RODGERS v. MEEKS

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

MARCUS RODGERS, )

)

Petitioner ) Case No. 1:19-cv-000207 (Erie)

)

Vs. )

) MEMORANDUM OPINION AND

BRADLEY TRATE, WARDEN, ) ORDER ON PETITION FOR

UNITED STATES PAROLE ) WRIT OF HABEAS CORPUS

COMMISSION, )

) □□ (ECF No. 1)

Respondents )

)

RICHARD A. LANZILLO, United States Magistrate Judge. □

I. Introduction

Marcus Rodgers (Rodgers), an inmate in the custody of the Federal Bureau of Prisons, has

filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241. ECF No. 1. In April of 1997,

Rodgers pleaded guilty to a charge of second-degree murder in the District of Columbia. He was

sentenced to a term of twenty years to life imprisonment. After being initially granted parole by the

United States Parole Commission (the Commission), Rodgers was re-incarcerated following the

Commniission’s reconsideration of its decision based on testimony from the victim’s mother. His

petition claims he is being unconstitutionally detained and is entitled to immediate release.

‘The Court will grant the petition.’

II. Factual Background

The factual background is taken from the representations contained in Rodgers’ petition.

See, ¢g., Scott v. Ebberts, 2010 WL 391814, *1 (M.D. Pa. Jan. 11, 2010). Where able, the Court will cite

directly to undisputed evidence of record.

! The Parties consented to the jurisdiction of a United States Magistrate Judge to conduct all proceedings in this case,

pursuant to 28 U.S.C. § 636(c), including entry of final judgment. See ECF No. 2; ECF No. 26.

Rodgers pleaded guilty in the District of Columbia to the second-degree murder of Christian

McNeil, in violation of District of Columbia Code § 22-2404 (currently § 22-2103). At the time of

the offense, Rodgers was eighteen years of age. He has been incarcerated primarily at the Federal

/

Correctional Institution at McKean (FCI-McKean) since 2008.

Rodgers first became eligible for parole on March 8, 2016. In anticipation of this date, the

Commision held an initial parole hearing for Rodgers on October 5, 2015. At this hearing, Hearing

Examiner Sandra Hylton found that Rodgers “accepted responsibility for the offense behavior” and

“apologized to the victim’s mother, stating he makes no excuses for what he did.” See ECF No. 1-3,

p. 2. The Hearing Examiner noted that Rodgers “indicated his remorse for this offense to the

victim, which this Examiner believes was sincere.” Id. at p. 4. Gwendolyn McNeil, the victim’s

mother, also provided written and oral testimony at the hearing. Using the District of Columbia’s

Parole Guidelines, Rodgers was given a score of 2, which indicated parole should be granted.

However, the Hearing Examiner deviated from the guidelines and recommended Rodgers be denied

parole to allow him time to finish his General Education Degree (GED). Id. The Commission

adopted the Hearing Examiner’s recommendation and denied Rodgers parole on December 7, 2015.

ECF No. 1-5, p. 2. The matter was continued for rehearing in twenty-four months. Id. at p. 3.

A second parole hearing took place on October 10, 2017, before a different Hearing

Examiner, Stephen Husk. The victim’s mother was notified of the hearing in accordance with the

Crime Victim’s Rights Act (CVRA), 18 U.S.C. § 3771, et seq? In his post-hearing assessment report,

the Hearing Examiner noted that a “pre-Hearing Examiner emailed [Commission] Victim Staff a

copy of the pre-hearing assessment including the information pertaining to the victim’s mother prior

2 The CVRA provides victims, among other things, with the “right to be reasonably heard at any public proceeding in

the district court involving release, plea, sentencing, or any parole proceeding.” 18 U.S.C. § 3771(@)(4). This right to be

heard, however, “does not give the victims of crime veto power over any prosecutorial decision, strategy or tactic

regarding bail, release, plea, sentencing or parole.” United States v. Rubin, 558 F. Supp. 2d. 411, 424 (E.D.N.Y. 2008)

(citing In re W.R. Huff Asset Management Co., LLC, 409 F.3d 555, 564 (2d Cir. 2005).

participation.” ECF No. 1-6, p. 2. The Commission did not receive a response from Ms. McNeil

and the Hearing Examiner “checked back with [Commission] Victim Staff on 10/6/17 and no

response had been received.” Id.

At this second hearing, Rodgers again admitted his offense and offered no excuse for his

actions. Id. at 3. Rodgers acknowledged that the murder involved a “disagreement over drugs” and

that he was “young and impulsive.” Id. Rodgers told the Hearing Examiner that “he wishes that he

made better choices and could bring the victim back.” Id. Hearing Examiner Husk further noted

that the Commission’s “primary basis for the [first] parole denial was his failure to obtain his GED.”

Id. When questioned about his continued failure to earn his GED, Rodgers told the Hearing

Examiner that “his only problem is mathematics which has plagued him for all his life. It was noted

that he still attends GED courses from Monday through Friday from 12 Noon to 2 p.m.” Id.

Hearing Examiner Husk also referenced the testimony of the victim’s mother from the 2015

hearing. He stated on the record that “we don’t have ... as I said, we don’t have the victim’s mother

here this time. I don’t know that she feels any differently.” ECF No, 1-11 (audio file of 2017 parole

hearing). The Hearing Examiner’s post-hearing assessment also noted the absence of the victim’s

mother at the hearing and referenced her statement from Rodgers’ 2015 parole hearing wherein she

“opposed parole, reading into the record, outlining her opposition to release” and relating her son’s

last moments. ECF No. 1-6, p. 2. The Hearing Examiner also found Rodgers’ explanation for not

completing his GED to be credible, and noted documentation which supported Rodgers’ good faith

attempts to do so. Id. at 5. Rodgers’ satisfactory completion of a six-month drug treatment -

program was also noted by the Hearing Examiner. Id. at 4. Hearing Examiner Husk further

observed that Rodgers has been free of disciplinary conduct for over fourteen years. Id. at 5. Given

all of this, the Hearing Examiner recommended Rodgers be granted parole. Id. at 4-5.

The Commission adopted the Hearing Examiner’s recommendation on November 6, 2017,

and set July 23, 2018, as Rodgers’ effective parole date. Id. at 6. The vote for granting parole was 2

to 1. Commissioners Smoot and Cushwa voted in favor of parole and Commissioner Massarone

voted against. ECF No. 1-6 at 6; ECF No. 1-21 at 2.

On March 21, 2018, Rodgers was transferred from ECI-McKean to a residential =

center called Hope Village Halfway House, located in Washington, D.C. While there, Rodgers was

housed with three other individuals, participated in drug counseling, took a computer programing

course, and continued working toward completion of his GED. He was later permitted to search

for eesionmens He passed a construction exam and obtained a $13.00 per hour position in the

District of Columbia as a construction worker. Although the record is not entirely clear, Rodgers

began working sometime in mid-May of 2018.° What is clear, however, is that between March 21,

2018 and May of 2018, Rodgers had an unblemished record while at the halfway house. Rodgers

ended up only working one day at this job, completing a 4:00 AM to 3:00 PM shift. Upon returning

to the halfway house that day, at approximately 8:30 PM, Rodgers was arrested and transferred to a

regional jail in Virginia. He was not told the reason for his arrest. He was transferred back to FCI-

McKean a few days later.

Unbeknownst to Rodgers, two days after the Commission voted in favor of his parole, Ms.

