Lonnie A. Gooding v. H.j. Marberry

After examining the briefs and the record, we have concluded that oral argument is*
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 22, 2009*
Decided July 20, 2009
Before
KENNETH F. RIPPLE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
Nos. 08-2711 & 08-2503
LONNIE A. GOODING,
Petitioner-Appellant,
v.
H.J. MARBERRY,
Respondent-Appellee.
Appeals from the United States District
Court for the Southern Division of
Indiana, Terre Haute Division.
No. 2:07-cv-322-RLY-WGH
Richard L. Young,
Judge.
O R D E R
Lonnie Gooding, a District of Columbia prisoner currently housed at the federal
penitentiary in Terre Haute, Indiana, petitioned for a writ of habeas corpus under 28 U.S.C.
§ 2241 after the United States Parole Commission denied his application for release. The
district court denied the petition, and Gooding then filed a motion to vacate that decision.
The district court also denied this motion, and Gooding appeals both rulings.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
FED. R. APP. P. 32.1

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Nos. 08-2711 & 08-2503 Page 2
In 1990 the Superior Court of the District of Columbia sentenced Gooding to 15
years to life in prison for armed manslaughter. When Gooding committed the crime in
1989, parole decisions for D.C. prisoners were made by the District of Columbia Board of
Parole (“Board”). See D.C. Code § 24-131. But by the time Gooding became eligible for
parole in 2001, Congress had abolished the Board and transferred to the United States
Parole Commission (“Commission”) the authority to grant or deny parole for D.C.
offenders. See id.; Glascoe v. Bezy, 421 F.3d 543, 545 (7th Cir. 2005). The Commission
subsequently issued parole guidelines applicable to D.C. offenders who, like Gooding, had
their initial parole hearings after August 5, 1998. See 28 C.F.R. §2.80.
The Commission evaluated Gooding for parole in 2001 and 2003, but it denied
parole both times. The Commission conducted a third hearing via video-conference, see 28
C.F.R. § 2.25, in April 2007, after Gooding had been in prison for nearly 214 months.
Although the Commission calculated a parole-eligibility guidelines range of 213 to 249
months, it decided that Gooding should not be paroled within that range. According to the
Commission, Gooding presented a greater risk than indicated by the guidelines because his
offense involved “killing another individual while armed and during an attempt to
forcefully obtain money.” Further, Gooding had been caught with a weapon in prison, and
the Commission thus concluded that there was a serious risk that he would commit armed
crimes if paroled. The Commission scheduled a reconsideration hearing for April 2010.
Gooding petitioned the district court for a writ of habeas corpus, arguing that the
Commission violated his right to due process by conducting the hearing via video-
conference instead of in person, and that the application of the Commission’s guidelines
violated the Ex Post Facto Clause. Gooding wanted an in-person rehearing at which the
Commission would apply the D.C. guidelines that were in effect at the time he committed
his crime. The district court denied Gooding’s petition and his subsequent motion under
Federal Rule of Civil Procedure 60(b). When reviewing a decision to deny a petition for
habeas corpus, we review the district court’s legal conclusions de novo. Charlton v. Davis,
439 F.3d 369, 372 (7th Cir. 2006).
On appeal, Gooding renews his argument that the Parole Commission denied him
due process by conducting his parole hearing via video-conference. To succeed on his due-
process claim, Gooding was required to show that he has a liberty interest at stake. See
Domka v. Portage County, 523 F.3d 776, 779 (7th Cir. 2008). But a parole statute creates a
liberty interest only when it uses mandatory language entitling a prisoner to release upon
fulfillment of certain criteria, see Bd. of Pardons v. Allen, 482 U.S. 369, 377-81 (1987);
Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 8-12 (1979); Grennier v. Frank,
453 F.3d 442, 444 (7th Cir. 2006). The District of Columbia’s parole regime, far from

