S.M.A. v. Birkholz, Case No. 19-cv-689 (DWF/ECW)

CourtUnited States District Courts. 8th Circuit. United States District Court of Minnesota
Writing for the CourtELIZABETH COWAN WRIGHT United States Magistrate Judge
PartiesS.M.A., Petitioner, v. B. Birkholz, Respondent.
Decision Date14 January 2020
Docket NumberCase No. 19-cv-689 (DWF/ECW)

S.M.A., Petitioner,
v.
B. Birkholz, Respondent.

Case No. 19-cv-689 (DWF/ECW)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

January 14, 2020


REPORT AND RECOMMENDATION

This matter is before the Court on S.M.A.'s ("Petitioner") Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (Dkt. 1) ("Petition"); Petitioner's Motion for Summary Judgment (Dkt. 4); and Petitioner's Motion for Summary Judgment as a Matter of Default (Dkt. 6). The Petition claims the United States Parole Commission's ("USPC") decision to deny him parole lacks justification and asks the Court to release him on parole. The case has been referred to the undersigned United States Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.1. For the reasons discussed below, the Court recommends that the Petition and Motions be denied.

I. BACKGROUND

A. Petitioner's Underlying Crimes and Sentence

On June 4, 1987, Petitioner forced his way into a private home occupied only by two children. (Dkt. 12-1 at 4, 5, 17.) He ordered the male child to the back of the apartment and then he sexually assaulted the 7-year-old female child. (Id. at 17.) He

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forced her to remove her clothes and he raped her. (Id.) The record shows that Petitioner was HIV positive at the time of this crime and he knew about his medical condition. (Id.) As a result, on or about November 29, 1989 (as amended on January 21, 1992), the Superior Court for the District of Columbia sentenced Petitioner to 10-30 years for Burglary I, a consecutive 5-15 years for assault with intent to rape, and a consecutive 3-10 years for taking indecent liberties with a minor. (Id. at 1-2.) In total, Petitioner received a 55-year sentence for his crimes. (Id. at 5.)

B. Parole Consideration

Petitioner's initial parole eligibility date was December 22, 2000. (Id.) Petitioner has had five parole hearings from March 2001 through April 2013 before the USPC, and was denied parole after each hearing. (Id. at 6-13, 17-19.)

Petitioner's most recent parole hearing before the USPC occurred on February 16, 2018. In the February 9, 2018 Parole Guideline Rehearing, the reviewer summarized the offenses for which Petitioner had been convicted, the victim information, and the previous actions of the USPC as it relates to its parole decisions. (Dkt. 12-1 at 17-19.) It was also noted that Petitioner's previous guideline range for parole grid score in 2013 was 0. (Id. at 19.) According to the Petitioner's most recent Bureau of Prisons ("BOP") progress report, dated December 17, 2017, Petitioner's adjustment had been without incident since 2013. (Id.) The review also included a mental health assessment and noted Petitioner would require chronic care in order for him to maintain stability in his mental health and behavioral functioning due to severe mental health issues. (Id.) The review also represented that Petitioner had no negative institutional behavior since his

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last parole hearing, but noted that he needed separation at times due to erratic mental health issues. (Id.) The USPC reviewed his parole eligibility under the 1987 guidelines of the D.C. Board of Parole.1 (Id. at 25.) The new guideline score issued for Petitioner was 0, for which score the guideline recommendation is that "[p]arole shall be granted at this rehearing with highest level of supervision." (Id. at 19.) The evaluation noted that the guideline score for Petitioner had been 0 since 2010, but that "the Commissioner has consistently denied parole due to the subject's risk to the community and his failure to complete Sex Offender Treatment to address his offense behavior and lessen that risk." (Id. at 20.)

