1

Respondent Williamson is the Warden at USP-Lewisburg. He has custody of

Petitioner. See 28 U.S.C. § 2242 & § 2243. Rumsfeld v. Padilla, 542 U.S. 426 (2004).

2

Petitioner styles his Habeas Petition as being under § 2241. (Doc. 1). The Third Circuit

has held that a challenge to the validity or execution of a D.C. Superior Court sentence, such as

Petitioner’s sentence, even if Petitioner is incarcerated in a federal prison, is a challenge to a

state sentence and must proceed under 28 U.S.C. § 2254, and not § 2241. See DeVaughn v.

Dodrill, Appeal No. 03-4162 (3d Cir. August 23, 2005), slip op. p. 3 (citations omitted) (Nonprecedential). However, in our case, Petitioner is challenging the United States Parole

Commission’s denial of his parole, and not the execution of his state sentence. Thus, Petitioner

may proceed under §2241.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ROGER L. BROWN, : CIVIL ACTION NO. 4:CV-06-0851

:

Petitioner : (Judge Jones)

:

v. : (Magistrate Judge Blewitt)

:

TROY WILLIAMSON1, :

:

Respondent :

REPORT AND RECOMMENDATION

I. Background.

Petitioner, Roger L. Brown, an inmate at the United States Penitentiary at Lewisburg,

Pennsylvania (“USP-Lewisburg”), filed a Petition for Writ of Habeas Corpus on April 25, 2006,

pursuant to 28 U.S.C. § 2241. (Doc. 1).

2

 Petitioner essentially challenges the January 26, 2006

denial of parole by the U.S. Parole Commission (“USPC” or “Commission”) with respect to his

sentence of 30 years to life for a June 11, 1980 criminal conviction in the District of Columbia

(“D.C.”) Superior Court. Petitioner paid the fling fee. (Doc. 4). We give preliminary

consideration to the Petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in

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3

Rule 4 provides in relevant part: “If it plainly appears from the face of the petition and

any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the

judge shall make an order for its summary dismissal and cause the petitioner to be notified.”

4

Petitioner does not specifically identify the D.C. Code offenses of which he was

convicted. (Doc. 1, p. 3). Petitioner only indicates that his sentence was 30 years to life

imprisonment. (Doc. 1, p. 3).

2

the U.S. District Courts, 28 U.S.C. foll. § 2254 (1977) (applicable to § 2241 petitions under Rule

1 (b)). See Patton v. Fenton, 491 F. Supp. 156, 158-59 (M.D. Pa. 1979).3

On June 11, 1980, after a jury found him guilty, Petitioner was sentenced by the District

of Columbia Superior Court to a term of thirty (30) years to life imprisonment. (Doc. 1, p. 3).4

Petitioner states that he directly appealed his judgment of conviction to the District of Columbia

Court of Appeals. (Id.). Petitioner indicates that in July 1982, the Court of Appeals affirmed his

conviction. (Doc. 1, p. 3). Petitioner does not indicate if he filed a Motion for Reduction of

Sentence under D.C. Code § 23-110 with the District of Columbia Superior Court.

II. Discussion.

 Petitioner only contends that he “was seen by Parole Commission Examiner using new

guidelines that does (sic) not apply to him.” (Id., p. 4). Petitioner simply states:

“On January 25, 2006 a hearing took place to determine Petitioner‘s suitability for parole. 

Examiner used guidelines that were not in effect at the time of Petitioners (sic) sentence. 

Petitioner was not seen using D.C. Parole Board guidelines (Violation of the Expo (sic) Facto

Clause).” (Id., p. 4).

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5

We are well aware that the National Capitalization and Self-Government Improvement

Act of 1997 gave the USPC authority to make parole decisions for D.C. Code offenders.

Presumably, in Petitioner‘s case, the Court Services and Offender Supervision Agency for the

District of Columbia, Board of Parole - Office of the Board, issued a Transmittal to the U.S.

Parole Commission transferring jurisdiction over the Petitioner to the U.S. Parole Commission

pursuant to the “National Capital Revitalization & Self-Government Improvement Act of 1997”

(the “Act”).

