Fletcher, Thaddeus v. Reilly, Edward

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 11, 2005 Decided January 6, 2006

No. 03-5359

THADDEUS A. FLETCHER,

APPELLANT

v.

EDWARD F. REILLY, JR.,

CHAIRMAN, UNITED STATES PAROLE COMMISSION AND

DENNIS HARRISON, WARDEN, D.C. DEPARTMENT OF

CORRECTIONS, CENTRAL FACILITY,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 01cv02058)

Timothy P. O’Toole argued the cause and filed the briefs for

appellant. Catharine F. Easterly entered an appearance.

John P. Mannarino, Assistant U.S. Attorney, argued the

cause for appellee Edward F. Reilly, Jr. With him on the brief

were Kenneth L. Wainstein, U.S. Attorney, John R. Fisher,

Assistant U.S. Attorney at the time the brief was filed, and

Robert D. Okun and Roy W. McLeese, III, Assistant U.S.

Attorneys.

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Robert J. Spagnoletti, Attorney General, Office of Attorney

General for the District of Columbia, Edward E. Schwab,

Deputy Attorney General, and Mary L. Wilson, Senior Assistant

Attorney General, were on the brief of appellee Dennis

Harrison.

Before: GINSBURG, Chief Judge, ROGERS, Circuit Judge,

and Edwards,* Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

EDWARDS, Senior Circuit Judge: The National Capital

Revitalization and Self-Government Improvement Act of 1997

transfers responsibility for the imprisonment of all felons

convicted under the District of Columbia (“D.C.”) Code from

the city to the federal government. The Act also transfers

authority over parole and reparole decisions from the District of

Columbia Board of Parole (“Board”) to the United States Parole

Commission (“Commission”). Pursuant to the Act, the

Commission promulgated new federal regulations to replace the

Board’s parole and reparole regulations covering D.C. Code

offenders. The D.C. Board’s regulations had been importantly

different from the federal parole/reparole regulations, because

the Board had placed significant weight on post-incarceration

behavior, including rehabilitative accomplishments, in making

release determinations. Taking this difference into account, the

new federal regulations adopted by the Commission mirrored

the rehabilitative focus of the Board’s former regulations

covering parole. The Commission, however, did not adopt the

Board’s regulations covering decisions to grant reparole to D.C.

Code offenders.

*

Senior Circuit Judge Edwards was in regular active service

at the time of oral argument.

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The difference between the Commission’s new regulations

governing parole and reparole for D.C. Code offenders is at the

heart of this appeal from the District Court’s dismissal of

Thaddeus Fletcher’s petition for a writ of habeas corpus.

Fletcher’s petition alleges, inter alia, that the Commission’s

retroactive application of the new federal regulations during his

reparole hearing in 2000 violated the Ex Post Facto Clause of

the United States Constitution, U.S. Const. art. I, § 9, cl. 3, and

entitles him to habeas relief. We agree with Fletcher that the

District Court erred in dismissing his petition.

Fletcher was convicted of a felony under the D.C. Code in

1980, and was subsequently released on parole by the Board. In

1998, during the period when authority over D.C. Code

offenders was in the process of being transferred to the

Commission, the Board revoked Fletcher’s parole after he was

convicted of a new felony in Maryland. By the time Fletcher

came up for reparole in 2000, the Commission had assumed all

responsibility for the parole and reparole of felons convicted

under the D.C. Code. In considering Fletcher’s case for

reparole, the Commission applied the new federal regulations,

not the displaced D.C. Board regulations. This meant that, in

accordance with the federal regulations, because Fletcher’s

parole had been revoked for an offense that was not a D.C. Code

offense, the Commission declined to consider his post-

incarceration behavior, such as rehabilitative accomplishments,

in weighing his entitlement to reparole. Fletcher claims that his

rehabilitative accomplishments would have been taken into

account under the D.C. Board’s regulations for reparole.

Fletcher’s pro se habeas petition alleges, among other

things, that the retroactive application of the federal reparole

regulations, rather than the Board’s regulations, during his 2000

reparole hearing, created a significant risk of increased

punishment, and is thus an unconstitutional ex post facto law.

The District Court denied Fletcher’s habeas petition. Appellant

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appears before us seeking a reversal, and a remand with

instructions that he is entitled to “sufficient discovery” to

support his efforts to demonstrate that, as applied to him, the

federal regulations, in their practical operation, create a

significant risk of increased punishment.

In dismissing Fletcher’s habeas petition, the District Court

assumed that parole/reparole regulations are not “laws” for ex

post facto purposes. We squarely rejected this position.

Fletcher v. District of Columbia, 391 F.3d 250, 251 (D.C. Cir.

