United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 11, 1998 Decided July 24, 1998
No. 96-5280
Clarence E. Blair-Bey,
Appellant
v.
Margaret Quick, Chairperson,
District of Columbia Board of Parole, et al.,
Appellees
Appeals from the United States District Court
for the District of Columbia
(No. 96cv01593)
Thomas L. Cubbage, III, appointed by the Court, argued
the cause for appellant Clarence E. Blair-Bey, with whom
Timothy C. Hester was on the briefs.
Mary L. Wilson, Assistant Corporation Counsel, argued
the cause for the District of Columbia appellees, with whom
John Ferren, Corporation Counsel, and Charles L. Reischel,
Deputy Corporation Counsel, were on the briefs. Jo Anne
Robinson, Principal Deputy Corporation Counsel, entered an
appearance.
William F. Gould, Assistant United States Attorney, ar-
gued the cause for appellee United States Parole Commis-
sion, with whom Wilma A. Lewis, United States Attorney,
John R. Fisher, Elizabeth Trosman, and Silvia Gonzalez
Roman, Assistant United States Attorneys, were on the brief.
Before: Wald, Williams and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Wald.
Wald, Circuit Judge: This case is one of three companion
cases that we decide today; the three cases address interre-
lated issues bearing on prisoner litigation.
In this action, Clarence Blair-Bey, a prison inmate in the
custody of the D.C. Department of Corrections, filed a habeas
corpus petition challenging the procedures by which he was
denied parole, on due process and ex post facto clause
grounds. He named as defendants (among others) the D.C.
Board of Parole and the United States Parole Commission.
The district court dismissed Blair-Bey's petition, finding that
the federal courts are precluded by a provision of the D.C.
Code, section 16-1901, from entertaining habeas corpus peti-
tions filed by D.C. prisoners, and that Blair-Bey's claims also
failed on their merits. Blair-Bey appealed these two rulings.
In this court, the District defends those rulings, and also
contends that Blair-Bey is required, under the filing-fee
provisions of the recently-enacted Prison Litigation Reform
Act ("PLRA"), 28 U.S.C. s 1915(d), to pay a partial filing fee
before his appeal may proceed. The United States Parole
Commission agrees with the District on the grounds for
dismissal but not as to the applicability of the PLRA's filing-
fee provisions; it also asserts that it should be dismissed as a
party.
We conclude that Blair-Bey's action, as a habeas corpus
petition, is not subject to the PLRA's filing-fee requirements;
that this court has jurisdiction to entertain Blair-Bey's peti-
tion; that the United States Parole Commission is not a
proper defendant; and that although Blair-Bey's due process
claim is meritless, his ex post facto claim might have merit if
certain facts are shown, and must be remanded to the district
court for further consideration.
I. Background
Blair-Bey was born in 1958. Between the ages of thirteen
and fifteen, he committed a number of serious offenses,
including rape, receiving stolen property, destruction of prop-
erty, and two counts of unauthorized use of a motor vehicle.
As a result, he spent much of his youth at the District of
Columbia's juvenile detention facility, Cedar Knoll. Blair-
Bey also had psychological and substance-abuse problems
during this period, and so was confined part of this time at St.
Elizabeths Hospital. In 1975, at the age of sixteen, he
escaped from Cedar Knoll and committed a murder. Appen-
dix ("App.") at 31, 44. Blair-Bey pleaded guilty to a D.C.
Code offense of second-degree murder, and was given a
sentence of from ten years to life. In 1980, while serving his
sentence, he killed another inmate; he pleaded guilty to
second-degree murder in violation of 18 U.S.C. s 1111, and
was sentenced to a term of ten years to life to be served
consecutively with his prior sentence. He was then trans-
ferred to a federal correctional facility and began to serve his
second (U.S. Code) sentence.
In 1991, the United States Parole Commission ("USPC")
held a parole hearing on Blair-Bey's federal offense, denied
parole, and scheduled another hearing for 1993. The USPC
said in its order that at the next proceeding Blair-Bey would
also receive a parole hearing for his D.C. Code offense. The
USPC and the D.C. Board of Parole ("DCBOP") have an
arrangement under which the USPC conducts parole hear-
ings (under D.C. parole rules) for those D.C. Code offenders
being held in federal prison.
Blair-Bey finished serving the federal portion of his sen-
tence on October 5, 1991, and was transferred back to a D.C.
prison in 1993. Apparently in error, a USPC hearing exam-
iner nevertheless conducted a parole hearing for him at the
D.C. Jail on September 8, 1993. The examiner found that
Blair-Bey had a favorable score under the D.C. scoring
system (a "point assigned grid score," or PAGS, of 2, which
corresponds to "parole shall be granted"), but nevertheless
recommended to the USPC that Blair-Bey be denied parole.
The hearing examiner cited the seriousness of Blair-Bey's
crimes, his lack of remorse, his drug use while in prison, and
lies he told about his movements while on work-release. App.
at 34-36. The examiner recommended that Blair-Bey re-
ceive a rehearing in September 1995.
Before the USPC could formally adopt these recommenda-
tions, the USPC and DCBOP decided that it was in fact the
DCBOP that had jurisdiction over Blair-Bey. The USPC
sent a copy of its file and recommendations to the DCBOP,
which conducted a de novo parole hearing on October 29,
1993. Unlike the USPC, the DCBOP found that Blair-Bey
had an unfavorable score under the D.C. system, giving him a
PAGS score of 4, which corresponds to denying parole. (The
DCBOP seems to have counted Blair-Bey's numerous juve-
nile offenses in making its calculation, App. at 47-48; the
USPC did not count these offenses.) Citing his use of drugs,
work-release misconduct, and diagnosis (while in prison) of
paranoid schizophrenia, the hearing examiner decided that
Blair-Bey was a threat to the community. He recommended
that parole be denied, and that no new hearing be scheduled
until October 29, 1998. This represented a five-year "set-off,"
or delay until Blair-Bey's next hearing, longer than the usual
set-off of twelve months (or less) provided for in the D.C.
guidelines. See D.C. Mun. Regs. tit. 28, s 104.2, 35 D.C. Reg.
455 (1988). The DCBOP adopted this recommendation in
full, noting (through checkmarks on a form) that Blair-Bey's
convictions reflect "on-going criminal behavior" and that
Blair-Bey "has engaged in repeated or extremely serious
negative institutional behavior." The DCBOP's form also
noted that "[t]he set-off is outside the guidelines for the same
countervailing factors checked below." App. at 56.
