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Lewis v. Kizziah

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

February 20, 2019

JAMAAL LEWIS, SR., Plaintiff,
v.
GREGORY KIZZIAH, Warden Defendant.

          MEMORANDUM OPINION AND ORDER

          KAREN K. CALDWELL, CHIEF JUDGE UNITED STATES DISTRICT COURT.

         Plaintiff Jamaal Lewis, Sr. is an inmate confined at the United States Penitentiary (“USP”)-Big Sandy in Inez, Kentucky. Proceeding without an attorney, Lewis has filed a pro se civil rights complaint regarding his parole eligibility. [R. 18] Defendant has filed a motion to dismiss Lewis's complaint pursuant to Fed.R.Civ.P. 12(b) for failure to state a claim. [R. 25] Lewis has filed a response [R. 27] and Defendant has filed a reply [R. 28] Thus, this motion has been fully briefed and is ripe for review.

         I.

         On October 6, 2006, Lewis was sentenced by a Department of the Army, General Court-Martial to a life term of confinement with the possibility of parole for his convictions of the following: 1) attempted robbery in violation of 10 U.S.C. § 880; 2) murder in violation of 10 U.S.C. § 918; and 3) aggravated assault with a firearm in violation of 10 U.S.C. § 928. [R. 18, 25-1] While he was serving this sentence, Lewis was again court martialed and sentenced on December 16, 2011 to a 4-year term of confinement for his convictions of: 1) willfully disobeying a superior non-commissioned officer in violation of 10 U.S.C. § 890; 2) mutiny in violation of 10 U.S.C. § 894; 3) damaging military property in violation of 10 U.S.C. § 908; 4) assault and battery in violation of 10 U.S.C. § 928; and 5) kidnapping in violation of 10 U.S.C. § 934. [R. 18-4, 25-1]

         Although Lewis began serving his sentence in Army custody at the United States Disciplinary Barracks (“USDB”) at Ft. Leavenworth, Kansas, he was transferred to the custody of the federal Bureau of Prisons (“BOP”) in July 2012. [R. 18, 25-1] On October 30, 2014, Lewis applied to the United States Parole Commission (“USPC”) for an initial parole hearing. [R. 25-1] Lewis states that the BOP initially calculated his parole eligibility date as September 6, 2015, which coincided with his service of 10 years on his life sentence. [R. 18; 25-1 at p. 3] According to Lewis, although he signed paperwork to appear before the USPC, his case manager at FCI-Hazelton did not turn in the paperwork because she did not believe that Lewis' parole eligibility date was correct. [R. 18] According to Defendant's motion, as the USPC prepared to conduct Lewis' parole hearing, a USPC employee contacted USDB to obtain Lewis' records, at which time a USDB employee informed the USPC employee that, because Lewis was serving a life sentence, he should not be eligible for parole until he has served 20 years of his life sentence. [R. 25; 25-1 at p. 11] Thus, according to the USDB employee, Lewis' parole eligibility date should be changed to September 5, 2025. [Id.]

         Accordingly, the BOP changed its computation to correct Lewis' parole eligibility date to September 5, 2025. [R. 18-4 at p. 4] Lewis claims that the BOP is now wrongfully denying him parole privileges because it is enforcing an allegedly inaccurate parole eligibility date. Lewis filed this lawsuit as a civil rights action seeking declaratory judgment and injunctive relief. [R. 1]

         II.

         First, it is not entirely clear that Lewis may raise his claims in a civil rights action filed pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). To the extent that Lewis' civil complaint seeks an earlier or immediate release from physical custody, his only remedy is to seek a writ of habeas corpus; he may not use a civil action to directly or indirectly undermine or impugn the validity of his criminal conviction. A habeas corpus proceeding is the only mechanism available for him to do so. Preiser v. Rodriguez, 411 U.S. 475, 490 (1973). In Wilkinson v. Dotson, 544 U.S. 74 (2005), the United States Supreme Court held that a state prisoner may challenge the constitutionality of state parole procedures in an action filed under 42 U.S.C. § 1983 seeking declaratory and injunctive relief and, accordingly, was not limited to seeking relief exclusively under the federal habeas corpus statute. Id. However, Lewis' claim is that the BOP's enforcement of the September 2025 parole eligibility date violates Lewis' rights under 10 U.S.C. § 858 and 18 U.S.C. § 4205(a). Indeed, his amended complaint makes no reference to his constitutional rights at all.