2004) (“Fletcher II”), granting reh’g and vacating in part, 370

F.3d 1223 (“Fletcher I”). Fletcher II makes it clear that, under

Garner v. Jones, 529 U.S. 244 (2000), the critical question in ex

post facto challenges to retroactively applied parole/reparole

regulations is whether, as a practical matter, the retroactive

application creates a significant risk of prolonging an inmate’s

incarceration. We must remand this case to afford the District

Court an opportunity to review Fletcher’s petition under this

analytical framework.

It appears that the District Court also may have read

Fletcher’s petition too narrowly, countenancing only Fletcher’s

claim that the retroactive application of the federal regulations

would delay the date on which he became eligible for reparole.

Fairly construed, Fletcher’s habeas petition alleges a stronger

claim. He asserts that the federal reparole regulations, unlike the

Board’s former regulations, are primarily concerned with

punishment and recidivism, and do not factor evidence of post-

incarceration rehabilitation into reparole determinations. This

difference, he argues, creates a significant risk that he will linger

in prison for longer than he reasonably assumed when his parole

was revoked, because he will not be granted reparole under the

new federal regulations. Fletcher has presented a viable claim

which is entitled to fair consideration. The decision of the

District Court is therefore reversed, and the case remanded for

further proceedings consistent with this opinion.

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(The parties and the case law make reference to

“regulations,” “rules,” and “guidelines,” interchangeably, in

discussing the Board’s and the Commission’s parole/reparole

regimes. These labels are insignificant to our disposition of this

appeal.)

I. BACKGROUND

A. Changes to Parole and Reparole Regulations for D.C.

Code Offenders

In 1997, Congress transferred responsibility for the

imprisonment of all felons convicted under the D.C. Code from

the District of Columbia to the federal government. National

Capital Revitalization and Self-Government Improvement Act

of 1997 (“Revitalization Act” or the “Act”), Pub. L. No. 105-33,

111 Stat. 712, 734-37 (codified at D.C. CODE §§ 24-101 et seq.

(2001 & Supp. 2005)). As part of the Revitalization Act,

Congress transferred authority over “any imprisoned felon who

is eligible for parole or reparole under the [D.C.] Code” from the

D.C. Board of Parole to the U.S. Parole Commission. § 11231,

111 Stat. at 745. The U.S. Parole Commission was required to

begin the process of assuming its new jurisdiction by August 5,

1998. Id. The Act provided that the D.C. Board of Parole

would be abolished once the transfer of authority to the

Commission was completed. Id.

Under the Act, the Commission is vested with “exclusive

authority to amend or supplement any regulation interpreting or

implementing the parole laws of the District of Columbia with

respect to felons, provided that the Commission adheres to

[statutory] rulemaking procedures.” Id. In 1998 and 2000, the

Commission undertook two rounds of rulemaking which

resulted in the regulations applied by the Commission at

Fletcher’s reparole hearing in 2000.

Prior to the Commission’s adoption of new regulations,

parole and reparole determinations for D.C. Code offenders

6

were guided by the D.C. Board’s regulations. See D.C. MUN.

REGS. tit. 28, §§ 100 et seq. (1987) (repealed Aug. 5, 2000).

Under these regulations, a person whose parole was revoked

“based on one or more new felony charges or convictions” was

entitled to an initial reparole hearing within nine to twenty-four

months depending on the number of years remaining on the

maximum sentence. D.C. MUN. REGS. tit. 28, § 104.8-104.9.

The Board, however, reserved its discretion to “order a parole

reconsideration date it determine[d] to be appropriate.” D.C.

MUN. REGS. tit. 28, § 104.11.

At D.C. Board reparole hearings, release decisions were

based on the same criteria used in connection with parole

determinations. D.C. MUN. REGS. tit. 28, § 204.1. To

“determin[e] whether an incarcerated individual [would] be

paroled or reparoled,” the D.C. Board employed an analytic

framework that relied on both “pre and post-incarceration

factors.” Id. The Board would first consider the following pre-

incarceration factors: prior convictions and adjudications, prior

commitments of more than 30 days, age at commission of

current offense, recent commitment-free period, status of

prisoner at time of current offense, and history of heroin or

opiate dependence. D.C. MUN. REGS. tit. 28, § 204.4-204.16.

The pre-incarceration factors were then weighed by a formula to

determine the candidate’s risk category, called a “salient factor

score.” D.C. MUN. REGS. tit. 28, § 204.17 & Appendix 2-1. The

Board would then consider pre- and post-incarceration factors

to determine whether the candidate should be reparoled. D.C.

MUN. REGS. tit. 28, § 204.18. Two post-incarceration factors in

particular were important: institutional behavior and “sustained

achievement in the area of prison programs, industries, or work

assignments while under confinement for the current offense.”

