IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ARTHUR L. SCOTT-EL, :

:

Petitioner, : CIVIL NO. 4:CV-04-491

:

v. : (Judge Jones) 

:

UNITED STATES PAROLE :

COMMISSION, et al., :

:

Respondents. :

ORDER

September 18, 2006

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

Petitioner Arthur Scott-El (“Petitioner” or “Scott-El”), an inmate at Allenwood

Federal Correctional Institution, White Deer, Pennsylvania (“FCI-Allenwood”),

commenced the above-captioned action by filing a pro se Petition for Writ of Habeas

Corpus (doc. 1) pursuant to the provisions of 28 U.S.C. § 2254. Named as

Respondents are the United States Parole Commission (“Parole Commission”) and

FCI-Allenwood Warden Stan Yates. By Order dated March 22, 2004 (doc. 3),

Respondents were directed to answer the Petition. On April 26, 2004, Respondents

filed their Response to the Petition for Writ of Habeas Corpus. (Rec. Doc. 8). For the

reasons outlined below, the Petition will be denied.

Following a jury trial in the Superior Court for the District of Columbia, ScottEl was convicted of armed burglary, armed rape, sodomy, armed assault with intent to

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 1 See Rec. Doc. 1, ¶ 9(a). Scott-El asserts that he was initially assessed a point

base score of 6, but a subsequently issued Notice of Action assigned him a point base

score of 7.

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commit rape, and carrying a dangerous weapon. In 1983, he was sentenced to a thirty

(30) year, four (4) month to life term of imprisonment.

Petitioner’s present action does not seek to collaterally attack his conviction or

sentence. Rather, he contends that the Parole Commission violated his constitutional

rights in denying his request for parole by engaging in a prejudicial and biased

application of its guidelines for District of Columbia (“D.C.”) Code offenders. 

On January 30, 2003, the Parole Commission conducted the Petitioner’s initial

parole hearing. Scott-El claims that the Hearing Examiner violated his equal

protection rights by: (1) using “two base point scores to assess and determine

petitioner’s parole suitability and eligibility”1

 and (2) employing the Punitive Section

of the guidelines for D.C. Code offenders codified at 28 C.F.R. § 2.80 while ignoring

the Program Section of those same regulations. See Rec. Doc. 1, ¶ 9. The Petitioner

also asserts that because he is a sex offender, the Hearing Examiner intentionally

withheld his superior academic achievements from consideration and engaged in an

erroneous assessment and calculation computation. As relief, his petition seeks a new

parole review hearing.

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DISCUSSION:

Standard of Review

28 U.S.C. § 2241 vests the federal district courts with jurisdiction to grant a

Writ of Habeas Corpus to persons in custody in violation of the Constitution, laws, or

treaties of the United States. 28 U.S.C. § 2241(c)(3). The Court of Appeals for the

Third Circuit has routinely recognized that a federal court's review of a decision

issued by the Parole Commission is limited to an “abuse of discretion" standard. 

It is well-settled that “there is no constitutional or inherent right of a convicted

person to be conditionally released before the expiration of a valid sentence." 

Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 7

(1979). A federal district court needs only to consider whether the record provides a

rational basis for the Parole Commission’s ruling. Gambino v. Morris, 134 F.3d 156,

160 (3d Cir. 1998). The district court must ensure that the Parole Commission has

followed appropriate criteria rational and consistent with its enabling status and that

its “decisions are neither arbitrary and capricious nor based on impermissible

considerations.” Id. (citation omitted).

Furthermore, the Third Circuit has noted that, when the Parole Commission

issues any written determinations, it "must reveal reasoning and not simply present

conclusions, at least where the reasoning is not apparent from the facts of the case." 

Marshall v. Lansing, 839 F.2d 933, 943 (3d Cir. 1988) (emphasis in original); see also

Greene v. United States Parole Comm'n, 749 F. Supp. 650, 654 (M.D. Pa. 1990). The

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court in Marshall added that “Congress has required the Commission to furnish a

statement of reasons to the prisoner so that he can receive ‘an understandable

explanation of his parole status.’” Id. at 942 (citations omitted). 

Two Different Base Point Scores

Petitioner’s initial argument for relief contends that the Hearing Examiner who

conducted his initial parole review assigned him a base point score of 6. However,

Scott-El claims that a subsequent Notice of Action issued by the Parole Commission

arbitrarily assigned him a base point score of 7. He concludes that the Parole

Commission’s increase in his base point score without explanation violated his

constitutional rights.

The Parole Commission acknowledges that it issued a Notice of Action on

February 19, 2003 that reported his base point score as being six (6) points. See Rec.

Doc. 8, Ex. 5, p. 2. Respondents assert that this guideline calculation was inaccurate

and note that a corrected Notice of Action issued on April 19, 2004 correctly assigned

Petitioner a seven (7) point base point score. See id. at Ex. 6. The Respondents

conclude that since the clerical and arithmetic error referenced by Scott-El has been

corrected, his initial claim should be dismissed on the basis of mootness.

