Keitt v. US Parole Comm , 238 F. App'x 755 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
6-8-2007
Keitt v. US Parole Comm
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3802
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DLD-248
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 06-3802
________________
JAMES KEITT,
Appellant
v.
U.S. PAROLE COMMISSION; DISTRICT OF COLUMBIA BOARD OF PAROLE
________________
On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. Civ. No. 04-cv-00362E)
District Judge: Honorable Sean J. McLaughlin
________________
Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
or Request For A Certificate of Appealability Under 28 U.S.C. § 2253(c)(2)
May 24, 2007
Before: BARRY, AMBRO and FISHER, Circuit Judges
(Filed : June 8, 2007)
________________
OPINION
________________
PER CURIAM
James Keitt, a prisoner, appeals pro se from an order of the United States District
Court for the Middle District of Pennsylvania denying his habeas petition filed under 28
U.S.C. § 2241.1 We will deny a certificate of appealability.
Keitt has been either incarcerated or on parole since 1979 when he was sentenced
by the District of Columbia Superior Court to, inter alia, 15 years imprisonment for
burglary while armed and 20 years imprisonment for armed robbery. Keitt was paroled
from this sentence in September 1988, to remain under parole supervision until June
2013. In February 1996, the U.S. Parole Commission (“Commission”) revoked Keitt’s
parole and subsequently transferred jurisdiction over Keitt back to the D.C. Board of
Parole (“D.C. Board”). In September 1996, the D.C. Board issued a warrant charging
Keitt with violating the conditions of his parole. In July 1997, the District of Columbia
Superior Court sentenced Keitt to an additional 15 years imprisonment for armed robbery.
Later, the Commission conducted a combined dispositional revocation hearing and
rehearing (“hearing”) on Keitt’s new sentence ultimately revoking Keitt’s parole on
October 4, 2004.2 The Commission determined that Keitt’s offense exhibited a high-level
1
At the time Keitt filed his § 2241 petition, he was incarcerated in a federal
correctional institution in Pennsylvania.
2
In July 2000, Keitt was transferred back to the jurisdiction of the Commission.
The Commission assumed jurisdiction over D.C. offenders on August 5, 1998, pursuant
to the National Capital Revitalization and Self-Government Improvement Act of 1997
(“Revitalization Act”). See Pub. L. No. 105-33, § 11231(a)(1), 111 Stat. 712 (1997)
(codified as amended at D.C. Code § 24-131 (2001)). Under the Revitalization Act, the
Commission is given exclusive jurisdiction over all D.C. felony prisoners and authorized
to amend or supplement the 1987 D.C. parole regulations. See D.C. Code § 24-131(c).
Upon assuming the authority of the D.C. Board, the Commission revised the regulations
pursuant to this authority and they now appear at 28 C.F.R. § 2.80.
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of violence and assigned him a higher base point score premised upon that finding.3 See
28 C.F.R. § 2.80(f) (2004) (providing for an addition of two points to a base score in the
case of a “[c]urrent offense [that] involved attempted murder . . . or any willful violence
in which the victim survived despite death having been the most probable result at the
time the offense was committed.”) At the hearing, Keitt admitted to pleading guilty to
armed robbery, but asserted that he did so only to avoid a life-sentence as a three-time
offender. Keitt, however, denied robbing, assaulting or threatening his victim.
In December 2004, Keitt filed the instant petition for writ of habeas corpus under §
2241. Keitt claims that: (1) the Commission denied him due process; (2) the Commission
relied upon erroneous information in finding that he attempted to murder his victim; (3)
the application of Commission guidelines rather than D.C. Board regulations violated the
Ex Post Facto Clause; and (4) the Commission’s action violated double jeopardy.4 The
magistrate judge concluded that Keitt’s claims are meritless. First, the magistrate judge
determined that the Commission’s findings regarding the level of violence in Keitt’s
3
Under the 2004 version of the guidelines for D.C. Code offenders, a salient factor
score, a tool used to predict recidivism, was combined with pre- and post-incarceration
factors to establish a base point score guideline range. See 28 C.F.R. § 2.80(h). One of
the pre-incarceration factors in the base point score was whether the underlying offense
involved death of a victim or a high level of violence. See 28 C.F.R. 2.80(f). In the
instant case, the Commission set Keitt’s base point score at nine (a higher total score
translates to a lower likelihood of parole) which was calculated as follows: three points
for risk of recidivism, four points for “violence in the current offense,” and two points
because the current offense involved attempted murder or willful violence in which death
of the victim was a likely result—Keitt challenges the last award. Id.4
In a reply brief filed in the district court, Keitt conceded that the Commission’s
action did not result in double jeopardy; thus, Keitt conceded his first and fourth claims.