McNeil contacted a victim specialist at the Commission. She confirmed that she received the

notification of Rodgers’ October 10, 2017 parole hearing but was unable to attend. Subsequently,

she wrote to the Commission on November 13, 2017, and reiterated her opposition to Rodgers’

parole. A Supervisory Victims Coordinator, Najah A. Barton, followed-up by telephone with Ms.

McNeil. Ms. McNeil expressed “concerns relating to the nature of the case” to Barton. The

victim’s mother stated that she “is concerned for her safety—as the nature of where the offense

3 Rodgers himself has stated that he was at the halfway house for “1 % months,” beginning in March 21, 2018.

occurred, the manner in which the subject spoke to her at the 2015 hearing, and the fact of the type

of bullets used in the offense, are concerning—as she is elderly.” ECF No. 1-7, p. 2. Ms. McNeil

admitted, however, that there has been no communication between herself and Rodgers, but

expressed concerned he could use the Internet to find her. Id. Ms. McNeil requested another parole

reheating so that she could appear and offer further testimony. Id. Barton recommended that the

Commission “[c]onduct a re-hearing at the next soonest available docket nero the parole effective

date ... as [Ms. McNeil’s] typed-written statement of November 13, 2017, could not be considered

before or during the hearing process and [Rodgers] presently has a presumptive parole date.” Id.

The Commission adopted Barton’s recommendation on April 23, 2018, stating “the

following action was ordered pursuant to [28 C.F.R. §] 2.28(f): Reopen and reschedule for a special

reconsideration hearing on the next available docket.” The Commission cited Ms. McNeil’s

unavailability “to exercise her right to participate in the parole hearing associated with the subject-

named offender under D.C. Code and the Crime Victims’ Rights Act.” See ECF No. 1-10, p. 2. A

special reconsideration hearing was then held before Hearing Examiner Husk on June 4, 2018. The

Hearing Examiner defined the purpose of this hearing:

The primary purpose of this hearing is really for the victim

participation, but I am going to have some questions for you myself

... There isn’t any new information. I’ve basically stated why we are

doing this hearing—because the victim contacted the Parole

Commission after your hearing.

ECF No. 1-14. In summarizing the reconsideration hearing, the Hearing Examiner noted that “the

Commission ordered that [Rodgers] be paroled effective 7/23/2018. However that parole grant was

pulled back after the deceased victim’s mother contacted the USPC and advised of her intent to

exercise her right to testify at the hearing. Thus, today’s hearing was a special reconsideration -

hearing for that purpose.” ECF No. 1-9, p. 2. At the reconsideration hearing, Ms. McNeil read a

letter dated May 29, 2018 into the record. ECF No. 1-22.

Rodgers also spoke at the reconsideration hearing. He told the Hearing Examiner that he

had satisfied his obligations regarding counseling, was continuing to complete his GED, and had

found a job working construction. ECF No. 1-9, p. 3. The Hearing Bxamines noted Roget’s

disappointment on being re-incarcerated, but also noted his desire to make amends to the victim’s

family by becoming a productive citizen. Id. Rodgers again apologized to the victim’s mother. Ia.

Upon conclusion of this rehearing, the Hearing Examiner again recommended that Rodgers

be granted parole. Id. at 4. The Hearing Examiner balanced the “strong and very impactful

statement” of the victim’s mother against Rodgers’ young age at the time of the offence, his lack of a

prior criminal record, that Rodgers did not randomly target the victim, and that he has maintained a

clear prison conduct,record since 2003. Id. The Hearing Examiner additionally observed that

Rodgers has remained in custody more than two years beyond his parole eligibility. Id. Weighing

these factors, the Hearing Examiner recommend that Rodgers be re-paroled. Id.

Despite this recommendation, the Commission voted not to grant Rodgers parole. This

time, Commissioner Cushwa joined Commissioner Massarone in voting to deny. ECF No. 1-23, p.

2. Commissioner Massarone filed a memorandum on June 7, 2018, and noted that his reasons for

voting to deny parole were the same as those he stated in October of 2017. ECF No. 22-13. Then,

on June 14, 2018, the Commission memorialized its decision stating that although the parole

guidelines indicated that parole should be granted, it deviated from those guidelines “due to the

nature of the violation, the aggravating circumstances and your actions while in the community, your

institutional experience such as your lack of success towards your educational development and

_

victim’s impact programming.”* ECF No. 1-13. Rodgers’ effective parole date has now passed, and

he remains in the custody of the Federal Bureau of Prisons.°

IN. Procedural History

About two and a half weeks after his parole date passed, the Washington D.C. Lawyer’s

Committee for Civil Rights and Urban Affairs (Lawyer’s Committee) sent a Freedom of Information

Act (FOIA) request on Rodgers’ behalf to the Commission, asking for his parole file. See ECF No.

1-18. The Commission’s FOIA officer replied to the request on August 24, 2018, and provided

Rodgers’ parole file minus Ms. McNeil’s letters and the audio recordings of the first two parole

, hearings. See ECF No. 1-19.

On July 22, 2019, a petition for a writ of habeas corpus was filed in this Court on Rodgers’

behalf by the Lawyer’s Committee and attorneys from Pepper Hamilton LLP. Warden Bobbie

Meeks was originally named as a Respondent, along with the Commission. Since the

commencement of this action, Bradley Trate succeeded Meeks as warden and he is automatically

substituted as a Respondent in this action. See Federal Rule of Civil Procedure 25(d) (providing that

the successor of a public officer “is automatically substituted as a party”). The Respondents filed

their Response to the Petition on January 9, 2020. ECF No. 22. Rodgers filed a Reply on

January 24, 2020. The Respondents then filed a Sur Reply Brief on February 11, 2020. Oral

argument took place on March 17, 2020, with all counsel of record participating. The petition is

now ripe for review.

4 Rodgers wrote to the Commission on July 1, 2018 and challenged their reference to the “aggravating circumstances” he

committed while in the community. ECF No. 1-2. He argued that the Commissions’ determination was based on false

statements made by the victim’s mother that he had approached her while living at the halfway house. Id. Rodgers

admits that this was a mischaracterization of Ms. McNeil’s testimony. See ECF No. 1, [71 (“Rodgers misunderstood the

victim’s statements during the hearing ....”).

5 Rodgers was incarcerated at FCI-McKean until February 18, 2020, when he was transferred to a halfway house. ECF

No. 34.

IV. The Petition

Rodgers’ Petition raises two grounds for relief. First, Rodgers chims the Commission’s

actions in rescinding his parole violated his rights to procedural and substantive due process oe

the Fifth and Fourteenth Amendments to the Constitution. ECF No. 1, p. 17 et seq. Second,

Rodgers argues that the Commissions’ actions violated the Administrative Procedures Act (APA), 5

U.S.C. § 701, ef seg. The Respondents reject these claims and suggest mootness. ECF No. 22. See,

Greco v. Doll, 2019 WL 6045664, *1 (M.D. Pa. Oct. 29, 2019). They also contend that Rodgers’

claims are not appropriate for habeas relief in that he cannot be released □□□ the Commission

first establishing a release plan. ECF No. 22 at 10. They also contest the merits of Rodgers’ claimed

due process and APA violations. The Court will begin with the mootness question.