D.C. MUN. REGS. tit. 28, § 204.18(h)-(i). These factors, along

with a second set of pre-incarceration factors, were then

integrated into a calculus to produce a point score which

constrained the Board’s discretion in making final reparole

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determinations. See D.C. MUN. REGS. tit. 28, § 204.19 &

Appendix 2-1. The regulations allowed for discretionary

departures from the point score “in unusual circumstances.”

D.C. MUN. REGS. tit. 28, § 204.22. Finally, the regulations

provided that, “[i]n general, the Board shall not grant parole

unless the prisoner has substantially observed the rules of the

institution in which he or she is confined.” D.C. MUN. REGS. tit.

28, § 205.1. At rehearings, the Board would take the original

“total point score from the initial hearing and adjust that score

according to the institutional record of the candidate since the

last hearing pursuant to Appendix 2-2.” D.C. MUN. REGS. tit.

28, § 204.21.

The D.C. Board’s regulations plainly evidence a

rehabilitative focus in making parole and reparole

determinations. Post-incarceration factors were formally

integrated into release determinations. This is different from the

current federal regulations’ singular focus on pre-incarceration

factors. See Cosgrove v. Thornburgh, 703 F. Supp. 995, 1003-

04 (D.D.C. 1998) (finding that the Board utilized both pre-

incarceration and post-incarceration factors in making parole

suitability determinations, whereas “[t]he Commission uses only

two pre-incarceration factors, thus de-emphasizing any

rehabilitative results from incarceration”). The U.S. Parole

Commission recognized this difference when it undertook

rulemaking in advance of taking over the D.C. Board’s authority

in 1998.

Acknowledging that “the parole function for D.C. Code

offenders rests on a premise somewhat different from that of the

federal parole guidelines,” the Commission passed its interim

parole regulations, choosing to incorporate the rehabilitative

factors of the D.C. Board’s regulations. See Paroling,

Recommitting, and Supervising Federal Prisoners: Prisoners

Serving Sentences Under the District of Columbia Code

(“Interim Parole Regulations”), 63 Fed. Reg. 39,172, 39,174

8

(proposed July 21, 1998) (codified at 28 C.F.R. §§ 2.70-2.90

(1999)) (citing Cosgrove, 703 F. Supp. at 1004 n.6); see 28

C.F.R. §§ 2.73, 2.80 (1999). No such modifications were made

in the regulations governing decisions to grant reparole when the

new offense for which parole was revoked was not a D.C. Code

offense. Interim Parole Regulations, 63 Fed. Reg. at 39,175; see

28 C.F.R. § 2.87 (1999). In other words, the federal regulations

for reparole apply when a D.C. Code offender’s parole is

revoked based on an offense that was not a D.C. Code offense.

Id. The federal reparole regulations only consider offense and

offender characteristics. See 28 C.F.R. § 2.20 (1999) (federal

parole framework incorporated into reparole analysis by 28

C.F.R. § 2.21). The interim regulations went into effect on

August 5, 1998. See Interim Parole Regulations, 63 Fed. Reg.

at 39,175.

In 2000, the Commission’s interim rules were partially

modified and then promulgated as final rules. The final rules

took effect on August 5, 2000. See Paroling, Recommitting, and

Supervising Federal Prisoners: Prisoners Serving Sentences

Under the District of Columbia Code (“Final Parole

Regulations”), 65 Fed. Reg. 45,885 (proposed July 26, 2000)

(codified at 28 C.F.R. §§ 2.70-2.107 (2001)). The final rules

specified the Commission’s special reparoling procedures for

prisoners serving a new, parolable D.C. Code sentence, but

otherwise made no changes to its general presumption that

reparole determinations would be based on the federal reparole

regulations. Id. at 45,894; see 28 C.F.R. § 2.81 (2001). The

final regulations “apply to all prisoners and parolees . . . who are

serving sentences under the District of Columbia Code for

felony crimes committed prior to August 5, 2000.” Final Parole

Regulations, 65 Fed. Reg. at 45,887.

In 2001, the Commission undertook a final round of

rulemaking in relation to its reparole provision for D.C. Code

offenders. The new amendment clarified the Commission’s

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authority in subsequent review hearings to make findings of fact

regarding issues not resolved by the D.C. Board of Parole at an

initial revocation hearing. See Paroling, Recommitting, and

Supervising Federal Prisoners: Prisoners Serving Sentences

Under the District of Columbia Code (“Reparole Amendment”),

66 Fed. Reg. 37,136 (proposed July 17, 2001) (codified at 28

C.F.R. § 2.81 (2005)). This, in the Commission’s view,

enhanced its ability to properly determine suitability for reparole

under the federal regulations and addressed situations where the

Board had revoked parole based on administrative charges

sufficient to warrant revocation and return to prison, but without

reaching more serious criminal charges. Id. The amended

reparole provisions were made “fully retroactive to all reparole

decisions of the Commission from August 5, 1998, forward, and

shall apply to all reparole decisions made by the Commission in

the future with respect to offenders whose paroles were revoked

by the D.C. Board of Parole.” Id. at 37,137.