 As this Court recently noted in Reynolds v. Williamson, 2005 WL 3050154 (M.D. Pa.) *

1, n. 1:

On August 5, 1998, “the jurisdiction and authority of the

Board of Parole of the District of Columbia to grant and deny

parole, and to impose conditions upon an order of parole,

in the case of any imprisoned felon who is eligible for

parole or reparole under the District of Columbia Code” was

transferred to the Commission. National Capital Revitalization

and Self-Government Improvement Act of 1997, (“Revitalization

Act”), Pub.L. No. 105-33, § 11231(a)(1), 111 Stat. 712, 745.

See also Fletcher v. Reilly, 433 F. 3d 867, 872 (D.C. Cir. 2006).

3

We construe Petitioner’s Habeas Petition to only challenge the USPC’s use of guidelines

in its January 2006 parole decision which were not in effect at the time of Petitioner‘s June

1980 District of Columbia Superior Court conviction and sentence. (Doc. 1, p. 4). Thus,

Petitioner is not attacking his D.C. conviction and sentence. Nor is Petitioner claiming that his

D.C. sentence was computed erroneously. Rather, Plaintiff is solely claiming that the USPC

violated the Ex Post Facto Clause by using parole guidelines which were not in effect in June

1980. Petitioner states that he had a parole hearing by the USPC5

 on January 25, 2006.

1. Ex Post Facto Claim. 

Petitioner raises an ex post facto claim that the Commission should have applied the

D.C. parole guidelines as contained in the D.C. law, and not the federal guidelines contained in

28 C.F.R. He claims that by applying the federal guidelines that were not in effect at the time of

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4

his D.C. sentence in 1980, the USPC violated the Ex Post Facto clause. Significantly, Petitioner

does not state or explain how he was subjected to a harsher punishment than what was in 

place at the time of his conviction. (Doc. 1, p. 4). Petitioner indicates that his D.C. conviction

occurred prior to the enactment of new guidelines and that the Commission should not have

used these standards. Petitioner does not claim that the federal guidelines are more onerous

than the D.C. parole guidelines or that application of the federal guidelines in his case

enhanced his parole eligibility date.

We find that Petitioner’s ex post facto claim is without merit, since the Commission’s

parole guidelines do not substantially circumscribe the Commission’s discretion and since

Petitioner has not established that he has been materially disadvantaged by the use of these

guidelines in his case. We are cognizant that the Commission incorporated the pertinent D.C.

parole regulations into the Code of Federal Regulations (28 C.F.R. § 2.80, et seq.) using the 

same basic point scoring system. See Reynolds, supra at *1-*2. The Commission simply 

modified the point scoring system used by the D.C. Board to reflect the D.C. Board’s actual

practice of applying various discretionary factors to justify departures from the guidelines; that

is, by using frequent factors relied upon by the D.C. Board for upward departures from the

1987 guidelines and to provide a way to more accurately predict an inmate’s potential for

violent recidivism. Thus, the 1987 guidelines used by the D.C. Board did not substantially

circumscribe the Commission’s discretion. Therefore, as this Court in Reynolds found with

respect to Petitioner Reynolds, our Petitioner has not established that the use of the revised

guidelines resulted in a harsher parole eligibility date than he would have received from the

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6

The Reparole Amendment is codified at 28 C.F.R. § 2.81 (2005). See Fletcher, 433 F.

3d at 872. 

5

D.C. Board, i.e. the change in the guidelines created a significant risk of increasing Petitioner‘s

punishment. Id., p. *4.

As the Fletcher Court stated, “[i]n 2001, the Commission undertook a final round of

rulemaking in relation to its repeople provision for D.C. Code offenders.” 433 F. 3d at 872.6

However, unlike in Fletcher, our Petitioner does not claim that the retroactive application of the

federal reparole regulations adversely affected his suitability for parole. Rather, our Petitioner

claims that he was not considered for parole “using D.C. Parole Board Guidelines” in effect at

the time of his sentence, and that this violated the Ex Post Facto clause. (Doc. 1, p. 4).