Blair-Bey filed a habeas corpus petition in D.C. Superior
Court, claiming that the DCBOP acted illegally in denying
him parole and in establishing a five-year set-off. The Supe-
rior Court denied the petition, and the D.C. Court of Appeals
summarily affirmed. Blair-Bey v. Quick, No. 96-1593, slip
op. at 1 (D.C. Sept. 28, 1995). Blair-Bey then filed a similar
petition in federal district court, listing as defendants the
warden of Occoquan, the chair of the DCBOP, his DCBOP
hearing examiner, and the USPC.
The district court dismissed Blair-Bey's petition sua sponte
for lack of jurisdiction, concluding that, under D.C. Code
s 16-1901, only the courts of the District of Columbia have
jurisdiction over petitions like Blair-Bey's. In the alterna-
tive, the district court found that Blair-Bey's claims failed on
their merits, as he had no constitutional right to release on
parole.
Blair-Bey appealed, challenging both of these conclusions.
Blair-Bey's appeal was argued together with two other ap-
peals brought by prison inmates, Anyanwutaku v. Moore, No.
96-7259, and Crowell v. Walsh, No. 96-7192, because they
raised related issues; we decide all three of these cases (in
separate opinions) today. The District asserts, first, that
Blair-Bey's appeal is subject to the filing-fee requirements of
the PLRA, and that Blair-Bey should therefore be required
to pay a (partial) filing fee before we proceed. We reject this
claim, finding that Blair-Bey's action, as it is a habeas
petition, is outside the filing-fee provisions of the PLRA.
Second, the District contends that the district court was
correct in concluding that the federal courts lack jurisdiction
over Blair-Bey's petition; again, Blair-Bey wins the day.
Finally, as to the merits of Blair-Bey's claims, we find that
his due process claim is meritless, but that his ex post facto
claim requires further development on remand.
II. Analysis
At the outset, it is clear that the United States Parole
Commission is not a proper party to this action. "[T]he
appropriate defendant in a habeas action is the custodian of
the prisoner." Chatman-Bey v. Thornburgh, 864 F.2d 804,
810 (D.C. Cir. 1988) (en banc). When a prisoner seeks to
challenge parole-related decisions, the warden of the prison
and not the United States Parole Commission is the prison-
er's "custodian." See id. at 810-11 (citing Guerra v. Meese,
786 F.2d 414, 416 (D.C. Cir. 1986)). Thus, the USPC, the
DCBOP, and their officers and employees are not proper
parties to this action; only John S. Henderson, the warden of
Occoquan, is a proper party.1
A. The Prison Litigation Reform Act
In 1996, Congress enacted the Prison Litigation Reform
Act, Pub. L. No. 104-134 (1996), which made a number of
changes in the law governing prison-related litigation. The
portion of the PLRA that concerns us here is section 804,
which amended the statute governing proceedings in forma
pauperis ("IFP") to require that, "if a prisoner brings a civil
action or files an appeal in forma pauperis," he must pay the
fee over time; payments are deducted from the plaintiff's
prison account. 28 U.S.C. s 1915(b)(1)-(3). (A prisoner will
not, however, be prevented from filing suit simply because he
has no assets. 28 U.S.C. s 1915(b)(4).)
We have found, following numerous other circuits, that
Congress did not intend for this installment-payment provi-
sion to apply to actions brought under 28 U.S.C. s 2254 or
s 2255. See United States v. Levi, 111 F.3d 955, 956 (D.C.
Cir. 1997) (per curiam) (citing eight opinions of other cir-
cuits); In re Smith, 114 F.3d 1247, 1250 (D.C. Cir. 1997). As
we explained in In re Smith, the courts have "uniformly
concluded" that habeas corpus proceedings--and their cous-
ins, section 2255 proceedings--are not "civil actions" for
purposes of the PLRA's filing-fee provision. See id.; see also
Smith v. Angelone, 111 F.3d 1126, 1129-30 (4th Cir.), cert.
denied, 118 S. Ct. 2 (1997) (s 2254); United States v. Sim-
monds, 111 F.3d 737, 742 (10th Cir. 1997) (s 2255).
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1 Blair-Bey was confined at Occoquan when he filed his petition;
while this appeal was pending, he was transferred to a prison in
Ohio. "Notwithstanding [Blair-Bey]'s transfer during the course of
this litigation" to the Ohio prison, "habeas jurisdiction as a general
matter continues to be in the district where the prisoner was
incarcerated at the time the habeas petition was filed." See id. at
806 n.1.
The District argues, however, that we should apply Levi
only to those habeas corpus petitions that challenge the
validity of the petitioner's conviction or sentence, and not to
petitions, like this one, that are based on other grounds. As
authority, it cites Newlin v. Helman, 123 F.3d 429 (7th Cir.
1997), cert. denied, 118 S. Ct. 707 (1998), in which the Seventh
Circuit distinguished between (1) petitions attacking the pris-
oner's conviction or sentence, which it said were not "civil
actions" for PLRA purposes because they are "functional
continuations of the criminal prosecution," and (2) "[c]om-
plaints about denial of parole, revocation of parole, and the
like," which "do not affect the validity of the criminal sen-
tence" and hence may be treated as "civil actions." Id. at
437-38. Blair-Bey and the United States Parole Commission
urge us not to follow Newlin.
At least one other circuit has already rejected Newlin (or
rather a pre-Newlin case, Thurman v. Gramley, 97 F.3d 185,
187 (7th Cir. 1996), which laid out Newlin 's approach in
dicta). See McIntosh v. United States Parole Commission,
115 F.3d 809, 811-12 (10th Cir. 1997) (finding that a habeas
corpus challenge to a parole revocation proceeding was not
subject to the PLRA). We agree with McIntosh: we see no
reason to make an exception from our general rule that the
PLRA does not apply to actions properly brought in habeas
corpus.
By its terms, the PLRA only applies when "a prisoner
brings a civil action or files an appeal in forma pauperis." 28
U.S.C. s 1915(b)(1).2 The courts have generally found habe-
as corpus petitions not to be "civil actions" for purposes of
this provision. "Though habeas proceedings are technically
civil actions, the Supreme Court has long recognized that the
label is ill-fitting and that habeas is in fact a unique creature
of the law." Martin v. Bissonette, 118 F.3d 871, 874 (1st Cir.
1997) (citing Harris v. Nelson, 394 U.S. 286, 293-94 (1969)).