B. Thaddeus Fletcher – Reparole

Fletcher is serving a sentence imposed by the District of

Columbia Superior Court. He was convicted of rape in 1980,

and sentenced to a term of 12 to 36 years in prison. Fletcher v.

Reilly, CA No. 01-2058, 2003 U.S. Dist. LEXIS 26412, at *1

(D.D.C. Nov. 24, 2003). The D.C. Board released Fletcher on

parole in 1990 but revoked that parole in 1998. Id. at *1-2.

Although the Board’s paroling and reparoling authority over

eligible District of Columbia prisoners had already passed to the

U.S. Parole Commission, the Board retained jurisdiction to

supervise parolees until August 5, 2000. Reparole Amendment,

66 Fed. Reg. at 37,136. In October of 1998, the Board revoked

Fletcher’s parole and ordered that a reparole hearing would be

conducted by August 2000. Fletcher, 2003 U.S. Dist. LEXIS

26412, at *2. The most important ground supporting the

Board’s revocation order was Fletcher’s Maryland conviction.

See U.S. Parole Commission’s Opposition to Petition for Habeas

10

Corpus, Exhibits G & H, Fletcher v. Reilly, CA No. 01-2058

(D.D.C. Nov. 24, 2003).

When Fletcher’s reparole hearing was held in November

2000, the Commission had assumed all of the responsibilities of

the D.C. Board of Parole. See Reparole Amendment, 66 Fed.

Reg. at 37,136. In considering Fletcher’s case, the Commission

applied the federal reparole regulations, as amended in August

2000. After determining that Fletcher’s salient factor score was

five and the severity of his offense fell into Category Eight, the

Commission set a presumptive parole date of October 29, 2010.

Fletcher, 2003 U.S. Dist. LEXIS 26412, at *2-3; U.S. Parole

Commission’s Opposition to Petition for Habeas Corpus,

Exhibits I & J (“Ex. I” & “Ex. J”), Fletcher v. Reilly, CA No.

01-2058 (D.D.C. Nov. 24, 2003).

Neither the salient factor score nor the offense severity

category takes into account Fletcher’s post-incarceration

behavior. See 28 C.F.R. §§ 2.81, 2.21, 2.20 (2001). The

Commission acknowledged that Fletcher had received a B.A. in

Urban Studies from the University of the District of Columbia

and that he was working as a clerk in the “Metro Shop” and a

supervisor in the “Fabric Industry.” However, neither of these

rehabilitative accomplishments, nor Fletcher’s completion of

various life-skills and psychological programs, were formally

weighed by the Commission in its reparole decision. See Ex. I,

supra, at 3-4; Ex. J, supra, at 1. In other words, Fletcher’s post-

incarceration behavior did not factor into the assessment of

either his reparole eligibility – i.e., the earliest date an inmate

may be considered for reparole – or his reparole suitability – i.e.,

whether the inmate is in fact a good candidate for release. As

noted above, the reparole regulations have been amended since

Fletcher’s reparole hearing in 2000. See 28 C.F.R. § 2.81

(2005). The new changes, however, do not affect Fletcher’s

claim in any material way.

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C. Procedural History

On September 27, 2001, Fletcher filed a petition for a writ

of habeas corpus in the United States District Court for the

District of Columbia. At the time, he was confined at the Lorton

Correctional Complex in Lorton, Virginia, which was operated

by the District of Columbia Department of Corrections. He

named his immediate custodian, Warden Dennis Harrison, as the

respondent, along with Edward F. Reilly, Jr., Chairman of the

U.S. Parole Commission. Shortly after filing his petition,

Fletcher was transferred to a federal penitentiary in South

Carolina. Pursuant to the Revitalization Act, the Lorton

Correctional Complex was closed in 2001, and the D.C. Board

of Parole was legally extinguished. See D.C. CODE §§ 24-101,

24-131.

Fletcher’s petition asserts, inter alia, an ex post facto claim

based on two theories. He claims that the retroactive application

of the federal reparole regulations adversely affects both his

eligibility and his suitability for reparole. See Petitioner’s

Response to Response Filed by the U.S. Parole Commission at

2, Fletcher v. Reilly, CA No. 01-2058 (D.D.C. Nov. 24, 2003).

