United States District Court, M.D. Florida, Ocala Division
DWAYNE J. TAYLOR, Petitioner,
WARDEN, FCC COLEMAN - USP II, Respondent.
ORDER DISMISSING PETITION
G. BYRON UNITED STATES DISTRICT JUDGE.
pro se, is a prisoner at FCC Coleman - USP II who
was convicted in the District of Columbia. He is proceeding
on a petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. (Doc. 1). Petitioner challenges a 2016 decision
by the U.S. Parole Commission to deny him parole and order a
rehearing in 36 months. (Id.) Respondent urges
dismissal because the Commission's decision was not
arbitrary or capricious. (Doc. 10.) Petitioner did not file a
Reply, and the time to do so has passed.
Standard of Review
is not a right, but an expectation that may be granted by the
Commission.” Glumb v. Honstead, 891 F.2d 872,
873 (11th Cir. 1990) (internal citations omitted). “A
federal court will not reverse a decision of the Commission
unless it involves flagrant, unwarranted, or unauthorized
action that constitutes an abuse of the Commission's
discretion.” Id. (internal citations omitted).
An action of the Commission is arbitrary and capricious, or
an abuse of discretion, when it is irrational, based upon
impermissible considerations, or when if fails to comply with
the Commission's own rules and regulations. Zannino
v. Arnold, 531 F.2d 687, 690-91 (3rd Cir. 1976).
to make parole decisions concerning D.C. code offenders was
transferred to the U.S. Parole Commission in 1998. They are
governed by both the D.C. parole laws and the
Commission's regulations. See D.C. Code §
24-204 et seq., 28 C.F.R. § 2.80. At the initial parole
hearing, the examiner calculates a defendant's Salient
Factor Score, which aids in determining the parole decision.
The score “is used to assist the Commission assessing
the probability that an offender will live and remain at
liberty without violating the law. The prisoner's record
of criminal conduct (including the nature and circumstances
of the current offense) shall be used to assist the
Commission in determining the probable seriousness of the
recidivism that is predicted by the Salient Factor
Score.” 28 C.F.R. § 2.80(c).
regulations permit the Commission to grant or deny parole
notwithstanding the guidelines recommendation under certain
circumstances. 28 C.F.R. § 2.80(n)(1). Examples include
unusual cruelty to the victim and unusual propensity to
inflict unprovoked and potentially homicidal violence. 28
C.F.R. § 2.80(n). D.C. parole law also provides:
Whenever it shall appear to the Board of Parole that there is
a reasonable probability that a prisoner will live and remain
at liberty without violating the law, that his release is not
incompatible with the welfare of society, and that he has
served the minimum sentence . . . the Board
may authorize his release on parole.
D.C. Code § 24-204(a) (emphasis added).
is serving a 20 year to life term of imprisonment for murder,
imposed in the Superior Court for the District of Columbia on
September 11, 1995. (Case No. F786394). Petitioner, then
17-years-old, and two co-defendants robbed a cab driver and
shot him in the head. (Doc. 10, Exh. 2.) Petitioner was first
eligible for parole on June 10, 2014. In preparation for his
initial parole hearing, a hearing examiner from the U.S.
Parole Commission assessed Petitioner's eligibility.
(Id.) Based on the D.C. parole guidelines in effect
from 1987-1998, Petitioner's total point score was
2-indicating parole should be granted with the highest level
of supervision required. (Id.)
Petitioner's initial parole hearing on June 24, 2014, the
hearing examiner recommended that the Commission deny parole
despite the total point score. (Id. at Exh. 3.) The
Commission denied parole on July 15, 2014, finding:
[A] departure from the guidelines at this consideration is
found warranted because the Commission finds there is a
reasonable probability that you would not obey the law if
released and your release would endanger the public safety.
You are a more serious parole risk than shown by your point
score because the base offense involved murder and you were
found guilty of Possessing a Dangerous Weapon in 2012. In
addition, you were found guilty of eight additional
non-accountable violations that include a second Possession
of a Dangerous Weapon. You need to demonstrate to the
Commission that you can remain incident free and avoid
possession dangerous weapons.
(Id. at Exh. 4.) The Commission continued the case
for rehearing in June 2016. (Id.)
2016, a hearing examiner recommended parole be granted in his
pre-rehearing assessment. (Id. at Exh. 5.) At the
June 15, 2016, rehearing, 11 family members of the victim
participated by video conference. (Id. at Exh. 6.)
Petitioner expressed remorse during the hearing, and it was
noted that he had received no disciplinary infractions since
2012. The hearing examiner described it as “a difficult
case” but ultimately recommended denial of parole
despite the guidelines' suggesting parole should be