         However, even assuming that Lewis' claims do somehow implicate his constitutional rights, they are without merit. A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests the sufficiency of the plaintiff's complaint. Gardner v. Quicken Loans, Inc., 567 Fed.Appx. 362, 364 (6th Cir. 2014). When addressing a motion to dismiss, the Court views the complaint in the light most favorable to the plaintiff and accepts as true all ‘well-pleaded facts' in the complaint. D'Ambrosio v. Marino, 747 F.3d 378, 383 (6th Cir. 2014). Because Lewis is proceeding without the benefit of an attorney, the Court reads his complaint to include all fairly and reasonably inferred claims. Davis v. Prison Health Servs., 679 F.3d 433, 437-38 (6th Cir. 2012).

         The Department of Defense (“DOD”) policy regarding parole eligibility provides that “[i]n cases in which a prisoner is convicted of an offense committed after February 15, 2000, and has been sentenced to confinement for life, the prisoner must have served at least 20 years of confinement” before being eligible for release on parole. [R. 25-2 at p. 28, Attachment 2: Department of Defense Instructions (DoDI) 1325.07, Enclosure 2, § 18(a)(2)(c) (March 11, 2013)] Lewis does not dispute that: 1) he was sentenced by a military court after February 15, 2000; and 2) he was sentenced to confinement for life. Thus, pursuant to DOD policy, he must serve 20 years of confinement before being eligible for parole.

         Nor does Lewis dispute that, had he remained in military custody for the duration of his sentence, the DOD policy would regarding parole eligibility would have applied to him and he would not be eligible for release on parole until he had served at least 20 years of confinement. However, according to Lewis, after he was transferred to BOP custody, the USDB ceased to be the controlling authority under 10 U.S.C. §§ 4202, 4203 with respect to the determination of his parole eligibility date. [R. 18 at p. 2] Thus, Lewis argues that the BOP may not rely on the parole eligibility date provided by the USDB (determined pursuant to the DOD policy), but instead must apply the federal parole statutes to determine his parole eligibility date. According to Lewis, he should be eligible for parole after serving only 10 years of his sentence in accordance with 18 U.S.C. §4205(a), which provides that “[w]henever confined and serving a definite term or terms of more than one year, a prisoner shall be eligible for release on parole after serving one-third of such term or terms or after serving ten years of a life sentence or of a sentence of over thirty years, except to the extent otherwise provided by law.” 18 U.S.C. § 4205.

         However, as noted by Defendant, § 4205 was repealed by the Sentencing Reform Act of 1984, and since the repeal, only applies in cases where the crimes were committed before November 1, 1987, the effective date of the repeal. See 18 U.S.C. §§ 4201 to 4218, Repealed, Pub.L. 98-473, Title II, § 218(a)(5), Oct. 12, 1984, 98 Stat. 202718 U.S.C. § 4202. See also 18 U.S.C. § 3551. Since Lewis was sentenced by a military court in 2006, well after the federal parole statutes were repealed, § 4205 simply does not apply to him.

         In arguing that he is, nonetheless, entitled to have his parole eligibility determined by § 4205, Lewis relies partly upon 10 U.S.C. § 858(a), which provides that

a sentence of confinement adjudged by a court-martial…may be carried into execution by confinement…in any penal or correctional institution under the control of the United States, or which the United States may be allowed to use. Persons so confined in a penal or correctional institution not under the control of one of the armed forces are subject to the same discipline and treatment as persons confined or committed by the courts ...

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