PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 10-1842
_____________
EDDIE WILSON,
Appellant
v.
UNITED STATES PAROLE COMMISSION;
WARDEN JONATHAN C. MINER
_______________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(Civil Action No. 4:06-cv-1853)
District Judge: Honorable John E. Jones III
_______________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 12, 2011
Before: SLOVITER, FUENTES, and GARTH, Circuit
Judges
(Opinion filed: July 22, 2011)
1
Raymond J. Rigat, Esq.
Two Penn Center Plaza, Suite 200
1500 JFK Boulevard
Philadelphia, PA 19102-1706
Counsel for Appellant Eddie Wilson
Stephen R. Cerutti II, Esq.
Office of the United States Attorney
228 Walnut Street, 2nd Floor
Harrisburg, PA 17108-1754
Counsel for Appellees United States Parole
Commission and Jonathan C. Miner
_______________
OPINION OF THE COURT
_______________
GARTH, Circuit Judge.
Petitioner-appellant Eddie Wilson appeals from the
District Court‟s denial of his habeas petition. Wilson is
currently detained in a federal facility located in West
Virginia and is serving an aggregate sentence comprised of
sentences that were imposed under the D.C. Code and the
U.S. Code.1 At the time of filing his petition, Wilson was
1
The D.C. Code permits “the Attorney General of the
United States [to] assign a defendant sentenced to prison for a
violation of the D.C.Code to . . . a federal facility,” and “if a
prisoner assigned to a federal facility is serving sentences for
both U.S. and D.C.Code offenses, the Bureau of Prisons is
required to aggregate his various terms of imprisonment into
2
a single sentence for administrative purposes” pursuant to 18
U.S.C. § 3584. Boone v. Menifee, 387 F. Supp. 2d 338, 346
(S.D.N.Y. 2005). The resulting method for calculating parole
is unique, as the U.S. District Court for the District of
Columbia explained in a proceeding related to this case:
When the Commission
considers for parole “prisoners
serving any combination of U.S.
and D.C. Code sentences that
have been aggregated by the U.S.
Bureau of Prisons” (BOP), the
Commission is directed by
regulation to “apply the guidelines
at [28 C.F.R.] § 2.20 to the
prisoner‟s U.S. Code crimes, and
the guidelines of the District of
Columbia Board of Parole to the
prisoner's D.C. Code crimes.” 28
C.F.R. § 2.65(a)-(b) (2010).
Although the process is thus
bifurcated, parole consideration is
nonetheless made “on the basis of
a single parole eligibility and
mandatory release date on the
aggregate sentence” and “every
decision made by the
Commission, including the grant,
denial, and revocation of parole,
is made on the basis of the
aggregate sentence.” Id. §
2.65(a).
3
incarcerated in a federal penitentiary in Allenwood,
Pennsylvania.
In his petition, Wilson alleged that respondent-appellee
the United States Parole Commission (Commission) had
violated his constitutional rights under the Due Process and
Ex Post Facto Clauses by denying him parole and refusing to
set a presumptive release date. We hold that Wilson must
obtain a Certificate of Appealability (COA) to proceed with
this appeal, and we deny his request for issuance of such a
Certificate. Accordingly, we will dismiss Wilson‟s appeal for
lack of jurisdiction.
I.
In 1977, Wilson was convicted of first-degree murder
and armed assault in the Superior Court of the District of
Columbia. He was sentenced to a term of twenty-eight years
to life imprisonment under the D.C. Code. In 1987, while
serving his D.C. Code sentence in a federal facility, Wilson
was convicted for possession with intent to distribute a
Schedule IV controlled substance in violation of 18 U.S.C. §
4205, for which he received a three-year sentence. He was
also found not guilty of a corresponding charge for possession
of a knife. In 2001, Wilson‟s D.C. Code sentence was
aggregated with his U.S. Code sentence in accordance with
Chatman-Bey v. Meese, 797 F.2d 987 (D.C. Cir. 1986),
Wilson v. Fullwood, ___ F. Supp. 2d ___, 2011 WL 1113361,
at *2 (D.D.C. 2011) (footnote omitted ).
4
vacated on other grounds, 864 F.2d 804 (D.C. Cir. 1988).2
Since 2003, Wilson has been engaged in litigation
2
Chatman-Bey prescribed the mechanics of
aggregation as follows :
Whether consecutive sentences
are imposed solely under the U.S.
