                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



MACEO JONES,                        )
                                    )
               Plaintiff,           )
                                    )
            v.                      ) Civ. Action No. 09-1727 (ESH)
                                    )
EDWARD F. REILLY, JR. et al.,       )
                                    )
               Defendants.          )
____________________________________)


                                  MEMORANDUM OPINION

       In this civil action filed pro se, plaintiff, a District of Columbia prisoner confined at the

McCreary United States Penitentiary in Pine Knot, Kentucky, sues the Chair of the United States

Parole Commission, USPC Commissioners and two USPC employees for allegedly applying the

wrong parole guidelines to his parole eligibility date. In doing so, plaintiff claims that defendants

violated the Constitution’s ex post facto and due process clauses. Defendants move to dismiss

the complaint. Upon consideration of the parties’ submissions, the Court will grant defendants’

motion to dismiss.

                                        I. BACKGROUND

       Plaintiff alleges that the Superior Court of the District of Columbia sentenced him on

August 30, 1984, to a prison term of fifteen years to life. (Compl. ¶ 13.) In June 1989, “federal

staff employee(s)” told plaintiff that he would be eligible for parole after serving a minimum of

ten years. (Id. ¶ 15.) By letter of February 21, 2006, plaintiff applied for parole but was

informed that he was not eligible for parole until March 30, 2021; an initial parole hearing was
scheduled for June 2020. (Id. ¶ 18.) Plaintiff initiated this action on September 11, 2009. He

seeks (1) to compel BOP to review his parole eligibility date under parole guidelines in effect in

1976, 1987, 1991 and 1993, (2) his release from 26 years’ imprisonment and (3) monetary

damages. (Id. at 11-12.)

                                          II. DISCUSSION

        Plaintiff claims that defendants erroneously applied USPC parole guidelines in effect in

2000 “to deny [his] request for parole [which] increased the risk [he] would have to serve a

long[er] period of imprisonment th[an] he would have” under earlier guidelines. (Compl. ¶ 24.)

He also claims that defendants “deprived [him] of the right to a parole hearing that have [sic]

been afforded to other D.C. prisoners prior to [his] request for initial hearing.” (Id. ¶ 18.)

        The crux of plaintiff’s argument is that under District of Columbia law, he became

eligible for parole after serving ten years of his sentence,1 but he also suggests that he is eligible

for parole in March 2016. See Compl. ¶ 20. An initial parole hearing should occur no more than

nine months prior to a D.C. prisoner’s parole eligibility date. See 28 C.F.R. § 2.82(a) (“[a]n

effective date of parole may be granted up to nine months from the [hearing] date”). Thus, even

by plaintiff’s calculation, he has yet to qualify for a parole hearing to which any set of guidelines

would apply to determine his suitability for parole. See Sellmon v. Reilly, 551 F. Supp. 2d 66, 69

n.4 (D.D.C. 2008) (clarifying that parole “suitability [not parole eligibility] is determined

primarily either by guidelines or regulations promulgated by the paroling authority pursuant to

statute”) (citation and internal quotation marks omitted).


        1
         Defendants have shown that plaintiff mistakenly relies on federal parole provisions that
are inapplicable to D.C. Code offenders. See Defs.’Mem. at 9 n.2; Decl. of J.R. Johnson [Dkt.
No. 18-1] ¶ 11 & Attachs. 8-9 (Program Statement 5880.32).

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       Plaintiff’s dispute with his parole eligibility date lies not with the named defendants of

the Parole Commission but rather with the non-party Bureau of Prisons, insofar as the

Commission “relies on the BOP for computing sentences for parole-eligible prisoners . . .

including the calculation of parole eligibility dates. . . .” Defs.’ Mem. at 9; see generally Decl. of

J.R. Johnson, Correctional Programs Specialist at BOP’s Designation and Sentence Computation

Center (calculating plaintiff’s sentence); U.S. v. Wilson, 503 U.S. 329, 331-333 (1992) (agreeing

“that it is the Attorney General [through BOP] who computes the amount of [] credit after the

defendant begins his sentence”).

       A challenge to BOP’s sentence calculation must proceed via a petition for a writ of

habeas corpus in the judicial district of the immediate custodian, namely the petitioner’s warden.

See Muhammad v. Close, 540 U.S. 749, 750 (2004) (“Challenges to the validity of any

confinement or to particulars affecting its duration are the province of habeas corpus[.]”)

(citation omitted); Stokes v. U.S. Parole Comm’n, 374 F.3d 1235, 1239 (D.C. Cir. 2004) ("[A]

district court may not entertain a habeas petition involving present physical custody unless the

respondent custodian is within its territorial jurisdiction."); accord Rooney v. Sec’y of Army, 405

F.3d 1029, 1032 (D.C. Cir. 2005) (habeas “jurisdiction is proper only in the district in which the

immediate, not the ultimate, custodian is located") (internal citations and quotation marks

omitted). Plaintiff cannot recover monetary damages without first securing habeas relief. See

Skinner v. U.S. Dep’t of Justice, 584 F.3d 1093, 1097-1101 (D.C. Cir. 2009) (affirming the

dismissal of a damages claim where the plaintiff had not “first secure[d] relief through a writ of

habeas corpus”). Because plaintiff is not incarcerated in the District of Columbia, this Court




                                                  3
lacks jurisdiction to entertain any habeas claims he may press. It therefore will dismiss the case.

A separate Order accompanies this Memorandum Opinion.




                                                      __________/s/_____________
                                                      ELLEN SEGAL HUVELLE
DATE: July 19, 2010                                   United States District Judge




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