                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


    WALTER BERNARD MORTON, JR.,

                Plaintiff,

         v.
                                                          Civil Action No. 17-1112 (RDM)
    UNITED STATES PAROLE
    COMMISSION, et al.,

                 Defendants.


                                  MEMORANDUM OPINION

        Plaintiff Walter Bernard Morton, Jr., proceeding pro se, is currently serving a parole-

eligible sentence imposed under the D.C. Code. Describing his action as a petition for a writ of

habeas corpus and challenge under 42 U.S.C. § 1983, he brings suit to contest the April 28, 2016

decision of the United States Parole Commission (“the Commission”) to deny him parole until at

least April 2019.1 Dkt. 1 at 1, 27, 54. Morton alleges that when considering whether to grant

him parole, the Commission unlawfully (and surreptitiously) applied guidelines first

promulgated in 2000, rather than the regulations issued in 1987 and a policy guideline issued in

1991 that the parties agree should have governed the determination. Id. at 26.

        This matter is currently before the Court on Morton’s motion for summary judgment,

Dkt. 13, and the Commission’s cross-motion to dismiss or, in the alternative, to transfer, Dkt. 14.



1
  Pursuant to the National Capital Revitalization and Self-Government Improvement Act (“the
Revitalization Act”), Pub. L. No. 105-33, § 11231, 111 Stat. 712, 734–37 (1997), the
Commission administers parole for persons convicted of D.C. Code offenses, Sellmon v. Reilly,
551 F. Supp. 2d 66, 68 (D.D.C. 2008). Morton names the agency, its chairman, and two agency
hearing examiners as defendants. Dkt. 1 at 1. The Court generally refers to the defendants
collectively as “the Commission.”
The Commission argues that Morton has brought a habeas petition and that the Court lacks

jurisdiction over such a petition because Morton is currently incarcerated in Beaumont, Texas.

Dkt. 14-1 at 6. It asserts, moreover, that dismissal rather than transfer is appropriate because

Morton’s habeas action is unlikely to succeed on the merits. Id. at 13. To the extent Morton’s

action can be characterized as seeking his release from prison through the writ, that aspect of this

matter is fairly straightforward: the Court agrees with the Commission. Morton appears,

however, to request a new parole hearing and that the hearing be conducted according to the

procedures the parties agree govern his release. Dkt. 1 at 26–27. Whether framed as a § 1983

claim, a freestanding challenge under the Ex Post Facto Clause, or as a petition for a writ of

habeas corpus, this aspect of Morton’s suit presents a more complicated question. For the

reasons set forth below, the Court concludes that Morton has failed to state a § 1983 or Ex Post

Facto Clause claim, that the Court lacks jurisdiction over any habeas petition he seeks to bring,

and that transferring the case would not be in the interest of justice. The Court will, accordingly,

GRANT in part and DENY in part Defendants’ motion and will DISMISS on its own motion

the remainder of the complaint. The Court will also DENY Morton’s motion for summary

judgment because it fails to overcome the threshold issues raised by Defendants’ motion to

dismiss or transfer.

                                       I. BACKGROUND

       On a motion to dismiss, the Court accepts the plaintiff’s “well-pleaded factual

allegations” as true. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The Court also considers the

attachments to the complaint, see EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624

& n.3 (D.C. Cir. 1997), and takes judicial notice of the decisions, regulations, and guidelines of

the Commission, the now-defunct D.C. Parole Board, and the Federal Bureau of Prisons, see



                                                 2
 
Abhe v. Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007). The Court considers the

remaining materials in the record insofar as they assist in determining whether it has jurisdiction.

See Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).

          On July 25, 1996, a D.C. Superior Court judge sentenced Morton to twenty-one years to

life in prison for second degree murder (along with various firearm offenses related to his

possession of the murder weapon). Dkt. 1 at 2–3. Under the sentencing scheme then in place, a

prisoner must serve at least the lower bound of an indeterminate sentence prior to becoming

eligible for parole. See Sellmon v. Reilly, 551 F. Supp. 2d 66, 69 & n.3 (D.D.C. 2008). On or

shortly before a prisoner reaches that parole-eligible date, the Commission holds an initial

hearing. See Bailey v. Fulwood, 793 F.3d 127, 129 (D.C. Cir. 2015). For prisoners sentenced

under the D.C. Code who committed their offenses between March 4, 1985 and August 4,

1998—as did Morton—a set of regulations promulgated by the D.C. Parole Board in 1987

govern the proceedings. See id. at 131; see also D.C. Mun. Regs. tit. 28, § 100 et seq. (1987)

(“1987 Guidelines”). These regulations were issued pursuant to D.C. Code § 24-204, which

stated:

          Whenever it shall appear to the Board of Parole that there is a reasonable probability
          that a prisoner will live and remain at liberty without violating the law, that his
          release is not incompatible with the welfare of society, and that he has served the
          minimum sentence imposed or the prescribed portion of his sentence, as the case
          may be, the Board may authorize his release on parole upon such terms and
          conditions as the Board shall from time to time prescribe.

D.C. Code. § 24-204(a), superseded by § 24-404(a) (2009); see also Bailey, 793 F.3d at 130.

Most relevant to Morton’s situation, the 1987 Guidelines “created a point system focused on

offender history, offense characteristics, and behavior while in prison,” with “[t]he resulting

point total determin[ing] whether parole would be granted.” Bailey, 793 F.3d at 130. “However,

the [1987] Guidelines also allowed the [D.C. Parole] Board to override the point-based


                                                    3
 
determination in ‘unusual circumstances.’” Id. (quoting D.C. Mun. Regs. tit. 28 § 204.22). In

1991, the D.C. Parole Board issued an additional “unpublished policy guideline that provided

definitions of criteria, parameters, and terms used in the 1987 Guidelines.” Id.; see also Policy

Guideline, D.C. Board of Parole (Dec. 16, 1991) (“1991 Policy Guideline”). The Commission

also refers to the 1991 Policy Guideline when evaluating parole for prisoners in Morton’s

position. See Bailey, 793 F.3d at 130–32.