V. Rodgers’ Petition is Not Moot.

A federal court has jurisdiction over a habeas corpus petition as long as the petitioner is “in

- custody” and that such custody is allegedly “in violation of the Constitution or laws or treaties of the

United States.” 28 U.S.C. § 2241 (c) (3); Maleng v. Cook, 490 U.S. 488, 490 (1989). As Rodgers is

currently detained within this Court’s jurisdiction by a custodian within the Coutt’s jurisdiction, and

asserts that his continued detention violates due process, this Court has jurisdiction over his claims.

Spencer v. Kemna, 523 US. 1, 7 (1998).

Furthermore, Rodgers’ claims are not moot because he remains in custody. A petition for

habeas corpus relief generally becomes moot when a prisoner is released froin custody before the

court has addressed the merits of the petition. DeFoy v. McCullough, 393 F.3d 439, 441 (3d Cir. 2005)

(citing Lane v. Williams, 455 U.S. 624, 631 (1982)). “This general principle décives from the case or

controversy requirement of Article III of the Constitution, which ‘subsists through all stages of

federal judicial proceedings, trial and appellate ... the parties must continue to have a personal stake

in the outcome of the lawsuit.” Id. at 441-43 (quoting Lewis v. Cont’ Bank Corp, 494 USS. 472, □□□□

78 (1990) (internal citations and quotations omitted)). Although Rodgers has received an effective

parole date of July 23, 2020, he remains in federal custody until that time.* Thus, because any

remedy this Court may grant could affect his release date, his habeas petition is not moot. See zd. at

442.

As a corollary to their mootness argument, the Respondents maintain that habeas relief

would be inappropriate because Rodgers seeks immediate parole. ECF No. 22, p. 10. They argue

that such relief is unavailable because “the Commission’s grant of parole is always conditioned on

the existence of a suitable release plan.” Id, (citing 28 C.F.R. § 2.83). This regulation requires that

grants of parole shall be conditioned on the development of a suitable release plan and the

approval of that plan by the Commission.” 28 C.F.R. § 2.83(a). The regulation also specifically

provides for delaying a parole date if there is no release plan for the prisoner: “A Commissioner may

retard a parole date for purposes of release planning for up to 120 days without a hearing ....” 28

C.F.R. § 2.83(d). See also Trevino v. Dewalt, 2006 WL 3256820, at *3 (E.D. Ky. Nov. 9, 2006) (USPC

properly retarded parole date pursuant to 28 C.F.R. § 2.83(d) absent a satisfactory release plan);

Housler v. Nelson, 453 F. Supp. 874, 876 (D. Conn. 1978) (release on parole was delayed because of

the lack of a suitable release plan); Paulus v. Fenton, 443 F. Supp. 473, 477 (M.D. Pa. 1977) (same).

Respondents’ argument, in effect, is that the lack of a release plan for Rodgers somehow negates this

Court’s authority to grant the writ. That argument does not withstand scrutiny.

For certain, “the appropriate judicial remedy when an agency exceeds its discretion is a

“remand to the agency for further proceedings consistent with the court’s opinion.” Bridge v. United

6 Rodgers’ release to a halfway house on February 28, 2020 does not change the Court’s determination that the petition

is not moot. Even though Rodgers resides in a halfway house, he remains in the custody and control of the

Commissions and, by extension, the Bureau of Prisons. As Respondents acknowledged at oral argument, the

Commission’s parole decision is subject to rescission any time prior to its effective date. Further, as demonstrated by

the Commission’s prior actions in this case, Rodgers may bé transferred back to a federal prison without any showing of

misconduct on his part. Thus, he has not been released from BOP custody. See, ¢.g., DeFoy v. McCullough, 393 F.3d 439,

441 (3d Cir. 2005) (“[A] petition for habeas corpus relief generally becomes moot when a prisoner is released from

custody before the court has addressed the merits of the petition.”).

5 .

States Parole Comm’n, 981 F.2d 97, 105 (3d Cir. 1992) (citing Fed. Por. Comm'n v. Idaho Pwr. Co., 344

U.S. 17, 20 (1952). See also Reyes v. Fed., Bureau of Prisons, 2019 WL 4302964, *1 D.NJ. Sept. 11,

(citing Cannon v. Shultz, 2010 WL 2539387, *6 (D.N,J. June 16, 2010) (“[E]ven ifa federal

court determines that an inmate’s due process rights were violated during an administrative hearing,

the federal court does not conduct its own ‘trial’ superseding a defective administrative proceeding:

in such cases, the proper remedy is a curative administrative hearing conducted in accordance with

due process requirements.”). But that does not mean a federal court lacks the authority to grant the

writ and order a prisoner’s immediate release. See Bridge, 981 F.3d at 105 (quoting Bi/fterc v. United

States Ba. of Parole, 541 F.2d 938, 946 (2d Cir. 1976) (“If the case was before the court on a petition

for habeas corpus, it may order compliance within a reasonable period, failing which it may order

the petitioner discharged from custody.”); Mickens-Thomas v. Vaughn, 355 F.3d 294, 310 d Cir.

2004) (ordering Parole Board to release petitioner on parole without preconditions).

Perhaps more importantly, the Respondents mischaracterize the remedy Rodgers seeks.

They argue that Rodgers petitions this Court to “judicially determine [his] eligibility for parole.”

ECF No. 22, p. 11. Rodgers had already been granted parole. Yet he remains in custody. His

petition seeks to redress what he argues are the “unconstitutional and unlawful actions” of the

Commission in rescinding its grant of parole. ECF No. 24, p. 5 (emphasis in original).

Lastly, the record reveals that Rodgers has a release plan which was put in place when he was

granted parole in 2017. See ECF No. 1-6, >. 4. This plan, among other things, projects that Rodgers

will live with his mother in a four-bedroom apartment she maintains in Washington, D.C. and that

he will obtain employment as a dry-waller, given the training he received in that skill while

incarcerated. Id. Further, the Respondents have not offered any evidence to indicate their inability

to process Rodgers with immediacy should this Court grant his petition. Indeed, given his parole

10 .

date of July 23, 2020, and recent release to a half-way house, the finalization of such plans are likely

already underway.

Thus, the Court does not find Rodgers’ petition to be moot and will review the metits of his

claims.

VI. Standards of Review Applicable to Commission Decisions

Before turning to the merits of the claims, the Court takes notice of the appropriate

standards of review. Generally, federal courts defer to the decisions of the Commission. See Wilson

v. United States Parole Comm'n, 193 F.3d 195, 197 (3d Cir. 1999) (citing Zannino v. Arnold, 531 F.2d 678,

690-91 (3d Cir. 1976)). However, in reviewing such decisions, the Court is obligated to determine

whether the Commission “has followed criteria appropriate, rational, and consistent with its

enabling statute and that its decision is not arbitrary and capricious, nor based on impermissible

considerations.” Zannino, 531 F.2d at 690.