Moreover, this Court, as well as the United States District Court for the District of

Columbia, have held that the USPC’s guidelines do not constitute laws for Ex Post Facto Clause

purposes. Id., p. *5; Moore v. Bledsoe, 2005 WL 2709279 * 4 (W.D. Va.). “A law that

increases the punishment over that permitted to be imposed when the crime was committed

violates the Ex Post Facto Clause.” Smith v. U.S. Parole Comm’n, 875 F. 2d 1361, 1366 (9th Cir.

1988). As stated, Petitioner claims that the use of the Commission’s federal guidelines and not

the D.C. Parole Guidelines which were in effect at the time of his sentence, violated the Ex Post

Facto clause. Petitioner does not claim or show that the guidelines used by the Commission in

his case in January 2006 were harsher than the guidelines under the D.C. parole laws. As the

Third Circuit recently stated in Shaffer v. Meyers, 2006 WL 45547, Appeal No. 04-4120 (3d Cir.

1-10-06) (Non-Precedential), sip op. p. 4, “with regard to the Ex Post Facto Clause, we

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6

emphasize that there are two prongs to a successful claim: [Plaintiff] must show not only that

there has been a change in law or policy which has been given retrospective effect but also that

its retrospective application to him created a real risk of increasing the measure of his

punishment.” (Citing Richardson v. PA Parole Board, 423 F. 3d 282, 288 (3d Cir. 2005)).

In Bonilla v. Vaughn, 1998 WL 480833, * 7 (E.D. Pa.), the Court stated that:

[P]arole guidelines [can] constitute laws within the meaning of the

ex post facto clause.” Crowell v. United States Parole Com’n, 724 F.2d

1406, 1408 (3d Cir. 1984). In Crowell, the Third Circuit stated that

the test for determining if the Parole Commission’s guidelines are laws,

in the context of ex post facto analysis, is whether the guidelines are

applied “rigidly, or with substantial flexibility . . .” Id. If applied

rigidly, or mechanically, guidelines can, in some instances, violate the

ex post facto clause. Similarly, in Lynce v. Mathis, 519 U.S. 433, 117

S.Ct. 891, 137 L.Ed.2d 63 (1997), the Supreme Court held that a 

cancellation of good time credits, resulting in the reincarceration of

a prisoner, violated the ex post facto clause. See id. at 900. On the

other hand, ‘speculative and attenuated possibilities’ of increasing

the measure of punishment do not implicate the ex post facto

clause. Id. at 897 (citing California Dept. of Corrections v. Morales,

514 U.S. 499, 510, 115 S.Ct. 1597, 131 L.Ed. 2d 588 (1995).

(Citation omitted).

In Muhammad v. Mendez, 200 F. Supp. 2d 466, 469-470 (M.D. Pa. 2002), this Court

stated as follows:

It is well settled that the determination of eligibility for parole has

been committed by Congress to the discretion of the Commission.

United States v. Addonizio, 442 U.S. 178, 99 S.Ct. 2235,

60 L.Ed.2d 805 (1979); Campbell v. United States Parole Commission,

 704 F.2d 106 (3d Cir. 1983). The Commission assumed the

responsibility for making parole release decisions for all eligible

District of Columbia Code felony offenders on August 5, 1998 pursuant

to the Revitalization Act and D.C. Code 24-209. [FN4] See 28 C.F.R. § 2.70.

Therefore, the Commission has authority over Muhammad who is a D.C.

offender. The guidelines for D.C. offenders are regulated by 

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7

In our case, as in Muhammad, as both parties recognize, the Commission has authority

over Petitioner, who is a D.C. offender. See Reynolds, supra. 

7

28 C.F.R. § 2.80.

FN 4 Effective August 5, 2000, the Commission was given the remaining

responsibilities of the former D.C. Board of Parole regarding the supervision

of parolees and the revocation of parole for release violations. § 11231(a)(2)

of the Act, codified at D.C. Code § 24-1231(a)(2).

