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Upshur-Bey v. Sepanek

United States District Court, E.D. Kentucky, Southern Division, Pikeville

February 22, 2017

MICHAEL SEPANEK, Warden, Respondent.


          Amul R. Thapar United States District Judge.

         Charles Upshur-Bey is an inmate confined at FCI Cumberland, a federal prison in Maryland. He petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, arguing that the United States Parole Commission has violated the Due Process, Equal Protection, and Ex Post Facto Clauses of the United States Constitution. R. 1. He also brings two more motions, which he styles as an amended petition, R. 11, and a supplemental memorandum, R. 12, but which in reality contain additional claims for relief. For the following reasons, none of those claims have merit. The petition is therefore denied.

         I. Background

         Upshur-Bey's current sentence is the product of three difference sentences. In 1990, the Superior Court of the District of Columbia sentenced him to prison for armed robbery and related charges. R. 6-2 at 1. The same day and in the same court, but in a different case, he was sentenced for assault with a dangerous weapon and robbery. Id. at 2-3. Four years later, he was sentenced in the same court for armed murder, which he apparently committed during a two-week period in which he had absconded from prison. Id. at 3. For these crimes he is serving an aggregate sentence of thirty-two years (and change) to life. Id. at 4.

         In September 2014, Upshur-Bey was up for an initial parole hearing. The U.S. Parole Commission has the authority to grant or to deny parole to those in prison for violating the District of Columbia's laws. D.C. Code Ann. § 24-131. Applying the D.C. Parole Board's 1987 Guidelines-a point system that helps determine whether an inmate deserves to be released-a parole examiner scored Upshur-Bey at ¶ 2. R. 6-4 at 3. Normally, such a score justifies granting parole. 28 D.C. Mun. Regs. § 204.17 (1987). But the examiner found Upshur-Bey more violent than his score indicated. That finding had two main bases: First, Upshur-Bey's “ongoing and repetitive criminal behavior.” R. 6-4 at 4. Most significant for the examiner was that over a two-week period-while Upshur-Bey was “in absconder status from a secure placement”-he had shot three people, “killing one person [a taxi driver] who simply told [him] no when [he] asked [the man] for a ride.” Id. Second, Upshur-Bey's lack of remorse. Although “he did state [to the examiner that] he regrets his actions, ” he appeared to regret them “because his actions cause[d] him to become incarcerated, not because he took a life and assaulted two others.” Id. As evidence, the examiner noted that Upshur-Bey had “taken no victim impact programming or cognitive behavioral programming to address [his] criminal behavior” while in prison, and only a small amount of vocational programming. Id. Thus, the examiner recommended that the Parole Commission depart from the guidelines, deny parole, and see Upshur-Bey for a reconsideration hearing in another sixty months, i.e., September 2019. Id.

         The Commission adopted the recommendation. R. 6-5. Addressing Upshur-Bey directly, the Commission explained its decision as follows:

[A] departure from the guidelines at this [point] 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. You are a more serious risk than indicated by your grid score because you participated in ongoing and repetitive criminal behavior. . . . The guidelines for the time to [conduct a] rehearing indicate that your next hearing should be scheduled within 12 months. A departure from these guidelines is found warranted for the same reason provided above for denying parole.

Id. (emphasis added). The Commission therefore denied parole and continued Upshur-Bey's rehearing for sixty months.

         Upshur-Bey then filed this habeas petition, R. 1, challenging several aspects of the Commission's decision, and after that his amended petition and supplemental memorandum, R. 12; R. 13, bringing still more claims.

         II. Habeas Petition

         In his original habeas petition, Upshur-Bey alleges that the Commission violated various constitutional provisions in denying him parole. But as an initial matter, he seems to argue that the Commission applied incorrect guidelines: not the 1987 D.C. guidelines that the law required it to apply, but federal parole guidelines passed more recently. R. 1-1 at 9-12 (arguing that the Commission retroactively applied newer guidelines). So before addressing Upshur-Bey's claims about the Commission's specific decisions, the Court must determine whether the Commission even applied the correct general framework. The Court will then determine whether the Commission applied that framework correctly, something Upshur-Bey also challenges. And finally the Court will address his constitutional claims.

         A. The Applicable Guidelines

         This determination requires some context. As noted, the U.S. Parole Commission has paroling authority over those in prison for breaking the laws of the District of Columbia. This was not always so. The Commission assumed this authority from the D.C. Parole Board in 1998. D.C. Code § 24-131(a)(1). At the same time, the Commission gained the “exclusive authority to amend or supplement any regulation interpreting or implementing the parole laws of the District of Columbia with respect to felons.” Id. And it quickly used that authority to set forth parole guidelines for D.C. Code offenders. 28 C.F.R. § 2.80.

         Years later, the D.C. District Court held that retroactively applying the Commission's guidelines could violate the Ex Post Facto Clause, specifically if those guidelines “significantly increase the risk that [inmates] would serve longer terms of incarceration” than they would have under the guidelines that the D.C. Parole Board had been using before the Commission came along. Sellmon v. Reilly, 551 F.Supp.2d 66, 68 (D.D.C. 2008). Now the Commission applies the D.C. Parole Board's 1987 ...

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