United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 11, 2005 Decided January 6, 2006
No. 03-5359
THADDEUS A. FLETCHER,
APPELLANT
v.
EDWARD F. REILLY, JR.,
CHAIRMAN, UNITED STATES PAROLE COMMISSION AND
DENNIS HARRISON, WARDEN, D.C. DEPARTMENT OF
CORRECTIONS, CENTRAL FACILITY,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 01cv02058)
Timothy P. O’Toole argued the cause and filed the briefs for
appellant. Catharine F. Easterly entered an appearance.
John P. Mannarino, Assistant U.S. Attorney, argued the
cause for appellee Edward F. Reilly, Jr. With him on the brief
were Kenneth L. Wainstein, U.S. Attorney, John R. Fisher,
Assistant U.S. Attorney at the time the brief was filed, and
Robert D. Okun and Roy W. McLeese, III, Assistant U.S.
Attorneys.
2
Robert J. Spagnoletti, Attorney General, Office of Attorney
General for the District of Columbia, Edward E. Schwab,
Deputy Attorney General, and Mary L. Wilson, Senior Assistant
Attorney General, were on the brief of appellee Dennis
Harrison.
Before: GINSBURG, Chief Judge, ROGERS, Circuit Judge,
and Edwards,* Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
EDWARDS, Senior Circuit Judge: The National Capital
Revitalization and Self-Government Improvement Act of 1997
transfers responsibility for the imprisonment of all felons
convicted under the District of Columbia (“D.C.”) Code from
the city to the federal government. The Act also transfers
authority over parole and reparole decisions from the District of
Columbia Board of Parole (“Board”) to the United States Parole
Commission (“Commission”). Pursuant to the Act, the
Commission promulgated new federal regulations to replace the
Board’s parole and reparole regulations covering D.C. Code
offenders. The D.C. Board’s regulations had been importantly
different from the federal parole/reparole regulations, because
the Board had placed significant weight on post-incarceration
behavior, including rehabilitative accomplishments, in making
release determinations. Taking this difference into account, the
new federal regulations adopted by the Commission mirrored
the rehabilitative focus of the Board’s former regulations
covering parole. The Commission, however, did not adopt the
Board’s regulations covering decisions to grant reparole to D.C.
Code offenders.
*
Senior Circuit Judge Edwards was in regular active service
at the time of oral argument.
3
The difference between the Commission’s new regulations
governing parole and reparole for D.C. Code offenders is at the
heart of this appeal from the District Court’s dismissal of
Thaddeus Fletcher’s petition for a writ of habeas corpus.
Fletcher’s petition alleges, inter alia, that the Commission’s
retroactive application of the new federal regulations during his
reparole hearing in 2000 violated the Ex Post Facto Clause of
the United States Constitution, U.S. Const. art. I, § 9, cl. 3, and
entitles him to habeas relief. We agree with Fletcher that the
District Court erred in dismissing his petition.
Fletcher was convicted of a felony under the D.C. Code in
1980, and was subsequently released on parole by the Board. In
1998, during the period when authority over D.C. Code
offenders was in the process of being transferred to the
Commission, the Board revoked Fletcher’s parole after he was
convicted of a new felony in Maryland. By the time Fletcher
came up for reparole in 2000, the Commission had assumed all
responsibility for the parole and reparole of felons convicted
under the D.C. Code. In considering Fletcher’s case for
reparole, the Commission applied the new federal regulations,
not the displaced D.C. Board regulations. This meant that, in
accordance with the federal regulations, because Fletcher’s
parole had been revoked for an offense that was not a D.C. Code
offense, the Commission declined to consider his post-
incarceration behavior, such as rehabilitative accomplishments,
in weighing his entitlement to reparole. Fletcher claims that his
rehabilitative accomplishments would have been taken into
account under the D.C. Board’s regulations for reparole.
Fletcher’s pro se habeas petition alleges, among other
things, that the retroactive application of the federal reparole
regulations, rather than the Board’s regulations, during his 2000
reparole hearing, created a significant risk of increased
punishment, and is thus an unconstitutional ex post facto law.
The District Court denied Fletcher’s habeas petition. Appellant
4
appears before us seeking a reversal, and a remand with
instructions that he is entitled to “sufficient discovery” to
support his efforts to demonstrate that, as applied to him, the
federal regulations, in their practical operation, create a
significant risk of increased punishment.
In dismissing Fletcher’s habeas petition, the District Court
assumed that parole/reparole regulations are not “laws” for ex
post facto purposes. We squarely rejected this position.
Fletcher v. District of Columbia, 391 F.3d 250, 251 (D.C. Cir.