Code, or under the federal Code
and the D.C. Code, all should be
added together to arrive at a single
aggregate sentence. But because
the D.C. Code “otherwise
provides,” the 10-year cap [on
parole ineligibility] indicated in
18 U.S.C. § 4205(a) [is] not . . .
dispositive when a D.C. Code
sentence is implicated. Rather,
the prisoner . . . remain[s]
ineligible for parole until he
complete[s] service of time
equivalent to the minimum D.C.
Code sentence or sentences.
...
. . . [W]e hold that 1) the same full
aggregation approach must be
used in calculating the parole
eligibility date of persons
incarcerated in federal
penitentiaries, whether under U.S.
Code sentences or both U.S. Code
5
challenging the Commission‟s determinations concerning his
parole. 3
Wilson, acting pro se, filed a 28 U.S.C. § 2241 petition
with the U.S. District Court for the Middle District of
Pennsylvania on September 20, 2006. He alleged that the
Commission had 1) violated his due process rights in 2004
and 2005 by arbitrarily denying him parole and by retaliating
for his success in prior litigation to have certain disciplinary
enhancements removed, and 2) violated the U.S.
Constitution‟s Ex Post Facto Clause by failing to set a parole-
release date within his guidelines range, as required under the
version of the Sentencing Reform Act (SRA) in effect when
his U.S. Code sentence was imposed.
While the petition was pending before the District
Court, on June 3, 2008, the Commission again denied Wilson
and D.C. Code sentences, but that
2) persons sentenced for D.C.
Code offenses must serve time at
least equal to the minimum D.C.
Code term or terms before they
may be considered for parole.
797 F.2d at 993-94.
3
We have summarized the remainder of Wilson‟s
background information in an earlier stage of these
proceedings. Wilson v. Reilly, 163 F. App‟x 122 (3d Cir.
2006). We include here only those facts that are germane to
this appeal.
6
parole and scheduled a reconsideration hearing for April
2011.
By memorandum and order dated February 11, 2010,
the District Court denied the petition, reasoning that 1) the
Commission had a rational basis for denying Wilson parole
(i.e., the “unusual circumstances” of his offenses) and 2)
Wilson was not entitled to benefit from the release-date
guarantee under the earlier version of the SRA because the
Commission applied D.C. Code regulations, not the current
SRA, in declining to set a parole date. The District Court also
denied Wilson‟s request for a COA, explaining that a
petitioner who is in custody “by virtue of a District of
Columbia” judgment is considered a state prisoner needing a
COA, and that Wilson had not made the threshold showing
for issuance of such a Certificate.
Wilson requested a COA from this Court under 28
U.S.C. § 2253(c)(1). On October 26, 2010, this Court
referred the request to a merits panel, appointed counsel for
Wilson, and instructed that, “[i]n addition to the merits of the
appeal, counsel for appellant is directed to address the
question of whether a [COA] is required for this appeal, to the
extent that the habeas petition challenges a parole decision
regarding a federal sentence.”
II.
As a “jurisdictional prerequisite” to appealing from a
denial of a habeas petition, a state prisoner “must first seek
and obtain a COA from a circuit justice or judge.” Miller-El
v. Cockrell, 537 U.S. 322, 335-36 (2003); see also Morris v.
Horn, 187 F.3d 333, 339 (3d Cir. 1999) (“A habeas petitioner
7
seeking to appeal must obtain a [COA] in order for the court
of appeals to have jurisdiction.” (citations omitted)).
Congress established the COA requirement as “[t]he primary
means of separating meritorious from frivolous appeals” that
would “delay[] the States‟ ability to impose sentences.”
Barefoot v. Estelle, 463 U.S. 880, 892-93 (1983). The COA
requirement is codified at 28 U.S.C. § 2253, which provides
in relevant part:
Unless a circuit justice or judge
issues a certificate of
appealability, an appeal may not
be taken to the court of appeals
from--
(A) the final order in a
habeas corpus proceeding
in which the detention
complained of arises out of
process issued by a State
court; or
(B) the final order in a
proceeding under section
2255 [for correcting
erroneous sentences].