A review of Petitioner’s Initial Prehearing Assessment dated January 22, 2003

indicates that Scott-El was initially assigned a base point score of 7. See id. at Ex. 2,

p. 2. The written, February 7, 2003, D.C. Adult Initial Hearing Summary of his

January 30, 2003 initial parole review hearing likewise assigned Scott-El a seven (7)

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base point score. See id. at Ex. 3, p. 2. Those undisputed records clearly substantiate

the Respondents’ argument that Scott-El was initially assigned a seven (7) base point

score and that the February 19, 2003 Notice of Action listing of a six (6) base point

score was simply an unintentional clerical and/or mathematical error. Since a

corrected Notice Of Action thereafter issued by the Parole Commission reinstated the

original determination of a seven (7) point base point score and set forth a rational

basis for said conclusion, there is no basis for federal habeas corpus relief.

Equal Protection

Petitioner next asserts that the standards and regulations applied by the Parole

Commission during his initial parole review were “materially harsher” than those

employed under the former applicable D.C. regulations. Doc. 1, Aff., p. 1. Scott-El

indicates that because there are significant differences between those two sets of

regulations, his equal protection rights were violated by the Parole Commission.

To establish a viable equal protection violation, one must show an intentional or

purposeful discrimination. Wilson v. Schillinger, 761 F.2d 921, 929 (3d Cir. 1985),

cert. denied, 475 U.S. 1096 (1986). Equal protection claims are subject to a two-part

analysis. See Cleberne v. Cleberne Living Center, 473 U.S. 432 (1985). First, a

petitioner must first show that he has been treated differently from similarly situated

individuals. If a such a showing is made, the respondent then has to show that the

different treatment is rationally related to a legitimate interest. Id. at 440. The

standard for equal protection analysis in relationship to prisoners qua prisoners (i.e., in

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the absence of other characteristics that may make an individual a member of a

suspect class) is rational basis, not heightened scrutiny. See Jackson v. Thornburgh,

907 F.2d 194, 196-7 (D.C. Cir. 1990); Thornton v. Hunt, 852 F.2d 526 (11th Cir.

1988).

 In determining whether the instant Petitioner is being denied equal protection,

the class to which he belongs consists of the persons confined as he was confined,

subject to the same treatment to which he was subject. See Moss v. Clark, 886 F.2d

686, 691 (4th Cir. 1989) ( “[i]t is rational to conclude that ‘it would be deleterious to

prisoner morale, discipline, and rehabilitation if persons confined within the same

prison, perhaps within the same cell, were subject to different standards for release on

parole.’” ) (citing Cosgrove v. Smith, 697 F.2d 1125, 1144 (D.C. Cir. 1983)). 

Pursuant to the provisions of National Capital Revitalization and SelfGovernment Improvement Act of 1997 (“Revitalization Act”), Petitioner was

transferred into the jurisdiction of the Parole Commission. Prior to August 5, 1998,

the Parole Commission, in making a determination as to the suitability of D.C.

offenders for release on parole, employed the parole laws and regulations developed

by the District of Columbia. See D.C. Code § 24-204. All D.C. offenders considered

for parole after said date are considered under the regulations set forth at 28 C.F.R. §

2.80. 

In the present case, Scott-El was clearly not initially considered for release on

parole until after August 5, 1998. Thus, it was appropriate for the Parole Commission

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to review his initial parole application in accordance with the standards set forth in §

2.80. The treatment afforded D.C. prisoners sentenced prior to the Revitalization Act

as opposed to those sentenced after the Act does not violate equal protection. See 

Crosby-Bey v. District of Columbia, 700 F. Supp. 71 (D. D.C. 1988). Prisoners may

clearly be subjected to reforms or changes in parole regulations. Since there are no

facts showing that Petitioner was treated differently than any similarly situated D.C.

offender, a viable equal protection claim has not been stated.

Ex Post Facto

It is conceivable that the Petitioner is also attempting to assert a claim that the 

Parole Commission’s employment of the § 2.80 standards in his case constituted a

violation of the Ex Post Facto Clause of the United States Constitution.

 A new law or policy violates the Ex Post Facto Clause when it is applied to

events that occurred prior to its enactment and disadvantages the offender affected by

it. Weaver v. Graham, 450 U.S. 24, 29 (1981). “One function of the ex post facto

Clause is to bar enactments, which by retroactive operation increase the punishment

for a crime after its commission.” Garner v. Jones, 529 U.S. 244, 249 (2000). A

retroactive application of a change in parole laws if applied rigidly or mechanically

can constitute an ex post facto violation. See Bonilla v. Vaughn, 1998 WL 480833 at

*7 (E.D. Pa. 1998). However, a petitioner must show that the parole policy change

was given retrospective effect and that its retrospective application created a real risk

of increasing the measure of the prisoner’s punishment. See Tyler v. Cain, 2006 WL

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2038398 at * 1 (M.D. Pa. July 19, 2006); Richardson v. Pa. Parole Board, 423 F.3d

282, 288 (3d Cir. 2005).