2004) (“Fletcher II”), granting reh’g and vacating in part, 370
F.3d 1223 (“Fletcher I”). Fletcher II makes it clear that, under
Garner v. Jones, 529 U.S. 244 (2000), the critical question in ex
post facto challenges to retroactively applied parole/reparole
regulations is whether, as a practical matter, the retroactive
application creates a significant risk of prolonging an inmate’s
incarceration. We must remand this case to afford the District
Court an opportunity to review Fletcher’s petition under this
analytical framework.
It appears that the District Court also may have read
Fletcher’s petition too narrowly, countenancing only Fletcher’s
claim that the retroactive application of the federal regulations
would delay the date on which he became eligible for reparole.
Fairly construed, Fletcher’s habeas petition alleges a stronger
claim. He asserts that the federal reparole regulations, unlike the
Board’s former regulations, are primarily concerned with
punishment and recidivism, and do not factor evidence of post-
incarceration rehabilitation into reparole determinations. This
difference, he argues, creates a significant risk that he will linger
in prison for longer than he reasonably assumed when his parole
was revoked, because he will not be granted reparole under the
new federal regulations. Fletcher has presented a viable claim
which is entitled to fair consideration. The decision of the
District Court is therefore reversed, and the case remanded for
further proceedings consistent with this opinion.
5
(The parties and the case law make reference to
“regulations,” “rules,” and “guidelines,” interchangeably, in
discussing the Board’s and the Commission’s parole/reparole
regimes. These labels are insignificant to our disposition of this
appeal.)
I. BACKGROUND
A. Changes to Parole and Reparole Regulations for D.C.
Code Offenders
In 1997, Congress transferred responsibility for the
imprisonment of all felons convicted under the D.C. Code from
the District of Columbia to the federal government. National
Capital Revitalization and Self-Government Improvement Act
of 1997 (“Revitalization Act” or the “Act”), Pub. L. No. 105-33,
111 Stat. 712, 734-37 (codified at D.C. CODE §§ 24-101 et seq.
(2001 & Supp. 2005)). As part of the Revitalization Act,
Congress transferred authority over “any imprisoned felon who
is eligible for parole or reparole under the [D.C.] Code” from the
D.C. Board of Parole to the U.S. Parole Commission. § 11231,
111 Stat. at 745. The U.S. Parole Commission was required to
begin the process of assuming its new jurisdiction by August 5,
1998. Id. The Act provided that the D.C. Board of Parole
would be abolished once the transfer of authority to the
Commission was completed. Id.
Under the Act, the Commission is vested with “exclusive
authority to amend or supplement any regulation interpreting or
implementing the parole laws of the District of Columbia with
respect to felons, provided that the Commission adheres to
[statutory] rulemaking procedures.” Id. In 1998 and 2000, the
Commission undertook two rounds of rulemaking which
resulted in the regulations applied by the Commission at
Fletcher’s reparole hearing in 2000.
Prior to the Commission’s adoption of new regulations,
parole and reparole determinations for D.C. Code offenders
6
were guided by the D.C. Board’s regulations. See D.C. MUN.
REGS. tit. 28, §§ 100 et seq. (1987) (repealed Aug. 5, 2000).
Under these regulations, a person whose parole was revoked
“based on one or more new felony charges or convictions” was
entitled to an initial reparole hearing within nine to twenty-four
months depending on the number of years remaining on the
maximum sentence. D.C. MUN. REGS. tit. 28, § 104.8-104.9.
The Board, however, reserved its discretion to “order a parole
reconsideration date it determine[d] to be appropriate.” D.C.
MUN. REGS. tit. 28, § 104.11.
At D.C. Board reparole hearings, release decisions were
based on the same criteria used in connection with parole
determinations. D.C. MUN. REGS. tit. 28, § 204.1. To
“determin[e] whether an incarcerated individual [would] be
paroled or reparoled,” the D.C. Board employed an analytic
framework that relied on both “pre and post-incarceration
factors.” Id. The Board would first consider the following pre-
incarceration factors: prior convictions and adjudications, prior
commitments of more than 30 days, age at commission of
current offense, recent commitment-free period, status of
prisoner at time of current offense, and history of heroin or
opiate dependence. D.C. MUN. REGS. tit. 28, § 204.4-204.16.
The pre-incarceration factors were then weighed by a formula to
determine the candidate’s risk category, called a “salient factor
score.” D.C. MUN. REGS. tit. 28, § 204.17 & Appendix 2-1. The
Board would then consider pre- and post-incarceration factors
to determine whether the candidate should be reparoled. D.C.
MUN. REGS. tit. 28, § 204.18. Two post-incarceration factors in
particular were important: institutional behavior and “sustained
achievement in the area of prison programs, industries, or work
assignments while under confinement for the current offense.”
