FILED

UNITEI) srArlzs l)rsralcr coURT JUL 1 5 2014
FOR THE DISTR]CT OF COLUMBIA Q;g¢g_ u_g, g|m¢gg, gmmpwy
Cour!s for the Dlstlict ot Co!umbla
srr:vE Fos'rER,
Plainrirr,

v. _ CivilAction N0. /${_ 

UNITED STATES BUREAU OF PRISONS,
et al.,

Defendants.

MEMORANDUM OPINION
This matter is before the Court on its initial review of pro se Plaintiff Steve Foster’s

Application to Proceed fn Forma Pauperis and his accompanying Complaint. The Application
will be granted, but Plaintiff’ s Complaint, which challenges his incarceration and the operative
parole guidelines, does not fare so well. While the pleading is short on facts, it is long enough to
demonstrate that Foster cannot succeed here. The case, consequently, will be dismissed pursuant
to 28 U.S.C. § l9l5A, which requires the Court to screen and dismiss a prisoner’s complaint
upon a determination that it fails to state a claim.

I. Background

Plaintiff Foster is currently incarcerated in the United States Penitentiary, Hazelton,

located in Bruceton Mills, West Virginia. He alleges that in 1986 a D.C. Superior Courtjudge
sentenced him to fifteen years in prison, and that “the sentence was to be served at 65% or a total
of Nine years and (7) months," with a further 389-day credit for time served. Compl. at 2', g
also United States v. Foster, 1985 FEL 1590 (D.C. Super. Ct. March 26, 1986). In 1998, while

Foster was still incarcerated, all D.C. felony prisoners were transferred to federal custody under

the supervision of the U.S. Bureau of Prisons. _S_t;§ National Capital Revitalization and Self-
Govemment Improvement Act of 1997, Pub. L. No. 105-33, 111 Stat. 712. Once in BOP
custody, Plaintiff alleges, his original sentence "was converted into [a] (45) year tenn or life
term." Compl. at 2.

Foster also alleges that at the time of his sentencing, the "old law" was in effect - a
reference to D.C.’s 1972 parole guidelines. g Wats0n v. Parole Comm'n, 869 F. Supp. 2d 145,
147-48 n.3 (D.D.C. 2012). Those guidelines were open ended and left the decision of whether to
grant parole almost entirely to the discretion of the D.C. Parole Board; today, by contrast, the
U.S. Parole Commission employs guidelines that were finalized in 2000 and involve a detailed
point system. § Sellmon v. Reilly, 551 F. Supp. 2d 66, 72-73, 86 n.l5 (D.D.C. 2008). ln
1998, when he was transferred to the federal system, therefore, he alleges that BOP “change[d]
the method of release" to "only by the approval of the United States Parole Commission," which
in turn applies the later 2000 parole guidelines. Compl. at 2 (internal quotation marks omitted).
This action, he claims, effectively "resentenced all District of Columbia felons." I_d. Plaintiff
urges the Court to "stop and bar any more of these false parole hearings that have thousands of
[District] of Columbia felons being held in violation of the rule of law." l¢ at 3 (internal
quotation marks omitted). He names as Defendants the BOP and the Parole Commission.

II. Analysis

Despite a commendable run at some complex issues, Foster does not prevail on either the
alleged "conversion" of his sentence or the retroactive application of the 2000 parole guidelines.

Plaintiff first challenges BOP’s calculation of his sentence, styling his suit as one arising
under 42 U.S.C. § 1983, apparently seeking declaratory and injunctive relief. §_e_z§ i_¢ at 2-3.

Unfortunately for him, however, where a prisoner "challeng[es] the very fact or duration of his

physical irnprisonment, and the relief he seeks is a determination that he is entitled to immediate
release or a speedier release from that imprisonrnent, his @ federal remedy is a writ of habeas
corpus." Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (emphasis added); all Muhammad
yilog, 540 U.S. 749, 750 (2004)). Although this habeas-channeling requirement is limited to
actions going to the "core" of the writ, Aamer v. Obama, 742 F.3d 1023, 1037 (D.C. Cir. 2014),
Foster’s allegation that his sentence was improperly converted to life imprisonment is certainly
that type. In such a case, "a prisoner cannot bring a civil action seeking a declaratory judgment

in order to obtain his release." Watson, 869 F. Supp. 2d at 149 (citing LoBue v. Christopher, 82

F.3d 1081, 1082 (D.C. Cir. 1996); Monk v. Sec'v ofthe Navy, 793 F.2d 364, 366 (D.C. Cir.
1986)); accord Ceasar v. Bureau of Prisons, 532 F. Supp. 2d l, 3 (D.D.C. 2008) ("a challenge to
the duration of a prisoner‘s confinement is a habeas claim," not a civil action).