At the parole hearing,2 Petitioner's case manager claimed that Petitioner was not a management problem, kept to himself, had undergone a lot of programming, had maintained clear conduct since 2013, had also reached the advanced stage of available mental health workshops, had a good rapport with staff and inmates, and was otherwise doing well. (Id. at 21.) Portions of the mental health evaluation were read into the record, including that Petitioner was previously considered to participate in sex offender

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treatment but at the time, the treatment team did not consider his mental health stable enough for him to be transferred to a mainline institution for the program. (Id.) Referring Petitioner to a program was not further addressed in the most recent report submitted to the parole board mainly because this had not been a focus of Petitioner's current treatment plan, and he had not had ongoing concerns of sexual misconduct. (Id.) Following the hearing, the examiner reviewed an updated mental health evaluation, which evidenced a relatively consistent stability in Petitioner's mental health, but did not indicate that he was ever referred to participate in sex offender treatment as a result. (Id. at 22.)

When asked by the hearing examiner about his conviction for raping a 7-year-old girl, Petitioner stated:

[H]e was under the influence of PCP, cocaine, marijuana and alcohol at the time of the offense. The subject said that he had been banging out and using drugs with the child's mother [ ]. He said that at some point, she had to go somewhere so she gave him her address and told him to go there. The subject said Ms. [ ] did that despite having just met him that day. The subject said that when he arrived at the house, Ms. [ ]' s son let him in after telling him, "Your mom said it was cool if I came over." The subject denied breaking forcing [sic] his way into the apartment. The subject said the little girl was asleep on the couch when he got there.

The subject went on to say that he went to use the bathroom and then "had his pants down from going to the bathroom." The subject denied ever getting on top of the girl or raping her but said he asked her, "Do you want to make love?" The subject then said that "four guys came into the apartment and beat him up" but said he didn't know why. The subject denied that the child was crying out or that he harmed her in any way. The subject said, "I am not attracted to children. I think it was the drugs." The subject also said that he did not know he was HIV positive at the time of these events but only found out later.

(Id. at 22-23.)

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The hearing examiner noted that the present guideline scores still indicated that parole should granted with the highest level of supervision. (Id. at 23.) However, the hearing examiner recommended denying Petitioner parole. (Id. at 23-24.)

On March 8, 2018, the USPC issued an order denying Petitioner parole, despite his guideline score, based on the following:

After consideration of all factors and information presented, a departure from the guidelines at this consideration is warranted because you are a more serious risk than indicated by your grid score for the following reasons: Your offense involved the forced entry of a residence and subsequent rape of a 7-year-old girl. You continue to minimize your behavior and display lack of insight into your brutally violent offense. You have not engaged in sex offender treatment or any other programming which specifically address the nature of your child sex offense, thereby reducing the risk that you would return to similar behavior if released. The Commission recommends that you enter and complete sex offender treatment and/or the BOP provide documentation that you have been fully evaluated for that program and found ineligible. If treatment providers determine that you are not suitable for residential sex offender treatment, it is recommended that you participate in other offense-specific programs which might reduce your risk of re-offense.

(Id. at 25.)

Petitioner is presently incarcerated at the Federal Medical Center, Rochester Minnesota ("FMC-Rochester"). (Dkt. 1; Dkt. 12-1 at 17.)

B. Arguments Set Forth in the Petition and Motions

The Petition challenges the 2018 USPC decision denying him parole. (Dkt. 1 at 2.) The challenge to this decision by Petitioner is a "[l]ack of Justification for Parole Denial." (Id. at 6; see also Dkt. 1-1 at 2.) According to Petitioner the USPC's decision denying him parole was not justified because:

[H]e has an impeccable record of maintaining good behavior, respect towards the: staff, the co-existent of companionship with other inmates and that he

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has maintained a good work history throughout his incarceration in the Bureau of Prisons and that he has received over 20 certificates of completed programming while in the prison system since his sentencing. [Petitioner], has completed Anger Management group, the Commitment groups, Drug and Alcohol rehabilitation programs and several other programs directed by the staff which are verified by the medical staff. [Petitioner], has not suffered from depression nor distress, his temper is controlled and he has been medically compliant during his incarceration. [Petitioner], maintains good health and good hygiene and he is respected and loved within the community and in the prison system. [Petitioner], has reached levels in religion as high as being the IMAM of the Sunni Muslim community within the prison system and he is currently the MAHDI of the
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