D.C. MUN. REGS. tit. 28, § 204.18(h)-(i). These factors, along
with a second set of pre-incarceration factors, were then
integrated into a calculus to produce a point score which
constrained the Board’s discretion in making final reparole
7
determinations. See D.C. MUN. REGS. tit. 28, § 204.19 &
Appendix 2-1. The regulations allowed for discretionary
departures from the point score “in unusual circumstances.”
D.C. MUN. REGS. tit. 28, § 204.22. Finally, the regulations
provided that, “[i]n general, the Board shall not grant parole
unless the prisoner has substantially observed the rules of the
institution in which he or she is confined.” D.C. MUN. REGS. tit.
28, § 205.1. At rehearings, the Board would take the original
“total point score from the initial hearing and adjust that score
according to the institutional record of the candidate since the
last hearing pursuant to Appendix 2-2.” D.C. MUN. REGS. tit.
28, § 204.21.
The D.C. Board’s regulations plainly evidence a
rehabilitative focus in making parole and reparole
determinations. Post-incarceration factors were formally
integrated into release determinations. This is different from the
current federal regulations’ singular focus on pre-incarceration
factors. See Cosgrove v. Thornburgh, 703 F. Supp. 995, 1003-
04 (D.D.C. 1998) (finding that the Board utilized both pre-
incarceration and post-incarceration factors in making parole
suitability determinations, whereas “[t]he Commission uses only
two pre-incarceration factors, thus de-emphasizing any
rehabilitative results from incarceration”). The U.S. Parole
Commission recognized this difference when it undertook
rulemaking in advance of taking over the D.C. Board’s authority
in 1998.
Acknowledging that “the parole function for D.C. Code
offenders rests on a premise somewhat different from that of the
federal parole guidelines,” the Commission passed its interim
parole regulations, choosing to incorporate the rehabilitative
factors of the D.C. Board’s regulations. See Paroling,
Recommitting, and Supervising Federal Prisoners: Prisoners
Serving Sentences Under the District of Columbia Code
(“Interim Parole Regulations”), 63 Fed. Reg. 39,172, 39,174
8
(proposed July 21, 1998) (codified at 28 C.F.R. §§ 2.70-2.90
(1999)) (citing Cosgrove, 703 F. Supp. at 1004 n.6); see 28
C.F.R. §§ 2.73, 2.80 (1999). No such modifications were made
in the regulations governing decisions to grant reparole when the
new offense for which parole was revoked was not a D.C. Code
offense. Interim Parole Regulations, 63 Fed. Reg. at 39,175; see
28 C.F.R. § 2.87 (1999). In other words, the federal regulations
for reparole apply when a D.C. Code offender’s parole is
revoked based on an offense that was not a D.C. Code offense.
Id. The federal reparole regulations only consider offense and
offender characteristics. See 28 C.F.R. § 2.20 (1999) (federal
parole framework incorporated into reparole analysis by 28
C.F.R. § 2.21). The interim regulations went into effect on
August 5, 1998. See Interim Parole Regulations, 63 Fed. Reg.
at 39,175.
In 2000, the Commission’s interim rules were partially
modified and then promulgated as final rules. The final rules
took effect on August 5, 2000. See Paroling, Recommitting, and
Supervising Federal Prisoners: Prisoners Serving Sentences
Under the District of Columbia Code (“Final Parole
Regulations”), 65 Fed. Reg. 45,885 (proposed July 26, 2000)
(codified at 28 C.F.R. §§ 2.70-2.107 (2001)). The final rules
specified the Commission’s special reparoling procedures for
prisoners serving a new, parolable D.C. Code sentence, but
otherwise made no changes to its general presumption that
reparole determinations would be based on the federal reparole
regulations. Id. at 45,894; see 28 C.F.R. § 2.81 (2001). The
final regulations “apply to all prisoners and parolees . . . who are
serving sentences under the District of Columbia Code for
felony crimes committed prior to August 5, 2000.” Final Parole
Regulations, 65 Fed. Reg. at 45,887.
In 2001, the Commission undertook a final round of
rulemaking in relation to its reparole provision for D.C. Code
offenders. The new amendment clarified the Commission’s
9
authority in subsequent review hearings to make findings of fact
regarding issues not resolved by the D.C. Board of Parole at an
initial revocation hearing. See Paroling, Recommitting, and
Supervising Federal Prisoners: Prisoners Serving Sentences
Under the District of Columbia Code (“Reparole Amendment”),
66 Fed. Reg. 37,136 (proposed July 17, 2001) (codified at 28
C.F.R. § 2.81 (2005)). This, in the Commission’s view,
enhanced its ability to properly determine suitability for reparole
under the federal regulations and addressed situations where the
Board had revoked parole based on administrative charges
sufficient to warrant revocation and return to prison, but without
reaching more serious criminal charges. Id. The amended
reparole provisions were made “fully retroactive to all reparole
decisions of the Commission from August 5, 1998, forward, and
shall apply to all reparole decisions made by the Commission in
the future with respect to offenders whose paroles were revoked
by the D.C. Board of Parole.” Id. at 37,137.