       After serving twenty-one years in prison, Morton became eligible for parole on January

16, 2016. Dkt. 1 at 31. He had his initial hearing several months before that date. Id. At the

hearing, the examiner determined that Morton had “a total point score of 2 under the 1987 Board

of Parole guidelines for D.C. Code offenders.” Id. That score “indicate[d] that parole should be

granted.” Id. The examiner, however, overrode that outcome for multiple reasons. Id. Most

notably, he found that Morton had shown “total disregard for the welfare of [the man he

murdered] by not calling for medical help as soon as [Morton] shot him,” instead “allowing [the

victim] to suffer for at least an hour before [Morton] finally summoned medical help.” Id. The

examiner concluded that Morton’s actions constituted “unusual cruelty to the victim,” id., an

aggravating circumstance under the 1987 Guidelines, see Sellmon, 551 F. Supp. 2d at 71. When

a hearing examiner determines that an aggravating circumstance exists, he may override the

recommendation produced by the prisoner’s point score. See id. The examiner did so in

Morton’s case and “recommend[ed] [that] parole be denied” and that a rehearing be set for

twelve months after Morton’s eligibility date. Dkt. 1 at 32.

       The examiner also made other findings related to Morton’s post-incarceration behavior

that further influenced his decision to recommend continuing the parole hearing for a year. In

concluding that it was appropriate to override Morton’s point score, the examiner found that



                                                 4
 
Morton “need[ed] additional programming to remain crime-free once released to the

community.” Id. at 31. He then explained that Morton had incurred eleven disciplinary

infractions while in custody, most recently in 2014, that Morton had completed only a

“moderate” level of programming while in prison, and that he had not participated in classes

“concerning victims of crimes.” Id. at 32. In light of this history, the examiner concluded that

Morton “need[ed] to engage in a victim impact program and . . . need[ed] a sustained period of

clear conduct” before being released on parole. Id.

       The hearing officer’s recommendation was then submitted to an executive reviewer, who

recommended that the Commission reject the hearing officer’s conclusions. Id. at 36. The

reviewer found that the examiner had inadequately justified the application of the unusual cruelty

aggravating factor. Id. Specifically, he concluded that Morton’s actions were not “any more

cruel than needed to sustain a conviction for second degree murder.”2 Id. at 37. Although the

reviewer recognized that post-incarceration behavior had also factored into the decision to

recommend denying parole, he noted that the “primary reason” was the unusual cruelty

determination. Id. at 37–38. The Commission, however, ultimately sided with the examiner,

denied parole, and set a rehearing date for January 2017. Id. at 40. At the request of Morton’s

attorney, the Commission moved the hearing date up to August 2016, which was a year from his

last hearing rather than a year from his eligibility date. Id. at 41–43. That date was then further

advanced to April 7, 2016, to accommodate victim impact statements from the sisters of the man

Morton murdered. Id. at 47; Dkt. 19 at 3.



2
  The 1991 Policy Guideline, which the parties agree applies to Morton, states that the unusual
cruelty factor requires either “[p]hysical, mental or emotional abuse beyond the degree needed to
sustain a conviction on the instant offense,” or “[e]specially vulnerable victims, e.g., children or
elderly persons were the victims of assaultive or fraudulent behavior.” Dkt. 22-1 at 34.

                                                 5
 
       At that second hearing, the examiner again determined that Morton’s numerical score

under the 1987 Guidelines indicated that parole should be granted, but, again, declined to

recommend release. Id. at 49. Specifically, the examiner found that Morton had committed a

disciplinary infraction on December 9, 2015. Id. at 48. On that date, at least one sharpened

piece of metal was found wedged behind a locker in Morton’s cell. Id. Morton denied that the

weapon was his and presented evidence corroborating his account, but “acknowledged . . . that

someone has to be held responsible.” Id. The examiner recommended denying parole because

“the seriousness and recent occurrence of [Morton’s] serious negative institutional behavior,

including [his] pattern of possessing dangerous weapons, is evidence [Morton] [was] not ready to

remain crime-free in the community and [his] continued incarceration . . . [was] necessary to

protect the public.” Id. at 49.

       Morton’s attorney raised several objections, including that the victim’s family had been

allowed to speak at the hearing. Id. at 50. In response, the examiner clarified his findings:

       I advised [Morton’s attorney that] my recommendation was not even based on the
       testimony of the victims. Rather, it was entirely based on the fact that, in the 8
       months since his last hearing, he has incurred a very serious disciplinary infraction
       of possessing dangerous weapons. I told him I found the subject’s claim of
       innocence lacked credibility as this is now the third time the subject has been found
       guilty for possessing weapons. When you couple that with the Stalking infraction
       of 2014 and prior infractions for Threats, Insolence, and Refusing to Obey Orders,
       I found it sufficient evidence he is not ready to remain crime-free in the community.
       I also advised of my finding a new term of incarceration beyond the ordinary
       rehearing guideline was necessary to protect the public due to the recentness and
       severity of the weapons infraction.

Id. On April 28, 2016, the Commission adopted that recommendation in full, reiterating that

earlier disciplinary infractions for possession of weapons in 2003 and 2004 meant that Morton’s

denials “lack[ed] credibility,” and noting that other disciplinary infractions that had occurred

prior to Morton’s initial hearing supported denying parole. Id. at 54.