As the Court explained in Harris, the characterization of
__________
2 The word "appeal" in the statute does not reach all appeals, but
only appeals in civil actions. See United States v. Simmonds, 111
F.3d 737, 744 (10th Cir. 1997); Martin v. United States, 96 F.3d
853, 854 (7th Cir. 1996).
habeas proceedings as "civil" is "gross and inexact." 394 U.S.
at 293-94. "Essentially, the proceeding is unique. Habeas
corpus practice in the federal courts has conformed with civil
practice only in a general sense." Id. at 294. More recently,
in O'Neal v. McAninch, 513 U.S. 432 (1995), the Court found
that it is error to apply standards of proof developed for civil
actions to a habeas corpus claim, because of "the stakes
involved in a habeas proceeding"; "although habeas is a civil
proceeding, someone's custody, rather than mere civil liabili-
ty, is at stake." Id. at 440; see also Santana v. United
States, 98 F.3d 752, 754-55 (3d Cir. 1996) (listing numerous
circumstances in which habeas corpus proceedings are not
treated as civil actions). None of these cases draw any
distinction between different types of habeas petitions that
resembles the "criminal"/"civil" distinction made by Newlin,
and Newlin cited no authority for this distinction.
There is thus no evidence that Congress might have relied
on a preexisting distinction between "criminal" and "civil"
habeas corpus petitions when it enacted the PLRA. Nor is
there any indication that Congress itself intended to establish
any such distinction in the PLRA. The PLRA's legislative
history makes clear that Congress's principal intent was to
reduce frivolous litigation by prisoners challenging conditions
of their confinement. Although there was no committee
report on the PLRA, the floor statements of the bill's two
sponsors in the Senate, Senators Dole and Kyl, indicate that
prison conditions litigation is what they were targeting. All
examples of suits they hoped to squelch were prison condi-
tions suits, including lawsuits challenging "insufficient storage
space, being prohibited from attending a wedding anniversary
party, and, yes, being served creamy peanut butter instead of
chunky." 141 Cong. Rec. S7498, S7524 (daily ed. May 25,
1995) (statement of Senator Dole); see also In re Smith, 114
F.3d at 1249 ("Congress enacted the PLRA primarily to
curtail claims brought by prisoners under 42 U.S.C. s 1983
and the Federal Tort Claims Act, most of which concern
prison conditions and many of which are routinely dismissed
as legally frivolous.") (quoting Santana, 98 F.3d at 755).
Nowhere in the PLRA's legislative history is there any
reference to cases challenging the fact or duration of confine-
ment.3 Indeed the PLRA contains several other provisions
directed specifically at prison conditions litigation, see, e.g.,
PLRA s 802 (relating to prison conditions consent decrees);
s 803(d) (requiring exhaustion in actions "with respect to
prison conditions"), but makes no specific reference anywhere
in the Act to challenges to the fact or length of confinement.
Just two days before enacting the PLRA, Congress enacted
a distinct statute, the Antiterrorism and Expedited Death
Penalty Act ("AEDPA"), Pub. L. No. 104-132 (1996), which
made extensive changes in the law governing habeas relief.
"This chronology strongly suggests that Congress intended to
make its changes to habeas proceedings via the AEDPA, and
to alter procedure in prisoner civil rights litigation in the
PLRA." Smith v. Angelone, 111 F.3d at 1130; see also In re
Smith, 114 F.3d at 1250. Although petitions attacking crimi-
nal convictions were the principal focus of the AEDPA, a
number of the AEDPA's provisions apply on their face to all
habeas petitions, and so would seem to reach petitions like
Blair-Bey's.
Treating one subset of habeas petitions as "civil actions" for
PLRA purposes would also have the effect of subjecting those
petitions to two separate regimes designed to deter repeat
plaintiffs--with anomalous results, given the nature of the
two regimes. Even before the AEDPA and PLRA were
enacted, 28 U.S.C. s 2244 limited "second or successive"
habeas corpus petitions; section 106 of the AEDPA adjusted
__________
3 The District notes that Senator Dole cited a study of the
increasing number of "due process and cruel and unusual punish-
ment" complaints filed by prisoners, 141 Cong. Rec. S7498, S7524
(daily ed. May 25, 1995), and argues that some parole-related
habeas petitions are based on the due process clause (indeed, it is
one of the grounds for Blair-Bey's petition). But an article by the
author of that very study was appended to the floor statement of
Senator Kyl; it reveals that the study focused on due process
challenges to violations of prison regulations, not parole regulations.
See Walter Berns, Sue the Warden, Wall Street Journal (Apr. 24,
1995) (reprinted in 141 Cong. Rec. S7498, S7527 (daily ed. May 25,
1995) (statement of Senator Kyl)).
these limitations, and so recognized the existence of a repeat-
filer regime directed specifically at habeas corpus petitions.
The PLRA has introduced a new repeat-filer provision, pro-
viding that a prisoner who has had three suits dismissed on
the ground that they were "frivolous, malicious, or fail[ed] to
state a claim upon which relief can be granted" will be
required to prepay filing fees in full in future civil actions or
appeals, unless the prisoner can show "imminent danger of
serious physical injury." 28 U.S.C. s 1915(g). This means
that there are now two distinct regimes for repeat filers, and
it seems to us that the PLRA's regime is singularly ill-suited
to habeas corpus petitioners. If habeas petitions count as
"civil actions" for PLRA purposes, then a penniless inmate 4
who has managed to incur three strikes would apparently
have no way of seeking a writ of habeas corpus--even if, for
instance, prison officials arbitrarily declined to release him at
the end of his sentence. This would truly be a draconian
penalty, and "contrary to a long tradition of ready access of
prisoners to federal habeas corpus, as distinct from their
access to tort remedies." Anderson v. Singletary, 111 F.3d
801, 805 (11th Cir. 1997) (quoting Martin v. United States, 96
F.3d 853, 855-56 (7th Cir. 1996)); see also O'Neal, 513 U.S. at
432, 440 (1995) (observing that the stakes in habeas proceed-
ings are high, as custody over an individual is at issue). We
will not lightly assume that Congress intended such an ex-
traordinary result.5
The District asserts that it can often be difficult to deter-
mine whether a prisoner's action is properly in habeas corpus,
and argues that an approach that does not limit the PLRA's
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4 That is, an inmate unable to pay the $5 filing fee for habeas
petitions (or, if the inmate loses in district court, the more daunting
$100 fee for filing an appeal).
5 By contrast, the AEDPA's comparable repeat-filer provision is
not nearly as restrictive. Its bar on successive habeas corpus
petitions would only apply if an inmate attempted to challenge the
same official act twice. As Newlin observed, "[s]uccessive chal-
lenges to the same parole decision or revocation of good-time
credits are rare if not nonexistent." Newlin, 123 F.3d at 438.
exemption to hard-core habeas actions will compel courts to
make this decision very early, before necessary facts have
been developed. It is true that this line can be a hazy one,
and the Supreme Court has had to revisit it a number of
times in recent years. See, e.g., Edwards v. Balisok, 520 U.S.