B. Thaddeus Fletcher – Reparole
Fletcher is serving a sentence imposed by the District of
Columbia Superior Court. He was convicted of rape in 1980,
and sentenced to a term of 12 to 36 years in prison. Fletcher v.
Reilly, CA No. 01-2058, 2003 U.S. Dist. LEXIS 26412, at *1
(D.D.C. Nov. 24, 2003). The D.C. Board released Fletcher on
parole in 1990 but revoked that parole in 1998. Id. at *1-2.
Although the Board’s paroling and reparoling authority over
eligible District of Columbia prisoners had already passed to the
U.S. Parole Commission, the Board retained jurisdiction to
supervise parolees until August 5, 2000. Reparole Amendment,
66 Fed. Reg. at 37,136. In October of 1998, the Board revoked
Fletcher’s parole and ordered that a reparole hearing would be
conducted by August 2000. Fletcher, 2003 U.S. Dist. LEXIS
26412, at *2. The most important ground supporting the
Board’s revocation order was Fletcher’s Maryland conviction.
See U.S. Parole Commission’s Opposition to Petition for Habeas
10
Corpus, Exhibits G & H, Fletcher v. Reilly, CA No. 01-2058
(D.D.C. Nov. 24, 2003).
When Fletcher’s reparole hearing was held in November
2000, the Commission had assumed all of the responsibilities of
the D.C. Board of Parole. See Reparole Amendment, 66 Fed.
Reg. at 37,136. In considering Fletcher’s case, the Commission
applied the federal reparole regulations, as amended in August
2000. After determining that Fletcher’s salient factor score was
five and the severity of his offense fell into Category Eight, the
Commission set a presumptive parole date of October 29, 2010.
Fletcher, 2003 U.S. Dist. LEXIS 26412, at *2-3; U.S. Parole
Commission’s Opposition to Petition for Habeas Corpus,
Exhibits I & J (“Ex. I” & “Ex. J”), Fletcher v. Reilly, CA No.
01-2058 (D.D.C. Nov. 24, 2003).
Neither the salient factor score nor the offense severity
category takes into account Fletcher’s post-incarceration
behavior. See 28 C.F.R. §§ 2.81, 2.21, 2.20 (2001). The
Commission acknowledged that Fletcher had received a B.A. in
Urban Studies from the University of the District of Columbia
and that he was working as a clerk in the “Metro Shop” and a
supervisor in the “Fabric Industry.” However, neither of these
rehabilitative accomplishments, nor Fletcher’s completion of
various life-skills and psychological programs, were formally
weighed by the Commission in its reparole decision. See Ex. I,
supra, at 3-4; Ex. J, supra, at 1. In other words, Fletcher’s post-
incarceration behavior did not factor into the assessment of
either his reparole eligibility – i.e., the earliest date an inmate
may be considered for reparole – or his reparole suitability – i.e.,
whether the inmate is in fact a good candidate for release. As
noted above, the reparole regulations have been amended since
Fletcher’s reparole hearing in 2000. See 28 C.F.R. § 2.81
(2005). The new changes, however, do not affect Fletcher’s
claim in any material way.
11
C. Procedural History
On September 27, 2001, Fletcher filed a petition for a writ
of habeas corpus in the United States District Court for the
District of Columbia. At the time, he was confined at the Lorton
Correctional Complex in Lorton, Virginia, which was operated
by the District of Columbia Department of Corrections. He
named his immediate custodian, Warden Dennis Harrison, as the
respondent, along with Edward F. Reilly, Jr., Chairman of the
U.S. Parole Commission. Shortly after filing his petition,
Fletcher was transferred to a federal penitentiary in South
Carolina. Pursuant to the Revitalization Act, the Lorton
Correctional Complex was closed in 2001, and the D.C. Board
of Parole was legally extinguished. See D.C. CODE §§ 24-101,
24-131.
Fletcher’s petition asserts, inter alia, an ex post facto claim
based on two theories. He claims that the retroactive application
of the federal reparole regulations adversely affects both his
eligibility and his suitability for reparole. See Petitioner’s
Response to Response Filed by the U.S. Parole Commission at
2, Fletcher v. Reilly, CA No. 01-2058 (D.D.C. Nov. 24, 2003).
