                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA
_________________________________________
                                          )
CURTIS L. WATSON,                         )
                                          )
                  Plaintiff,              )
                                          )
      v.                                  )                 Civil Action No. 11-2044 (JDB)
                                          )
UNITED STATES PAROLE COMMISSION,          )
                                          )
                  Defendant.              )
_________________________________________ )


                                 MEMORANDUM OPINION


       This matter is before the Court on defendant’s motion to dismiss. For the reasons

discussed below, the motion will be granted. 1


                                      I. BACKGROUND


       In 1978, in the Superior Court of the District of Columbia, plaintiff was sentenced to an

aggregate term of 30 years to life imprisonment. 2 See Compl. at 1. While in the District of


1
       Plaintiff’s “Formal Request to be Transferred to the Jurisdiction of this Court for
Consideration of Release Having Served the D.C. and Federal Sentences” [Dkt. #8] will be
denied as moot.
2
       Plaintiff’s criminal history has been summarized as follows:

       [Plaintiff] was indicted in 1976 on several charges related to two separate
       incidents occurring at 1926 Quincy Street, N.E.: the May 30, 1976 assault on
       Richard Knight and the June 6, 1976 shootings of Cynthia Durham and Robert
       Swearinger. The matters came to trial in 1977, but a mistrial was soon declared
       because several jurors had been exposed to publicity surrounding the murder of
       Timothy Reeves, which had also taken place at the Quincy Street premises.

       [Plaintiff] was later indicted for the Reeves’ murder and a related weapons
       charge. The trial court subsequently granted the government’s motion to
                                                 1
Columbia’s custody and serving his sentence at its Lorton Reformatory, on August 30, 1988,

plaintiff “walked away from a Work Release program and . . . remained on escape status until

[October 30, 1995] when he was arrested in Arizona.” Mem. of P. & A. in Supp. of Def.’s Mot.

to Dismiss (“Def.’s Mem.”), Ex. E (Hearing Summary dated October 21, 2011) at 3. Plaintiff

was convicted of escape and on March 15, 1996, he was sentenced to a 12-month term of

imprisonment pursuant to 18 U.S.C. § 751 to be served consecutively to the Superior Court

sentence. See Compl., Ex. (Order, United States v. Watson, No. 1:88cr201 (E.D. Va. Dec. 28,

2007)) at 1.


       Plaintiff’s first parole hearing took place in 2004. Compl. at 3. As of November 8, 2004,

he had been incarcerated for 316 months. See id., Ex. (Notice of Action dated November 16,

2004) at 1. The United States Parole Commission (“Commission”) denied parole, see id., noting

that an upward departure from the applicable parole guidelines was “warranted because . . .

[plaintiff had] a 12-month consecutive term to follow [his] current sentence.” Id. After a

reconsideration hearing in October 2007, plaintiff ostensibly had been granted “[p]arole effective

December 9, 2007 after service of 353 months to the consecutive 12 month term.” Id., Ex.

(Notice of Action dated November 20, 2007) at 1. The Commission, however, voided its

decision because “[t]he Bureau of Prisons . . . determined that [plaintiff was] not eligible for


       consolidate this indictment with the earlier indictment covering the 1976 assaults.
       Following a jury trial, [plaintiff] was convicted on counts contained in both
       indictments, viz., first-degree murder while armed . . . , carrying a pistol without a
       license . . ., two counts of first-degree burglary while armed . . . , assault with a
       dangerous weapon . . . , and two counts of assault with intent to kill while armed .
       . . . Following the denial of his motion for a new trial, [plaintiff] was sentenced
       to an aggregate term of thirty years to life imprisonment.

Watson v. United States, 508 A.2d 75, 76-77 (D.C. 1986) (footnotes omitted), judgment vacated,
514 A.2d 800 (D.C. 1986) (per curiam), aff’d on reh’g, 536 A.2d 1056 (D.C. 1987) (en banc),
cert. denied, 486 U.S. 1010 (1988).
                                                  2
parole until [April] 27, 2012.” 3 Id., Ex. (Notice of Action dated December 18, 2007) at 1. A

hearing was to be scheduled within nine months of petitioner’s new parole eligibility date. Id.