641 (1997). But Newlin 's line between "criminal" and "civil"
habeas petitions seems almost as elusive. (How should a
habeas corpus petition by a prisoner who is being held for
contempt be classified? Or one by a pretrial detainee?) Nor
do we think our reading imposes an inordinate taxonomic
burden on the district courts. The issue of whether an action
sounds in habeas corpus will often come up early in the case
anyway, for if an action by a state prisoner is truly in habeas
corpus, the petition is subject to threshold exhaustion re-
quirements, see 28 U.S.C. s 2254. And many cases, such as
pure prison-conditions cases, will be easy to identify. Fur-
thermore, if a prisoner joins a claim that clearly cannot be
heard in habeas corpus (such as a claim for damages) along
with a claim that arguably may be, the resulting "mixed"
petition will always be subject to the PLRA's filing-fee rules.
See In re Smith, 114 F.3d at 1250. For the rare suit that
raises truly bewildering issues of classification, it may be
appropriate for the district courts to conserve their resources
by deferring the (potential) application of the PLRA's
installment-payment provisions until the facts of the case can
be better developed.
There remains one other classification issue. It is possible
that habeas corpus might be available to challenge prison
conditions in at least some situations. The Court expressly
left this possibility open in Preiser v. Rodriguez, see 411 U.S.
475, 499 (1973); see also Brown v. Plaut, 131 F.3d 163, 168
(D.C. Cir. 1997), cert. denied, 66 U.S.L.W. 3750 (1998);
Abdul-Hakeem v. Koehler, 910 F.2d 66, 69-70 (2d Cir. 1990);
but cf. Gomez v. United States, 899 F.2d 1124, 1125-26 (11th
Cir. 1990). Such claims, if they are permissibly brought in
habeas corpus, would have to be subject to the PLRA's filing-
fee rules, as they are precisely the sort of actions that the
PLRA sought to address. See In re Smith, 114 F.3d at 1250
(D.C. Cir. 1997) ("[I]t would defeat the purpose of the PLRA
if a prisoner could evade its requirements simply by dressing
up an ordinary civil action as a petition for mandamus or
prohibition or by joining it with a petition for habeas corpus.")
We thus reject the District's suggestion that we apply the
PLRA's filing-fee provisions to habeas petitions like the one
in this case, and now turn to the District's D.C. Code argu-
ment.
B. D.C. Code s 16-1901
The District asserts that we are without jurisdiction to hear
Blair-Bey's habeas petition, because such petitions may only
be brought in the courts of the District of Columbia. It bases
this argument on a provision of the D.C. Code, section
16-1901, which, it claims, divests the federal courts of juris-
diction to hear habeas corpus petitions filed by D.C. prison-
ers.
1. The problem
Some historical and statutory background is necessary to
parse the District's argument. Before 1970, the D.C. court
system did not exist in its present form, and many of the
cases now brought in the District's courts were instead heard
in federal court. In 1970, Congress passed the District of
Columbia Court Reform and Criminal Procedure Act, Pub. L.
No. 91-358 (1970) ("DCCRCPA"), which created the present
dual court system.
In the course of creating this new dual system, the
DCCRCPA established a remedy analogous to 28 U.S.C.
s 2255 for prisoners sentenced in D.C. Superior Court who
wished to challenge their conviction or sentence. See D.C.
Code s 23-110. The DCCRCPA provided that, to the extent
that this remedy was available, it was an exclusive one:
An application for a writ of habeas corpus on behalf of a
prisoner who is authorized to apply for relief by motion
pursuant to this section shall not be entertained by the
Superior Court or by any Federal or State court if it
appears that the applicant has failed to make a motion
for relief under this section [s 23-110] or that the Supe-
rior Court has denied him relief, unless it also appears
that the remedy by motion is inadequate or ineffective to
test the legality of his detention.
D.C. Code s 23-110(g). Thus, the DCCRCPA entirely di-
vested the federal courts of jurisdiction to hear habeas corpus
petitions by prisoners who had a section 23-110 remedy
available to them, unless the petitioner could show that the
section 23-110 remedy was "inadequate or ineffective," an
exception that we will call the "safety valve." In Swain v.
Pressley, 430 U.S. 372 (1977), the Supreme Court upheld the
constitutionality of section 23-110(g) under the Suspension
Clause, opining that the safety valve "avoids any serious
question about the constitutionality of the statute." See id. at
381. The Court explained that "the substitution of a collater-
al remedy which is neither inadequate nor ineffective to test
the legality of a person's detention does not constitute a
suspension of the writ of habeas corpus." See id. (observing
that the same is true of 28 U.S.C. s 2255, which contains an
identical safety valve).
Blair-Bey's petition seeks his release, but does not chal-
lenge his conviction or sentence; thus, it could not be brought
under section 23-110. See Alston v. United States, 590 A.2d
511, 514 (D.C. 1991) ("Whatever their legal merit, these
contentions, like claims by other prisoners challenging the
computation of a sentence, may not be raised under s 23-110.
Because such contentions concern the executive department's
execution of sentence, not the trial court's imposition of
sentence, they must be raised in a habeas corpus petition.").
Because section 23-110(g) only bars us from hearing those
claims that could have been raised through section 23-110,
that section does not prevent us from entertaining Blair-
Bey's habeas petition. The District, however, points to a
separate provision of the D.C. Code, which it claims does
preclude us from considering Blair-Bey's petition. That pro-
vision, D.C. Code s 16-1901, states:
(a) A person committed, detained, confined or restrained
from his lawful liberty within the District, under any
color or pretense whatever, or a person in his behalf,
may apply by petition to the appropriate court, or a
judge thereof, for a writ of habeas corpus, to the end that
the cause of the commitment, detainer, confinement, or
restraint may be inquired into. The court or judge
applied to, if the facts set forth in the petition make a
prima facie case, shall forthwith grant the writ, directed
to the officer or other person in whose custody or
keeping the party so detained is, returnable forthwith
before the court or judge.
(b) Petitions for writs directed to Federal officers and
employees shall be filed in the United States District
Court for the District of Columbia.
(c) Petitions for writs directed to any other person shall
be filed in the Superior Court for the District of Colum-
bia.
In its present form, this provision dates from the enactment
of the DCCRCPA. It sets forth a general habeas corpus
remedy for those confined in the District of Columbia, allow-
ing prisoners to attack their confinement on any grounds
(other than those provided for in section 23-110).6 The
District contends that, because Blair-Bey is confined in the
District and because his petition is not directed to a federal
officer or employee, paragraph (c) of section 16-1901 directs
that he file his habeas corpus petition in D.C. Superior Court,
and bars him from filing it in federal district court. The
district court agreed with that argument and other cases in
this circuit have come to the same conclusion. See, e.g.,
Perkins v. Henderson, 881 F. Supp. 55 (D.D.C. 1995).