Further, the Court recognizes that the Commission is vested with discretion to determine a

‘District of Columbia prisoner’s eligibility for parole. See United States v. Addonizio, 422 U.S. 178

(1979). This Court’s review of such a decision is “not whether the [decision of the] Board is

supported by the preponderance of the evidence, or even by substantial evidence; the inquiry is only

whether there is a rational basis in the record for the [Commission’s] conclusions embodied in its

statement of reasons.” Zannino, 531 F.2d at 6. See also Furnart v. Warden, Allenwood Fed. Corr. Inst.,

218 F.3d 250, 254 3d Cir. 2000); Walker v. Perdue, 2018 WL 6304230, *4 (M.D. Pa. Dec. 3, 2018)

(“The applicable standard of judicial review is whether the Parole Commission abused its discretion

... Review is limited to whether there is a rational basis in the record for the conclusions embodied

in the Commission’s statement of reasons, which should include whether the criteria, appropriate,

rational, and consistent with its enabling statutes, has been followed so that its decision is not

arbitrary and capricious, nor based on impermissible considerations.”’). “To this end, ‘the

11

Commission may not base its judgment as to parole on an inaccurate factual predicate.” Furnari,

218 F.3d at 254 (citing Campbell v. United States Parole Comm'n, 704 F.2d 106, 109 (3d Cir. 1983)).

Additionally, this Court is mindful that “[a] legislative grant of discretion does not amount to a

license for arbitrary behavior.” Block v. Potter, 631 F.2d 233, 236 (3d Cir. 1980) (citations omitted).

With these standards in mind, the Court turns to the merits of the claims raised in Rodgers’

petition.

VU. The Merits of the Petition

A. The Due Process Claims □

Rodgers claims that the Commission’s actions in reopening and rescinding his parole

violated his rights to procedural and substantive due process under the Fifth and Fourteenth

Amendments. ECF No. 1, p. 17 et seg. Generally, to satisfy due process, parole procedures must

provide an opportunity to be heard and a statement of reasons for the Commission’s decision. See

Greenboltz v. Inmates of Neb. Penal ¢» Corr. Complex, 442 U.S. 1, 16 (1979). The Court turns first to

Rodgers’ procedural due process claim.

1. Procedural Due Process - The Liberty Interest

“It is axiomatic that a cognizable liberty or property interest must exist in the first instance

for a procedural due process claim to lie.” Mudrick v. Attorney Gen. of U.S., 469 F.3d 94, 98 3d Cir.

2006) (citing Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 569 (1972)). The Parties strongly □

disagree whether Rodgers has a liberty interest at stake here. The Constitution itself does not create

any liberty interest in parole and any such interest must emanate from state law, or in this case,

District of Columbia law. See Greenholtz, 442 U.S. at 7. Therefore, Respondents argue, Rodgers has

no liberty interest in being conditionally released before the expiration of his sentence. Jd And that

position is correct—Rodgers has no liberty interest in being paroled. However, although a

convicted individual has no liberty interest in parole release protected by the Due Process Clause, a

12

fundamental due process right to be free from “capricious decision making” does protect parole

applicants from being denied parole for “arbitrary or constitutionally impermissible reasons.”

Smallwood v. Oddo, 2019. WL 5260417, *3 (M.D. Pa. Oct. 17, 2019) (citing Béock, 631 F.2d at 236).

That ts, judicial review is limited to a consideration of whether the Commission “exceeded its legal

authority, acted unconstitutionally, or failed to follow its own regulations.” See Fardella v. Garrison,

698 F.2d 208, 210 (4th Cir. 1982). See also Bono v. Benov, 197 F.3d 409, 411 (9" Cir. 1999)

(Commission’s decisions to grant or deny parole are unreviewable, but federal courts have

jurisdiction to consider claims alleging the Commission violated the Constitution). The Supreme

Court has long held that the possible deprivation of a liberty interest in a parole revocation

proceeding entitles a parolee to obtain due process protections. T7ppens v. Luther, 869 F. Supp. 331,

335 (W.D. Pa. 1994) (citing Morrissey v. Brewer, 408 U.S. 471, 484 (1972).

Here, Rodgers’ procedural due process claim contends that the Commission impermissibly

failed to follow its own regulations by not basing its decision to reopen his parole determination on

“new and significant” information as required by 28 C.F.R. § 2.75(e). Accordingly, resolution of this

claim begins with the applicable regulation.

2. The Federal Regulations

Two federal regulations are of particular relevance in this case. Parole reconsideration

hearings for prisoners serving District of Columbia sentences are governed by 28 C.F.R. § 2.75.

That regulation permits the Commission to reopen parole proceedings when it receives “new and

significant information concerning the prisoner.” 28 C.F.R. § 2.75(e) (citing 28 C.F.R. § 2.28). This

includes the “receipt of new information of substantial significance favorable to the prisoner” or any

“adverse information.” 28 C.F.R. § 2.28(a), (f). Section 2.75(e) further authorizes the Commission,

within its discretion, to hold a § 2.28-type of hearing where new information about a District of

13

Columbia prisoner becomes available.’ See, ¢.g., Otts v. United States Parole Comm'n, 2005 WL 2106244,

*5 (M.D. Pa. Aug. 31, 2005). The rehearing process begins with one Commissioner recommending

reconsideration to the others. See Hill v. United States Parole Comm’n, 2017 WL 2414446, *2 (D.D.C.

June 2, 2017). This referral “automatically retard[s] the prisoner’s scheduled release date until a final

decision is reached in the case.” Id. Then, if two Commissioners concur in a reopening, a new

hearing is set. Id. That is not exactly what happened here. Instead, and as recounted above, a

Commission staff member recommended that, in light of her discussions with the victim’s mother,

the matter be reopened.

28 C.F.R. § 2.28 also governs the reopening of parole decisions and is incorporated by

reference into 28 C.F.R. § 2.75, supra. This regulation provides that the Commission may reopen a

case when favorable information, institutional misconduct, an additional sentence, a conviction after

revocation, unresolved release planning, or new adverse information is present. 28 C.F.R. § 2.28(a)-

(f). is worth noting that both these regulations limit the Commission’s authority to reopen a grant

of parole to the circumstances outlined in their provisions. 28 C.F.R. § 2.28, for example,

. specifically delineates the circumstances when a parole decision can be reopened. No provision

gives the Commission the authority to reopen a parole case based on information it finds potentially

relevant and neither regulation gives the Commission unlimited authority to act within its

discretion.*

? This regulation provides: “Upon receipt of new and significant adverse information that is not covered by paragraphs

(a) through (e) of this section, a Commissioner may refer the case to the National Commissioners with his

recommendation and vote to schedule the case for a special reconsideration hearing. Such referral shall automatically

retard the prisoner's scheduled release date until a final decision is reached in the case. The decision to schedule a case

for a special reconsideration hearing shall be based on the concurrence of two Commissioner votes, including the vote

of the referring Commissioner. The hearing shall be conducted in accordance with the procedures set forth in §§ 2.12

and 2.13. The entry of a new order following such hearing shall void the previously established release date.” 28 C.F.R.

§ 2.28(f).

8 A final regulation has similar provisions. 28 C.F.R. § 2.86(b) also applies to D.C. Code offenders and provides: “The

Commission may reconsider any grant of parole prior to the prisoner’s actual release on parole, and may advance or

retard a parole effective date or rescind a parole date previously granted based upon the receipt of any new and

significant information concerning the prisoner, including disciplinary infractions. The Commission may retard a parole

14

3. “New and Significant Information”

The gist of Rodgers’ procedural due process claim is that “because the 2017 communications

from Ms. McNeil did not contain any new and significant information, and because Ms. McNeil had

been properly notified prior to the 2017 hearing in accordance with the CVRA, the decision to

schedule a special reconsideration hearing and suspend Rodgers’ scheduled release date of July 23,

2018,” violated his procedural due meee rights. ECF No. 1,497. Neither party disputes that the

Commission has the authority, upon the receipt of “new and significant adverse information” to

' reopen a previous parole decision and “void the previously established release date.” 28 C.F.R. §

2.28(f). The question is what constitutes “new and significant” information under the regulation and

whether such information was present here so as to support the Commission’s actions.