       Plaintiff’s next parole hearing occurred on October 21, 2011. Def.’s Mem., Ex. E

(Hearing Summary dated October 21, 2011) at 1. According to the Commission, as of October

30, 2011, plaintiff had been incarcerated for only 314 months. See Compl., Ex. (Notice of

Action dated November 30, 2011) at 1. The Commission again denied parole, and continued the

matter for another three years, to October 2014. Id.




3
       The aggregate sentence imposed by the Superior Court in 1978 was 30 years to life
imprisonment. See Watson, 508 A.2d at 77. It appears that, upon plaintiff’s transfer to federal
custody, BOP staff recalculated his sentence. See Def.’s Mem., Ex. E (Hearing Summary dated
October 21, 2011) at 1. Plaintiff did not become eligible for parole until April 2012:

               There is no D.C. Code provision controlling the commencement of a
       sentence. The [BOP] follows two U.S. Code statutory provisions, 18 U.S.C.
       §3586, for sentences imposed for offenses committed prior to November 1, 1987,
       and 18 U.S.C. §3585(a), for sentences imposed for offense[s] committed on or
       after November 1, 1987. [Plaintiff’s] sentences imposed in 1978 were “old law”
       sentences while his sentence[] in 1996 for the escape was a “new law” sentence
       imposed under the Sentencing Reform Act of 1984. The sentences are computed
       separately, with the consecutive term for the escape conviction beginning on the
       date of the completion of the first term of imprisonment.

               [Plaintiff’s] “old law” aggregated sentence began on August 10, 1978.
       [His] sentence stopped running while he was out-of-custody after his 1988 escape,
       and did not begin again until his re-arrest in 1995. . . . Petitioner’s projected
       parole eligibility date was April 27, 2012, with respect to his 1978 “old law”
       sentences. If and when he gains parole with respect to that sentence he will begin
       service of his “new law” sentence.”

Order Denying Petition, Watson v. Warden, FCC Coleman – USP I, Nos. 5:09-cv-112 & 5:09-
cv-200 (M.D. Fla. May 3, 2012) at 4-5 (internal citations to the record omitted). If the
Commission were to grant plaintiff parole, he presumably would remain in custody in order that
he serve the consecutive 12-month sentence for escape. See Def.’s Mem., Ex. F (Hearing
Summary dated November 1, 2004) at 3.
                                                3
                                           II. DISCUSSION


                                          A. Plaintiff’s Claims


        It is no easy task to decipher the claims plaintiff presents. The Court begins with

plaintiff’s assertion that he has “been resentenced by the whims of a rogue agency.” Compl. at 4.

The introductory statement to his complaint reads:


                PETITONER [sic] CHALLENGES AS UNCONSTITUTIONAL
                THE AUTHORITY OF THE UNITED STATES PAROLE
                COMMISSION TO GRANT OR DENY PAROLE TO THIS OLD
                LAW D.C. PRISONER WHEN THE D.C. SENTENCE HAS
                BEEN SERVED IN ITS ENTIRETY.
Id. at 1 (emphasis in original). The Court interprets this statement as a challenge to the

Commission’s authority to deny him parole and as a claim that he has served his entire Superior

Court-imposed aggregate sentence. He thus contends, apparently, that his continued custody is

unlawful and presumably he demands his immediate release.


        In addition, plaintiff makes a passing reference, see Compl. at 3, to Sellmon v. Reilly, 551

F. Supp. 2d 66 (D.D.C. 2008), presumably for the purpose of alleging “that [the Commission]

retroactively applied its own parole guidelines and practices so as to significantly increase the

risk that [he] would serve [a] longer term [ ] of incarceration,” id. at 68. Plaintiff further alleges

that Sellmon in effect “voided all parole hearings from 2000 to 2008,” and he demands a new

parole hearing on this basis. See Compl. at 3 (emphasis in original). He also appears to argue

that his 2011 parole hearing was invalid not only because it was deemed an initial hearing

(notwithstanding prior parole hearings in 2004 and 2007), but also because the Commission

applied the wrong parole regulations to his case. See id. at 3-4. Plaintiff demands “injunctive

relief to stop this conduct.” Id. at 4.