Though inartfully pled, the essence of Fletcher’s claim is easily

discernible: the Commission’s retroactive application of the

federal reparole regulations creates a significant risk of

increasing his stay in prison, because the federal regulations

determine the appropriateness of reparole based upon measures

that focus solely on pre-incarceration behavior. By contrast, the

D.C. Board’s reparole regulations placed significant weight on

institutional conduct and rehabilitative accomplishments.

Petition for Writ of Habeas Corpus or in the Alternative for Writ

of Mandamus at 21-22, Fletcher v. Reilly, CA No. 01-2058

(D.D.C. Nov. 24, 2003). Fletcher’s acquisition of a B.A. from

the University of the District of Columbia, for example, would

have been a favorable factor affecting his suitability for reparole

12

under the D.C. Board’s regulations, but it is irrelevant under the

federal regulations.

Procedurally, this case is complicated by the fact that

Fletcher, acting pro se, also raised his ex post facto claim in a

civil rights suit brought under 42 U.S.C. § 1983. See Fletcher

I, 370 F.3d at 1225. At the time of filing, there was substantial

confusion over whether ex post facto parole claims could be

litigated under § 1983 or were only reachable through habeas

corpus. See Wilkinson v. Dotson, 125 S. Ct. 1242, 1248 (2005)

(resolving issue by holding that ex post facto challenges to

retroactive application of parole guidelines do not fall within the

“habeas exception” to § 1983 where a favorable judgment will

not necessarily imply immediate release from confinement or a

shorter prison term). Since the cases were related, Fletcher’s

§ 1983 and habeas cases were both assigned to the same trial

judge.

On July 1, 2002, the District Court dismissed Fletcher’s

§ 1983 lawsuit, ruling that his ex post facto claim must be

brought as a petition for habeas corpus. See Fletcher I, 370 F.3d

at 1226. That judgment was appealed. Meanwhile, the District

Court stayed judgment on Fletcher’s habeas petition, pending

reconsideration of Fletcher’s salient factor score by the

Commission. Fletcher, 2003 U.S. Dist. LEXIS 26412, at *1.

On August 14, 2002, the U.S. Parole Commission acknowledged

an error in its original calculation of Fletcher’s salient factor

score and set a new presumptive parole date in October 2007.

The Commission also set a review hearing for July 2004. Id. at

*3.

On November 24, 2003, the District Court dismissed

Fletcher’s habeas petition. As to Fletcher’s ex post facto claim,

the court observed that, “[a]lthough the question is unsettled, the

weight of authority holds that parole guidelines and rules such

as those at issue in this case, which simply provide guides for

the exercise of discretion, do not constitute ‘laws’ subject to an

13

ex post facto analysis.” Id. at *9. The District Court also noted

that the Commission had given Fletcher a rehearing within two

years, just as the D.C. Board would have done under its reparole

regulations, and that Fletcher had been granted a presumptive

reparole date. Id. at *12. In the District Court’s view, Fletcher

had failed to show that he was adversely affected by the

retroactive application of the federal regulations. The court also

dismissed Fletcher’s petition as to Warden Harrison on the

ground that the issues in the petition only address actions taken

by the U.S. Parole Commission. Id. at *16 n.8.

Fletcher filed a timely notice of appeal. The District Court

granted a certificate of appealability for the ex post facto claim,

finding that Fletcher had made a substantial showing of the

denial of a constitutional right, one that reasonable jurists could

debate, because it is unsettled as to whether parole regulations

can constitute ex post facto laws. Fletcher v. Reilly, CA No. 01-

2058, Order Granting Certificate of Appealability (D.D.C. Jan.

9, 2004).

The appeal here was held in abeyance pending the

resolution of Fletcher’s appeal of the District Court’s dismissal

of his § 1983 claim. On November 19, 2004, this court reversed

the District Court’s dismissal of Fletcher’s § 1983 claim and

remanded the case for further proceedings consistent with

Garner. Fletcher II, 391 F.3d at 251. This appeal was then

reactivated. On January 10, 2005, the District Court granted

Fletcher’s motion to stay any further proceedings on his § 1983

claim, pending resolution of this habeas appeal. Fletcher now

contends that it has always been his intention to pursue his ex

post facto claim in a single proceeding.

II. ANALYSIS

A. Jurisdiction

Normally, the only proper defendant in a habeas case is the

petitioner’s “immediate custodian” – that is, the warden of the

14

facility in which the petitioner is incarcerated at the time he files

the habeas petition. Rumsfeld v. Padilla, 542 U.S. 426, 434,

439 (2004); see also Blair-Bey v. Quick, 151 F.3d 1036, 1039

(D.C. Cir.), modified on reh’g in other respects, 159 F.3d 591

(D.C. Cir. 1998) (“When a prisoner seeks to challenge

parole-related decisions, the warden of the prison . . . is the

prisoner’s ‘custodian.’”); Chatman-Bey v. Thornburgh, 864

F.2d 804, 811 (D.C. Cir. 1988) (en banc) (“the proper defendant

in federal habeas cases is the warden” of the facility where

prisoner is incarcerated at the time when he files his petition).