In the context of reopening a parole decision, new information is “not strictly limited to

information that a Commission was previously completely unaware of,” but fore broadly

encompasses “previously existing information that was not considered at the initial hearing.” Davis

v. Brown, 311 F. Supp.2d 110, 113 (D.D.C. 2004) (quoting Fardella ». Garrison, 698 F.2d 208, 211 (4th

Cir. 1982). See also Prassetto v. Pernill, 955 F.2d 176, 178 (2d Cir. 1992) (collecting cases); Lewis v.

Beeler, 949 F.2d 325, 329 (10th Cir. 1991) (“Because the Commission is not primarily an investigative

body and must depend largely on interested parties for relevant information, it will sometimes need

to review previously considered allegations in light of newly received information. It is for this

reason that the Commission is given the power to reopen cases.”).

By way of example, in Bono v. Benov, 197 F.3d 409, 421 Oth Cir. 1999), the Commission

“received a letter from the victim’s daughter, describing the impact of her father’s death upon her

life and opposing [the petitioner’s] release” on parole. Id. at 414. The Commission then remanded

date for disciplinary infractions (e.g., to permit the use of graduated sanctions) for up to 120 days without a hearing, in

scion to any retardation ordered under § 2.83(d).” See also Boling v. Rivera, 2011 WL 6182124, *8 n. 17 (DS.C. Dec. 13,

15

the petitioner’s case to a parole hearing examiner for “rehearing” purportedly to give the petitioner

an opportunity to respond to the victim’s letter. Jd. On remand, the heating examiner, concluded:

[A]fter careful review of the letter ... this examiner does not believe

that it substantially changes the underlying nature of the offensive

behavior. While the Commission may not have known the exact

feelings of the family members of the victims, it was well aware that

[Bono] caused the loss of life of two individuals who were doing their

duty as law enforcement office[r]s and certainly their deaths had [an]

adverse impact upon the lives of both families of the victim[s].

Thus[,] this examiner does not believe that any change should be

made on the basis of the most recent letter in terms of the subject's

presumptive parole date.

Id. at 414-15. The Commission rejected the hearing examiner’s recommendation and extended the

petitioner’s presumptive parole date by twelve years, making no mention of the victim’s letter. Id. at

415. The petitioner filed for habeas corpus relief which the district court granted. On appeal, the

Government maintained that “the victim letter constituted ‘new and significant adverse

information,’ which served as objective evidence justifying the extension of Bono’s presumptive

parole date.” Id. at 421. In affirming the district court’s decision, the Court of Appeals for the

Ninth Circuit held that the victim’s letter did not represent new and significant information:

The victim letter, although compelling and perhaps an emotional

impetus for the Commission’s decision, did not constitute new and

significant adverse information. The letter did not provide the

Commission with any information that was not available to it at the

time it set Bono’s original presumptive parole date. From the

moment Bono entered the federal parole system, the Commission

was aware that the Border Patrol agent had left behind a family, who

would be deeply affected by his murder. Although the letter provides

a moving account of the difficulties faced by the victim’s daughter as

she grew up fatherless, it does not provide any information that was

not before the Commission at the time Bono’s original presumptive

parole date was determined.

Ta.

The same is true here. The Commission held three hearings in Rodgers’ case: one in 2015, a

second proceeding in 2017, and the last one in 2018. Ms. McNeil testified via video at Rodgers’ first

16

parole hearing on October 5, 2015. ECF No. 1-3, p. 2. She also had communicated with the

Commission prior to this hearing. Ms. McNeil verbally read from a written statement which was

put, in its entirety, into the Commission’s file. Jd Although no transcript of this hearing was

provided to the Court, an audio recording was. According to this recording, Ms. McNeil offered the

following testimony to the Commission:

... No one can get my son back. But you can give me justice and save

the lives of others. I truly believe that Marcus Rodgers gunned

Christian down and he could do it again. Witnesses say my son was

crawling and begging for his life. Marcus — you know the moment —

you could have let him live. Marcus, who made you God? God has

been known to show mercy ... Christian will never be a father;

Christian was 24-years old and had no children; he will never be

grandfather; or even a great-grandfather; and its possible that people

live very long lives. And I will never be a grandmother. My daughter

had no children. Christian was very devastated when his sister and

grandmother died. Christian lost his only best buddy. One can get

over, eventually maybe possible, loosing someone to natural death.

But you can never get over cold blooded murder. Christian was

crawling and begging for his life. I’ve cried many days and nights.

Please Jesus, help my baby to crawl to safety and be able to live. I’ve

been helping Christian to follow in his grandfather’s footsteps to be a

chef; not a cook. His grandfather saw him grow ... Christian mowed

lawns, washed cars, built bicycles and cleaned snow for the neighbors

... Christian was a teenager. He even had a job ... working for a

company building bicycles. Christian would pick me up from work,

or meet me, especially when it was getting dark outside.

After Christian’s sister and grandmother died, he would come and sit

with me at work. And we’d go home and Christian would cook.

Christian’s sister was teaching me to play the violin because my

mother could play the piano. Christian was teaching me to play the

drum. His grandmother had brought him a drum set before his

death. I lost three family members in one decade, but only Christian

to murder. Christian was the only grandson ... what do I say when

people ask if I have any children; what do I say when they ask if I

have any grandchildren? Christian’s family — aunts, uncles, cousins,

and fiancé wanted Christian to havea special casket, so we ordered a

casket, so Christian could rest in peace after the brutality he suffered.

Christian had to be laying there knowing he was dying and I was not

with him.

Christian is buried in the family cemetery. It goes back to slavery.

Christian should not be there because he was murdered. I should

17

have been there first. Marcus Rodgers may have been locked up, but

he is alive. His sentence is life without parole ... even to this day, I

felt that he was a life sentence and can’t be paroled. I try so very

hard to keep remembering what my son looked like, his voice, its so

hard to be alone. And no one to help me. It’s always good to have

your own flesh and blood to lean on. Who will bury me? Where is

my son? Who will look down in the casket and say goodbye to me?

Where is my son? Who will order my casket? Christian’s father died

when Christian was a baby. Some people say it is better with 20

years. Marcus’ family gets to visit you; talk to him; Marcus can talk to

them. My son cannot talk to me. I can never ever move on [from]

Christian crawling and begging for his life. I wish I was there. I

would have reached out and pulled my son to life. Just like when I

gave birth to Christian. Natural — and doctor pulled him to life. And

he grabbed his legs and natural childbirth. I was glad he came in

front of that baby to save his life.vIf I could have Christian back ...

and write this victim impact statement, there would always be tears in

my eyes and soul, permanent and forever.

Christian would take me to the movies — his friends started taking

their mamas. Christian started taking me to the movies when he was

a young boy. Guys at the movies who didn’t know would ask him,

who is she? And Christian would proudly say, my mother, enjoying

life after working so hard to take care of me and my sister. Christian

and I had a real live Christmas tree, and a nice old-fashioned

Christmas. In 1995, it had been snowing in January and February.