Though inartfully pled, the essence of Fletcher’s claim is easily
discernible: the Commission’s retroactive application of the
federal reparole regulations creates a significant risk of
increasing his stay in prison, because the federal regulations
determine the appropriateness of reparole based upon measures
that focus solely on pre-incarceration behavior. By contrast, the
D.C. Board’s reparole regulations placed significant weight on
institutional conduct and rehabilitative accomplishments.
Petition for Writ of Habeas Corpus or in the Alternative for Writ
of Mandamus at 21-22, Fletcher v. Reilly, CA No. 01-2058
(D.D.C. Nov. 24, 2003). Fletcher’s acquisition of a B.A. from
the University of the District of Columbia, for example, would
have been a favorable factor affecting his suitability for reparole
12
under the D.C. Board’s regulations, but it is irrelevant under the
federal regulations.
Procedurally, this case is complicated by the fact that
Fletcher, acting pro se, also raised his ex post facto claim in a
civil rights suit brought under 42 U.S.C. § 1983. See Fletcher
I, 370 F.3d at 1225. At the time of filing, there was substantial
confusion over whether ex post facto parole claims could be
litigated under § 1983 or were only reachable through habeas
corpus. See Wilkinson v. Dotson, 125 S. Ct. 1242, 1248 (2005)
(resolving issue by holding that ex post facto challenges to
retroactive application of parole guidelines do not fall within the
“habeas exception” to § 1983 where a favorable judgment will
not necessarily imply immediate release from confinement or a
shorter prison term). Since the cases were related, Fletcher’s
§ 1983 and habeas cases were both assigned to the same trial
judge.
On July 1, 2002, the District Court dismissed Fletcher’s
§ 1983 lawsuit, ruling that his ex post facto claim must be
brought as a petition for habeas corpus. See Fletcher I, 370 F.3d
at 1226. That judgment was appealed. Meanwhile, the District
Court stayed judgment on Fletcher’s habeas petition, pending
reconsideration of Fletcher’s salient factor score by the
Commission. Fletcher, 2003 U.S. Dist. LEXIS 26412, at *1.
On August 14, 2002, the U.S. Parole Commission acknowledged
an error in its original calculation of Fletcher’s salient factor
score and set a new presumptive parole date in October 2007.
The Commission also set a review hearing for July 2004. Id. at
*3.
On November 24, 2003, the District Court dismissed
Fletcher’s habeas petition. As to Fletcher’s ex post facto claim,
the court observed that, “[a]lthough the question is unsettled, the
weight of authority holds that parole guidelines and rules such
as those at issue in this case, which simply provide guides for
the exercise of discretion, do not constitute ‘laws’ subject to an
13
ex post facto analysis.” Id. at *9. The District Court also noted
that the Commission had given Fletcher a rehearing within two
years, just as the D.C. Board would have done under its reparole
regulations, and that Fletcher had been granted a presumptive
reparole date. Id. at *12. In the District Court’s view, Fletcher
had failed to show that he was adversely affected by the
retroactive application of the federal regulations. The court also
dismissed Fletcher’s petition as to Warden Harrison on the
ground that the issues in the petition only address actions taken
by the U.S. Parole Commission. Id. at *16 n.8.
Fletcher filed a timely notice of appeal. The District Court
granted a certificate of appealability for the ex post facto claim,
finding that Fletcher had made a substantial showing of the
denial of a constitutional right, one that reasonable jurists could
debate, because it is unsettled as to whether parole regulations
can constitute ex post facto laws. Fletcher v. Reilly, CA No. 01-
2058, Order Granting Certificate of Appealability (D.D.C. Jan.
9, 2004).
The appeal here was held in abeyance pending the
resolution of Fletcher’s appeal of the District Court’s dismissal
of his § 1983 claim. On November 19, 2004, this court reversed
the District Court’s dismissal of Fletcher’s § 1983 claim and
remanded the case for further proceedings consistent with
Garner. Fletcher II, 391 F.3d at 251. This appeal was then
reactivated. On January 10, 2005, the District Court granted
Fletcher’s motion to stay any further proceedings on his § 1983
claim, pending resolution of this habeas appeal. Fletcher now
contends that it has always been his intention to pursue his ex
post facto claim in a single proceeding.
II. ANALYSIS
A. Jurisdiction
Normally, the only proper defendant in a habeas case is the
petitioner’s “immediate custodian” – that is, the warden of the
14
facility in which the petitioner is incarcerated at the time he files
the habeas petition. Rumsfeld v. Padilla, 542 U.S. 426, 434,
439 (2004); see also Blair-Bey v. Quick, 151 F.3d 1036, 1039
(D.C. Cir.), modified on reh’g in other respects, 159 F.3d 591
(D.C. Cir. 1998) (“When a prisoner seeks to challenge
parole-related decisions, the warden of the prison . . . is the
prisoner’s ‘custodian.’”); Chatman-Bey v. Thornburgh, 864
F.2d 804, 811 (D.C. Cir. 1988) (en banc) (“the proper defendant
in federal habeas cases is the warden” of the facility where
prisoner is incarcerated at the time when he files his petition).