A preliminary point: At the time the district court issued
its order, Blair-Bey was imprisoned at the District's Occo-
quan facility, which is not within the territorial limits of the
District. But the term "within the District" in section
16-1901 is one of art. In McCall v. Swain, 510 F.2d 167
(D.C. Cir. 1975), we read that phrase to encompass "individu-
__________
6 Its relationship to D.C. Code s 23-110 is thus much like the
relationship, for federal prisoners, of 28 U.S.C. s 2241 and 28
U.S.C. s 2255: the former provides a broad habeas corpus remedy,
the latter a specific instrument for attacking a conviction or sen-
tence.
als confined within the District's correctional facilities located
outside the District limits." Id. at 177. For purposes of
section 16-1901, then, Blair-Bey was "within the District" at
the time the district court issued its order.
It may seem curious that the question of whether the
federal courts can entertain a habeas corpus petition by a
D.C. prisoner who does not seek to challenge his conviction or
sentence should have remained unanswered in the decades
since the DCCRCPA was enacted. But it has, and today we
answer it. We find that section 16-1901 does not bar the
federal courts from entertaining habeas corpus petitions filed
by D.C. prisoners under 28 U.S.C. s 2241. Sections
16-1901(b) and (c) only set forth the proper place in which to
file those habeas corpus petitions that are brought pursuant
to section 16-1901(a). They do not speak to the question of
where persons may file habeas petitions that are brought
under other sources of authority, such as section 2241.
In deciding whether Congress intended to restrict the
availability of federal habeas corpus when it enacted the
present section 16-1901, we tread carefully. As reviewed
above, there is a "long tradition of ready access of prisoners
to federal habeas corpus," Anderson, 111 F.3d at 805, and we
are most reluctant to find that Congress has deprived an
entire category of prisoners of access to an Article III habeas
remedy without very clear evidence of congressional intent.
As section 23-110(g) demonstrates, Congress certainly knew
how to express itself clearly on the exclusivity of a remedy
when it wanted to do so.
2. The statutory text
We begin with the statutory text. In contrast to section
23-110(g), section 16-1901 does not express in any form an
intent to eliminate federal habeas corpus jurisdiction. Nor
does section 16-1901 include a "safety valve" such as provided
for in section 23-110, strongly suggesting that Congress did
not think that section 16-1901 raised the same constitutional
issues that it foresaw in section 23-110. Yet without a safety-
valve, there would indeed be serious questions as to whether
section 16-1901 violates the Constitution's Suspension Clause
if it is interpreted to foreclose any access to an Article III
court however "inadequate or ineffective" the local court
proceedings. See Swain, 430 U.S. at 381 (noting that the
safety-valve "avoids any serious question about the constitu-
tionality" of section 23-110); see also Weaver v. United States
Information Agency, 87 F.3d 1429, 1436 (D.C. Cir. 1996), cert.
denied, 117 S. Ct. 2407 (1997) ("A statute must be construed,
if fairly possible, so as to avoid not only the conclusion that it
is unconstitutional but also grave doubts upon that score.").
The most natural construction of sections 16-1901(b) and
(c) is that they are venue provisions applicable only to peti-
tions for habeas corpus made under section 16-1901 itself.
Sections (b) and (c) both set forth the courts in which
"petitions for writs" may be filed, but do not specify what
types of writs are meant. Given that the immediately preced-
ing section, 16-1901(a), grants authority for persons held
within the District of Columbia to petition for a writ of habeas
corpus, it is appropriate to assume that subsections (b) and
(c) refer to writs under that section. Broader alternative
interpretations of those two subsections bring in their wake a
host of problems. It seems unlikely for instance that those
subsections are intended to refer to any kind of petitions for
writs, including petitions for writs of mandamus, prohibition,
and so forth. Nor is there any obvious textual reason to read
subsections (b) and (c) to reach some types of petitions other
than those made under section 16-1901(a), but not others--
for instance, petitions under sections 2241 and 2254, but not
mandamus petitions.
3. The history of section 16-1901
The limited available evidence as to the history of section
16-1901 confirms--or at least fails to contradict--our view
that sections 16-1901 and 2241 are properly conceived of as
distinct, equally available avenues by which D.C. petitioners
may seek habeas corpus. A version of section 16-1901 exist-
ed long before the DCCRCPA; indeed, a predecessor was
enacted in the course of Congress's 1901 recodification of the
D.C. Code. See 31 Stat. 1372 (1901). The earlier section
largely tracked the language of what is now section
16-1901(a), but with a reference to "the United States Dis-
trict Court for the District of Columbia" where that section
now refers to "the appropriate court." Before the enactment
of the DCCRCPA, section 2241 contained no territorial re-
striction that would have precluded its invocation by petition-
ers within the District of Columbia; it permitted (and still
permits) "the Supreme Court, any justice thereof, the district
courts and any circuit judge" to grant writs of habeas corpus
"within their respective jurisdictions." 28 U.S.C. s 2241.
Nor did the former text of section 16-1901 say that it was the
exclusive remedy for D.C. habeas corpus petitioners. Al-
though the caselaw does not explain the relationship between
the two sections in any detail, it suggests that petitioners
could choose to proceed under either or under both. See, e.g.,
Stewart v. Overholser, 186 F.2d 339, 403 (D.C. Cir. 1950) (as
to a prisoner at St. Elizabeths, citing the general federal
habeas corpus statute, 28 U.S.C. s 2241 et seq., and saying
that the court has "considered also the statutes of the District
of Columbia [citing what is now s 16-1901]," and found,
"[a]ssuming them to be in effect," that they "do not require a
different result"); Dorsey v. Gill, 148 F.2d 857, 867 (D.C. Cir.
1945) (describing the requirements of what are now
s 16-1901 and 28 U.S.C. s 2241 et seq. as "equivalent and
synonymous").
Our conclusion that before the DCCRCPA was enacted
petitioners could ordinarily choose to proceed under either or
both of the two provisions is strengthened by section 16-1909
of the D.C. Code (enacted in 1963), which says: "This chapter
[ss 16-1901--16-1909] does not affect any provision of chap-
ter 153 [Habeas Corpus] of title 28, United States Code." The
accompanying Revision Note states:
Section is new, and is inserted for the purpose of con-
struction.