Because the Constitution itself does not create any liberty interest in

parole, such an interest to prove a due process violation must emanate

from state law, or in this case, District of Columbia law. See Greenholtz

v. Nebraska Penal Inmates, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979).

Courts have consistently held that the D.C. parole statute, which applies

to D.C. Code offenders even after they are transferred to the jurisdiction

of the Commission, does not create any liberty interest in parole.

See, e.g., McRae v. Hyman, 667 A.2d 1356 (D.C. 1995) (The District’s

parole scheme confers discretion to grant or deny parole and the scoring

system creates no liberty interest overriding the exercise of that

discretion); Ellis v. District of Columbia, 84 F.3d 1413 (D.C. Cir. 1996) (D.C.

Parole statute and regulations do not create any liberty interest in parole.)

The Revitalization Act requires the Commission to follow the existing parole

laws and rules of the District of Columbia, but also gives the Commission

the same authority previously enjoyed by the D.C. Board of Parole to

“amend and supplement” the D.C. parole rules, which it has done.

See D.C. Code § 24-1231(a). The Commission’s amended version of the

parole rules and guidelines of the D.C. Board of Parole was published at

63 Federal Register 39172 (July 21, 1998) and is codified at

28 C.F.R. § 2.80 et seq.7

Additionally, the Court in Allston v. Gaines, 158 F. Supp. 2d 76 (D.D.C. 2001), held that

the test to be applied in considering whether the Commission’s guidelines are laws for ex post

facto purposes is the Third Circuit’s approach annunciated in Forman v. McCall, 776 F. 2d 1156,

1158 (3d Cir. 1985), cert denied, 476 U.S. 1119 (1986) (“if administered without sufficient

flexibility, the guidelines could be considered laws for ex post facto purposes”). We find that in

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8

applying this analysis in the present case, the Petitioner’s ex post facto claim does not entitle him

to habeas relief.

In Allston, the Court noted that “[u]nder the Third Circuit’s approach, a court would 

need to evaluate whether the Parole Commission has discretion under the guidelines and how

 much discretion it has, including undertaking a statistical evaluation of the percentage of cases

in which the Commission issues set-offs outside the range of months specified in the

guidelines.” 158 F. Supp. 2d at 82. In Blair-Bey v. Quick, 159 F. 3d 591, 592 (D.C. Cir. 1998),

the court stated for a Petitioner to succeed on an ex post facto claim, he must show “at a

minimum that the D.C. BOP’s [here, the Commission’s] discretion under the guidelines is totally

or very substantially circumscribed in law or in fact and yields results materially harsher than

those ordinarily occurring under the prior regime.” The Court also stated that this was a 

“heavy” burden for a Petitioner to meet. Id.

This Court has already held that while the Revitalization Act obligates the Commission to

follow the existing rules of D.C. Parole Board, the Commission has the authority to “amend and

supplement” the D.C. parole rules. Muhammad, 200 F. Supp. 2d at 470. The Commission has

codified its amended version of the parole rules and guidelines of the D.C. Parole Board and

uses essentially the same point scoring system that the D.C. Board used. See 28 C.F.R. § 2.80

and Ellis v. District of Columbia, 84 F. 3d 1413, 1415-1416 (D.C. 1996). This Court has

previously found that the modifications which the Commission has made to the point scoring

system used by the D.C. Board incorporate factors upon which the D.C. Board relied to

upwardly depart from its 1987 guidelines. Id. at 1416. The Commission’s point scoring system

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9

increased the number of points for violent levels in convicted offenses and the number of

previous violent episodes, which modifications it found to be a more accurate predictor of the

prisoner’s propensity for repeating his violence. See 28 C.F.R. § 2.80 and 63 Fed. Reg. 39172.

These changes which the Commission made to the point scoring system were discretionary

factors that had been previously utilized by the D.C. Board to substantiate its upward departures

from its guidelines. See Ellis, 84 F.3d at 1419; McRae v. Hyman, 667 A. 2d 1356, 1357 (D.C.