Under the Revitalization Act, the Parole Commission was given authority to

make parole decisions for D.C. Code offenders such as Scott-El. The Parole

Commission was also granted permission to amend and supplement the D.C. parole

rules. Based on this Court’s review of the record, Petitioner has failed to demonstrate

how the application of the federal parole guidelines for D.C. Code offenders

negatively affected his parole status. It is apparent that discretionary factors affected

Scott-El’s parole eligibility under the federal parole guidelines. However, those

discretionary factors (most notably the violent nature of Petitioner’s crimes, his failure

to participate in a sex offender program, and the need for psychological counseling)

also would have affected the outcome of his case under the prior D.C. Parole Board

guidelines. 

In Hollingsworth Bey v. Zenk, Civil No. 1:CV-01-1643, slip op. at 20 (M.D.

Pa. June 12, 2002)(Caldwell, J.), Judge William Caldwell of this Court dismissed a

similar argument that the Parole Commission’s application of its parole guidelines for

D.C. Code offenders ,as opposed to the D.C. Guidelines, was an ex post facto

violation. This Court and others have reached the same conclusion. See Brown v.

Williamson, 2006 WL 189166 at *2 (M.D. Pa. May 23, 2006)(Jones, J.); Allston v.

Gaines, 158 F. Supp. 2d 76 (D.D.C. 2001). 

The D.C. guidelines and the Parole Commission’s guidelines for D.C. Code

offenders similarly provide that the parole officials have discretion to grant or deny

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parole notwithstanding the guidelines. Based on that provision, Scott-El has not

established that he was materially disadvantaged by the Parole Commission’s D.C.

offender guidelines and therefore cannot satisfy the criteria for an ex post facto

violation. Pursuant to the above discussion, this Court concludes that the Parole

Commission’s employment of its guidelines for D.C. offenders in denying Scott-El

release on parole was not violative of the Ex Post Facto Clause.

Superior Academic Achievement

Petitioner’s next claim asserts that he was improperly denied a finding of

superior academic achievement by the Hearing Examiner. The guidelines for D.C.

offenders defines superior program achievement as program achievement that is

beyond the level that the prisoner might ordinarily be expected to accomplish. 

It is undisputed that during the course of his prolonged incarceration, Scott-El

completed numerous enrichment programs, as well as earned multiple associate

degrees and a bachelor of arts degree.

Despite those commendable accomplishments, the Hearing Examiner declined

to award Scott-El credit for superior academic achievement. Respondents argue that

his decision was premised on Petitioner’s failure to undertake and complete sex

offender treatment programs. They further contend that under Stevens v. Quick, 678

A.2d 28, 31 (D.C. App. 1996), since this determination regards a D.C. prisoner, it is

not reviewable on the merits.

The Initial Prehearing Assessment contains no mention of the various college

degrees earned by Petitioner. However, the written summary of the initial hearing

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clearly acknowledges that Scott-El attained associate degrees and a bachelor of arts. 

The summary notes that despite those accomplishments, Petitioner needed to obtain

psychological counseling and complete sex offender programming. In the present

case, Petitioner was convicted of sex offenses. Despite being incarcerated for

approximately twenty (20) years and attending numerous academic programs and

other institutional programming, Scott-El never completed any sex offender treatment

programs. It appears that the failure to do so precluded a finding of superior program

achievement by the Hearing Examiner. 

The merits of the Hearing Examiner’s discretionary determination was neither

arbitrary nor capricious. This is not a case where the Hearing Examiner ignored the

Petitioner’s academic success, rather, it revolves around Scott-El’s 20 year failure to

attend sex offender treatment. Furthermore, the motivation (Scott-El’s lack of

participation in sex offender programs) underlying the decision to deny superior

program achievement is both clearly outlined and apparent from the facts of this case. 

CONCLUSION:

In conclusion, a clerical, mathematical error that appears in the Parole

Commission’s February 19, 2003 Notice of Action, and that was subsequently

rectified by its April 19, 2004 Notice of Action, does not provide Petitioner with a

basis for federal habeas corpus relief.

Second, the Parole Commission acted properly in applying its guidelines for

D.C. Code offenders to Scott-El’s initial parole review. The use of said parole

guidelines did not violate petitioner’s the Equal Protection or the Ex Post Facto

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 2 It is additionally noted that the present Petition sought only a new parole

review. Because the record indicates that Scott-El was scheduled for a parole

reconsideration hearing earlier this year, he may already been afforded the relief

sought by this action, thus, rendering it moot.

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Clauses of the United States Constitution. Finally, the failure of Petitioner to be

awarded credit for superior academic achievement was justified in light of Scott-El’s

20 year failure to undertake or complete any sex offender treatment programs. The

Petition for Writ of Habeas Corpus is denied.2

 

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. The Petition for Writ of Habeas Corpus is DENIED.

2. The Clerk of Court is directed to CLOSE the case.

3. Based on the Court’s determination herein, there is no basis for the

issuance of a Certificate of Appealability.

s/ John E. Jones III 

 John E. Jones III

 United States District Judge

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