Id. § 2253(c)(1). The question here is whether Wilson‟s
detention pursuant to his aggregated D.C. Code/U.S. Code
sentence (hereafter “mixed sentence”) “arises out of process
issued by a State court.”
8
It is settled law that “a court of the District [of
Columbia] is a state court for purposes of section 2253(c),”
and thus “a prisoner arrested or convicted pursuant to process
or judgment of the courts of the District must obtain a COA.”
Madley v. U.S. Parole Comm‟n, 278 F.3d 1306, 1308, 1310
(D.C. Cir. 2002). As the D.C. Circuit observed in Madley,
The federal seat of government is
constitutionally different from the
states, but Congress has created a
trial and appellate court system of
general jurisdiction for the
District separate from the United
States courts (of which we are a
part) and intended to serve the
District in much the same manner
as the court systems of the various
states and other large municipal
entities.
Id. at 1308. In several non-precedential opinions, this Court
has repeatedly endorsed Madley‟s holding that a prisoner
incarcerated for D.C. Code violations is considered a state
prisoner who must obtain a COA. See, e.g., Robinson v.
Reilly, 340 F. App‟x 772, 773 (3d Cir. 2009); Graves v. Holt,
303 F. App‟x 121, 123 (3d Cir. 2008); Keitt v. U.S. Parole
Comm‟n, 238 F. App‟x 755, 758 (3d Cir. 2007). We again
hold, in light of Madley, that prisoners serving D.C. Code
offenses must obtain a COA to appeal denial of their habeas
petitions.4
4
The D.C. Court of Appeals‟ decision in Taylor v.
Washington, 808 A.2d 770 (D.C. 2002), does not undercut
9
The more complex question -- and one for which we
have not found direct precedent -- is whether a petitioner such
as Wilson, whose D.C. Code sentence was aggregated with
his U.S. Code sentence, is still considered to be subject to
detention that “arises out of process issued by a State court”
for the purposes of § 2253(c)(1)(A)‟s COA requirement. We
conclude that the aggregation of Wilson‟s D.C. Code
sentence with his U.S. Code sentence, which Wilson received
while serving his D.C. Code sentence, does not alter our
analysis under § 2253(c)(1).
In Coady v. Vaughn, 251 F.3d 480, 486 (3d Cir.
2001), we held that a state prisoner objecting to a decision by
the parole board must obtain a COA because he was
challenging “his continued detention, which resulted initially
from a state court judgment.” Even though the parole board‟s
decision was “neither „process‟ nor „issued by a State court,‟”
we looked to the underlying basis for the prisoner‟s initial
detention to determine whether a COA was necessary. Id.
Madley‟s reasoning. The holding of Taylor -- that D.C.
courts have no jurisdiction to entertain certain D.C. Code
offenders‟ habeas petitions, according to the D.C. Code‟s
habeas provision, id. at 772-73 -- signaled only that D.C.
courts do not mirror state courts in every respect, a fact which
the Madley court had already acknowledged. See Madley,
278 F.3d at 1308. Indeed, Madley emphasized that the
question of whether statutory reference to a “State”
encompasses the District of Columbia depends on the
particular statute, and held that in the context of § 2253(c)(1),
the term “State” includes the District of Columbia. Id.
10
Other courts of appeals that have considered the same
issue have similarly construed § 2253(c)(1)(A)‟s COA
requirement as pivoting on whether the initial basis for the
detention complained was a State court judgment or process,
even when the prisoner is only challenging a decision of the
prison board. Medberry v. Crosby, 351 F.3d 1049, 1063
(11th Cir. 2003); Madley, 278 F.3d at 1310; Greene v. Tenn.
Dep‟t of Corr., 265 F.3d 369, 372 (6th Cir. 2001); Montez v.
McKinna, 208 F.3d 863, 869 (10th Cir. 2000); see also
Hayward v. Marshall, 603 F.3d 546, 553-54 (9th Cir. 2010)
(en banc), abrogated on other grounds by Swarthout v.
Cooke, 131 S.Ct. 859 (2011). But see Walker v. O‟Brien,
216 F.3d 626, 638 (7th Cir. 2000) (concluding COA was not
required because “prisoner‟s administrative detention” was
not “something that arises from process issued by the state
court”).
