                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA



 TALIB MUSTAFA SHAKIR,

        Plaintiff,
                v.                                        Civil Action No. 14-831 (JEB)
 ISAAC FULWOOD, JR.,

       Defendant.


                                 MEMORANDUM OPINION

       Having already served twenty years of an indeterminate sentence of fifteen years to life

imposed by the District of Columbia Superior Court, Plaintiff Talib Shakir is understandably

eager to be paroled. The U.S. Parole Commission, however, has different ideas. Instead of

releasing Shakir at his 2013 hearing, the Commission denied parole and set off his next hearing

until 2018. Claiming that this decision was a product of the USPC’s impermissible use of its

2000 guidelines, which were drafted after his sentence was imposed, Plaintiff has filed this pro

se action to compel the Commission to revisit his parole – this time under the proper 1987

guidelines. Because the USPC did employ the earlier guidelines in its decision to set off

Shakir’s hearing, the Court will grant its Motion to Dismiss.

   I. Background

       As almost all of the facts in this case are undisputed, the Court draws from both sides’

pleadings and attached documents. Shakir, in fact, incorporates the Commission’s official

documents in his pleadings and never questions their authenticity.



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       Plaintiff was sentenced in the Superior Court in 1995 to an indeterminate term of fifteen

years to life for second-degree murder and associated crimes. See Mot., Exh. 1 (Sentence

Monitoring Computation Data) at 1. He first came up for parole in May 2010, see id. at 2, but

was denied, and his next hearing was set for August 2013. See Mot., Exh. 3 (2010 Notice of

Action). At this 2013 hearing, although the examiner recommended parole, see Mot., Exh. 4

(Post-Hearing Assessment), she was overruled, parole was denied, and Shakir was given a five-

year “set-off,” meaning his next hearing was set for 2018. See Mot., Exh. 5 (2013 Notice of

Action).

       Plaintiff filed this action on May 8, 2014, claiming that the Commission “retroactively

appl[ied] the USPC’s own 2000 Parole Guidelines and practices, in violation of the Ex Post

Facto Clause, so as to significantly increase the risk that Plaintiff would serve a longer term of

incarceration.” Compl. at 2. Shakir contends that the Commission should have employed the

1987 guidelines, which were in effect at the time of his initial sentencing, rather than the ones

promulgated in 2000. See id. at 2-3. He seeks an order holding the application of the 2000

guidelines unconstitutional and an injunction requiring the USPC to hold a new hearing under

the 1987 guidelines. See id. at 3. Defendant has now moved to dismiss.

   II. Legal Standard

       Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action where a

complaint fails “to state a claim upon which relief can be granted.” In evaluating Defendant’s

Motion to Dismiss, the Court must “treat the complaint's factual allegations as true . . . and must

grant plaintiff ‘the benefit of all inferences that can be derived from the facts alleged.’”

Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (quoting Schuler v.


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United States, 617 F.2d 605, 608 (D.C. Cir. 1979)) (citation omitted); see also Jerome Stevens

Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). The notice-pleading rules are “not

meant to impose a great burden upon a plaintiff,” Dura Pharm., Inc. v. Broudo, 544 U.S. 336,

347 (2005), and he must thus be given every favorable inference that may be drawn from the

allegations of fact. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 584 (2007).

       Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6)

motion, id. at 555, “a complaint must contain sufficient factual matter, accepted as true, to ‘state

a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Twombly, 550 U.S. at 570). Plaintiff must put forth “factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Id. The Court need not accept as true “a legal conclusion couched as a factual allegation,” nor

an inference unsupported by the facts set forth in the complaint. Trudeau v. FTC, 456 F.3d 178,

193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986) (internal quotation

marks omitted)). Although a plaintiff may survive a 12(b)(6) motion even if “recovery is very

remote and unlikely,” the facts alleged in the complaint “must be enough to raise a right to relief

above the speculative level.” Twombly, 550 U.S. at 555-56 (citing Scheuer v. Rhodes, 416 U.S.

232, 236 (1974)).

       In evaluating the sufficiency of Plaintiff’s Complaint under Rule 12(b)(6), the Court may

consider “the facts alleged in the complaint, any documents either attached to or incorporated in

the complaint and matters of which [the court] may take judicial notice.” Equal Emp’t

Opportunity Comm’n v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).




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   III. Analysis

         A. Application of 1987 Guidelines

         In moving to dismiss, the Commission’s principal argument is simple: it asserts that,

contrary to Shakir’s allegations, the undisputed documentation proves that it did apply the 1987

guidelines at his 2013 parole hearing. As a result, he has nothing to complain of. Before

considering the question, a brief primer on the history of the two sets of guidelines may prove of

value.

         Prior to the 1997 Congressional enactment of the National Capital Revitalization and

Self-Government Improvement Act, codified at D.C. Code § 24-101 et seq., the D.C. Parole

Board conducted hearings for offenders convicted in the Superior Court. The Act abolished the

Board and transferred parole hearings to the USPC, which was instructed to follow “the parole

laws and regulations of the District of Columbia.” Id. § 24-131(c). Prior to such transfer, the

Board relied on guidelines promulgated in 1987; as a result, the Commission initially continued

to employ those when it considered D.C. offenders. Yet, as Judge Ellen Huvelle of this District

explained in a thorough and detailed opinion on the history of the different guidelines, the

Commission subsequently “drafted new parole regulations and guidelines (the ‘2000

Guidelines’) that it applied to any [D.C.] offender who received an initial parole hearing after

August 5, 1998.” Sellmon v. Reilly, 551 F. Supp. 2d 66, 72 (D.D.C. 2008) (citation omitted).