                                                 6
 
       Later that year, the corrections officer who originally reported Morton for possession of

the weapon in 2015 formally requested that the disciplinary incident be expunged from Morton’s

record. Id. at 63. The officer stated that Morton “was wrongfully charged with the possession of

a dangerous weapon” because further searches behind lockers elsewhere in the prison had

uncovered vast quantities of similar weapons in identical locations, suggesting that the weapons

had accumulated over time. Id. Morton’s lawyer requested that the Commission reopen his

hearing on the basis of this new information. Dkt. 14-2 at 3. The Commission then contacted

the prison where Morton was being held, which relayed that the Disciplinary Hearing Officer

who found Morton guilty “ha[d] no intention of expunging the incident report based upon the

[staff member’s] recommendation.” Dkt. 14-5 at 3. Instead, the only way to have the

disciplinary infraction expunged was through an administrative appeals process. Id. Morton had

in fact already attempted to utilize that procedure, but his appeal was denied prior to the

investigator’s request that the Bureau of Prisons expunge the disciplinary incident. Id. After the

investigator’s recommendation, Morton once more sought administrative expungement. Id.

That request was, again, denied. Id.

       Because the Commission’s policy is that an adverse finding under prison disciplinary

procedures “is considered conclusive evidence of guilt,” the result of Morton’s administrative

appeals led the Parole Commission hearing examiner to recommend against reopening Morton’s

parole hearing. Id. The examiner further noted that he was “not swayed by” the corrections

officer’s request for expungement, concluding “that the subject’s history of possessing weapons

makes him a risk to the community.” Id. The Commission concurred in that recommendation on

December 16, 2016. Id. at 4. Shortly thereafter, Morton commenced this action. Dkt. 1 at 27.

His next parole rehearing is scheduled for April 2019. Id. at 54.



                                                 7
 
                                             II. ANALYSIS

        The Court begins by clarifying exactly what kind of lawsuit Morton filed. The

handwritten initial pleading asserts that Morton is both a “Petitioner for Writ of Habeas Corpus”

and a “Plaintiff” seeking relief under “42 U.S.C. [§] 1983.” Dkt. 1 at 1. He asks the Court to

“grant him a rehearing,” concedes that the sovereign immunity of the Commission bars any

money damages, and requests that the Court “grant his [p]etition[] [for a writ] of [h]abeas

[corpus for] a[n] Ex[ ]Post[ ]Facto violation.” Id. at 26–27. Morton’s opposition to Defendants’

motion to dismiss does little to clarify the issue, stating that he “did indeed file a petition for writ

of habeas corpus,” Dkt. 19 at 6, and focusing on the Commission’s alleged violation of the Ex

Post Facto Clause, id. at 9–13. But he also cites to Sellmon v. Reilly, a case in which inmates

incarcerated outside of the District of Columbia brought § 1983 claims against the Commission

on theories of liability similar to those Morton asserts. Dkt. 19 at 13. He argues that that case

and Wilkinson v. Dotson, 544 U.S. 74 (2005), show that prisoners may challenge certain parole

decisions outside of their districts of incarceration through means other than habeas. Dkt. 19 at

13.

        Although far from clear, construing Morton’s pleadings liberally, he asserts three

separate causes of action: (1) a petition for a writ of habeas corpus; (2) a claim under § 1983; and

(3) a freestanding constitutional claim alleging that the application of later-passed parole

guidelines to his most recent hearing violated the Constitution’s prohibition on ex post facto

laws. The Court considers each in turn, returning to his habeas petition in the context of

evaluating whether it would be in the interest of justice to transfer the case after considering the

merits of the latter two causes of action.




                                                   8
 
A.      Habeas Corpus

        The Commission argues that “Petitioner’s claims sound in habeas because [he] is

demanding ‘immediate relief from custody, or seeks to advance his release date,’” Dkt. 14-1 at

10–11 (quoting Thomas v. Fulwood, 128 F. Supp. 3d 341, 345–46 (D.D.C. 2015)), and, on that

basis, it asserts that the Court lacks jurisdiction because Morton is not incarcerated within the

District of Columbia, Dkt. 14-1 at 10–12. To the extent that Morton seeks such relief, the Court

agrees that it lacks jurisdiction and that it must dismiss or transfer the case. See Davis v. U.S.

Sentencing Comm’n, 716 F.3d 660, 663–66 (D.C. Cir. 2013).

        The premise that Morton seeks only to advance—or even principally to advance—his

release date, however, is incorrect. To the contrary, although the precise scope of the relief

Morton seeks is far from clear, it is evident that, first and foremost, he seeks to move up the date

of his next parole hearing and for the Court to order that the Commission comply with the 1987

Guidelines and 1991 Policy Guideline—actions that, taken together, will merely give him

another opportunity to secure release. Dkt. 1 at 26–27. As Morton correctly notes in his reply, a

claim that “seek[s] relief that will render invalid the state procedures used to deny . . . parole

suitability . . . would [not] necessarily spell speedier release,” and thus need not be brought as a

habeas petition in the jurisdiction where the petitioner is being held. Wilkinson, 544 U.S. at 82;

accord Bailey, 793 F.3d at 135–36 (evaluating the merits of ex post facto claim brought by

prisoner incarcerated outside of the District of Columbia and distinguishing such an action from

a petition for a writ of habeas corpus). Morton, accordingly, need not challenge the actions of

the Commission through a petition for a writ of habeas corpus. Of course, whether he must bring

his suit as a petition for a writ of habeas corpus is a different question than whether he may.