Although Coady and cases of its ilk interpreted the
language of § 2253(c)(1)(A) in a slightly different context --
specifically, in determining whether prison-board
administrative decisions “arose out of process issued by a
State court” -- their approach informs the inquiry here. In
determining whether a COA is required under §
2253(c)(1)(A), a court must ask whether the prisoner‟s
detention originated from a state court conviction and/or
sentence, even when the prisoner is objecting to a subsequent
disciplinary or parole-related decision that is distinct from the
judgment of conviction.
In view of Coady‟s construction of § 2253(c)(1)(A),
we hold that Wilson was required to obtain a COA before this
court could entertain his habeas petition. The reason for
11
Wilson‟s initial detention was the judgment of conviction
issued by a D.C. court, which, as discussed above, is
considered “process issued by a State court” pursuant to §
2253(c)(1)(A). Wilson committed, and was sentenced for, his
U.S. Code violation while imprisoned for his D.C. Code
offenses -- meaning that, for the purposes of our analysis, his
federal offense and sentence “arose out” of his D.C.
sentence.5 Similarly, the Commission‟s refusals to grant
5
That said, we reject the Government‟s
characterization of a mixed sentence as arising exclusively
out of D.C. (and thus, state) process for the purposes of §
2253. The Government, citing Chatman-Bey, argues that a
mixed sentence effectively operates as a D.C. Code sentence,
and thus, “Wilson‟s current incarceration must be viewed as
purely a result of his D.C. Code 28 years-to-life sentence.”
(Gov‟t‟s Br. at 21.) In Chatman-Bey, the D.C. Circuit held
that the D.C. Code and U.S. Code sentences of a prisoner
detained in a federal facility should be treated as a single
aggregate sentence, but that in calculating the prisoner‟s
parole eligibility date, the prisoner would need to serve the
minimum term prescribed for his D.C. Code offense -- no
matter how long -- despite the U.S. Code mandate that the
prisoner be parole-eligible after ten years. 797 F.2d at 993-
94.
Since Chatman-Bey, numerous authorities have
emphasized -- contrary to the Government‟s position here --
that mixed sentences are not simply treated as D.C. Code
sentences; rather, their hybridity is preserved. E.g., Thomas
v. Brennan, 961 F.2d 612, 615 (7th Cir. 1992) (“[W]hatever
aggregation means, it is partial rather than complete . . . [T]he
Commission must apply D.C. parole regulations to the D.C.
12
Wilson parole and to set a parole release date -- whether
viewed as decisions related to just Wilson‟s D.C. Code
sentence or to both his D.C. Code and U.S. Code sentences --
are determinations incident to Wilson‟s continuing detention
for his original D.C. Code offense, and thus, “aris[e] out of
process issued by State court.”6 As a consequence, Wilson
needs a COA to sustain his appeal.
portion of mixed sentences and federal parole regulations to
the federal portion.”); id. at 618.
Thus, it is clear that the U.S. Code component of a
mixed sentence is not subsumed by its corresponding D.C.
Code component. Instead, a mixed sentence, which is
partially governed by federal parole regulations, is clearly
distinct from -- not equivalent to -- a pure D.C. Code
sentence. By the same token, the converse position that
Wilson espouses -- that a mixed sentence‟s D.C. Code
component is swallowed by its U.S. Code component -- is
likewise untenable.
6
Wilson concedes as much in his appellate brief,
relating that he is “in custody by virtue of a District of
Columbia judgment.” (Appellant‟s Br. at 6.). Additionally, it
is telling that when the Commission offered reasons for
denying Wilson‟s parole in 2004 and 2005 -- the decisions
that Wilson challenges in his petition -- it referred exclusively
to his D.C. court convictions, without once mentioning his
U.S. Code violation. (A61-64, 67-71.)
13
III.
In deciding whether to issue a COA, we review a
habeas petition to determine whether the “petitioner has made
a substantial showing of the denial of a constitutional right,”
meaning that “reasonable jurists could debate whether (or, for
that matter, agree that) the petition should have been resolved
in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.”
Miller-El, 537 U.S. at 336 (citation and internal quotation
marks omitted). Wilson alleges violations of his
constitutional rights under the Due Process Clause and Ex
Post Facto Clause.
A.
Wilson‟s due process claim is premised on his
allegation that the Commission denied his parole in 2004 and
again in 2005 for arbitrary and vindictive reasons.