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conferring such an entitlement, is entirely discretionary, see D.C. Code § 24-404(a) (stating
that when a prisoner meets certain criteria, “the Board may authorize his release on
parole”); Thompson v. Veach, 501 F.3d 832, 836-37 (7th Cir. 2007). Because Gooding has no
liberty interest in parole, the use of video-conferencing cannot violate due process.
Gooding also argues that the Commission violated the Ex Post Facto Clause by
applying its own guidelines rather than the D.C. parole guidelines in effect when he
committed manslaughter in 1989. To prevail on this argument, Gooding must do more
than assert that the Commission’s guidelines created some “speculative, attenuated risk” of
a longer prison term. See Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 508-09 (1995); Glascoe,
421 F.3d at 548-49; Richardson v. Pa. Bd. of Prob. & Parole, 423 F.3d 282, 288 (3d Cir. 2005).
Instead, Gooding must demonstrate either that the Commission’s guidelines are facially
harsher than the D.C. guidelines, or that the Commission’s guidelines, as applied to
Gooding, create a significant risk of increased punishment. See Garner v. Jones, 529 U.S. 244,
255 (2000); Glascoe, 421 F.3d at 547-48; cf. United States v. Demaree, 459 F.3d 791, 795 (7th Cir.
2006) (suggesting that Ex Post Facto Clause does not apply to discretionary parole
guidelines).
Gooding argues that the Commission’s use of its guidelines resulted in a prolonged
prison stay for him, but he has never explained how this is so. Although he asserts that the
Commission impermissibly used an “offense severity” component when calculating his
parole eligibility guidelines, he is mistaken. The Commission applies a distinct set of
guidelines to inmates who were convicted outside the District of Columbia, see 28 C.F.R.
§ 2.20, and those guidelines contain an index assigning “offense severity” scores to various
crimes. But the Commission did not apply § 2.20 to Gooding; it applied, as it was required
to, § 2.80, the guidelines for D.C. offenders. And because the factors considered under
§ 2.80 are very similar to those considered under the D.C. Board of Parole’s guidelines,
compare 28 C.F.R. §§ 2.80(d)-(n) with 28 D.C. Mun. Regs. §§ 204.1-204.22, the new
guidelines are not facially more onerous. See Glascoe, 421 F.3d at 547.
Nor has Gooding demonstrated that the guidelines, as applied to his own eligibility
for release, created a significant risk of increased punishment. In denying parole, the
Commission considered the nature of Gooding’s crime as well as his weapons infraction,
factors which it also would have considered under the D.C. guidelines. See D.C. Mun.
Regs. § 204.18. Further, even if the Commission had applied the D.C. guidelines, it still
would have had discretion to depart from those guidelines, as it did here. See id. § 204.22;
Glascoe, 421 F.3d at 548; McRae v. Hyman, 667 A.2d 1356, 1360-61 (D.C. 1995) (noting that
§ 204.22 “makes clear” the Board’s authority to ignore the guidelines in unusual cases);
White v. Hyman, 647 A.2d 1175, 1179 (D.C. 1994) (noting that under the D.C. guidelines

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Nos. 08-2711 & 08-2503 Page 4
“[d]epartures must be explained, but they are not proscribed”). Gooding has not argued
that the Commission’s basis for departure in his case would have been impermissible
under the D.C. guidelines. Indeed, under the D.C. guidelines, parole is permissible only if
“there is reasonable probability that the prisoner will live and remain at liberty without
violating the law,” see D.C. Mun. Regs. § 200.01(b), and Gooding’s weapons infraction
convinced the Commission that this probability was lacking.
Finally, with respect to the Rule 60(b) motion, Gooding has misapprehended its
purpose. Rule 60(b) is not a substitute for appeal. See Stoller v. Pure Fishing, Inc., 528 F.3d
478, 480 (7th Cir. 2008). Because Gooding’s motion merely rehashes arguments he raised in
support of his petition for habeas corpus, the district court properly denied it. See Bell v.
Eastman Kodak Co., 214 F.3d 798, 800 (7th Cir. 2000).
The judgments are AFFIRMED.

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