After first considering the other potential avenues for relief available to Morton, the Court

returns to this issue.
                                                  9
 
B.     42 U.S.C. § 1983

       The Commission acknowledges that “[t]he first page of [Morton’s] Petition also

references 42 U.S.C. § 1983,” but argues that Morton “does not plead facts or assert any claim

under Section 1983.” Dkt. 14-1 at 11. It continues that, even “[i]f the Petition can be construed

as asserting claims under Section 1983 against [the Commission], its chairman, and two of its

hearing examiners”—that is, those individuals also named as defendants—“these claims are

barred by the doctrine of sovereign immunity.” Id. Sovereign immunity, however, only bars

Morton’s claim to the extent that he sues the Commission itself or seeks monetary relief against

any of the defendants. See Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1104 (D.C. Cir. 2005)

(“[A] cause of action under § 1983 will lie against the individual members of the Commission

when acting pursuant to the Revitalization Act.”); cf. Morgan v. U.S. Parole Comm’n, 304 F.

Supp. 3d 240, 247–50 (D.D.C. 2016) (holding that sovereign immunity bars claims for money

damages against the Commission and against its officials when sued in their official capacities,

but does not bar claims for injunctive relief or claims for money damages against individual

defendants sued in their personal capacities). To the extent he seeks injunctive relief against the

individual defendants or sues federal officials for money damages in their personal capacities, in

contrast, sovereign immunity is no bar to his claim.

       In support of its categorical assertion of sovereign immunity, the Commission relies on

two opinions of this Court: Head v. Fed. Bureau of Prisons, 86 F. Supp. 3d 1, 4–5 (D.D.C.

2015), and Thomas v. Fulwood, 128 F. Supp. 3d 341, 345–46 (D.D.C. 2015). Neither persuades

the Court that the Commission’s position is correct.

       Head involved a challenge to the calculation of good time credits brought by a prisoner

sentenced under the D.C. Code. 86 F. Supp. 3d at 3. That prisoner sued the Commission and the

Bureau of Prisons. Id. The Court held that the prisoner had conceded that sovereign immunity
                                                10
 
barred his § 1983 challenges to the agencies’ actions. Id. at 4. It nonetheless observed that the

Commission “is a federal government entity; neither the [Commission] nor any one of its

Commissioners is subject to a suit for damages under 42 U.S.C. § 1983 for an action taken with

respect to a District of Columbia Code offender.” Id. at 5. For this proposition, the Court relied

on Settles v. United States Parole Commission, 429 F.3d at 1104. But the holding in Settles

sweeps less expansively than the Court in Head—and now the Commission—suggest. The D.C.

Circuit expressly stated in Settles “that a cause of action under § 1983 will lie against the

individual members of the Commission when acting pursuant to the Revitalization Act § 11231,”

which is the section of that law giving the Commission authority to administer parole for persons

sentenced under the D.C. Code. Id. at 1104. Settles did hold that “the Commission itself” was

not “subject to liability under § 1983,” id. at 1105, but Morton has sued officers of the

Commission as well as the agency, Dkt. 1 at 1, unlike the plaintiffs in Settles, 429 F.3d at 1106,

and Head, 86 F. Supp. 3d at 3.

       The second case cited by the Commission is inapposite because it involved a prisoner

sentenced under federal law. Thomas, 128 F. Supp. 3d at 344. That means that, unlike in the

present case, the parole commissioner named as a defendant in Thomas was acting under color of

federal law, depriving the plaintiff in that case of a cause of action under § 1983. See Settles,

429 F.3d at 1104. In Thomas, moreover, the Court correctly held that sovereign immunity barred

any claim for money damages against the Commission and its officers to the extent they had

been sued in their official capacities, regardless of whether the Commission and its officers were

acting under color of state or federal law. 128 F. Supp. 3d at 346–47. That reasoning does not

extend to the present action, however, to the extent that Morton’s pleading might be construed to

assert personal-capacity claims against individual officials, and, more clearly, to the extent it



                                                 11
 
seeks non-monetary relief. See Hill v. U.S. Parole Comm’n, No. 16-1476, 2017 WL 2414446, at

*6 (D.D.C. June 2, 2017).3

       The Court, accordingly, concludes that sovereign immunity does not bar Morton’s claim

for injunctive relief against the Commission’s chairman and its hearing examiners. That does

not end the matter, however, because the Court retains the power to dismiss on its own motion

any action brought by a plaintiff proceeding in forma pauperis that fails to state a claim on which

relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). Because the deprivation of rights alleged

under Morton’s § 1983 claim is the same purported constitutional violation giving rise to his

action for injunctive relief under the Ex Post Facto Clause of the Constitution, the Court

considers those claims together below.

C.     Ex Post Facto Clause

       The central allegation underlying Morton’s complaint is that during his most recent

hearing,4 the Commission applied parole guidelines promulgated in 2000 rather than the 1987

Guidelines and 1991 Policy Guideline. “The Supreme Court has held that a retroactively applied

parole regulation, guideline, or policy statement may violate the Ex Post Facto Clause if it

creates ‘a significant risk’ of ‘a longer period of incarceration than under the earlier rule.’”

Sellmon, 551 F. Supp. 2d at 84 (emphasis omitted) (quoting Garner v. Jones, 529 U.S. 244, 255



3
  Because Morton seeks non-monetary relief, the Court need not determine whether Morton has
in fact alleged claims against Commission officials in their individual capacities.
4
  Given the relief that Morton seeks, any claims related to his 2015 hearing would be rendered
moot by the provision, in 2016, of an additional parole hearing conducted under the proper
guidelines. See Hill, 2017 WL 2414446 at *8; Hunter v. Reilly, 693 F. Supp. 2d 53, 58 (D.D.C.
2010), aff’d, 405 F. App’x 514 (D.C. Cir. 2011). Because the Court concludes that the 2016
decision to deny Morton parole complied with the Constitution’s prohibition on ex post facto
laws, the Court only discusses Morton’s arguments relating to his most recent hearing and
subsequent request to reopen the proceedings.