Specifically, he alleges that even though the Commission
found in 2001 that “a decision outside the Total Guidelines
range . . . is not warranted” (meaning that he could be parole-
eligible within his guidelines range), it altered its stance in
2004, recommending that Wilson‟s parole-eligibility date
should be above the guidelines range since he was “a more
serious risk” than the base offense score for his 1975 crimes
indicated. The Commission ratified the 2004 finding in its
2005 decision to deny Wilson parole. Wilson argues that the
shift in argument for denying him parole evinces that the
Commission was inventing reasons to justify his continued
detention, and suggests that the Commission acted in
retaliation for his success in getting his disciplinary
enhancements removed through litigation.
14
Wilson‟s due process claim fails, substantially for the
reasons expressed by the District Court. The Commission
had found in 2001 that Wilson “poses a more serious risk”
due to the violent nature of his offenses. At that time, the
Commission determined that a parole-eligibility date above
the guidelines range was not warranted only because Wilson
had not yet reached his minimum guideline range -- at which
point his parole date could be “better assessed” -- and not
because he was perceived as anything other than a serious
parole risk.
In 2004, once Wilson had served the minimum
guidelines term, the Commission was in a suitable position to
gauge Wilson‟s eligibility for parole, and concluded,
consistent with its 2001 finding of risk, that parole within the
Guidelines range was inappropriate. It reached that decision
on the basis of the relevant D.C. Code criteria for setting a
parole date above the guidelines for “[m]ore serious parole
risks[],” e.g., his “[u]nusual cruelty to the victim” (he
kidnapped and raped female victims -- one a minor -- and
sodomized a male victim with a lightbulb) and “[u]nusual
propensity to inflict unprovoked and potentially homicidal
violence” (he was involved in two murders). See 28 C.F.R. §
2.80(n)(2)(ii)(C)-(D).
Accordingly, the 2004 and 2005 decisions to deny
parole, which the Commission reached upon considering the
germane parole factors, were neither arbitrary nor capricious.
Nor, for that matter, can the decisions be construed as
vindictive, since Wilson‟s disciplinary enhancements were
removed only after the Commission issued its 2004 decision,
which the 2005 decision mirrored in all relevant respects. As
15
such, Wilson has not made a substantial showing that the
Commission violated his due process rights.
B.
Wilson also alleges that the Commission violated the
Ex Post Facto Clause by denying him a parole-release date
within his guidelines range, as required under the version of §
235(b)(3) of the SRA that was in effect when his U.S. Code
sentence was imposed. In Lyons v. Mendez, 303 F.3d 285,
293 (3d Cir. 2002), we held that prisoners who committed
U.S. Code crimes between the time of the SRA‟s enactment
in 1984 and § 235(b)(3)‟s amendment in 1987 were entitled
to parole release date within the guidelines range, even
though the 1987 amendment authorized the Commission to
set release dates beyond the guidelines range. We specified
that “the retroactive application of the 1987 amendment to
lengthen [the appellant‟s] punishment was unconstitutional
under the ex post facto clause.” Id. at 292.
Here, as the District Court properly noted, the
Commission did not rely on the post-1987 version of the SRA
to deny Wilson a parole date within the guidelines range.
Rather, the Commission applied the relevant D.C. Code
parole guidelines, which -- both at the time of the parole
hearings and at the time that Wilson‟s D.C. Code sentence
was imposed -- vested the overseeing parole board with
discretion to set a parole date above the guidelines range. See
Wilson, ___ F. Supp. 2d ___, 2011 WL 1113361, at *3-5.
The Commission appropriately considered only the D.C.
Board of Parole criteria, as opposed to the SRA‟s parole
provisions for U.S. Code sentences, because Wilson was
considered “D.C. Parole Eligible.” 28 C.F.R. § 2.65(b), (e).
16
As the Commission had no occasion to consider whether
parole was appropriate under the SRA, Wilson‟s ex post facto
claim resting on Lyons cannot be sustained.
IV.
We hold that Wilson was required to obtain a COA
before his appeal could be heard, and that he has not made the
necessary showing of constitutional violations that would
justify issuance of a COA. Therefore, we deny his request for
a COA and dismiss his appeal for lack of jurisdiction.
17