Chapter 153 of Title 28, United States Code, also re-
lates to habeas corpus and applies to Federal courts
generally, including the United States District Court for
the District of Columbia. Upon the reenactment of the
provisions carried into this chapter, they will constitute a
later enactment than Title 28, United States Code, which
was enacted in 1948. Considering the local character of
the provisions carried into this chapter, there should not
arise, as a general rule, even without this section, any
question of conflict. However, this section is inserted as
a precautionary measure.
Chapter 153, of course, includes section 2241 and the other
general federal habeas corpus provisions. Congress's express
reference to "the United States District Court for the District
of Columbia" indicates that Congress intended that section
2241 should continue to remain available in the federal courts
in the District, despite the existence of section 16-1901.7 See
also McCall 510 F.2d at 182 (saying that section 16-1909
"specifies that the District habeas provisions are not to be
construed to restrict the general federal habeas provisions").
But if sections 16-1901(b) and (c) only set forth the venue
for those habeas corpus petitions filed under section
16-1901(a), why--one may ask--the reference to petitions
"directed to Federal officers and employees" in section
16-1901(b)? Here again, history is of some help. At the time
the DCCRCPA was enacted, there were a large number of
persons in the D.C. prisons who had been tried in federal
district court. As we explained in McCall, subsection (b)
ensured that any petitions that they filed under section
16-1901 would be heard in federal court. This is so because
the local prison officials who were their custodians were
"deemed to be 'Federal officers or employees' within the
meaning of 16 D.C. Code s 1901" because they had custody
over a federal prisoner. McCall, 510 F.2d at 180. When a
prisoner is convicted and sentenced by the Superior Court,
this logic does not apply, and exclusive jurisdiction over
__________
7 The USPC argues that section 16-1909 is only intended to make
clear that prisoners convicted in the District and then transferred
to prisons elsewhere are not within section 16-1901. But this is
already obvious from the text of section 16-1901 itself (which only
applies to prisoners "in the District"). This reading is also inconsis-
tent with the Revision Note.
actions under section 16-1901 is vested in the Superior
Court.8 Because sections 16-1901(b) and (c) serve this nar-
rower function, there is no need to read them as broadly as
the District proposes, to allocate jurisdiction under all habeas
corpus statutes between the federal and D.C. courts.
Portions of the legislative history of the DCCRCPA do
suggest that Congress thought that the federal courts would
not be able to entertain any habeas corpus petitions brought
by persons convicted in the newly-created D.C. courts. For
example, the report of the Senate Committee on the District
of Columbia said that after the effective date of the
DCCRCPA, "the U.S. District Court for the District of
Columbia shall no longer have jurisdiction over local civil
actions in the nature of quo warrento, suits to acquire title,
and actions regarding change of name, contractors' bonds,
restitution of real property, replevin of personal property,
habeas corpus, and commitment of narcotics users...."
S. Rep. No. 91-405, at 19 (1969); see also id. at 23; H.R. Rep.
No. 91-901 at 136 (1970) (saying that as of the effective date
of the Act the Superior Court will have jurisdiction over a
range of matters, including "writs of habeas corpus to persons
other than Federal officers and employees"); Staff of the
Senate Committee on the District of Columbia, 91st Cong.,
Statement of the Managers On the part of the Senate 5-6
(Comm. Print 1970) (saying that the Superior Court is to have
"exclusive, general jurisdiction over all local matters, civil and
__________
8 Sections (b) and (c) also have the effect of preventing the courts
of the District of Columbia from entertaining section 16-1901
petitions brought against federal officials.
The USPC cites to isolated passages of McCall which it claims
support its reading of section 16-1901. For example, it points to a
statement in a footnote in which, after outlining the structure of
section 16-1901 and its allocation of authority between the Superior
Court and federal district court, the court said: "Thus habeas
jurisdiction within the District of Columbia is exclusively vested in
one court or the other." 510 F.2d at 170 n.3. In context, it is clear
that this dictum was a reference only to habeas corpus jurisdiction
under section 16-1901 itself, not necessarily to jurisdiction under
some other statute.
criminal," and listing "habeas corpus" as an example). The
DCCRCPA's legislative history, however, almost universally
refers to "habeas corpus" generally, without distinguishing
those petitions that attack the petitioner's conviction or sen-
tence and are given over exclusively to the local courts under
section 23-110(g) from other habeas petitions which that
section does not encompass. We confess that we can discern
no obvious reason for Congress to deny the federal courts
jurisdiction over one type of petition but permit jurisdiction
over the other. Congress's description of "habeas corpus"
petitions as "local" in character, S. Rep. No. 91-405, at 19
(1969), seems to fit both types of petition equally well (with
one possible exception, discussed below).
But, because Congress did not explicitly remove our juris-
diction over those section 2241 actions that do not attack the
petitioner's conviction or sentence, that jurisdiction necessari-
ly continues in effect. This is plain from Felker v. Turpin,
116 S. Ct. 2333 (1996), in which the Supreme Court found that
although the AEDPA bars habeas corpus petitioners who are
denied leave to file a second or successive petition from
challenging this decision through certiorari, see AEDPA
s 106(b)(3)(E), it does not withdraw the Court's authority to
entertain original habeas corpus petitions under 28 U.S.C.
ss 2241 and 2254. This was so even though a petitioner may
be able to use the latter route to circumvent Congress's
apparent intent in enacting the AEDPA to bar all review of
such decisions. The rule that "[r]epeals by implication are
not favored," Felker, 116 S. Ct. at 2338, and the principle that
the withdrawal of habeas corpus jurisdiction is subject to
especial scrutiny, dates back over a hundred years; in Ex
parte Yerger, 75 U.S. (8 Wall.) 85 (1869), the Court similarly
declined to conclude that Congress had implicitly stripped it
of jurisdiction to hear habeas corpus actions under the fore-
runner of section 2241.
Congress's intent in enacting the DCCRCPA is if anything
less clear than it was in Felker. This is so because reading
sections 16-1901(b) and (c) to bar us from exercising jurisdic-
tion over all D.C. habeas petitions that are not directed at
federal officials, as the District urges, might yield anomalous
results in some cases. For example, Crowell, the petitioner
in one of the companion cases, was convicted in the state
courts of Virginia but is now being held in D.C.'s prison
system. His habeas corpus petition must be directed to his
custodian, who is either a D.C. official, or perhaps (under the
principle of McCall ) constructively an official of Virginia.
Either way, Crowell's custodian is not a federal official, so
that, under the District of Columbia's proposed reading of
section 16-1901, exclusive jurisdiction over Crowell's petition
would be in D.C. Superior Court. See s 16-1901(c) ("Peti-
tions for writs directed to any other person shall be filed in
the Superior Court of the District of Columbia."). Yet, had
Crowell been transferred to a prison anywhere else in the
nation, he would have had a remedy in an Article III court.
