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Bailey v. Fulwood

United States Court of Appeals, District of Columbia Circuit

July 14, 2015


Argued February 12, 2015.

Appeal from the United States District Court for the District of Columbia. (No. 1:12-cv-00498).

Matthew A. Seligman, appointed by the court, argued the cause and filed the briefs for appellant.

Jane M. Lyons, Assistant U.S. Attorney, argued the cause for appellees. With her on the brief were Ronald C. Machen, Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Before: HENDERSON, ROGERS and BROWN, Circuit Judges. OPINION filed by Circuit Judge BROWN. Opinion concurring in part and dissenting in part filed by Circuit Judge ROGERS.


Brown, Circuit Judge:

Appellant challenges the United States Parole Commission's (USPC) denial of his 2010 and 2012 applications for parole. In particular, he asserts the USPC violated the Constitution's prohibition on ex post facto laws, U.S. Const. art. I, § 9, cl. 3, by incorrectly applying the regulations in place at the time of appellant's underlying offense. The district court dismissed appellant's complaint for failure to state a claim. On review, we find that the USPC's denial of appellant's requests for parole was a valid exercise of parole authority as it existed at the time of his offense. In addition, the USPC did not rely on the retroactive application of any law, regulation, or guideline to justify its decisions, and therefore could not have violated the Ex Post Facto Clause. See Fletcher v. District of Columbia (Fletcher II), 391 F.3d 250, 251, 364 U.S.App.D.C. 1 (D.C. Cir. 2004). Accordingly, we affirm the judgment of the court below.


Ari Bailey is currently serving a fifteen- to forty-five-year sentence for a rape he committed in December 1993. In 2004, after Bailey had served ten years of his sentence, he became eligible for parole. After an initial parole hearing before the USPC in September 2004, Bailey was denied parole. In 2007, 2010, and 2012, Bailey again applied for parole.[1] After rehearings, the USPC denied each of Bailey's applications.

Between the time Bailey committed his crime and the time he became eligible for parole, the law governing parole for individuals convicted of criminal violations of the D.C. Code underwent several changes. In 1993, at the time of Bailey's offense, the D.C. Parole Board (" Board" ) made parole determinations for D.C. offenders. D.C. Code § § 24-201.1 - 201.3 (1989), superseded by § 24-131 (2001). The Board exercised its authority pursuant to section 24-204 of the D.C. Code, which provided:

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.

Id. § 24-204(a) (1989), superseded by § 24-404(a) (2009).

In 1987, the Board promulgated guidelines to govern its evaluation of a prisoner's suitability for parole. See D.C. Mun. Regs. tit. 28, § § 100, et seq. (1987) (" 1987 Guidelines" ), superseded by 28 C.F.R. § § 2.70, et seq. (" 2000 Guidelines" ). The 1987 Guidelines created a point system focused on offender history, offense characteristics, and behavior while in prison. The resulting point total determined whether parole would be granted. Id. § 204.19. However, the Guidelines also allowed the Board to override the point-based determination in " unusual circumstances." Id. § 204.22. See Daniel v. Fulwood, 766 F.3d 57, 59 (D.C. Cir. 2014). In 1991, in an effort to " facilitate consistency in Guideline application," the Board also issued an unpublished policy guideline that provided definitions of criteria, parameters, and terms used in the 1987 Guidelines. Policy Guideline, D.C. Board of Parole (Dec. 16, 1991) (" 1991 Policy Guideline" ).

In 1997, Congress abolished the Board and directed the USPC to conduct parole hearings for D.C. offenders. National Capital Revitalization and Self-Government Improvement Act, Pub. L. No. 105-33, § 11231 (a)-(c), 111 Stat. 712, 745 (1997), codified at D.C. Code § 24-131 (2001). Like the Board it replaced, the USPC was given authority to grant parole " where there is a reasonable probability that a prisoner will live and remain at liberty without violating the law, [and where] . . . his or her release is not incompatible with the welfare of society." D.C. Code § 24-404 (2009). In 2000, the USPC promulgated its own parole guidelines, the 2000 Guidelines, which initially applied to all D.C. offenders who became eligible for parole on or after August 5, 1998. 28 C.F.R. § § 2.70, et seq.

In Fletcher v. Reilly (Fletcher III), 433 F.3d 867, 369 U.S.App.D.C. 100 (D.C. Cir. 2006), this Court recognized that the 1987 Guidelines and the 2000 Guidelines were " substantially different." Id. at 877-78. As a result, the Court warned, retroactive application of the 2000 guidelines could give rise to a violation of the Ex Post Facto Clause. Id. at 878-79. Subsequently, in Sellmon v. Reilly, 551 F.Supp.2d 66 (D.D.C. 2008), the district court ruled in favor of four prisoner-plaintiffs who argued they " faced a significantly increased risk of lengthier incarceration due to the [retroactive application of the] 2000 Guidelines." Id. at 91. The district court therefore ordered the USPC to reevaluate the prisoner-plaintiffs' parole applications under the 1987 Guidelines. Id. at 99.

In light of these rulings and others, the USPC promulgated a new rule--sometimes referred to as the Sellmon Rule--to address retroactive applications of the 2000 Guidelines. 28 C.F.R. § 2.80(o). Under the Sellmon Rule, the USPC applies the 1987 Guidelines when reviewing parole applications filed by a D.C. offender who committed his offense between March 4, 1985 and August 4, 1998. Id.; see also, e.g., Taylor v. Reilly, 685 F.3d 1110, 1112, 401 U.S.App.D.C. 486 (D.C. Cir. 2012). Accordingly, the 1987 Guidelines governed appellant's 2010 and 2012 parole rehearings--the two rehearings at issue in this case. See March 1, 2010 Notice of Action, J.A. 74; March 19, 2012 Notice of Action, J.A. 79.

On March 1, 2010, the USPC informed Bailey that his request for parole was denied. As the Commission explained:

The Commission has applied the D.C. Board of Parole's 1987 guidelines to . . . your case. You have a total point score of 2 under the guidelines for D.C. offenders. The guidelines indicate that parole should be granted at this time. However, a departure from the guidelines at this consideration [sic] is found warranted because the Commission finds there is a reasonable probability that you would not obey the law if released and your release would endanger the public safety.

March 1, 2010 Notice of Action, J.A. 74. Specifically, the Commission provided that its decision was based on the fact that (1) Bailey had " not completed any programs that address the underlying cause of [his] criminal conduct of rape; " (2) he " continued to deny the offense conduct; " (3) he " never expressed an interest in participating in relevant programming to address [his] criminal conduct; " (4) in the two prior years he had " completed no other rehabilitative programs that would indicate [his] risk to the community has been lessened; " ...

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