In his petition for habeas, Fletcher named his immediate
custodian, Dennis Harrison, the Warden at the Lorton
Correctional Complex, along with Edward F. Reilly, Jr.,
Chairman of the U.S. Parole Commission. He therefore
complied with the “immediate custodian” rule. Shortly after
filing his petition, however, Lorton was closed pursuant to the
Revitalization Act, and Fletcher was transferred to a federal
penitentiary in South Carolina. “[W]hen the Government moves
a habeas petitioner after [he] properly files a petition naming
[his] immediate custodian, the District Court retains jurisdiction
and may direct the writ to any respondent within its jurisdiction
who has legal authority to effectuate the prisoner’s release.”
Stokes v. U.S. Parole Comm’n, 374 F.3d 1235, 1238 (D.C. Cir.
2004) (quoting Padilla, 542 U.S. at 441 (explaining Ex parte
Endo, 323 U.S. 283 (1944))). The Commission has legal
authority to effectuate Fletcher’s release, so it is a proper
respondent in this case. Indeed, the U.S. Parole Commission has
appeared in this case, responded to the merits of Fletcher’s
claim, and raised no objections on grounds of venue or personal
jurisdiction. See Chatman-Bey, 864 F.2d at 813 (“It is, of
course, elementary that a defense of improper venue or lack of
personal (as opposed to subject matter) jurisdiction is waived
unless the defense is asserted . . . .”).
15
We also note that the Commission, or the United States in
its stead, might have sought to substitute the Warden of the
federal penitentiary in South Carolina where Fletcher is now
incarcerated. In Crawford v. Jackson, 323 F.3d 123 (D.C. Cir.
2003), a case involving circumstances similar to those here, the
court held that it had jurisdiction over a habeas petition properly
filed by a petitioner in custody at the Lorton Correctional
Complex prior to its closure. The United States entered an
appearance in Crawford and advised the court that it waived any
objection to lack of personal jurisdiction, and consented to
“substitute the Warden at FCI Petersburg, Stephen M. Dewalt,
as the custodian of appellant/petitioner Curtis E. Crawford.” Id.
at 126 (internal citations omitted). The same can be done here
when the case is remanded to the District Court if the United
States deems this to be a prudent course. The main point here
is that, because Fletcher named his immediate custodian when
he filed his petition for habeas, and the Commission is within
the jurisdiction of the District Court and has authority to
effectuate Fletcher’s release on reparole, the District Court has
jurisdiction to consider Fletcher’s habeas petition.
Because complaints by D.C. Code offenders about detention
resulting from decisions of a parole board are complaints
regarding a detention “aris[ing] out of process issued by a State
court,” 28 U.S.C. § 2253(c)(1)(A) (2000), this court’s
jurisdiction is limited to the issues certified for appeal, in this
case the District Court’s dismissal of Fletcher’s ex post facto
claim. See Madley v. U.S. Parole Comm’n, 278 F.3d 1306, 1310
(D.C. Cir. 2002).
The District of Columbia, appearing on behalf of appellee
Harrison, takes no position on the merits of Fletcher’s ex post
facto claim, but asks this court to affirm the District Court’s
dismissal of the petition as to Harrison. The petition contains no
allegation of wrongdoing by any District of Columbia officials,
and Harrison is no longer Fletcher’s Warden. Furthermore, the
16
D.C. Board of Parole no longer exists, so Fletcher can obtain no
redress from the District of Columbia. We therefore affirm the
dismissal of Fletcher’s claims against the District of Columbia
defendant. See Fletcher I, 370 F.3d at 1225 n.**.
B. Ex Post Facto Claim
We turn now to the merits. Fletcher argues that the District
Court erred in holding that discretionary parole regulations can
never constitute “laws” for ex post facto purposes. He also
contends that the District Court’s analysis of his claims was
inadequate, because the court did not employ the analytical
framework prescribed by Garner and Fletcher II. Finally, he
contends that the Commission’s retroactive application of the
new federal reparole regulations, rather than the Board’s
regulations, during his 2000 reparole hearing, created a
significant risk of increased punishment, and is thus an
unconstitutional ex post facto law. We agree with Fletcher that
the District Court’s analysis was based on some faulty premises,
so the case must be remanded for further consideration.
