Taylor v. Warden, FCC Coleman - USP II

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

OCALA DIVISION

DWAYNE J. TAYLOR,

Petitioner,

v. Case No. 5:16-cv-496-Oc-40PRL

WARDEN, FCC COLEMAN – USP II,

Respondent.

__________________________________________/

ORDER DISMISSING PETITION

Petitioner, pro se, is a prisoner at FCC Coleman – USP II who was convicted in the

District of Columbia. He is proceeding on a petition for writ of habeas corpus pursuant

to 28 U.S.C. § 2241. (Doc. 1). Petitioner challenges a 2016 decision by the U.S. Parole

Commission to deny him parole and order a rehearing in 36 months. (Id.) Respondent

urges dismissal because the Commission’s decision was not arbitrary or capricious. (Doc.

10.) Petitioner did not file a Reply, and the time to do so has passed.

A. Standard of Review

“Parole is not a right, but an expectation that may be granted by the Commission.”

Glumb v. Honstead, 891 F. 2d 872, 873 (11th Cir. 1990) (internal citations omitted). “A

federal court will not reverse a decision of the Commission unless it involves flagrant,

unwarranted, or unauthorized action that constitutes an abuse of the Commission’s

discretion.” Id. (internal citations omitted). An action of the Commission is arbitrary

and capricious, or an abuse of discretion, when it is irrational, based upon impermissible

considerations, or when if fails to comply with the Commission’s own rules and

regulations. Zannino v. Arnold, 531 F. 2d 687, 690-91 (3rd Cir. 1976).

Authority to make parole decisions concerning D.C. code offenders was

transferred to the U.S. Parole Commission in 1998. They are governed by both the D.C.

parole laws and the Commission’s regulations. See D.C. Code § 24-204 et seq., 28 C.F.R.

§ 2.80. At the initial parole hearing, the examiner calculates a defendant’s Salient Factor

Score, which aids in determining the parole decision. The score “is used to assist the

Commission assessing the probability that an offender will live and remain at liberty

without violating the law. The prisoner's record of criminal conduct (including the nature

and circumstances of the current offense) shall be used to assist the Commission in

determining the probable seriousness of the recidivism that is predicted by the Salient

Factor Score.” 28 C.F.R. § 2.80(c).

The regulations permit the Commission to grant or deny parole notwithstanding

the guidelines recommendation under certain circumstances. 28 C.F.R. § 2.80(n)(1).

Examples include unusual cruelty to the victim and unusual propensity to inflict

unprovoked and potentially homicidal violence. 28 C.F.R. § 2.80(n). D.C. parole law also

provides:

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 . . . the Board may authorize his

release on parole.

D.C. Code § 24-204(a) (emphasis added).

B. The Petition

Petitioner is serving a 20 year to life term of imprisonment for murder, imposed in

the Superior Court for the District of Columbia on September 11, 1995. (Case No.

F786394). Petitioner, then 17-years-old, and two co-defendants robbed a cab driver and

shot him in the head. (Doc. 10, Exh. 2.) Petitioner was first eligible for parole on June 10,

2014. In preparation for his initial parole hearing, a hearing examiner from the U.S. Parole

Commission assessed Petitioner’s eligibility. (Id.) Based on the D.C. parole guidelines in

effect from 1987-1998, Petitioner’s total point score was 2—indicating parole should be

granted with the highest level of supervision required. (Id.)

At Petitioner’s initial parole hearing on June 24, 2014, the hearing examiner

recommended that the Commission deny parole despite the total point score. (Id. at Exh.

3.) The Commission denied parole on July 15, 2014, finding:

[A] departure from the guidelines at this consideration 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 parole risk than shown by your point

score because the base offense involved murder and you were found guilty

of Possessing a Dangerous Weapon in 2012. In addition, you were found

guilty of eight additional non-accountable violations that include a second

Possession of a Dangerous Weapon. You need to demonstrate to the

Commission that you can remain incident free and avoid possession

dangerous weapons.

(Id. at Exh. 4.) The Commission continued the case for rehearing in June 2016. (Id.)

