Roger L. Brown v. Warden Troy Williamson

The Honorable Marvin J. Garbis, District Judge for the United States District*
Court for the District of Maryland, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 06-3703
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ROGER L. BROWN,
Appellant,
v.
WARDEN TROY WILLIAMSON,
Appellee.
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 06-cv-00851)
District Judge: Honorable John E. Jones, III
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Submitted Under Third Circuit LAR 34.1(a)
January 6, 2009
Before: CHAGARES, and HARDIMAN, Circuit Judges and GARBIS, District Judge*
(Filed: January 29, 2009)
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OPINION OF THE COURT
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HARDIMAN, Circuit Judge.
Roger Brown appeals an order of the District Court denying his petition for writ of
habeas corpus. For the reasons that follow, we will vacate the order of the District Court
and remand for discovery.
I.
Because we write exclusively for the parties, we will review only the facts
essential to our decision.
While in prison for burglary, Brown was convicted of killing a man in the course
of a previous robbery in the District of Columbia in 1978 and was sentenced in 1980.
During his incarceration, Brown completed an apprenticeship as an electrician and
received vocational training in building maintenance and construction, heating and air
conditioning, and computers. He has no disciplinary infractions in the past 20 years, but
he had five weapons and drug violations between 1981 and 1988.
In 2006, Brown’s initial bid for parole was rejected by the United States Parole
Commission. At his parole hearing, Brown refused to accept responsibility for his crime.
In denying Brown parole, the Commission applied the current guidelines set forth in 28
C.F.R. § 2.80, rather than the guidelines that were in effect at the time of his offense. The
guidelines in 1978 instructed the District of Columbia Board of Parole to consider:
(a) The offense, noting the nature of the violation, mitigating or aggravating
circumstances and the activities and adjustment of the offender following
arrest if on bond or in the community under any presentence type
arrangement.

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(b) Prior history of criminality noting the nature and pattern of any prior
offenses as they may relate to the current circumstances.
(c) Personal and social history of the offender, including such factors as his
family situation, educational development, socialization, marital history,
employment history, use of leisure time and prior military experience, if
any.
(d) Physical and emotional health and/or problems which may have played a
role in the individual’s socialization process, and efforts made to overcome
any such problems.
(e) Institutional experience, including information as to the offender’s overall
general adjustment, his ability to handle interpersonal relationships, his
behavior responses, his planning for himself, setting meaningful goals in
areas of academic schooling, vocational education or training, involvements
in self-improvement activity and therapy and his utilization of available
resources to overcome recognized problems. Achievements in
accomplishing goals and efforts put forth in any involvements in established
programs to overcome problems are carefully evaluated.
(f) Community resources available to assist the offender with regard to his
needs and problems, which will supplement treatment and training
programs begun in the institution, and be available to assist the offender to
further serve in his efforts to reintegrate himself back into the community
and within his family unit as a productive useful individual.
D.C. MUN. REGS. tit. 9, § 105.1 (1972).
In 1987 the Board of Parole implemented a point-based scoring system to
formalize the manner in which it exercised its discretion. Under the 1987 system, points
were awarded in various categories which reflected the enumerated factors under the
previous guidelines, and an inmate’s total score determined his suitability for parole. The
Board retained discretion in “unusual circumstances” to grant parole even when an

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inmate’s score indicated that he should not be paroled. D.C. MUN. REGS. tit. 28, §§
204.16-22 (1987).
In 1997 Congress abolished the District of Columbia Board of Parole and replaced
it with the United States Parole Commission. The Commission promulgated its own
regulations, which included a point-based scoring system. See 28 C.F.R. § 2.80. Unlike
the 1987 system, in which an inmate’s points dictated whether he was granted or denied
parole, the current system uses an inmate’s point score to determine the number of
months an inmate should serve beyond his minimum sentence. § 2.80(h). Although an
inmate is presumptively unsuitable for parole until he has served the time dictated by his
point score, “[t]he Commission may, in unusual circumstances, grant or deny parole to a
prisoner notwithstanding the guidelines.” § 280(n)(1).
The current regulations are more detailed and uniform than the regulations in
effect at the time of Brown’s offense. An inmate’s total score is calculated by adding
points in the following categories: salient factor; current or prior violence; and death of
victim. § 2.80(f). Salient factor points reflect the inmate’s perceived risk of recidivism
and are awarded based on his age at the time of the offense and the number and nature of
his previous offenses. 28 C.F.R § 2.20. Violence points reflect the use of violence or a
firearm in the current offense or in previous offenses. § 2.80(f). Death-of-victim points
reflect murder and other specifically enumerated crimes involving a “high level” of
violence, even if the victim survived. Id. After adding these points together, the inmate’s