January is Christian’s birthday month. Very cold outside. That’s.

when Marcus Rodgers cold blooded gunned down my son. While

Christian was crawling ... I’m begging you to keep Marcus Rodgers

in prison. If I need to call you to keep Marcus Rodgers in prison, I

will. Christian ... crawled and begged. I have not had another

Christmas. I only had one son. Christian was the baby.

I would just like to add, as you can see, what’s going on in

Washington, DC. I believe that Marcus Rodgers, if he is put back

out on the street, there will be a lot more deaths, and that he is

exactly where he needs to be, where mothers can sleep at night, I can

sleep at night, and where the parole commissioners can sleep at night.

Thank you.:

ECF No. 1-4. The foregoing constitutes all of the information Ms. McNeil provided to the

Commission at the October 17, 2015, hearing. Rodgers testified that day as well, addressing Ms.

McNeil directly: _ □

Miss McNeil, I understand. Your words are very brave. Great pain,

and its like stab wounds in my heart, because for some reason, you

18

think ’m a monster. I’m no monster. I never had a mother in my

life. Ain’t had a father in my life. Jail was my mother. Incarceration

was my father. Doesn’t mean I’m telling you I come from a bad

home because I didn’t, but I made some wrong choices. I never had

a ctiminal record. I had never taken a man’s life. But I understand

what you’re going through and I understand your loss. But I’ve lost

... ’ve lost. You know, there’s a time when a man lives in darkness

so much, that the darkness don’t want him — so he had to come to

the light. I’m not saying I’m glad your son died, but understand what

I’m saying, that your son and certain circumstances changed my life.

I know you probably can’t understand how can life come from death.

But I came from death. What you see before you is not a facade, its

who I am. I have never been a bad person. I’ve made some wrong

choices, but I’m not a monster. No one of my family or friends

would ever tell you ’m a monster; cause I’m no monster.

But I hope somewhere in your heart, that you forgive me. And, um,

Pm sorry. I’m sorry for ... I owe you that ... I’ve never told anyone

how I felt about the crime. But I’m telling you that I’m sorry. I

accept your words, because even in your words there is a force. Even

in your words, it will continue to inspire me to be good and do good.

So your words will not go unheard. And IJ accept everything you say

about me, but I’m no monster. I may have been a monster in that

act, but I’m no monster. God don’t make monsters. So God

brought me this far to be who I am today. I want to continue to be

who I am today. Because I love being who I am today. I didn’t love

Marcus; I didn’t love the act, and I’m sorry that it happened. Thank

you.

Id.

At the second parole hearing on October 10, 2017, Hearing Examiner Stephen Husk began

by noting that “I noticed at the [previous] hearing we had victim representation attending and we

don’t have that this time; doesn’t mean they’re not interested in it; just for some reason

communication wasn’t able to be secured.” ECF No. 1-11. The Hearing Examiner described Ms.

McNeil’s testimony at the 2015 hearing as “pretty gut-wrenching statements and I see they read

them into the record last time ... it was gut-wrenching for them to have to lose their child like that.”

Id. Rodgers told Hearing Examiner Husk that at the time of the offense, he “didn’t know better.”

Id. He stated that he can “perceive what she feels. I’m sorry. I wish I could bring Christian McNeil

back. I wish I could have thought the situation through. I try to put myself in his place, but it was

19

such a dark place ... I’m not justifying what I did, because what I did was wrong. I know what I did

was not the right choice to take the man’s life.” Id. When asked by the Hearing Examiner what he

might say to the victim’s mother, Rodgers testified that

I would tell her I’m sorty for that. If there’s such a thing as

amendment and mercy, I would hope that she would look at me and

see that I have been trying. I have not been sitting here docile, idling

my life. I was eighteen. I’ve been trying man, I’ve been trying, since

I was eighteen years old, Pve been trying. I’m not a bad man ... so I

would tell her I’m apologizing and if she can have mercy and forgive

me and look at my behavior modification, look at the training that I

have done within myself and see the atonement, I’m still atoning

now, I’m still trying to better myself every day I work hard ... I

would tell her that I’m sorry, like I told before, and if she can forgive

me, that forgiveness would take me a long way, because I don’t have

forgiveness ... if she can forgive me, it would help me more to aspire

to be creative in my life.”

Id.

Hearing Examiner Husk also presided over Rodgers’ 2018 rehearing and began by

acknowledging that the “primary purpose of this hearing is really for the victim participation.” ECF

No. 1-14. He acknowledged: “there isn’t any new information. I’ve basically stated only we’re doing

this hearing because the victim contacted the parole commission after your hearing.” Id. After

hearing from Rodgers, Hearing Examiner Husk called on Ms. McNeil to speak. She offered

testimony via video. A comparison of Ms. McNeil’s 2015 testimony and her 2018 testimony,

however, does not reveal any “new and significant” information. In fact, much—if not all—of her

testimony was repetitive—in some cases verbatim—from her testimony at Rodgers’ first parole

hearing. The following chart is illustrative:

Ms. McNeil Testimony at October 5, 2015, | Ms. McNeil Testimony at June 4, 2018,

Hearing (ECF No. 1-4) Hearing (ECF No. 1-11)

Witnesses say my son was crawling, begging for | Rodgers left Christian crawling and begging for

his life his life

Marcus-you know the moment-you could have | Marcus-you know the moment you could have

let him live let him live

20

Ms. McNeil Testimony at October 5, 2015, | Ms. McNeil Testimony at June 4, 2018,

Hearing (ECF No. 1-4) Hearing (ECF No. 1-11)

known to show merc

24 years old and had no children; he will never | never be a father

be a grandfather or great-grandfather

Christian was devasted when his sister and Christian lost his other best buddy, my

grandmother died; Christian’s sister was his daughter

“best buddy”

One can get over, eventually, losing someone One can get over (inaudible) a natural death but

cold blooded murder

I’ve cried many days and nights, “Please Jesus, | I have cried many days and nights, “Please

help my baby to crawl to safety and be able to | Jesus, help my baby crawl to safety and be able

live” to live”

orandfather’s footsteps to be a chef; not a cook

What do I say when people ask me if I have What do I say to people who ask me if I have

have grandchildren? if I have any grandchildren?

Christian’s family-aunts, uncles, cousins, and Christian’s family-aunts, uncles, cousins, and

fiancé wanted him to have a special casket, so fiancé-wanted him to have a special casket; so

we ordered a casket so Christian could rest in we ordered the casket so Christian could rest in

peace after the brutality he suffered peace after the brutality he suffered

was dying and I was not with him dying, and I was not with him

Christian was buried in the family cemetery; it | Christian is buried in the family cemetery that

goes back to slavery; Christian should not be goes back to slavery; Christian should not be

there because he was murdered there

I try very hard to keep remembering what my _| I try very hard to remember what my son

son looked like, his voice, it’s so hard to be looked like; his voice

alone, and no one to help me

goodbye to me? Who will order my casket? goodbye Mom?