In May 2016, a hearing examiner recommended parole be granted in his pre-

rehearing assessment. (Id. at Exh. 5.) At the June 15, 2016, rehearing, 11 family members

of the victim participated by video conference. (Id. at Exh. 6.) Petitioner expressed

remorse during the hearing, and it was noted that he had received no disciplinary

infractions since 2012. The hearing examiner described it as “a difficult case” but

ultimately recommended denial of parole despite the guidelines’ suggesting parole

should be granted. (Id. at p. 4.) The Commission denied parole on July 11, 2016,

continuing for a rehearing in June 2019. In denying parole, the Commission wrote:

After consideration of all factors and information presented, a departure

from the guidelines at this consideration is warranted because you are a

more serious risk than indicated by your point score in that based upon the

violent nature of the instant offenses and the extreme cruelty demonstrated

towards the victim, who was shot execution style, during an armed

robbery.

(Id. at Exh. 7.) The Commission also decided to grant rehearing in 36 months rather than

12 months, for the same reasons it denied parole. (Id.) According to the Bureau of Prisons

Inmate Locator, Petitioner is currently incarcerated at FCC Coleman – USP II.

Petitioner claims that: (Ground 1) the Commission engaged in impermissible

“double counting” of aggravating factors under the guidelines; (Ground 2) the

Commission abused its discretion by denying parole based on impermissible factors; and

(Ground 3) the Commission abused its discretion where Petitioner completely complied

with what he was instructed to do at the initial hearing. (Doc. 1.) Petitioner also

challenges the Commission’s decision to set the rehearing in 36 months, rather than the

typical 12 months. (Id.)

C. Discussion

Petitioner’s claims that the Commission abused its direction in departing from the

guidelines in denying parole and setting the rehearing for 36 months later, rather than 12

months, are to due to be denied. Upon review of the record, there is no evidence that the

Commission’s decision “involve[d] flagrant, unwarranted, or unauthorized action that

constitute[d] an abuse of the Commission’s discretion.” Glumb, 891 F. 2d at 873. While

the guidelines may have indicated parole was appropriate, Petitioner was never entitled

to parole. See, e.g., Ellis v. District of Columbia, 84 F.3d 1413, 1420 (D.C. Cir. 1996) (parole

is never mandated under the D.C. parole statue and regulations). The Commission found

that there were unusual circumstances that justified a departure from the guidelines and

from the time for rehearing—specifically, the extreme cruelty to the victim, who was shot

execution style.

Finally, with regard to Petitioner’s allegation of “double counting,” the Eleventh

Circuit Court of Appeals has held that “[i]mpermissible double counting occurs only

when on part of the Guidelines is applied to increase a defendant’s punishment on

account of a kind of harm that has already been fully accounted for by application of

another part of the Guidelines.” See United States v. Matos-Rodriguez, 188 F.3d 1300, 1309

(11th Cir. 1999). Further, “the Commission is permitted to consider a broad range of

evidence in reaching its decision.” Ford v. Wiley, 168 Fed. Appx. 877, 882 (11th Cir. 2006)

(citing Page v. U.S. Parole Comm’n, 651 F. 2d 1083 (5th Cir. 1981). The Commission’s

consideration of the extreme cruelty to the victim did not duplicate considerations taken

elsewhere in the guidelines. See e.g., Hall v. Henderson, 672 A.2d 1047, 1055 (D.C. 1996)

(factor indicating risk of violence used to determine grid score is not the same as “unusual

cruelty to the victim” - a factor enumerated in the 1991 policy statement as a

countervailing factor deny parole and order a 5-year set off).

D. Conclusion

For the reasons discussed above, the petition for writ of habeas corpus filed by

Dwayne J. Taylor (Doc. 1) is DENIED. The Clerk of Court is directed to enter judgment

accordingly, terminate any pending motions, and close the file.

IT IS SO ORDERED.

DONE AND ORDERED at Ocala, Florida, on September 11, 2019.

a /

PAUL G.

UNITED STATESMISTRICT JUDGE

Copies furnished to:

Counsel of Record

Unrepresented Parties

SA: OCAP-2