In his petition for habeas, Fletcher named his immediate

custodian, Dennis Harrison, the Warden at the Lorton

Correctional Complex, along with Edward F. Reilly, Jr.,

Chairman of the U.S. Parole Commission. He therefore

complied with the “immediate custodian” rule. Shortly after

filing his petition, however, Lorton was closed pursuant to the

Revitalization Act, and Fletcher was transferred to a federal

penitentiary in South Carolina. “[W]hen the Government moves

a habeas petitioner after [he] properly files a petition naming

[his] immediate custodian, the District Court retains jurisdiction

and may direct the writ to any respondent within its jurisdiction

who has legal authority to effectuate the prisoner’s release.”

Stokes v. U.S. Parole Comm’n, 374 F.3d 1235, 1238 (D.C. Cir.

2004) (quoting Padilla, 542 U.S. at 441 (explaining Ex parte

Endo, 323 U.S. 283 (1944))). The Commission has legal

authority to effectuate Fletcher’s release, so it is a proper

respondent in this case. Indeed, the U.S. Parole Commission has

appeared in this case, responded to the merits of Fletcher’s

claim, and raised no objections on grounds of venue or personal

jurisdiction. See Chatman-Bey, 864 F.2d at 813 (“It is, of

course, elementary that a defense of improper venue or lack of

personal (as opposed to subject matter) jurisdiction is waived

unless the defense is asserted . . . .”).

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We also note that the Commission, or the United States in

its stead, might have sought to substitute the Warden of the

federal penitentiary in South Carolina where Fletcher is now

incarcerated. In Crawford v. Jackson, 323 F.3d 123 (D.C. Cir.

2003), a case involving circumstances similar to those here, the

court held that it had jurisdiction over a habeas petition properly

filed by a petitioner in custody at the Lorton Correctional

Complex prior to its closure. The United States entered an

appearance in Crawford and advised the court that it waived any

objection to lack of personal jurisdiction, and consented to

“substitute the Warden at FCI Petersburg, Stephen M. Dewalt,

as the custodian of appellant/petitioner Curtis E. Crawford.” Id.

at 126 (internal citations omitted). The same can be done here

when the case is remanded to the District Court if the United

States deems this to be a prudent course. The main point here

is that, because Fletcher named his immediate custodian when

he filed his petition for habeas, and the Commission is within

the jurisdiction of the District Court and has authority to

effectuate Fletcher’s release on reparole, the District Court has

jurisdiction to consider Fletcher’s habeas petition.

Because complaints by D.C. Code offenders about detention

resulting from decisions of a parole board are complaints

regarding a detention “aris[ing] out of process issued by a State

court,” 28 U.S.C. § 2253(c)(1)(A) (2000), this court’s

jurisdiction is limited to the issues certified for appeal, in this

case the District Court’s dismissal of Fletcher’s ex post facto

claim. See Madley v. U.S. Parole Comm’n, 278 F.3d 1306, 1310

(D.C. Cir. 2002).

The District of Columbia, appearing on behalf of appellee

Harrison, takes no position on the merits of Fletcher’s ex post

facto claim, but asks this court to affirm the District Court’s

dismissal of the petition as to Harrison. The petition contains no

allegation of wrongdoing by any District of Columbia officials,

and Harrison is no longer Fletcher’s Warden. Furthermore, the

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D.C. Board of Parole no longer exists, so Fletcher can obtain no

redress from the District of Columbia. We therefore affirm the

dismissal of Fletcher’s claims against the District of Columbia

defendant. See Fletcher I, 370 F.3d at 1225 n.**.

B. Ex Post Facto Claim

We turn now to the merits. Fletcher argues that the District

Court erred in holding that discretionary parole regulations can

never constitute “laws” for ex post facto purposes. He also

contends that the District Court’s analysis of his claims was

inadequate, because the court did not employ the analytical

framework prescribed by Garner and Fletcher II. Finally, he

contends that the Commission’s retroactive application of the

new federal reparole regulations, rather than the Board’s

regulations, during his 2000 reparole hearing, created a

significant risk of increased punishment, and is thus an

unconstitutional ex post facto law. We agree with Fletcher that

the District Court’s analysis was based on some faulty premises,

so the case must be remanded for further consideration.