1995); Duckett v. U.S. Parole Comm’n, 795 F. Supp 133, 137 (M.D. Pa. 1992). See also 63 Fed.

Reg. 39172.

Under D.C. parole rules, the “Board was not required to either grant or deny parole

based upon the score attained.” McRae, 667 A.2d at 1361. The scoring system under the D.C.

Parole Regulations was also determined to be a guide, “not a ‘rigid formula’, and not a

constraint on the discretion conferred upon the Board by the parole statute.” Ellis, 84 F.3d at

1419 (citing McRae, 667 A.2d at 1360-1361).

In the instant case, we find that Petitioner fails to show that the results under the prior

regime, i.e. D.C. Board regulations, would be less harsh than under the Commission’s 

guidelines. Nor has Petitioner shown that the Commission has deprived him of his parole

eligibility by enhancing his projected parole eligibility date.

As this Court in Reynolds concluded:

Reynolds also has failed to meet his burden of showing that

the Commission’s use of the guidelines at § 2.80, which provide

for the granting of “presumptive parole dates” up to three years

in the future, resulted in increasing his punishment. The D.C.

guidelines contained a provision functionally identical to the

Commission’s guideline. That regulation provided that:

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10

“Notwithstanding any other provision of this section, the Board

may order a parole reconsideration date it determines to be 

appropriate.” 28 D.C.M.R. § 104.11. Thus, Reynolds’ claim

that the old guidelines utilized by the D.C. Board would have

given him more lenient treatment than has been ordered by the

Commission, is merely speculative. The Supreme Court has held

that where the risk of increased punishment under an amended

parole scheme is speculative and attenuated, a valid ex post facto

claim does not exist. Morales, 514 U.S. at 509. Because the risk of

increasing Reynolds’ punishment under the Commission’s

guidelines is “speculative and attenuated,” no valid ex post facto

claim exists. Accordingly, Reynolds’ petition will be denied.

Accordingly, we shall recommend that the Petitioner's Petition for Writ of Habeas Corpus

be dismissed.

III. Recommendation.

Based on the foregoing, it is respectfully recommended that the Petition for Writ of

Habeas Corpus be dismissed.

s/ Thomas M. Blewitt 

THOMAS M. BLEWITT

United States Magistrate Judge

Dated: May 23, 2006

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8

Respondent Williamson is the Warden at USP-Lewisburg. He has custody of Petitioner. 

See 28 U.S.C. § 2242 & § 2243. Rumsfeld v. Padilla, 542 U.S. 426 (2004).

11

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ROGER L. BROWN, : CIVIL ACTION NO. 1:CV-05-0185

:

Petitioner : (Judge Jones)

:

v. : (Magistrate Judge Blewitt)

:

TROY WILLIAMSON8

, :

:

Respondent :

NOTICE

NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing

Report and Recommendation dated May 23, 2006. 

Any party may obtain a review of the Report and Recommendation pursuant to 

Rule 72.3, which provides:

Any party may object to a magistrate judge’s proposed findings,

recommendations or report addressing a motion or matter described in 

28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the 

disposition of a prisoner case or a habeas corpus petition within ten (10)

days after being served with a copy thereof. Such party shall file

with the clerk of court, and serve on the magistrate judge and all

parties, written objections which shall specifically identify the

portions of the proposed findings, recommendations or report to which

objection is made and the basis for such objections. The briefing

requirements set forth in Local Rule 72.2 shall apply. A judge shall

make a de novo determination of those portions of the report or

specified proposed findings or recommendations to which objection

is made and may accept, reject, or modify, in whole or in part, the findings

or recommendations made by the magistrate judge. The judge, however,

need conduct a new hearing only in his or her discretion or where 

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12

required by law, and may consider the record developed before the

magistrate judge, making his or her own determination on the basis

of that record. The judge may also receive further evidence, recall

witnesses or recommit the matter to the magistrate judge with

instructions.

s/ Thomas M. Blewitt

THOMAS M. BLEWITT

United States Magistrate Judge 

Dated: May 23, 2006

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