First, the District Court erred in its analysis of the Board’s
regulations and the Commission’s regulations. The court
assumed that the Board’s and Commission’s parole/reparole
rules are merely discretionary “guidelines.” Fletcher, 2003 U.S.
Dist. LEXIS 26412, at *11-12. The court then expressed
profound doubts that such “guidelines” are subject to ex post
facto challenges. The District Court acknowledged that the
question was unsettled, but clearly considered the weight of
authority to hold that parole/reparole regulations do not
constitute “laws” subject to an ex post facto analysis. Id. at *9.
Accepting the Government’s position, the District Court was
also under the misconception that since the D.C. Board
exercised discretion in applying the former D.C. parole/reparole
regulations and the Commission exercises like discretion in
applying the federal parole/reparole regulations, there could be
no ex post facto violation. In other words, in the District Court’s
17
view, a mere change in the manner in which discretion is
exercised would not be unconstitutional. Id. at *11-12. The
problem here is that the premises underlying the District Court’s
analysis are erroneous.
As this court held in Fletcher II, Garner “foreclosed [a]
categorical distinction between a measure with the force of law
and guidelines . . . from which [a parole board] may depart in
its discretion.” 391 F.3d at 251 (internal citations and quotation
marks omitted). The labels “regulation” and “guideline” are not
determinative. And the existence of discretion is not dispositive.
The controlling inquiry under Garner is how the Board or the
Commission exercises discretion in practice, and whether
differences between the exercise of discretion in two systems
actually “create[] a significant risk of prolonging [an inmate’s]
incarceration.” Garner, 529 U.S. at 251.
Second, as noted above, it appears that the District Court
construed Fletcher’s habeas petition too narrowly, for the court
countenanced only Fletcher’s claim that the retroactive
application of the federal regulations would delay the date on
which he became eligible for reparole. We find that appellant’s
habeas petition alleges a stronger claim, one that has yet to be
addressed by the District Court.
The District Court read the petition as one exclusively about
eligibility for reparole, and dismissed it on the ground that, if
anything, Fletcher’s eligibility for reparole is more certain under
the new federal regulations than it was under the Board’s former
regulations. Fletcher, 2003 U.S. Dist. LEXIS 26412, at *12.
Appellant’s petition, however, cannot fairly be read so narrowly.
See United States v. Palmer, 296 F.3d 1135, 1143 (D.C. Cir.
2002) (“[A]llegations of pro se motioner, ‘however inartfully
pleaded,’ are subject to ‘less stringent standards than formal
pleadings drafted by lawyers.’”) (summarizing and quoting
Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam)).
Fletcher alleged that the retroactive application of the federal
18
reparole regulations adversely affects both his eligibility and his
suitability for reparole. In particular, Fletcher asserts that the
federal reparole regulations, unlike the Board’s former
regulations, are primarily concerned with punishment and
recidivism and, therefore, the Commission does not account for
evidence of post-incarceration rehabilitation in reparole
determinations. This difference, he argues, creates a significant
risk that he will linger in prison for longer than he reasonably
assumed when his parole was revoked, because he will not be
reparoled under the new federal regulations. The District Court
erred when it narrowly construed Fletcher’s petition as only a
claim that the retroactive application of the federal regulations
would impact his reparole eligibility. In failing to address
Fletcher’s stronger suitability claim, the District Court failed to
apply Garner properly.
Third, because the District Court proceeded on the basis of
faulty assumptions about the difference between “guidelines”
and “regulations,” and the “discretion” purportedly exercised by
the Board and the Commission, the court failed to give full
effect to Garner. Under Garner, a retroactively applied parole
or reparole regulation or guideline violates the Ex Post Facto
Clause if it “creates a significant risk of prolonging [an
inmate’s] incarceration.” 529 U.S. at 251. “[T]he claimant
‘must show that as applied to his own sentence the law create[s]
a significant risk of increasing his punishment.’” Fletcher II,
391 F.3d at 251 (quoting Garner, 529 U.S. at 255). Equally
important for this case, Garner outlines two ways in which
“significant risk” can be established by a petitioner. First, it can
be established if there are facial distinctions between the old and
new parole/reparole regulations. Second, “[w]hen the rule does
not by its own terms show a significant risk,” a claimant may
also meet his burden “by [introducing] evidence drawn from the
rule’s practical implementation by the agency charged with
exercising discretion, that its retroactive application will result
in a longer period of incarceration than under the earlier rule.”
19
Garner, 529 U.S. at 255 (emphases added). The controlling
inquiry “is one of practical effect.” Fletcher II, 391 F.3d at 251.
A district court must assess the magnitude of the risk in terms of
the practical effect of the change in regulations on the length of
a petitioner’s incarceration.