Cf. McCall, 510 F.2d at 182 (citing the anomaly of denying
access to a federal habeas corpus remedy to only those
federal prisoners convicted in the District of Columbia in
concluding that section 16-1901 permits such prisoners to file
their petitions in federal court). And Crowell's action, which
involves the good time credit rules of the Commonwealth of
Virginia, does not seem to be the type of "local civil action"
that Congress had in mind when it enacted section 16-1901.
See S. Rep. No. 91-405, at 19 (1969) (saying that the
DCCRCPA would give the Superior Court exclusive jurisdic-
tion over all "local civil actions," including proceedings in
habeas corpus). In short, not only does the text of section
16-1901 fail to divest the federal courts of jurisdiction under
section 2241, but the underlying intent of Congress in enact-
ing that provision is far from clear. Thus, we now find that
Congress has not extinguished Blair-Bey's section 2241 reme-
dy.
C.The Merits of Blair-Bey's Action
In one of the companion cases, Crowell v. Walsh, No.
97-7192, we conclude that cases filed before the AEDPA was
enacted are governed by the preexisting certificate of proba-
ble cause requirement, not by the new certificate of appeala-
bility requirement. Blair-Bey's action was filed before the
AEDPA was enacted; thus, we will consider whether he is
entitled to a certificate of probable cause under our pre-
AEDPA standards.
Blair-Bey makes claims under the Due Process Clause and
under the Ex Post Facto Clause. Blair-Bey is not entitled to
a certificate of probable cause as to his due process claim,
because it is painfully clear that he cannot make any success-
ful claim of Fifth Amendment violation. As to his ex post
facto claim, however, we grant the certificate of probable
cause, and remand to permit Blair-Bey to develop his claim
further.
1. Due Process Clause
Blair-Bey cannot make out a due process claim because he
cannot point to a constitutionally protected liberty interest of
which he has been deprived without due process. Liberty
interests are of two types: those issuing directly from the
Constitution and those created by state law. Blair-Bey does
not, of course, have a direct constitutional liberty interest in
parole. Greenholtz v. Inmates of Nebraska Penal and Cor-
rectional Complex, 442 U.S. 1 (1979). As to liberty interests
created by state law, mandatory language in applicable state
laws and regulations may suffice to create a liberty interest.
See, e.g., Hewitt v. Helms, 459 U.S. 460, 471-72 (1983).9 But
Blair-Bey cannot point to any such mandatory language here;
the applicable D.C. parole regulations say only that "reconsid-
eration shall ordinarily occur within twelve (12) months."
D.C. Mun. Regs. tit. 28, s 104.2, 35 D.C. Reg. 455 (1988)
(emphasis added), and add that "[n]otwithstanding any other
provision of this section, the Board may order a parole
reconsideration date it determines to be appropriate." Id.,
s 104.11. The D.C. Court of Appeals has found the applica-
__________
9 In Sandin v. Conner, 515 U.S. 472 (1995), the Supreme Court
adjusted the Hewitt analysis in considering a prisoner's challenge of
his placement in disciplinary segregation. In Ellis v. District of
Columbia, 84 F.3d 1413 (D.C. Cir. 1996), we found that Sandin only
alters the liberty-interest analysis applicable to claims relating to
"the day-to-day management of prisons," and that it does not apply
to parole-related claims. See id. at 1418. Thus, Blair-Bey's action
is not subject to Sandin.
ble regulations not to create a liberty interest, see Stevens v.
Quick, 678 A.2d 28, 31-32 (D.C. 1996) (a case also involving a
five-year setoff), and we agree.
Blair-Bey does point to a set of guidelines established by
the Parole Board to guide its set-off decisions. The guide-
lines 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 "mitigating" factors for the Board
to consider in making set-off decisions. The D.C. Court of
Appeals observed that the guidelines do require the DCBOP
to have "some" basis for deviating from the normal set-off
period. Nevertheless, the court found that the guidelines do
not create a liberty interest, because they do not limit which
factors the DCBOP can consider, or how to weigh them. Id.
at 1054. We agree that so discretionary and open-ended a
document cannot be construed to give rise to a liberty inter-
est.11
__________
10 We assume that the same set of guidelines was applied to
Blair-Bey. Although we have no way to be sure of this, he has not
suggested that the applicable guidelines have changed.
11 Blair-Bey also argues that the Board's conduct was so arbi-
trary as to violate the due process clause even in the absence of an
identifiable liberty interest. There is some authority for the propo-
sition that exceptionally arbitrary governmental conduct may in
itself violate the due process clause, whether or not a liberty or
property interest is at stake. See, e.g., Burkett v. Love, 89 F.3d
135, 139-40 (3d Cir. 1996) (denial of parole in retaliation for an
inmate's successful habeas petition); see also Perry v. Sindermann,
408 U.S. 593, 597 (1972). But the record in this case is devoid of
any evidence that might meet so high a standard. Blair-Bey
asserts that the Board relied on his juvenile record in making its
decision, and claims that this violated applicable municipal regula-
tions. Even supposing that this is true (a point that is far from
clear), such reliance would not be so irrational or arbitrary as to
violate the due process clause.
2. Ex Post Facto Clause
Blair-Bey has a more substantial claim that the rules
governing the District's parole system were made stricter
after he committed his crimes, and that the present rules as
applied to his case amount to a prohibited ex post facto law.
D.C. law provides:
Whenever it shall appear to the Board of Parole 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, the Board may authorize his release on parole upon
such terms and conditions as the Board shall from time
to time prescribe.
D.C. Code s 24-204 (1981). Before 1987, the DCBOP's im-
plementing regulations simply mirrored this provision, requir-
ing only that in exercising its discretion the Board consider a
list of factors, including the inmate's offense, prior history of
criminality, personal and social history, physical and emotion-
al health, institutional experience, and availability of commu-
nity resources. 9 D.C.R.R. s 105.1(a)-(f) (1981).
In 1987, the Board of Parole promulgated new regulations
that provided for the use of "salient factor scores" in making
parole determinations. This scheme takes into account fac-
tors much like those considered under the preexisting regula-
tions, but provides a scoring system for weighing those
factors. Once a score has been calculated for a particular
inmate, the new regulations indicate whether parole should
ordinarily be granted or denied. D.C. Mun. Regs., tit. 28,
s 204.1, 204.4-204.18. Under the regulations, the Board still
retains discretion in making individualized parole determina-
tions; the scoring system is intended "to guide the Board in
making the decision whether to grant or deny parole." Davis
v. Henderson, 652 A.2d 634, 635 (D.C. 1995) (describing the
transition from the old to the new parole system).