Marcus can talk to them Marcus can talk to them

and begging for life his life

and pulled Christian to life was dying and I was not with him

21

Ms. McNeil Testimony at October 5, 2015, | Ms. McNeil Testimony at June 4, 2018,

Hearing (ECF No. 1-4) Hearing (ECF No. 1-11)

Christian would take me to the movies; Christian [inaudible] taking me to the movies,

Christian would proudly say, [this is] my and all his friends started taking their mothers;

mother Christian would proudly say to them, this is my

mother

Christian and I had a real, live Christmas tree Christian and I had a real live Christmas tree,

and an old-fashioned Christmas and a nice old-fashioned Christmas in 1995

In 1995, it had been snowing in January and It was very cold outside when Marcus gunned

February; very cold outside him down

I had only one son; Christian was the bab Christian was the bab

With what’s going on in Washington, DC, I Marcus is going to kill again, at least keep one

believe that Marcus Rodgers, if he is put back cold-blooded killer off the streets of

out on the street, there will be a lot more Washington, DC; I’m afraid Marcus Rodgers is

deaths; he is where he needs to be, where going to retaliate against me and my family;

mothers can sleep at night, I can sleep at night, | thought of Rodgers release puts [me] in fear for

and where the parole commissions can sleep [my]; concerned Marcus can find me because of

tonight the internet

None of this information is new because it was presented to the Commission in 2015. It cannot be

said, therefore, that the information presented by Ms. Neil in 2018 was “not considered at the initial

hearing” in 2015. See Davis, 311 F. Supp. 2d at 113 (citation omitted). Put another way, Ms.

McNeil’s 2018 testimony did not provide the Commission with “any information that was not

available to it at the time it set [Rodgers’] presumptive parole date.” Bono, 197 F.3d at 421.

Therefore, none of that testimony is “new and significant” information which would have permitted

the Commission to reopen and rescind Rodgers’ parole.

Ms. McNeil did make a few statements in 2018 that she did not make, at least specifically, in

2015. For example, she stated that Rodgers “never said he was sorry at the first hearing in 2015, or

showed any remorse to me.” ECF No. 1-11. Further, she stated that “I don’t believe Marcus can

ever say the words ‘I’m sorry, please forgive me.” Id. These statements belie the record, however.

Rodgers did in fact apologize to Ms. McNeil at his 2015 hearing and did so again at the 2017 and

2018 hearings. See ECF No. 1-4; ECF No. 1-11; ECF No. 1-14. Thus, Rodgers’ alleged failure to

22

apologize is not “new and significant” information which would have permitted the Commission to

reopen and rescind Rodgers’ parole.

The only testimony of Ms. McNeil’s from 2018 that does not appear to have been raised at

the 2015 hearing was her statement that Rodgers used “armor-piercing bullets.” ECF No. 1-11. It

appears that this information was not before the Commission in 2015 and thus, could be considered

“new.” However, it is not “significant.” That is, it is not significant because this statement was

offered as part of a broader discussion of Ms. McNeil’s fear for her own personal safety and that of

the community in general, which she testified to in 2015 and again in 2018. Thus, her fear for her

safety and for the safety of Washington, D.C. if Rodgers were to be released was before the

Commission in 2015.

Additional support for the determination that the 2018 hearing lacked any new and

significant information can be found in the comments of Hearing Examiner Husk. The Hearing

Examiner opened the 2017 hearing with an acknowledgement that the “primary purpose of this

hearing is really for victim participation.” ECF No. 1-11. He continues, observing that “there isn’t

any new information. I’ve basically stated only we’re doing this hearing because the victim

contacted the parole commission after your hearing.” Id. Husk concludes the hearing with the

admission that “the circumstances of this were not ideal ... Ideally, [the hearing] wouldn’t have

happened while you were released to a halfway house.” Jd. Furthermore, in the summary of the

2018 hearing, the Hearing Examiner indicated only that the “parole grant was pulled back after the

deceased victim’s mother contacted the USPC and advised of her intent to exercise her right to

testify at the hearing. Thus, today’s hearing was a special reconsideration for that purpose.” ECF

No. 1-9.

Ms. McNeil’s continuing grief is evident from both the audio recordings of the 2015 and

2018 hearings and her written submissions, and this Court in no way discounts it. Yet, the Court is

23

left with the inescapable conclusion that the Commission failed to follow its own rules and

procedures in this case, to the detriment of Rodgers. Thus, this Court must conclude that the

Commission violated Rodgers’ right to procedural due process and will grant his petition on that

basis.

4, The Substantive Due Process Claim

Rodgers also claims that the Commission’s actions violate his substantive due process rights.

ECF No. 1, ff 99-119. “[O]nce a state institutes a parole system, all prisoners have a liberty interest

flowing directly from the due process clause in not being denied parole for arbitrary or

constitutionally impermissible reasons.” B/ock, 631 F.2d at 236. Thus, Rodgers has a substantive

due process right in being treated fairly during the parole process. See Jubilee v. Horn, 975 F. Supp.

761, 764-65 (E.D. Pa. 1997), aff'd, 151 F.3d 1025 (3d Cir. 1998); accord Bermudez v. Duenas, 936 F.2d

1064, 1067 (9th Cir. 1991) (recognizing that “early release statutes can create ‘a liberty interest

protected by due process guarantees.””) (quoting Greenholtz, 442 U.S. at 12). The Court of Appeals

for the Third Circuit has further explained, “[t]he substantive component of the due process clause

is violated by [state conduct] when it can properly be characterized as arbitrary, or conscience

shocking, in a constitutional sense.” Gottlieb ex rel. Calabria v. Laurel Highlands Sch. Dist., 272. F.3d

168, 172 (3d Cir. 2001) (quoting Czy. of Sacramento v. Lewis, 523 U.S. 833, 847 (1998)). Rodgers argues

that because the Commission’s actions were unsupported by the record (and therefore were

arbitrary) and the consequences to Rodgers severe, the reopening and revocation of his parole by the

Commission shocked the conscience. ECF No. 24, p. 14. 5 ee, €.2., Barnes v. Weneromtcz, 280 F.R.D.

206, 218 (E.D. Pa. Feb. 7, 2012) (“A federal habeas court ... may grant relief... only ‘if there is [no]

basis for the challenged decision.” (quoting Hunterson v. Disabato, 308 F.3d 236, 246 (3d Cir. 2002)).

He specifically faults the actions of Commissioner Massarone, arguing that his parole was reopened

only to give Massarone another “bite at the apple.” ECF No. 1, {J 118.

24

When the Commission originally voted to grant Rodgers parole on October 12, 2017,

Massarone was in the minority.” See ECF No. 1-6, p. 6. The Commissioner filed a Memorandum

the following day, which purported to state his reasons for voting against Rodgers’ parole. See ECF

No. 1-24. This memorandum is somewhat confusing as it is written from the point of view that

Rodgers had been denied parole, when in fact he had not. Massarone stated:

The Commission (s#¢) basis for the parole denial was [Rodgers’]

failure to obtain programs addressing your criminal behavior and

thinking ... Your lack of programming in areas of education and

victim impact, your lack of progress may create an unacceptable risk

to public safety and the fundamental skills necessary to successfully

complete supervision ... The Commission orders the following, due

to your nature of the violation (s#c) the aggravating circumstances and

your actions while in the community. Your lack institutional

experience such as your lack of success towards your educational

development and victim’s impact programming. (se) Therefore, the

USPC determines that there is a reasonable probability that you will

not live and remain at liberty without violating the law, and that your

release is incompatible with the welfare of society. Deny parole and

continue for a rehearing after the service of 24 months.

ECF No. 1-24, p. 2. When Rodgers’ parole was revoked in 2018, Commissioner Massarone pointed

to the above as the basis for that decision: “As stated on 10/12/2017 deny parole and continue for a

rehearing in 10/2017 (sid) after the service of 24 months from your last hearing date 10/10/2017.