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underlying conviction had a rational basis in the record. Second, the magistrate judge
rejected Keitt’s Ex Post Facto Clause claim because under Simmons v. Shearin, 295 F.
Supp. 2d 599, 603-04 (D. Md. 2003), the Commission’s guidelines did not constitute
“laws” within the meaning of the Ex Post Facto Clause itself. In July 2006, the district
court adopted the magistrate judge’s report and recommendation, denying Keitt’s petition.
Keitt filed a timely notice of appeal.
For purposes of federal habeas relief, because Keitt is in custody pursuant to a
District of Columbia court judgment, he is a state prisoner. See Madley v. U.S. Parole
Comm’n, 278 F.3d 1306, 1309 (D.C. Cir. 2002). Given that Keitt seeks to challenge his
continued detention, he must obtain a certificate of appealability to pursue this appeal.5
See 28 U.S.C. § 2253(c)(1)(A); see also Madley, 278 F.3d at 1310. For the purposes of
this opinion, Keitt’s timely notice of appeal serves as his request for a certificate of
appealability. See Coady v. Vaughn, 251 F.3d 480, 486-87 (3d Cir. 2001).
Both this and the district court’s review of a Commission decision is limited to
whether there is a rational basis in the record for the Commission’s statement of reasons
for denial of parole. See Furnari v. Warden, Allenwood Fed. Correctional Inst., 218 F.3d
250, 254 (3d Cir. 2000). Federal courts should also consider whether the Commission
“‘followed criteria appropriate, rational and consistent’ with its enabling statutes so that
5
To obtain a certificate of appealability, Keitt must make a substantial showing of
a denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). To show such a denial,
Keitt must demonstrate that reasonable jurists could disagree about whether the district
court’s resolution of his claims was correct. See Miller-El v. Cockrell, 537 U.S. 322, 335
(2003). Under this standard, a threshold inquiry into Keitt’s claims is appropriate.
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its ‘decision is not arbitrary and capricious, nor based on impermissible considerations.’”
Id. (citation omitted). “To this end, ‘the Commission may not base its judgment as to
parole on an inaccurate factual predicate.’” Id. (citation omitted).
The Commission had a rational basis to conclude that the level of violence in
Keitt’s underlying offense involved attempted murder or violence in which the death of
the victim would have been a probable result. See 28 C.F.R. § 2.80(f). Relying on
evidence contained in a pre-hearing assessment, which was based on Keitt’s guilty plea,
the Commission found that Keitt assaulted an 80-year-old woman with a knife and
threatened to kill her while robbing her. As the magistrate judge noted, “[t]he
Commission [wa]s not required to credit Keitt’s version of the events, nor [wa]s it
required to discount the victim’s testimony concerning what occurred.” Keitt stated he
was going to kill, and in fact stabbed, his elderly victim. Thus, at least some evidence
supports the Commission’s determination that Keitt engaged in willful violence that had a
probability of leading to death. See § 2.80(f). We do not assess the credibility of the
evidence upon which the Commission relied unless those credibility determinations were
arbitrary or capricious. See Furnari, 218 F.3d at 254. After a review of the record, we
conclude that the Commission’s decision was rationally supported and, particularly in
light of the limited review permitted the district court in this case, reasonable jurists
would not debate whether the district court properly denied Keitt’s petition.