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base guideline range is calculated in months. § 2.80(h). This range may then be adjusted
upward for disciplinary infractions while incarcerated, § 2.80(j), or downward for
“superior program achievement,” § 2.80(k). In denying Brown’s request for parole, the
Commission calculated a guideline range of 98 to 164 months past his initial parole
eligibility date.
II.
After being denied parole, Brown filed a timely federal habeas petition, arguing
that application of the current parole guidelines violates the Ex Post Facto Clause because
it significantly increased his risk of serving a longer sentence than he would have served
under the guidelines in effect at the time of his offense. The District Court denied the
petition and Brown filed this timely appeal.
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291 and our review of a
habeas petition dismissed without a hearing is plenary. Richardson v. Pa. Bd. of
Probation & Parole, 423 F.3d 282, 287 n.3 (3d Cir. 2005).
The gravamen of Brown’s appeal is that the current parole guidelines emphasize
different factors and are objectively harsher for inmates in his shoes than the guidelines in
effect at the time of his offense. The Government views the current guidelines as nothing
more than a procedural mechanism for implementing the same substantive criteria that
were relevant under the prior guidelines, but with more detailed specificity and less open-
ended discretion.

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III.
The Ex Post Facto Clause applies to “a statute or policy change which ‘alters the
definition of criminal conduct or increases the penalty by which a crime is punishable.’”
Richardson, 423 F.3d at 287 (quoting Calif. Dept. of Corr. v. Morales, 514 U.S. 499, 506
n.3 (1995)). “Retroactive changes in laws governing parole of prisoners, in some
instances, may be violative of [the Ex Post Facto Clause].” Garner v. Jones, 529 U.S.
244, 250 (2000). However, “not every retroactive procedural change creating a risk of
affecting an inmate’s terms or conditions of confinement is prohibited.” Id. (citing
Morales, 514 U.S. at 508-09).
In Morales, the Supreme Court rejected an ex post facto challenge to the
retroactive application of a California statute that decreased the frequency of periodic
parole review, noting that the Ex Post Facto Clause should not be invoked to
“micromanage[] . . . legislative adjustments to parole and sentencing procedures.”
Morales, 514 U.S. at 508. But the Court also stated that an inmate challenging the
retroactive application of new parole guidelines need not show that he would have been
immediately paroled under previous guidelines – only “that the measure of punishment
itself has changed.” Id. at 510 n.6. Accordingly, “[t]he question of what legislative
adjustments will be held to be of sufficient moment to transgress the constitutional
prohibition must be a matter of degree.” Id. at 509 (emphasis in original) (quotation
omitted).

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In Garner, the Supreme Court considered a Georgia statute similar to the
California law at issue in Morales. The Court held that although the statute did not
necessarily violate the Ex Post Facto Clause, the lower court erred by ignoring the parole
board’s internal policy statements interpreting the statute’s effect. Therefore, the inmate
was entitled to “adequate discovery” to demonstrate that the new guidelines posed a
“significant risk of prolonging [his] incarceration.” Garner, 529 U.S. at 251, 255-57.
The Court also cautioned that “[t]he States must have due flexibility in formulating parole
procedures and addressing problems associated with confinement and release.” Id. at
252.
Following Morales and Garner, we have had occasion to consider ex post facto
challenges to changes to parole guidelines. See Mickens-Thomas v. Vaughn, 321 F.3d
374 (3d Cir. 2003) (finding ex post facto violation where change in parole guidelines
emphasized a new criterion that was solely responsible for inmate’s continued
incarceration); Richardson, 423 F.3d at 293 (distinguishing Mickens-Thomas as “an
exceptional case” and rejecting ex post facto challenge where inmate failed to proffer “at
least some evidence of disadvantage to warrant habeas relief”) (emphasis in original).
In Richardson, we noted that “[t]he ex post facto inquiry has two prongs: (1)
whether there was a change in the law or policy which has been given retrospective
effect, and (2) whether the offender was disadvantaged by the change.” Richardson, 423
F.3d at 287-88. To violate the second prong, “a retroactive change in the law or policy