(Reasons listed on the 10/13/2017 memo).” ECF No. 22-13, p. 2.

This Court’s review is limited to whether there is a rational basis in the record for the

conclusions embodied in the Commission’s statement of reasons, “to insure that the Board has

followed criteria appropriate, rational and consistent with the statute and that its decision is not

arbitrary and capricious, nor based on impermissible considerations.” Zannino, 531 F.2d at 690-91

(citations omitted). The Court cannot substitute its judgment for that of the Commission unless the

9 Commissioner Massarone’s hand-written vote states: “Deny parole, Continue for a hearing (24) months from your

hearing date 10-10-2017.” ECF No. 1-6, p. 6.

25

Commissions’ exercise of discretion represents an egregious departure from rational decision-

making. See Butler v. U.S. Parole Commission, 570 F. Supp. 67, 77 (M.D. Pa. 1983).

Here, the Commissions’ actions were arbitrary because they were Ceeen ne rede in

larger part, contradicted—by the record. First, Commissioner Massarone stated that the denial of

parole was based on Rodgers’ “failure to obtain programs addressing your criminal behavior and

thinking.” ECF No. 1-24, at p. 2. Massarone does not specify which programs he means. The

record, however, does not support this conclusion. Hearing Examiner Hylton noted in 2015 that

Rodgers did participate in numerous programs: “The subject stated that he has taken numerous

programs since his incarceration to include GED, Victim Impact, CDL (commercial driver’s

license), Drywall, Breaking Barriers, Rational Thinking, and Metaphysics.” ECF No. 1-3, p. 3. Two

years later, Hearing Examiner Husk also noted the various additional programs Rodgers took part

in: “... these programs that were cited in the pre-hearing assessment (totaling 39 hours).” ECF No.

22-6. Husk specifically stated that these programs included a class designed “to address his criminal

behavior — Victim Impact.” Id."° The 39 hours of additional programming included “7 Habits of

Effective People” (14 hours), CDL (24 hours), and “Social Security” (1 hour). Id. Thus, the record

does not support Commissioner Massarone’s contention that Rodgers lacked “programming in areas

of education and victim impact.” ECF No. 1-24, p. 2. The Commission’s conclusion that Rodgers

failed “to obtain programs addressing [his] criminal behavior and thinking” is an arbitrary one

because it is not supported by the record, and is directly contradicted by the reports of two separate

hearing examiners.

The prehearing assessment referenced by Hearing Examiner Husk does not appear to be part of the record. However,

a document entitled “DC Board of Parole Guideline Hearing” authored by Oscar K. Vela and dated September 14,

2017, is an exhibit attached to the Response. ECF No. 22-6. This document acknowledges that is was taken “in part,

from a PHA [pre-hearing assessment] dated 7/23/2015 by Examiner Kubic. It has been updated to reflect current

action.” Id.

26

Further, Massarone’s statement in 2017 that Rodgers’ “actions while in the community”

negated the granting of parole is puzzling. ECF No. 1-34, p. 2. For one thing, in 2017, Rodgers had

not yet been released on parole, so he could not have undertaken any improper or illegal actions

while in the community. For another, Rodgers’ prison disciplinary record had been exemplary since

2003, and his record while at the halfway house was unblemished. And, if the Commission based

his decision on some infraction Rodgers committed while at the halfway house in 2018, the record

does not support such a finding. Hearing Examiner Husk, in his hearing summary of June 4, 2018,

specifically observed that following Rodgers parole grant in 2017, “[h]e was subsequently transferred

to a halfway house (RRC) and had not sustained any new incident reports.” ECF No. 1-9, p. 3.

Other reasons for rescinding Rodgers’ parole, according to Commissioner Massarone, were

the “nature of the violation,” and “aggravating circumstances.” Here, Rodgers appears to argue that

_ the Commissioner’s conclusion borders on vindictiveness. See ECF No. 1, {] 114 (citing Mickens-

Thomas, 355 F.3d at 307-08). The Third Circuit has warned against relying on “historical information

not previously relied upon [which is] designed to achieve a non-parole decision” because such

reliance raises an “inference of pretext or vindictiveness.” See Marshall v. Lansing, 839 F.2d 933, 948

(3d Cir. 1988) (“[I]he Commission’s unexplained decision before the time of the original sentencing

proceeding, which it ignored until its parole release determination was judicially put into question,

creates a sufficient appearance of vindictiveness to justify voiding the penalty.”). Perhaps most

concerning is Commissioner Massarone’s admission in his June 7, 2018, memorandum regarding the

reasons for reopening Rodgers’ prior parole decision. He states that the matter was “reopened and

schedule[d] for a special reconsideration hearing due to the victim was unable to exercise her right to

participate in the parole hearing ....” ECF No. 22-1 3, p. 2.

27

All of these actions lead the Court to no other conclusion but that the Commission acted

arbitrarily in rescinding Rodgers’ parole. Such actions shock the conscience and therefore violate

Rodgers’ rights to substantive due process.

B. Administrative Procedure Act Claim

Rodgers also alleges that the Commissions’ actions in revoking his parole violated the

Administrative Procedure Act (APA), 5 U.S.C. § 701, e¢ seg. ECF No., 120-133. The

Respondents do not dispute that the APA protects against agency action that is “arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law.” ECF No. 22, p. 25

(citing 5 U.S.C. § 706(2)(A); Bennet v. Spear, 520 U.S. 154 (1997)). They further agree that, in the

context of the Commission’s parole decision, review is limited “only [to] whether the Commission’s

action violated an explicit requirement of its regulation.” Jd Because the Commission did not

violate its own regulations, the Respondents contend that no violation of the APA is viable. Id.

The Court disagrees. As was determined supra. the record establishes that parole was not

reopened (and eventually rescinded) in Rodgers’ case based on any new information. Instead, the

Commission reopened the matter at the behest of Ms. McNeil, the victim’s mother. As stated

before, nothing in this opinion should be read as diminishing the horrific impact Christian McNeil’s

death had on his mother, other family members, and friends. But the Commission’s own

regulations stipulate that it may reopen, and consequently rescind, parole based on a presentation of

“new and significant information” — not on victim impact testimony that had been previously

offered and was available at two prior hearings. In so doing, the Commission ignored its own rules,

thereby violating the provisions of the APA. .

VIII. Conclusion

Fundamentally, the Commission must follow its own regulations, which have the force of

law. Wilson, 193 F.3d at 200 (citing United States ex rel Farese v. Luther, 953 F.2d 49, 52 (3d Cir.1992);

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Marshall v. Lansing, 839 F.2d 933, 943 (3d Cir. 1988)) The Court is convinced that its failure to do

so in this case denied Rodgers his rights under Constitution and the APA. Therefore, the Petition

for Writ of Habeas Corpus is granted.

IX. Order □

The Commission is hereby ordered to implement an appropriate release plan for Rodgers

and to release him pursuant to that plan as soon as practicable, but in no event later than forty-five

(45) days of the date of this order."

Ordered and entered this 19" day of March, 2020.

’

RICHARD A. LANZILLO

United States Magistrate Judge

The Court is allowing forty-five (45) days for compliance solely to accommodate possible unavoidable delays due to

disruptions associated with the COVID-19 national emergency. The Court expects the Commission to use all

reasonable efforts to comply with this order as soon as practicable.

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