Blair-Bey contends that under the new salient factor scor-
ing system his criminal history will always produce a score
that invokes a presumptive denial of parole, irrespective of
any rehabilitation he may undergo in prison. He asserts that
he would have fared better under the more open-ended parole
system that was in effect in 1975 and 1980 (when he commit-
ted the two murders that led to his incarceration): under the
earlier regulations he would not have been subject to any
presumptive denial of parole. He says that subjecting him to
the post-1987 parole rules amounts to imposing an ex post
facto law in his case, in violation of Article I, s 10 of the
Constitution ("No State shall ... pass any ... ex post facto
Law ...").
The constitutional bar on the enactment of ex post facto
laws means that "[l]egislatures may not retroactively alter the
definition of crimes or increase the punishment for criminal
acts." Collins v. Youngblood, 497 U.S. 37, 43 (1990). Blair-
Bey argues that the 1987 adjustment to the District of
Columbia's parole system increases the "punishment" at-
tached to his crime.
The circuit caselaw poses something of a problem for Blair-
Bey. In Warren v. United States Parole Commission, 659
F.2d 183 (D.C. Cir. 1981), we rejected a claim by a prison
inmate that the 1976 revision of the federal parole system was
an ex post facto law. Before 1976, the federal parole system
had also been highly discretionary; the 1976 revision estab-
lished a "salient factor score" system that structured this
exercise of discretion. The 1976 revision thus effected a
change much like (but, as we observe below, not necessarily
exactly like) the 1987 revision in the D.C. parole system that
Blair-Bey protests. Warren concluded that the 1976 revision
could not be said to increase the "punishment" of prospective
parolees, and hence was not an ex post facto law. Warren
reasoned that the Parole Commission retained discretion to
ignore its own guidelines; that the guidelines had been based
on a statistical survey of past parole practice, so that in the
aggregate they "embody what may well have been the
Board's practice anyway," id. at 193 (emphasis omitted); that
under the old system it would always be difficult to predict
how any particular inmate would have been treated; and
finally that, at most, the new parole system reduced the
likelihood that an inmate would be paroled either much
earlier or much later than average, a change that could not be
characterized as "worsen[ing]" the inmate's position. Id. at
193-94. See also Miller v. Florida, 482 U.S. 423, 434 (1987)
(in the course of deciding another case, seemingly assuming
that Warren and similar cases in other courts of appeals
upholding the 1976 revisions in the parole system were cor-
rectly decided).
Because the district court dismissed Blair-Bey's petition
sua sponte, Blair-Bey had no opportunity to develop argu-
ments and present evidence below. It is therefore impossible
to determine whether or not his claim falls under the Warren
rationale. In particular, we do not know what evidence
Blair-Bey and the DCBOP might present as to the purpose
and effect of the 1987 revision of the D.C. parole system. If
the 1987 revision undertook to codify past parole practices, in
the way that the 1976 federal revision did, and if the DCBOP
in practice retains discretion to ignore the guidelines, then his
case will fall under Warren. But Blair-Bey may be able to
present evidence distinguishing his case from Warren, in any
of three ways. First, he may be able to show that the
revisions to the DCBOP scheme impose a sufficiently great
risk of disadvantaging a particular category of inmates as to
violate the ex post facto clause. See California Department
of Corrections v. Morales, 514 U.S. 499, 509 (1995) (declining
to decide what degree of risk is "sufficient," but finding that
the "speculative and attenuated" risk of harm in the case at
bar did not suffice). Second, if he can show that the 1987
revision was motivated by a punitive desire to extend the
incarceration of a particular category of inmates, see Miller,
482 U.S. at 433-34 (finding that a statute whose "sole reason"
was to "punish sex offenders more heavily" violated the ex
post facto clause), his case will be strengthened. And third, if
the DCBOP does not in practice ever ignore its own guide-
lines, this too may lead to the conclusion that the broad
discretion relied upon in Warren is absent here. Cf. Warren,
659 F.2d at 197 n.57 (leaving open the question of whether
evidence that the Board generally engaged in a "mechanical
administrative application of the Guidelines ... could impli-
cate the ex post facto clause"). One of these factors, or a
combination of them, could suffice to establish that Blair-Bey
has been deprived of his "entitlement to have [the Parole
Board's] discretion exercised," id. at 196; we need not decide
now what kind of showing would suffice.12
The D.C. Court of Appeals has already rejected an ex post
facto challenge to the 1987 revisions to the D.C. parole
system. See Davis, 652 A.2d at 636. Davis found no ex post
facto violation because "[t]he new District of Columbia parole
guidelines ... merely formalize the manner in which the
Board exercises the discretion conferred upon it by the
governing provision in effect when Davis was sentenced." Id.
We are bound to follow interpretations of D.C. law by the
D.C. Court of Appeals, and hence must defer to that court's
ruling to the extent that it interprets D.C. law; for instance,
we defer to the ruling that the D.C. parole guidelines "merely
formalize the manner in which the Board" exercises its dis-
cretion. But we are not bound to follow the D.C. Court of
Appeals's analysis of federal law, and so need not defer to
Davis's reading of what the ex post facto clause requires on
the facts of a particular case. Moreover, it appears that the
plaintiff in Davis did not raise any of the grounds that we
have identified as potentially distinguishing this case from
Warren. Thus, should Blair-Bey present evidence on any of
these points, the specific holding of Davis would not necessar-
ily control even the district court's interpretation of D.C. law
(although Davis's methodology would of course guide its
analysis).
III. Conclusion
In sum, we conclude that this case is not subject to the
filing-fee rules of the PLRA, and that the district court erred
__________
12 There is also a question whether parole regulations count as
"laws" at all for purposes of the constitutional prohibition on "ex
post facto laws." Compare Flemming v. Oregon Board of Parole,
998 F.2d 721 (9th Cir. 1993) (Oregon's parole regulations are "laws"
for ex post facto purposes) with Bailey v. Gardebring, 940 F.2d
1150, 1156 (8th Cir. 1991) (Minnesota's are not); see also Bailey,
940 F.2d at 1157 (reviewing cases addressing this issue). Warren
declined to resolve this issue, see 659 F.2d at 197 n.57, and so do we
at so early a stage in the litigation.
in finding that D.C. Code section 16-1901 barred the federal
courts from considering Blair-Bey's habeas corpus petition.
We also find that the United States Parole Commission
should be dismissed as a party to this action. On the merits,
we find that Blair-Bey's due process claim is without founda-
tion. However, because it is possible that Blair-Bey may be
able to make out an ex post facto claim, we remand that part
of his case for reconsideration in accordance with the princi-
ples set forth in this opinion.
So ordered.