000 regulations direct it to calculate a “Base Point Score” by applying a rubric that assigns points for factors like prior convictions and the nature of the offense. 28 C.F.R. §§ 2.20, 2.80(c), (f). The score translates into a range of months that, combined with an adjustment for behavior in prison, is added to the prisoner's eligibility date to produce the “Total Guideline Range,” id. § 2.80(h)-( l ), the figure the Commission uses to “determin[e] whether an eligible prisoner should be paroled,” id. § 2.80(b). The regulations state that “the Commission shall apply the guidelines,” id., but that it “may, in unusual circumstances, grant or deny parole to a prisoner notwithstanding the guidelines,” id. § 2.80(n). In particular, it may depart “[i]f the prisoner is deemed to be a poorer or more serious risk [to society] than the guidelines indicate.” Id.

The Commission applied the 2000 regulations at Phillips' initial parole hearing, which took place a few months before his eligibility date, in November 2002. Because his crimes were violent and resulted in the death of a victim, the Commission assigned Phillips a base point score of five-translating into an additional 18-24 months in prison. Notice of Action at 2-3 (Dec. 13, 2002). The Commission then gave Phillips an upward adjustment of 0-24 months for a series of prison disciplinary infractions that occurred between 1979 and 1987, and a downward adjustment of 16 months for superior program achievement in prison. Id. at 3; D.C. Adult Initial Hr'g Summ. at 1. Combining the three adjustments with Phillips' eligibility date of 302 months yielded a Total Guideline Range of 304-334 months. 2002 Notice of Action at 3.

Rather than set a release date within that range, however, the Commission denied Phillips parole and ordered a rehearing in November 2005-at which time Phillips would have served 335 months. The Commission explained that an upward departure from the guideline range was warranted because Phillips was a “more serious risk than indicated” by his base point score, which captured the first murder but did not take into account the second or the stabbing of his ex-girlfriend. 2002 Notice of Action at 1.

Phillips' next parole hearing took place a month ahead of schedule, in October 2005. Acknowledging that Phillips had been confined for 334 months as of that date, the Commission nonetheless declined to parole him-again on the ground that Phillips was “a more serious risk” to society than his base point score indicated. Notice of Action at 1 (Nov. 18, 2005). The Commission found that risk demonstrated by the nature of his offense, noting that Phillips “stabbed an individual to death after luring him into [his] ex-girlfriend's apartment” and that he “seriously assaulted” the ex-girlfriend. Id. “After being arrested on this offense and released from custody,” the Commission continued, Phillips “broke into the ex-girlfriend's apartment ... [,] confronted her and her companion[,] and shot her companion to death after an altercation.” Id. In light of the risk that the Commission associated with this record, it denied Phillips parole and stated that it would conduct a new hearing three years later. ¹

In April 2007, Phillips filed suit in the United States District Court for the District of Columbia. Phillips alleged that the Commission violated the Ex Post Facto Clause when it used the 2000 regulations to determine his suitability for parole, notwithstanding that he committed his crimes in 1977. At that time, the relevant rules were the D.C. Parole Board's 1972 regulations. Those regulations “requir[ed] only that in exercising its discretion the Board consider a list of factors” like “the inmate's offense, prior history of criminality, [and] institutional experience,” and did not specify a way to translate the factors into a parole release date. Blair-Bey v. Quick, 151 F.3d 1036, 1048 (D.C.Cir.1998) (citing 9 D.C.R.R. § 105.1(a)-(f) (1981)); see 9 D.C.R.R. § 105, 105.1 (1972); see also D.C.Code § 24-204(a) (1973). But rather than rely on the Board's 1972 regulations in making his ex post facto claim, Phillips sought to be evaluated under regulations the Board published in 1987. ² He contended that the 1987 regulations were in force in practice, although not yet in name, when he committed his crimes in 1977.

Like the Commission's 2000 regulations, the 1987 regulations contained a detailed rubric assigning points to factors like the nature of the offense, prior convictions, and prison disciplinary infractions-although the factors were weighted differently than in the 2000 regulations. D.C. Mun. Regs. tit. 28, § 204.2, .4, .18, .19 & app. 2-1 (1987). Generally, the Board was to order release if the prisoner's point score was less than three. Id. § 204.19. But like the 2000 regulations, the 1987 regulations provided that the Board could depart from that outcome “in unusual circumstances,” based on the prisoner's risk to society. Id. § 204.22; see id. app. 2-1, at 2-34, 2-35.

Phillips asked the district court to order the Commission to reconsider his parole application “in a manner consistent with the D.C. Parole Board's 1987 Guidelines,” Compl. at 21, alleging that its use of the 2000 regulations had “resulted in [a] significant risk of prolonging [his] incarceration,” id. at 18. According to Phillips, the 2000 regulations, unlike the 1987 regulations, permitted time to be added to a prisoner's eligibility date based on what he called “offense accountability”-a determination that the prisoner's offenses were so grave as to warrant additional punishment on the ground of retribution or general deterrence, rather than risk to society.

In May 2008, the district court granted the Commission's motion to dismiss Phillips' complaint for failure to state a claim. Sellmon v. Reilly, 551 F.Supp.2d 66, 99 (D.D.C.2008) ( Sellmon I ). Phillips had committed his offenses in 1977, the district court noted, and there was “simply no evidence before the Court that the Board's practices pre- and post-1987 were similar enough to allow plaintiffs convicted prior to 1987 to rely upon the 1987 Regulations for purposes of arguing an ex post facto violation.” Id. at 86; see id. at 76-78.

Phillips then filed a motion for reconsideration, which the district court denied. The court first reaffirmed its original rationale for dismissing the complaint. It then held that, even if Phillips were right that the 2000 regulations permitted consideration of offense accountability and the earlier regime did not, he could not show that it was the Commission's consideration of offense accountability that had lengthened his incarceration, rather than its consideration of his risk to society-a factor available under both regimes. See Sellmon v. Reilly, 561 F.Supp.2d 46, 49-50...