                                                   4
                    B. The Commission Is Authorized to Deny Plaintiff Parole


       According to plaintiff, the Commission lacks the authority to deny him parole, see

Compl. at 1, and in effect it has “resentenced” him, id. at 4. Plaintiff is mistaken.


       It is well settled that the Commission “has had jurisdiction over parole matters of District

of Columbia felons since August 1998.” Ray v. U.S. Parole Comm’n, No. 11-2127, 2012 WL

252238, at *2 (D.D.C. Jan. 26, 2012) (citations omitted); see Franklin v. District of Columbia,

163 F.3d 625, 632 (D.C. Cir. 1998) (discussing the transfer of parole jurisdiction for District of

Columbia prisoners to the Commission). It may grant, deny, or revoke parole, and it may impose

or modify conditions of parole for any felon who is eligible for parole or reparole under District

of Columbia law. See D.C. Code § 24-131(a). The statutes under which the Commission

operates “govern the execution of a judicially imposed sentence.” Moore v. U.S. Parole

Comm’n, No. 10-1987, 2011 WL 550003, at *1 (D.D.C. Feb. 10, 2011). The Commission is not

a court; it merely exercises administrative authority over the execution of a sentence. See

Maddox v. Elzie, 238 F.3d 437, 445 (D.C. Cir. 2001). Its actions neither usurp the authority of

the sentencing court nor violate the separation of powers doctrine. See, e.g., Monroe v. District

of Columbia, No. 12-0558, 2012 WL 1229333, at *1 (D.D.C. Apr. 11, 2012).


                        C. The Relief Plaintiff Demands Sounds in Habeas


       Plaintiff challenges the calculation of his sentence and claims to have served his Superior

Court sentence in full. See Compl. at 1-2; see also “Plaintiff[’s] . . . Formal Request to be

Transferred to the Jurisdiction of this Court for Consideration of Release Having Served the D.C.

and Federal Sentences” [Dkt. #8] at 1-2.

                                                  5
       Where, as here, a prisoner “challeng[es] the very fact or duration of his physical

imprisonment, and the relief he seeks is a determination that he is entitled to immediate release

or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus.”

Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); see Muhammad v. Close, 540 U.S. 749, 750

(2004) (per curiam) (“Challenges to the validity of any confinement or to particulars affecting its

duration are the province of habeas corpus.”). Therefore, a prisoner cannot bring a civil action

seeking a declaratory judgment in order to obtain his release. See LoBue v. Christopher, 82 F.3d

1081, 1082 (D.C. Cir. 1996) (concluding that plaintiffs challenging the constitutionality of

federal extradition statutes could do so through a petition for writ of habeas corpus, not through a

civil action for declaratory and injunctive relief); Monk v. Sec’y of the Navy, 793 F.2d 364, 366

(D.C. Cir. 1986) (concluding that service member could not challenge conviction by court

martial through a civil action seeking declaratory judgment); Smocks v. United States, No. 10-

0361, 2010 WL 1780270, at *1 (D.D.C. May 3, 2010) (concluding that prisoner must proceed by

means of a habeas petition, not a complaint under the Declaratory Judgment Act, to challenge the

constitutionality of certain provisions of federal law pertaining to his ability to seek release from

custody).


       Furthermore, habeas actions are subject to jurisdictional and statutory limitations. See

Braden v. 30th Judicial Cir. Ct. of Ky., 410 U.S. 484 (1973). One such limitation is the

requirement that a habeas corpus action be brought against the plaintiff’s warden. Rumsfeld v.