                                                  12
 
(2000)). After this Court’s decision in Sellmon, holding that the Commission’s application “of

the 2000 [G]uidelines to inmates convicted of crimes prior to the promulgation of the 2000

[G]uidelines violated the Ex Post Facto Clause,” the Commission began requiring the use of the

1987 Guidelines for hearings involving prisoners sentenced under the D.C. Code for crimes

committed between 1985 and 1998, such as Morton. Dkt. 14-1 at 13–14.

       Consistent with this change in course, the Commission argues that the hearing examiner

and Commission applied the 1987 Guidelines, supplemented by the 1991 Policy Guideline, at

Morton’s 2016 parole hearing. Id. at 14. In particular, the Commission observes that the Notice

of Action from Morton’s April 7, 2016 hearing begins by stating that the 1987 Guidelines were

being applied, before proceeding to evaluate his suitability for parole under the framework

established by those regulations. Id. (citing Dkt. 1 at 54–55). The Court concurs in this reading

of the undisputed record. The examiner put on the record that he was applying the 1987

Guidelines before proceeding to use the scoring framework set forth in those guidelines to

determine whether parole should be granted.

       As the Commission notes, Morton “seems to be arguing instead that [the Commission’s]

decision[] to deny him parole [is] not supported by the 1987 [G]uidelines’ standards governing

parole decisions.” Id. at 14; see also Dkt. 1 at 22 (arguing that the Commission’s decision was

“arbitrary and capricious,” “totally lacking in evidentiary support,” and “so irrational as to be

fundamentally unfair” (internal quotation marks omitted)); Dkt. 19 at 4–5, 10–13 (arguing that

the disciplinary infractions relied upon by the examiner in 2016 were too old to be considered

under the 1991 Policy Guideline). Understood in this light, Morton’s claim is squarely

foreclosed by the D.C. Circuit’s decision in Bailey v. Fulwood. The plaintiff in Bailey also

alleged that the Commission had surreptitiously or improperly relied on factors that could be



                                                 13
 
considered under the 2000 Guidelines, despite the Commission stating that it was denying parole

under the 1987 Guidelines and 1991 Policy Guideline. 793 F.3d at 131. The D.C. Circuit

rejected the argument that it would violate the Ex Post Facto Clause to “simply . . . cit[e] the

correct rules, while in fact following” a later enacted regulation. Id. at 135. As the Court of

Appeals explained, “the Ex Post Facto Clause asks whether the [Commission] applied the

correct parole guidelines and not whether the [Commission] correctly applied the parole

guidelines.” Id. (internal quotation marks omitted). Here, the Notice of Action and hearing

examiner’s findings make clear that the Commission applied the proper guidelines, leaving the

bulk of Morton’s claim on the wrong side of the Bailey dichotomy. See Ford v. Massarone, 208

F. Supp. 3d 91, 105 (D.D.C. 2016) (collecting cases holding that Notices of Actions that facially

apply the 1987 Guidelines suffice to preclude a claim under the Ex Post Facto Clause).

       Despite premising his claims on the Ex Post Facto Clause, Morton makes only a single

allegation that the Commission applied the incorrect guidelines, as opposed to incorrectly

applying the proper guidelines. He argues that the length of the “set-off” applied at his most

recent hearing to determine when his next hearing would occur was thirty-six months. Dkt. 1 at

26. Morton asserts that the application of the 1987 Guidelines would have led to a set-off of

twelve months and thus the length of the set-off in his case shows that the Commission has

applied the 2000 Guidelines. Id. The Court is unconvinced. A review of the Commission’s

decision shows that the guidelines and statutes allowing for the longer set-off were in effect prior

to both Morton’s offense conduct and sentencing.

       After the hearing in question, the examiner stated that “a new term of incarceration

beyond the ordinary rehearing guideline”—referring to the standard twelve-month set-off—“was

necessary to protect the public due to the recentness and severity of [Morton’s] weapons



                                                 14
 
infraction.” Id. at 50; see also id. at 54 (Notice of Action stating that, although “[t]he guidelines

for the time to rehearing indicate that [Morton’s] next hearing should be scheduled within twelve

months,” the Commission found that “[a] departure from these guidelines is . . . warranted for the

same reasons” that parole was denied). Under the guidelines Morton contends should have been

applied,5 set-offs beyond twelve months can clearly be ordered. See Shakir v. Fulwood, 108 F.

Supp. 3d 1, 4 (D.D.C. 2015) (holding that twelve-month set-offs are “not mandatory”); see also

Jones v. Braxton, 647 A.2d 1116, 1117 (D.C. 1994) (holding that 28 DCMR § 104.11 “expressly

authorizes the [Commission] to disregard the suggested timeframes” for set-offs). Morton

argues, however, that the Commission nevertheless erred when it applied those guidelines. He

notes that the guidelines provide, in part, that when “one or more aggravating factors [is]

present,” the Commission may “schedule a reconsideration date later than the prescribed set-off.”