First, the District Court erred in its analysis of the Board’s

regulations and the Commission’s regulations. The court

assumed that the Board’s and Commission’s parole/reparole

rules are merely discretionary “guidelines.” Fletcher, 2003 U.S.

Dist. LEXIS 26412, at *11-12. The court then expressed

profound doubts that such “guidelines” are subject to ex post

facto challenges. The District Court acknowledged that the

question was unsettled, but clearly considered the weight of

authority to hold that parole/reparole regulations do not

constitute “laws” subject to an ex post facto analysis. Id. at *9.

Accepting the Government’s position, the District Court was

also under the misconception that since the D.C. Board

exercised discretion in applying the former D.C. parole/reparole

regulations and the Commission exercises like discretion in

applying the federal parole/reparole regulations, there could be

no ex post facto violation. In other words, in the District Court’s

17

view, a mere change in the manner in which discretion is

exercised would not be unconstitutional. Id. at *11-12. The

problem here is that the premises underlying the District Court’s

analysis are erroneous.

As this court held in Fletcher II, Garner “foreclosed [a]

categorical distinction between a measure with the force of law

and guidelines . . . from which [a parole board] may depart in

its discretion.” 391 F.3d at 251 (internal citations and quotation

marks omitted). The labels “regulation” and “guideline” are not

determinative. And the existence of discretion is not dispositive.

The controlling inquiry under Garner is how the Board or the

Commission exercises discretion in practice, and whether

differences between the exercise of discretion in two systems

actually “create[] a significant risk of prolonging [an inmate’s]

incarceration.” Garner, 529 U.S. at 251.

Second, as noted above, it appears that the District Court

construed Fletcher’s habeas petition too narrowly, for the court

countenanced only Fletcher’s claim that the retroactive

application of the federal regulations would delay the date on

which he became eligible for reparole. We find that appellant’s

habeas petition alleges a stronger claim, one that has yet to be

addressed by the District Court.

The District Court read the petition as one exclusively about

eligibility for reparole, and dismissed it on the ground that, if

anything, Fletcher’s eligibility for reparole is more certain under

the new federal regulations than it was under the Board’s former

regulations. Fletcher, 2003 U.S. Dist. LEXIS 26412, at *12.

Appellant’s petition, however, cannot fairly be read so narrowly.

See United States v. Palmer, 296 F.3d 1135, 1143 (D.C. Cir.

2002) (“[A]llegations of pro se motioner, ‘however inartfully

pleaded,’ are subject to ‘less stringent standards than formal

pleadings drafted by lawyers.’”) (summarizing and quoting

Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam)).

Fletcher alleged that the retroactive application of the federal

18

reparole regulations adversely affects both his eligibility and his

suitability for reparole. In particular, Fletcher asserts that the

federal reparole regulations, unlike the Board’s former

regulations, are primarily concerned with punishment and

recidivism and, therefore, the Commission does not account for

evidence of post-incarceration rehabilitation in reparole

determinations. This difference, he argues, creates a significant

risk that he will linger in prison for longer than he reasonably

assumed when his parole was revoked, because he will not be

reparoled under the new federal regulations. The District Court

erred when it narrowly construed Fletcher’s petition as only a

claim that the retroactive application of the federal regulations

would impact his reparole eligibility. In failing to address

Fletcher’s stronger suitability claim, the District Court failed to

apply Garner properly.

Third, because the District Court proceeded on the basis of

faulty assumptions about the difference between “guidelines”

and “regulations,” and the “discretion” purportedly exercised by

the Board and the Commission, the court failed to give full

effect to Garner. Under Garner, a retroactively applied parole

or reparole regulation or guideline violates the Ex Post Facto

Clause if it “creates a significant risk of prolonging [an

inmate’s] incarceration.” 529 U.S. at 251. “[T]he claimant

‘must show that as applied to his own sentence the law create[s]

a significant risk of increasing his punishment.’” Fletcher II,

391 F.3d at 251 (quoting Garner, 529 U.S. at 255). Equally

important for this case, Garner outlines two ways in which

“significant risk” can be established by a petitioner. First, it can

be established if there are facial distinctions between the old and

new parole/reparole regulations. Second, “[w]hen the rule does

not by its own terms show a significant risk,” a claimant may

also meet his burden “by [introducing] evidence drawn from the

rule’s practical implementation by the agency charged with

exercising discretion, that its retroactive application will result

in a longer period of incarceration than under the earlier rule.”

19

Garner, 529 U.S. at 255 (emphases added). The controlling

inquiry “is one of practical effect.” Fletcher II, 391 F.3d at 251.

A district court must assess the magnitude of the risk in terms of

the practical effect of the change in regulations on the length of

a petitioner’s incarceration.