Padilla, 542 U.S. 426, 434-35 (2004); Blair-Bey v. Quick, 151 F.3d 1036, 1039 (D.C. Cir. 1998)

(citing Chatman-Bey v. Thornburgh, 864 F.2d 804, 810 (D.C. Cir. 1988)). Moreover, this

district court cannot “entertain a habeas petition involving present physical custody unless the




                                                  6
[plaintiff’s] custodian is within its territorial jurisdiction.” 4 Stokes v. U.S. Parole Comm’n, 374

F.3d 1235, 1239 (D.C. Cir. 2004).


       The relief that plaintiff demands sounds in habeas and therefore is not available by means

of a civil action seeking a declaratory judgment and injunctive relief. Nor is this district court

the proper forum for adjudication of plaintiff’s habeas claim.


                    D. The Commission Properly Applied Its 2000 Guidelines


       Plaintiff objects to the Commission’s decisions to treat the October 21, 2011 parole

hearing as an initial hearing and to apply its own parole guidelines. See Compl. at 3. Plaintiff

does not articulate, nor has the Court identified, a statutory or constitutional violation with regard

to the Commission’s acknowledgement of an apparent error in the calculation of plaintiff’s

parole eligibility date. The 2004 and 2007 hearings occurred prematurely according to the

BOP’s calculation of plaintiff’s sentence, and it follows that the Commission conducted the

October 21, 2011 hearing as an initial hearing in anticipation of plaintiff’s correct parole

eligibility date, April 27, 2012.


       Turning to the complaint’s reference to Sellmon, the Court presumes that plaintiff raises

an ex post facto claim that the Commission “is applying later-adopted laws that disadvantage him

instead of the laws that were in effect at the time he committed the offenses.” Austin v. Reilly,

606 F. Supp. 2d 4, 9 (D.D.C. 2009) (citing Weaver v. Graham, 450 U.S. 24, 30 (1981)). In the

parole context, plaintiff could argue that the retroactive application of the Commission’s own


4
        Plaintiff currently is incarcerated at the United States Penitentiary in Coleman, Florida.
Recently the United States District Court for the Middle District of Florida considered, and
rejected, plaintiff’s challenge to the calculation of his release date and parole eligibility date. See
Order Denying Petition, Watson v. Warden, FCC Coleman – USP I, Nos. 5:09-cv-112 & 5:09-
cv-200 (M.D. Fla. May 3, 2012), appeal docketed, No. 12-12618 (11th Cir. May 15, 2012).
                                                  7
guidelines, see 28 C.F.R. § 2.80, rather than the regulations promulgated by the former District

of Columbia Board of Parole in 1987, “creates ‘a significant risk’ of a ‘longer period of

incarceration than under the earlier rule.’” Sellmon, 551 F. Supp.2d at 84 (quoting Garner v.

Jones, 529 U.S. 244, 255 (2000)). But this claim is meritless.


       Nothing in the record of this case suggests that the former Parole Board’s regulations

apply to plaintiff. “[A] plaintiff may invoke ex post facto protection only on the basis of the

parole regime that was in effect at the time he committed his offense[s].” Austin, 606 F. Supp.

2d at 7-8 (citation omitted). Plaintiff committed his offenses in or about 1976, see Watson, 508

A.2d at 76, years before the Parole Board promulgated the regulations at issue in Sellmon. At

the time plaintiff committed the offenses for which he now is serving his sentence, “parole

eligibility was determined by a D.C. Parole Board that operated with nearly complete

discretion,” Wilson v. Fulwood, 772 F. Supp. 2d 246, 252 (D.D.C. 2011) (citing Austin, 606 F.

Supp. 2d at 8), subject only to regulations promulgated by the Parole Board in 1972, see id.

Given the “totally unfettered” discretion under which the Parole Board operated in those days,

see Sellmon v. Reilly, 561 F. Supp. 2d 46, 50 (D.D.C. 2008), the Court cannot conclude that

plaintiff would have fared better under a prior regime.


       Accordingly, the Court will grant defendant’s motion to dismiss. An Order accompanies

this Memorandum Opinion.




                                                      JOHN D. BATES
                                                      United States District Judge
DATE: June 26, 2012



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