Dkt. 23 at 13. Those aggravating factors “include but are not limited to” the presence of

“repeated or extremely serious negative institutional behavior” and the determination that “[t]he

offender poses a serious threat to . . . others and adequate resources are not available in the

community.” Id. at 13–14. Here, the Commission based the extended set-off in large part on the

2015 weapons infraction, which it characterized as “serious negative institutional behavior”

demonstrating that Morton was “not ready to remain crime-free in the community.” Dkt. 13 at

41; Dkt. 14-5 at 2; Dkt. 1 at 54. As Morton notes, however, the 1991 Policy Guideline defines

the factor “repeated or extremely serious negative institutional behavior” in a way that (as the



5
  The guidelines addressing rehearing set-offs were adopted in 1992, Dkt. 22-1 at 57, and 1988,
28 DCMR §§ 104.1–11, and are distinct from the 1987, 1991, and 2000 guidelines at issue in
much of this case. Because Morton’s underlying offense conduct occurred in 1995, Dkt. 1 at 31,
and he was sentenced in 1996, Dkt. 1 at 2, this distinction is of no moment; the application in
2016 of guidelines adopted in 1992 or 1988 to someone sentenced in 1996 for crimes committed
in 1995 poses no ex post facto problem.

                                                 15
 
Court explains further below) likely precluded the Commission from concluding that Morton’s

institutional record constituted such behavior. Dkt. 22-1 at 35. But whether or not the

Commission could have properly found an aggravating factor under this particular provision—

given that the list is explicitly nonexclusive, Dkt. 23 at 13—the Commission retains substantial

discretion under both the governing statute, D.C. Code. § 24-204(a), superseded by § 24-404(a)

(2009); see also Bailey, 793 F.3d at 134, and the relevant guidelines, Dkt. 22-1 at 8; 28 DCMR

§ 104.11 (“Notwithstanding any other provision of this section, the Board may order a parole

reconsideration date it determines to be appropriate.”), to depart from the standard set-off for

reasons unrelated to these aggravating factors.

       Although the Commission’s conclusions are not a model of clarity, the Court concludes

that the Commission did in fact invoke the discretion allowed by the statute and governing

guidelines in effect at the time Morton committed the offense for which he remains incarcerated,

rather than determining that Morton’s institutional record constituted “repeated or extremely

serious negative institutional behavior” under the 1991 Policy Guideline. Notably, the

Commission concluded that “[a] departure from the[] guidelines” with respect to the length of his

set-off was “warranted” because “the seriousness and recent occurrence of [his] serious negative

institutional behavior . . . [constituted] evidence [that Morton] was not ready to remain crime-

free in the community and [that his] continued incarceration” for at least thirty-six more months

was “necessary to protect the public.” Dkt. 1 at 54. This finding comports with the guideline for

determining non-standard set-offs, 28 DCMR § 104.11, and mirrors the language in the relevant

D.C. Code provision, which provides that the Commission may grant parole only upon a finding

“that there is a reasonable probability that a prisoner will live and remain at liberty without

violating the law” and “that his release is not incompatible with the welfare of society,” D.C.



                                                  16
 
Code § 24-204(a), superseded by § 24-404(a) (2009). The Commission’s conclusion, resting as

it does on the text of the governing statute and the discretion afforded by the guidelines, was

sufficient to justify a departure from the standard set-off period. See generally Hall v.

Henderson, 672 A.2d 1047 (D.C. 1996) (describing findings necessary to prescribe non-standard

set-offs). Thus, in both form and substance, the Commission followed the regulations applicable

to Morton, rather than utilizing the 2000 Guidelines as he alleges.

D.     Request to Transfer the Action

       Having considered and rejected Morton’s constitutional and § 1983 claims, the Court

returns to the question whether habeas relief may be available to Morton, even if not required

given the relief he seeks. In Bailey, the D.C. Circuit noted that prisoners wishing to challenge

the reasoning behind a decision of the Commission might file a petition for a writ of habeas

corpus in the jurisdiction of their incarceration. 793 F.3d at 135. Moreover, although the D.C.

Circuit has not reached the issue, several circuits have held that a prisoner may bring a petition

for a writ of habeas corpus alleging that the Commission’s denial of parole lacks a “rational

basis.” See Curtis v. Chester, 626 F.3d 540, 544 (10th Cir. 2010) (holding that on a petition for a

writ of habeas corpus challenging a decision of the Commission, “the inquiry is only whether

there is a rational basis in the record for the Commission’s conclusions embodied in its statement

of reasons” (internal quotation marks omitted)); Langella v. Anderson, 612 F.3d 938, 940 (8th

Cir. 2010) (“We have jurisdiction to review a prisoner’s claim only insofar as it properly alleges

that the Parole Commission exceeded the scope of its discretion, violated the Constitution, or

reached decisions so arbitrary and capricious as to amount to a violation of due process.”

(internal quotation marks omitted)); Furnari v. U.S. Parole Comm’n, 531 F.3d 241, 247–48 (3d

Cir. 2008) (“We review the administrative findings of fact to determine whether there is a

rational basis in the record for the [Parole Commission’s] conclusions embodied in its statement
                                                 17
 
of reasons.” (internal quotation marks omitted)); Thompson v. Veach, 501 F.3d 832, 837 (7th Cir.

2007) (evaluating whether thirty-six month set-off given to a D.C. Code offender “constitute[d]

exceptionally arbitrary conduct”). But see Nettles v. Grounds, 830 F.3d 922, 933–35 (9th Cir.

2016) (holding that “habeas is available only for actions in the ‘core of habeas’” and challenges

by state prisoners that do not contest “the fact or duration of the conviction or sentence” must be

brought under § 1983).

        Assuming for the sake of argument that a habeas petition in the district of Morton’s

incarceration would provide a vehicle for reviewing the substance of the Commission’s decision

denying him parole, the Court nevertheless concludes that transferring this action is not in the

interest of justice. The Court, accordingly, will instead dismiss the case. See Zaidi v. U.S.