On their face, the federal reparole regulations applied in

Fletcher’s case are substantially different from the D.C. Board’s

regulations that were repealed in August 2000. As Fletcher

alleged in his habeas petition, the old and new rules diverge

most clearly with respect to the weight that post-incarceration

behavior is given in reparole determinations in cases involving

a person whose parole was revoked for a non-D.C. Code

offense. Fletcher has thus presented a creditable claim that the

District Court must explore within the framework laid out by

Garner and explained by this court in Fletcher II.

Under Garner and Fletcher II, the District Court was

required to compare the federal regulations and the Board’s

displaced scheme with respect to reparole. The District Court,

however, was under the mistaken impression that “the [D.C.]

Board of Parole had no guidelines concerning reparole

decisions, but merely provided for at least bi-annual rehearings.”

Fletcher, 2003 U.S. Dist. LEXIS 26412, at *5 (citing D.C. MUN.

REGS. tit. 28, § 104.4-104.9 (procedural provisions)). This

finding was erroneous, for there is ample evidence that both the

former Board regulations and the new federal regulations have

rules and practices covering both parole and reparole.

Because the District Court misconstrued the Board’s

regulations, the court never focused in on a detailed comparison

of the two reparole regimes. This comparison must include: (1)

a determination as to whether, in practice, the federal reparole

regulations, unlike the Board’s former regulations, are primarily

concerned with punishment and recidivism and, as a result, the

Commission does not account for evidence of post-incarceration

rehabilitation in reparole determinations; and (2) a determination

20

as to whether, in light of this alleged practice, the Commission’s

application of its reparole regulations creates a significant risk

that Fletcher will linger in prison longer, because he faces a

diminished likelihood that he will be reparoled under the new

federal regulations.

The Commission cites Glascoe v. Bezy, 421 F.3d 543 (7th

Cir. 2005), in support of its claim that the District Court’s

decision dismissing Fletcher’s petition should be affirmed.

Glascoe, however, is plainly distinguishable. The petitioner in

that case challenged the retroactive application of the

Commission’s parole regulations for D.C. Code offenders. As

previously discussed, the regulations governing parole decisions

for D.C. Code offenders are materially different from those

governing the reparole determination in this case. Compare 28

C.F.R. § 2.80 (2001), with 28 C.F.R. §§ 2.81, 2.21, 2.20 (2001).

The new federal regulations governing parole suitability for

D.C. Code offenders take into account post-incarceration

behavior; however, the federal regulations do not take into

account post-incarceration behavior when the Commission

determines suitability for reparole for offenders, like Fletcher,

whose parole was revoked on the basis of an offense that was

not a D.C. Code offense.

Moreover, the Seventh Circuit found that Glascoe’s petition

for parole would have been denied even under the Board’s

regulations:

There might be a case where application of the 1999

[federal] guidelines rather than the 1981 [D.C. Board]

guidelines substantially increases an inmate’s risk of

increased punishment so as to violate the Ex Post Facto

Clause. . . . But this is not such a case; the record shows that

Glascoe would have been denied parole under either set of

guidelines, and there is no ex post facto violation.

21

Glascoe, 421 F.3d at 549. Glascoe had a long record of negative

institutional behavior, id. at 545-46, and he had presented no

evidence of rehabilitation, id. at 549. Given the extreme

violence of his crimes and his negative institutional behavior,

the court found that Glascoe could not show that he personally

was at significant risk of increased punishment. Id. at 548. The

record Fletcher has presented, by contrast, shows numerous

rehabilitative accomplishments. And he has offered a viable

claim that there is a significant risk that his punishment will be

increased by virtue of the Commission’s retroactive application

of the new federal regulations governing reparole.

Fletcher has made out a prima facie case that his rights

under the Ex Post Facto Clause have been violated, because he

is a D.C. Code offender whose parole was revoked based on an

offense that was not a D.C. Code offense. Under these

circumstances, the facial distinctions between the Board’s

regulations and the federal regulations that replaced them,

specifically the fact that the new federal regulations, unlike the

regulations they replaced, do not take post-incarceration

behavior into account, is sufficient to warrant factual

development on his habeas petition. Under Garner and Fletcher

II, Fletcher is entitled to a searching comparison of the old and

new reparole regimes in order to determine whether the U.S.

Parole Commission’s application of the federal reparole

regulations at Fletcher’s reparole hearing in 2000 created a

significant risk that he will be subjected to a lengthier

incarceration than he would have been if the Commission had

adhered to the rules and practices of the D.C. Board.

III. CONCLUSION

The District Court’s dismissal of appellant’s habeas petition

is reversed and the case is remanded for further proceedings

consistent with this opinion.

So ordered.