Plaintiff`s claim that his stay in Hazelton has been improperly extended, therefore,
sounds in habeas Habeas, however, is a doctrine subject to statutory and jurisdictional
limitations, §e_e Braden v. 30th judicial Cir. Ct. of Kv., 410 U.S. 484 (1973), which in this case
are fatal to Plaintift’s claim. When a habeas petitioner is presently incarcerated, the appropriate
defendant is his current warden, who must in turn be within the district court’s territorial

jurisdiction. S_ee_ Rumsfeld v. Padilla, 542 U.S. 426, 434-35, 442-44 (2004); accord Stokes v.

Parole Comm'n, 374 F.3d 1235, 1239 (D.C. Cir. 2004); Guerra v. Meese, 786 F.2d 414, 415
(D.C. Cir. l986). BOP, accordingly, is not the appropriate defendant, and that person - the
warden of Foster’s West Virginia prison ~ is not within this jurisdiction. Any habeas claim must
thus be brought in that state and against Plaintift`s jailer. § Q_e_asa_r, 532 F. Supp. 2d at 3
(holding under similar circumstances that BOP is not the appropriate defendant and this is not

the appropriatejurisdiction); accord Connally v. Reno, 896 F. Supp. 32, 35 (D.D.C. 1995)

(holding that Director of BOP is not appropriate defendant in habeas action challenging present
confinement) (citing Ex parte Endo, 323 U.S. 283, 306 (1944)).

Tu;rning next to Foster’s allegation against the Parole Commission, the Court assumes for
purposes of this case that a § 1983 action, as opposed to habeas, is an appropriate vehicle for his
grievance about the Parole Commission’s retroactive application of the 2000 parole guidelines
This is so because, it appears, those guidelines would not guarantee a reduction in his sentence.
§ Davis v. U.S. Sentencing Comm'n, 716 F.3d 660, 666 (D.C. Cir. 20l3) ("[W]e hold that a
federal prisoner need bring his claim in habeas only if success on the merits will ‘necessarily
imply the invalidity of confinement or shorten its duration."’) (quoting Wilkinson v. Dotson, 544

U.S. 74, 82 (2005)). Relying on recent court rulings in Watson, 869 F. Supp. 2d 145, and Peugh

v. United States, 133 S. Ct. 2072 (2013), Plaintiff contends that he "and thousands of others can
show a violation" of the Constitution’s prohibition on ex post facto laws. Compl. at 1.' Neither
precedent, however, supports Plaintiff’s claims.

lt is true that an ex post facto violation might occur in the context of parole proceedings,
when regulations or guidelines enacted after a prisoner’s sentencing are applied retroactively so
as to create a "‘significant risk’ of ‘a longer period of incarceration than under the earlier rule."’
§e_lln_ion, 551 F. Supp. 2d at 84 (quoting Garner v. Jones, 529 U.S. 244, 255 (2000)). Foster,
however, has not even attempted to allege that application of the 2000 guidelines would subject
him to a longer period of incarceration than the 1972 ones in place at the time he was originally
sentenced This is because it is not correct Examining the same pair of parole guidelines in

Watson, judge Bates observed:

At the time plaintiff committed [his offense] “parole eligibility was
determined by a D.C. Parole Board that operated with nearly

' In federal court, a litigant proceeding pro se cannot represent any other individual. § 28 U.S.C. § 1654. The
Court’s resolution of this case, accordingly, is limited to Plaintiff alone.

4

complete discretion" . . . . Given the totally unfettered discretion

under which the Parole Board operated in those days, . . . the Court

cannot conclude that plaintiff would have fared better under a prior

regime
869 F. Supp. 2d at 150 (quoting Wilson v. Fulwood, 772 F. Supp. 2d 246, 252 (D.D.C. 201l))
(some internal quotation marks omitted); scm  , 561 F. Supp. 2d at 50 (discussing
"totally unstructured character of the Board’s parole decisions prior to 1987"). The Court sees
no reason to depart from this reasoning and similarly concludes that the application of the 2000
guidelines does not create a "significant risk of a longer period of incarceration" than under the
earlier 1972 rule. § Phillips v. Fulwood, 616 F.3d 577, 583 (D.C. Cir. 2010) ("[B]ecause
[plaintiff] cannot demonstrate that the Commission‘s application of the 2000 regulations created
or ‘creates a significant risk of prolonging [his] incarceration,’ he has no claim under the Ex Post
Facto Clause." ) (quoting Garner v. Jones, 529 U.S. 244, 255 (2000)) (third alteration in
original).

Foster’s reliance on _P_¢Lgl_i is similarly unavailing. There, unlike here, the retroactive
application of sentencing guidelines @ in fact subject a criminal defendant to a longer period of
incarceration. §g:_ l*iugh, 133 S. Ct. at 2084-85. As Foster cannot demonstrate an ex post facto
violation the Court will dismiss his claim.

III. C0nclusion

For the reasons articulated herein, the Court will issue a contemporaneous Order
dismissing this case without prejudice.

/s/ fumes f. Boasberg

JAMES E. BOASBERG
United States District Judge

Date: July 11, 2014