On their face, the federal reparole regulations applied in
Fletcher’s case are substantially different from the D.C. Board’s
regulations that were repealed in August 2000. As Fletcher
alleged in his habeas petition, the old and new rules diverge
most clearly with respect to the weight that post-incarceration
behavior is given in reparole determinations in cases involving
a person whose parole was revoked for a non-D.C. Code
offense. Fletcher has thus presented a creditable claim that the
District Court must explore within the framework laid out by
Garner and explained by this court in Fletcher II.
Under Garner and Fletcher II, the District Court was
required to compare the federal regulations and the Board’s
displaced scheme with respect to reparole. The District Court,
however, was under the mistaken impression that “the [D.C.]
Board of Parole had no guidelines concerning reparole
decisions, but merely provided for at least bi-annual rehearings.”
Fletcher, 2003 U.S. Dist. LEXIS 26412, at *5 (citing D.C. MUN.
REGS. tit. 28, § 104.4-104.9 (procedural provisions)). This
finding was erroneous, for there is ample evidence that both the
former Board regulations and the new federal regulations have
rules and practices covering both parole and reparole.
Because the District Court misconstrued the Board’s
regulations, the court never focused in on a detailed comparison
of the two reparole regimes. This comparison must include: (1)
a determination as to whether, in practice, the federal reparole
regulations, unlike the Board’s former regulations, are primarily
concerned with punishment and recidivism and, as a result, the
Commission does not account for evidence of post-incarceration
rehabilitation in reparole determinations; and (2) a determination
20
as to whether, in light of this alleged practice, the Commission’s
application of its reparole regulations creates a significant risk
that Fletcher will linger in prison longer, because he faces a
diminished likelihood that he will be reparoled under the new
federal regulations.
The Commission cites Glascoe v. Bezy, 421 F.3d 543 (7th
Cir. 2005), in support of its claim that the District Court’s
decision dismissing Fletcher’s petition should be affirmed.
Glascoe, however, is plainly distinguishable. The petitioner in
that case challenged the retroactive application of the
Commission’s parole regulations for D.C. Code offenders. As
previously discussed, the regulations governing parole decisions
for D.C. Code offenders are materially different from those
governing the reparole determination in this case. Compare 28
C.F.R. § 2.80 (2001), with 28 C.F.R. §§ 2.81, 2.21, 2.20 (2001).
The new federal regulations governing parole suitability for
D.C. Code offenders take into account post-incarceration
behavior; however, the federal regulations do not take into
account post-incarceration behavior when the Commission
determines suitability for reparole for offenders, like Fletcher,
whose parole was revoked on the basis of an offense that was
not a D.C. Code offense.
Moreover, the Seventh Circuit found that Glascoe’s petition
for parole would have been denied even under the Board’s
regulations:
There might be a case where application of the 1999
[federal] guidelines rather than the 1981 [D.C. Board]
guidelines substantially increases an inmate’s risk of
increased punishment so as to violate the Ex Post Facto
Clause. . . . But this is not such a case; the record shows that
Glascoe would have been denied parole under either set of
guidelines, and there is no ex post facto violation.
21
Glascoe, 421 F.3d at 549. Glascoe had a long record of negative
institutional behavior, id. at 545-46, and he had presented no
evidence of rehabilitation, id. at 549. Given the extreme
violence of his crimes and his negative institutional behavior,
the court found that Glascoe could not show that he personally
was at significant risk of increased punishment. Id. at 548. The
record Fletcher has presented, by contrast, shows numerous
rehabilitative accomplishments. And he has offered a viable
claim that there is a significant risk that his punishment will be
increased by virtue of the Commission’s retroactive application
of the new federal regulations governing reparole.
Fletcher has made out a prima facie case that his rights
under the Ex Post Facto Clause have been violated, because he
is a D.C. Code offender whose parole was revoked based on an
offense that was not a D.C. Code offense. Under these
circumstances, the facial distinctions between the Board’s
regulations and the federal regulations that replaced them,
specifically the fact that the new federal regulations, unlike the
regulations they replaced, do not take post-incarceration
behavior into account, is sufficient to warrant factual
development on his habeas petition. Under Garner and Fletcher
II, Fletcher is entitled to a searching comparison of the old and
new reparole regimes in order to determine whether the U.S.
Parole Commission’s application of the federal reparole
regulations at Fletcher’s reparole hearing in 2000 created a
significant risk that he will be subjected to a lengthier
incarceration than he would have been if the Commission had
adhered to the rules and practices of the D.C. Board.
III. CONCLUSION
The District Court’s dismissal of appellant’s habeas petition
is reversed and the case is remanded for further proceedings
consistent with this opinion.
So ordered.