         In Sellmon, certain plaintiffs who (like Shakir) were sentenced before the promulgation

of the 2000 guidelines argued that their parole hearings should be governed by the 1987, not the

2000, guidelines. They claimed that differences between the two “g[a]ve rise to a compelling

inference that the application of the 2000 Guidelines significantly increased plaintiffs’ risk of


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serving lengthier terms of incarceration.” Id. at 87. Judge Huvelle ultimately agreed that they

had “made a compelling showing that there are facial differences between [the two guidelines]

that could give rise to an ex post facto violation in individual cases.” Id. at 88 (footnote

omitted). She ultimately required the USPC to conduct parole hearings for those prisoners

pursuant to the 1987 guidelines. See id. at 99.

       The Commission asserts that it took this ruling to heart. In fact, it promulgated a rule

requiring that the 1987 guidelines be applied to any offender who committed his crime between

March 4, 1985, the effective date of the 1987 guidelines, and August 4, 1998, the last day the

D.C. Board exercised authority before transfer to the USPC. See 74 Fed. Reg. 58540 (Nov. 13,

2009) (final rule). As Shakir indisputably falls into this category – his crime occurred in 1993 −

the 1987 guidelines should have been applied to him. So were they?

       The answer is plainly yes. Shakir’s Notice of Action, dated August 1, 2013, expressly

states in the first paragraph of the “Reasons” section: “You continue to be scored under the 1987

guidelines of the D.C. Board of Parole.” 2013 Notice of Action at 1. This would appear to

dispose of the question.

       Shakir takes issue with this explanation, however, insofar as the USPC scheduled his next

hearing for 2018. More specifically, the sole contention in his Complaint is that “Defendant

could not depart from the prescriptions of the 1987 Guidelines and give Plaintiff a five (5) year

set-off. Such a departure by Defendant would only have been possible under the USPC’s own

2000 Guidelines . . . .” Compl. at 3. Plaintiff’s construction of the 1987 guidelines – and thus

the conclusion he draws – is mistaken. It is true that these guidelines provided in part: “When

the Board denies parole and orders reconsideration for a person serving a maximum sentence of


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five (5) years or more, reconsideration shall ordinarily occur within twelve (12) months.” 28

DCMR § 104.2 (emphasis added). Yet, such timing is not mandatory, as another provision

makes clear: “Notwithstanding any other provision of this section, the Board may order a parole

reconsideration date it determines to be appropriate.” Id., § 104.11.

       Were there any doubt that this latter section permits a set-off beyond one year, the D.C.

Court of Appeals has laid that to rest. See Jones v. Braxton, 647 A.2d 1116, 1117 (D.C. 1994)

(§ 104.2 “is clearly not mandatory,” as § 104.11 “expressly authorizes the Board to disregard the

suggested timeframes”); Hall v. Henderson, 672 A.2d 1047 (D.C. 1996) (affirming Board’s set-

off of five years under 1987 guidelines). Shakir’s contention that the five-year set-off is

impermissible under the 1987 guidelines thus cannot prevail.

       Although he does not raise the claim in his Complaint, Plaintiff also seems to maintain in

his Opposition that, regardless of the length of the set-off, no departure from the examiner’s

recommendation was justified under the 1987 Guidelines. He is incorrect. The 2013 Notice of

Action explains that a departure was warranted largely because Shakir’s offense had “involved a

vulnerable victim murdered during a robbery.” See also id. (set-off ordered “due to your

involvement of [sic] the death of two innocent victims and your history of weapons

involvement”). Although Shakir claims that this was an impermissible basis under the 1987

guidelines, he ignores the fact that they allow a departure where unusual cruelty to victims is

involved. See 28 DCMR § 204.22. Given the discretion afforded the USPC, see, e.g., Ellis v.

District of Columbia, 84 F.3d 1413, 1419-20 (D.C. Cir. 1996), its description of the basis for its

departure is sufficient even though the word “cruelty” is not used.




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       B. Other Claims

       To the extent Plaintiff is also asserting a separate count under the APA, it meets the same

fate. As best the Court can discern, the APA claim is to “compel agency action unlawfully

withheld,” Compl. at 8 – that is, to “[d]eclar[e] that Defendant’s retroactive application of the

USPC’s 2000 Guidelines, and/or failure to fully apply the 1987 Guidelines, to Plaintiff’s parole

[re]hearing violates the APA.” Id. at 9 (third alteration in original). As the USPC did in fact

apply the earlier guidelines, this count similarly founders.

       In his Opposition, Shakir also claims that the Commission has violated the separation-of-

powers doctrine by lengthening his sentence beyond what the original Superior Court judge had

imposed. See Opp. at 9-10. Such an argument neglects that the sentence issued here was

indeterminate, meaning it offered a range of fifteen years to life. Shakir was first eligible for

parole after the minimum term had elapsed and could serve no more than the maximum term.

See D.C. Code § 24-403(a) (Superior Court offender given indeterminate sentence “may be

released on parole . . . at any time after having served the minimum sentence”). As the USPC

has not lengthened his sentence beyond the life possibility imposed by the Superior Court, it has

not infringed on the judicial role or otherwise violated the Constitution’s separation of powers.

See, e.g., Kingsbury v. Fulwood, 902 F. Supp. 2d 51, 59 (D.D.C. 2012) (In a case in which a

prisoner was serving a sentence of 20 years to life, “there can be no usurpation of judicial

authority by the USPC where each parole action, and the additional time the plaintiff has been

ordered to serve, has occurred prior to the expiration of the life sentence imposed by the Superior

Court.”).




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   IV. Conclusion

       The Court, accordingly, will issue a contemporaneous Order granting the Commission’s

Motion and dismissing the case.

                                                         /s/ James E. Boasberg
                                                         JAMES E. BOASBERG
                                                         United States District Judge
Date: June 11, 2015




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