Sentencing Comm’n, 144 F. Supp. 3d 1, 3 (D.D.C. 2015) (declining to transfer habeas petition

because, “given the nature” of the petitioner’s claims, success was unlikely), aff’d, 672 F. App’x

7 (D.C. Cir. 2016); Boultinghouse v. Lappin, 816 F. Supp. 2d 107, 114 (D.D.C. 2011)

(dismissing rather than transferring habeas petition because it was “unlikely that a transferred

claim would be successful”); see also Gadson v. Bureau of Prisons, 22 F.3d 1184 (D.C. Cir.

1994) (table decision) (“[B]ecause appellant’s claim is without legal basis, it is not in the interest

of justice to transfer the [habeas] petition to the appropriate court.”).

        Liberally construed, Morton’s filings raise three principal challenges to the reasoning

behind the Commission’s most recent decision6 to deny him parole. First, Morton argues that the



6
  The “decision” as relevant here proceeded in several steps. First, on April 7, 2016, a hearing
examiner conducted an in-person parole hearing and produced a recommendation that parole be
denied. Dkt. 1 at 47–50 (Hearing Examiner Report and Recommendation). Then, a sufficient
number of Parole Commissioners approved the recommendation in late April. Id. at 51–52. The
Commissioners’ approval resulted in the April 28, 2016 Notice of Action, which adopted the
reasoning of the examiner’s report. Id. at 54–55. Finally, Morton sought to reopen his hearing


                                                  18
 
Commission improperly relied on his 2015 weapons infraction. He identifies two purported

defects in the consideration of this asserted infraction. As an initial matter, he states that because

the disciplinary infraction had by then been called into question, Dkt. 1 at 63, it was arbitrary and

capricious for the Commission to rely on the incident in December 2016, when it denied his

request to reopen his case in advance of his April 2019 rehearing date, Dkt. 14-5 at 3. The Court

disagrees. As the hearing examiner noted, the Bureau of Prisons ultimately decided not to follow

the recommendation for expungement cited by Morton. Id. According to the Commission’s

policies, that finding by the Bureau of Prisons was “considered conclusive evidence of guilt” in

the eyes of the Commission. Id. Because of the additional facts and expertise available to the

Bureau of Prisons when considering disciplinary incidents occurring in federal facilities, the

Commission’s deference was not irrational. After reviewing the investigator’s report

recommending expungement, moreover, the Commission independently concluded that the

report provided insufficient grounds to reverse its earlier conclusion that Morton’s record of

weapons possession “makes him a risk to the community” sufficient to deny parole for an

additional thirty-six months. Id. That conclusion, even if it the Court might reach a different one

reviewing the evidence de novo, was rational.

       Morton also challenges the Commission’s reliance on the 2015 weapons infraction on the

ground that, if it occurred, it was insufficiently serious to deviate from the presumption of release

resulting from his “total point score of 2 under the 1987 Board guidelines for D.C. Code

offenders.” Dkt. 1 at 49. The Court is unconvinced that the decision to deviate from the

numerical guidelines was irrational. Under the 1987 Guidelines, the Commission has the


after he received notice that the Bureau of Prisons investigator had recommended the 2015
weapons infraction be expunged from his record. Dkt. 14-2 at 2–3. The Commission denied that
request on December 16, 2016. Dkt. 14-5 at 2–4.

                                                 19
 
discretion to depart from the presumption of release resulting from a prisoner’s numerical score,

so long as it “specif[ies] in writing those factors which it used to depart from the strict

application of the provisions of this chapter.” Dkt. 22-1 at 8; see also Bailey, 793 F.3d at 132.

The guidelines do not limit the Commission’s authority to depart from the presumption of release

based on the “seriousness” of the infraction. And, more importantly, given the Commission and

Bureau of Prisons’ view of the seriousness of the weapons infraction, reliance on the incident to

deviate from the score in this case was not irrational.

       Morton responds that, under the 1991 Policy Guideline, to overcome a numerical score

recommending parole on the basis of “negative institutional behavior,” the Commission must

conclude that such behavior was “repeated or extremely serious.”7 Dkt. 22-1 at 35. In the

context of a parole reconsideration hearing, the 1991 Policy Guideline defines “repeated or

extremely serious negative institutional behavior” as the commission of “[t]wo or more”

offenses similar in severity to Morton’s weapons possession infraction “since the preceding

release consideration on the sentence.” Dkt. 22-1 at 35 (emphasis added). As Morton correctly

observes, the only disciplinary offense relied on by the Commission that occurred between his

2015 and 2016 hearings was the 2015 weapons possession infraction. Dkt. 1 at 49, 54. His

argument nevertheless fails.

       As noted above, the 1987 Guidelines clearly specify that the Commission retains the

discretion to deviate from the recommendation produced by a prisoner’s numerical score so long

as the Commission specifies its reasons, whatever they may be, in writing. The 1991 Policy


7
  Whether a prisoner has “committed serious disciplinary infractions” is also relevant to the
calculation of the numerical score that creates a presumption of parole or continued confinement.
Dkt. 22-1 at 11. At issue here, however, is the Commission’s practice of designating certain
disciplinary infractions as “factors countervailing” a presumption of parole that has been
generated by the numerical score. Id. at 33.

                                                  20
 
Guideline expounds upon certain terms in the 1987 Guidelines, but does not supersede them.

See Bailey, 793 F.3d at 130 (“In 1991, in an effort to facilitate consistency in Guideline

application, the Board also issued an unpublished policy guideline that provided definitions of

criteria, parameters, and terms used in the 1987 Guidelines.” (internal quotation marks omitted)).