Keitt’s ex post facto claim likewise fails. Keitt argues that the Commission’s use
of its own guidelines violated the Ex Post Facto Clause because had his parole eligibility
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been scored under previous D.C. Board parole regulations, extant when he first came
under its jurisdiction, his parole outcome would have been more lenient. The Ex Post
Facto Clause prohibits the enactment of any law that “retroactively alter[s] the definition
of crimes or increase[s] the punishment for criminal acts.” Collins v. Youngblood, 497
U.S. 37, 43 (1990). Keitt must satisfy two prongs for a successful Ex Post Facto Clause
claim—he must show not only a change in law or policy which has been given retroactive
effect, but also that its retroactive application to him created a real risk of increasing the
measure of his punishment. See Richardson v. Pa. Bd. of Prob. & Parole, 423 F.3d 282,
287-88 (3d Cir. 2005); see also Garner v. Jones, 529 U.S. 244, 255 (2000).
Keitt’s argument is predicated upon the assumption that the parole guidelines are
“laws” as that term is set forth in the Ex Post Facto Clause. In this court whether the
Commission’s guidelines constitute laws is determined by the flexibility with which they
are applied, as the United States District Court for the District of Columbia explained:
Most courts of appeals addressing the question have held that Parole
Commission guidelines, which simply provide guides for the exercise of
discretion, cannot be considered “laws” for purpose of the Ex Post Facto
Clause of the Constitution. . . . However, the Courts of Appeals for both the
District of Columbia Circuit and the Third Circuit have suggested that
guidelines that are “administered without sufficient flexibility” might
constitute “laws” for Ex Post Facto Clause purposes. . . . United States ex
rel. Forman v. McCall, 776 F.2d 1156, 1158 (3d Cir.1985) [(“Forman II”)];
see Allston v. Gaines, 158 F. Supp. 2d 76, 82 (D.D.C. 2001).
Pindle v. Poteat, 360 F. Supp. 2d 17, 20 (D.D.C. 2003) (some internal citations omitted).
Thus, our precedent dictates that “[i]f applied without substantial flexibility, the parole
guidelines constitute ‘laws’ within the meaning of the ex post facto clause.” United
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States ex rel. Forman v. McCall, 709 F.2d 852, 862 (3d Cir. 1983) (“Forman I”).
“Substantial flexibility” is shown where the Commission departs (either above or below)
from the applicable guidelines in 25% of the cases before it. Forman II, 776 F.2d at 1163.
Here, Keitt has presented no evidence regarding the degree of inflexibility with which the
Commission’s guidelines are currently applied. Cf. Allston, 158 F. Supp. 2d at 76(applying our statistical evaluation approach as outlined in Forman I and concluding that
“under the analytical framework announced by the Third Circuit, the statistical evidence-
if statistical evidence by itself is enough to demonstrate substantially limited discretion-
does not prove that the Parole Commission’s discretion is substantially limited in this
case.”)
Assuming, arguendo, that the Commission’s guidelines are “laws” for the purposes
of the Ex Post Facto Clause, Keitt has failed to meet his burden of showing a “significant
risk” of increased punishment. “[A] ‘speculative and attenuated possibility . . . of
increasing the measure of punishment’ is not enough.” Richardson, 423 F.3d at 288(quoting Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 509 (1995)). The prisoner carries
the ultimate burden of establishing that the measure of punishment itself has changed and
that the law, as applied to his own sentence, created a significant risk of increasing his
punishment. Id. Keitt’s assertion that the previous regulations used by the D.C. Board
would have provided him more lenient parole treatment is, at best, gratuitous. Given that
Keitt has failed to advance any specific allegation that the Commission’s revision of the
guidelines caused a more onerous penalty to be applied in his case, reasonable jurists
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would not debate whether the district court properly denied his petition.
Jurists of reason, therefore, could not debate the correctness of the district court’s
decision. See Miller-El, 537 U.S. at 335. We will, therefore, deny Keitt’s request for a
certificate of appealability. Given our decision, appellees’ motion for summary
affirmance is denied as moot.
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