The 1987 Guidelines and 1991 Policy Guideline, moreover, “never constrained the discretion of

the” D.C. Parole Board or the Commission. Id. at 132. The only authority binding on parole

hearings for persons in Morton’s position is the governing statute, which simply provides that to

depart from the numerical scoring system the Commission must “specif[y] in writing those

factors which it used.” Id. (quoting McCrae v. Hyman, 667 A.2d 1356, 1360 (D.C. 1995)). The

Commission, accordingly, “need not render a decision based on a strict application of the system

set forth in the 1987 Regulations.”8 Id.

       In the Notice of Action at issue here, the Commission specified the bases for its decisions

to deny parole. Dkt. 1 at 54 (“The Commission finds the seriousness and recent occurrence of

your serious negative institutional behavior, including your pattern of possessing dangerous

weapons, is evidence you are not ready to remain crime-free in the community and your

continued incarceration[] beyond the ordinary rehearing guideline is necessary to protect the

public.”). These justifications are sufficient to comply with both the 1987 Guidelines and the


8
   The nonbinding nature of the 1987 Guidelines and 1991 Policy Guideline occasionally leads to
incongruous results in cases such as this one. In light of the Supreme Court’s decision in Garner
v. Jones, 529 U.S. 244 (2000), the retroactive application of even “policy statements from which
the Commission may depart in its discretion” can violate the Ex Post Facto Clause, Bailey, 793
F.3d at 134 (quoting Fletcher v. District of Columbia, 391 F.3d 250, 251 (D.C. Cir. 2004)). That
means that, if “retroactive application” of the 2000 Guidelines were to “create[] a significant risk
of prolonging [a prisoner’s incarceration] as compared to application of the” 1987 Guidelines
and 1991 Policy Guideline, applying the 2000 Guidelines instead of the earlier guidelines would
be unconstitutional—despite the earlier guidelines themselves never cabining the discretion of
the Commission under the organic statute. Daniel v. Fulwood, 766 F.3d 57, 61 (D.C. Cir. 2014).



                                                21
 
governing statute, and are not themselves irrational.9 See Bailey, 793 F.3d at 132–34; Ford, 208

F. Supp. 3d at 107–08.

        Morton’s two remaining arguments fail for similar reasons. The first of these concerns

the Commission’s decision in 2016 to utilize a thirty-six month set-off rather than the typical

twelve month set-off. Dkt. 1 at 54. As discussed in the course of the Court’s analysis of

Morton’s ex post facto claim, the Commission both applied the proper guidelines and statutory

provisions and made the finding called for by that framework to justify an extended set-off.

Morton’s recent weapons infraction supplied a rational basis for the decision. Morton’s final

challenge to the Commission’s 2016 decision to deny him parole rests on its references to

disciplinary infractions that occurred in 2003, 2004, and 2014. Dkt. 1 at 49, 54. Those

disciplinary infractions occurred prior to his 2015 hearing, and under the 1991 Policy Guideline,

it appears they should not have been considered when determining whether he had exhibited

negative institutional behavior sufficient to overcome the recommendation produced by his

numerical score. But, as noted above, under the 1987 Guidelines and controlling D.C. Circuit

precedent, the Commission has retained substantial discretion to override a prisoner’s numerical

score even after its adoption of the 1991 Policy Guideline. It must, of course, explain its reason

for doing so, and that explanation must pass the rational basis test, but the Commission did so

here.




9
  Even if Morton’s challenges to the 2015 parole hearing were not moot, similar reasoning
would preclude any claim with respect to that decision. See Dkt. 1 at 40 (“[A] departure from
the guidelines at this consideration is found warranted because the Commission finds there is a
reasonable probability that you would not obey the law if released and your release would
endanger the public safety.”); id. (describing a perceived need for further programming and
finding unusual cruelty was shown to the victim).

                                                22
 
       That leaves only the question of whether the Commission’s finding that Morton’s

negative institutional record created “a reasonable probability that [he] would not obey the law if

released and [his] release would endanger the public safety,” Dkt. 1 at 54, was itself rational.

Given the content of Morton’s institutional record, the Court cannot conclude that the

Commission’s determination was irrational.

       Having thus identified some of the difficulties Morton’s claim would face if it were to be

construed as a petition for a writ of habeas corpus, the Court returns to the procedural posture of

the present case. To the extent such a petition would provide Morton a cause of action to seek

review of the Commission’s decision, the Court lacks jurisdiction over his claim because Morton

is incarcerated outside of this district. See Chatman-Bey v. Thornburgh, 864 F.2d 804, 811 (D.C.

Cir. 1988). Under 28 U.S.C. § 1631, “when a court concludes that it lacks jurisdiction, it has the

authority to dismiss the action or transfer it in the interest of justice.” Smith v. U.S. Bureau of

Prisons, 971 F. Supp. 2d 99, 102 (D.D.C. 2013). In light of the Court’s limited review of the

potential merits of Morton’s claim, however, the Court concludes that it would not be in the

interest of justice to transfer the case. The Court, accordingly, will dismiss Morton’s action.




                                                  23
 
                                       CONCLUSION

       For these reasons, the Court will DENY Morton’s motion for summary judgment, Dkt.

13, will GRANT in part and DENY in part Defendants’ motion to dismiss or, in the alternative,

to transfer, Dkt. 14, and will DISMISS the remainder of the complaint on its own motion.

       A separate order will issue.



                                                   /s/ Randolph D. Moss
                                                   RANDOLPH D. MOSS
                                                   United States District Judge


Date: July 6, 2018




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