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must create a ‘sufficient risk of increasing the measure of punishment attached to the
covered crimes’; a ‘speculative and attenuated possibility of . . . increasing the measure of
punishment’ is not enough.” Id. at 288 (quoting Morales, 514 U.S. at 509).
IV.
In applying the controlling law to his case, Brown claims three aspects of the new
parole guidelines constitute substantive changes that materially affect his chances for
release. We consider each aspect in turn.
A.
Brown argues that the implementation of a point-based scoring system with
specific guideline ranges necessarily violates the Ex Post Facto Clause. We disagree.
Although the current guidelines “mandate” specific periods of additional time for
various reasons (e.g., death of a victim and possession of contraband while incarcerated),
these considerations would have been evaluated by the Board of Parole under the prior
guidelines. See D.C. MUN. REGS. tit. 9, §§ 105.1(a), (e) (1972) (directing the Board to
consider the nature of the underlying offense and the inmate’s institutional experience).
Moreover, the Parole Commission retains discretion under the current system to depart
from the guidelines. 28 C.F.R § 280(n)(1). See Garner, 529 U.S. at 253 (noting
relevance of discretion in ex post facto analysis).
Thus, the fact that the point-based scoring system of the current guidelines results
in a presumptive denial of parole in Brown’s case sheds no light on what would have

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Three points were assessed for causing the death of his victim and three for the1
use of violence in the current offense and in prior offenses. Brown subsequently states
that only five points were assessed, Petitioner’s Br. at 22, but we will assume that six is
correct because this is the number that was used by the Parole Commission.
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been his fate under the guidelines in effect in 1978. Accordingly, Brown’s broadside
challenge to the current system must fail.
B.
Brown also claims that the current guidelines are more detrimental to him than the
prior guidelines in several particular respects. The current guidelines assess six points for
the violent death of his victim while the guidelines implemented in 1987 would have
assessed only one point. He also notes that after being denied parole in 2006, he must1
wait five years for another parole hearing whereas the prior guidelines allowed for annual
rehearings. Finally, Brown argues that his “remote” disciplinary infractions, which
resulted in additional time under the current guidelines, would have been utterly irrelevant
under the old guidelines, because “an offender . . . who had forfeited good time restored
was not penalized and could be paroled.” Id. at 23.
The constitutional relevance of the frequency of rehearings is questionable given
Morales and Garner, especially since Brown was presumptively unsuitable for parole for
at least another eight years according to the Parole Commission’s calculations. And
contrary to Brown’s assertion, the language of the 1978 guidelines does not specifically
prohibit consideration of his remote disciplinary infractions. See D.C. MUN. REGS. tit. 9,

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§ 105.2 (1972). But the purported discrepancy between the weight given to the violent
death of Brown’s victim under the old guidelines and under the current guidelines may
support his argument because it might pose a significant risk of prolonging Brown’s
incarceration.
The six points assessed for the violent death of his victim under the current
guidelines added between nine and twelve years to Brown’s guideline range. See
§ 2.80(h). Although a guideline range by itself does not necessarily indicate a significant
risk of prolonged incarceration, the length of this range is striking, especially considering
the relative lack of emphasis given to the nature of the underlying offense in the prior
guidelines. Compare § 105.1(a) (single reference to “the nature of the violation,
mitigating or aggravating circumstances”), with §§ 105.1(c)-(f) (all emphasizing post-
incarceration factors or personal/background characteristics of the offender).
The scoring system implemented in 1987 — which, under District of Columbia
law, implemented no significant substantive changes to the 1978 guidelines, Davis v.
Henderson, 652 A.2d 624, 636-37 (D.C. 1994) — makes this range appear even more
disparate. Brown would have received at most five points at his initial parole hearing
under the 1987 guidelines, with an automatic rehearing every subsequent year. D.C.
MUN. REGS. tit. 28, § 200, Appx. 2-1 (1987). Assuming continued good behavior and
achievement in institutional programs, this score would have been reduced by one point at
each successive rehearing. § 200, Appx. 2-2. Under this system, Brown would have been

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presumptively suitable for parole at his second annual rehearing when his score fell to
three. Id.
For the aforementioned reasons, we agree with Brown that the discrepancy
between the guidelines constitutes more than conjecture that “the practical effect of the
[new guidelines] was to change the weight that [this particular factor] was given in the
parole calculation.” Richardson, 423 F.3d at 289 (citing Mickens-Thomas, 321 F.3d at
387).
C.
Finally, as another ex post facto problem, Brown notes “the new scoring system’s
emphasis on criminal history rather than rehabilitation, physical and emotional health, and
institutional experience and achievements.” We agree that this is a facial discrepancy that
seems to shift the overall emphasis of the parole inquiry.
The guidelines in effect at the time of Brown’s offense listed six criteria to guide
the Board of Parole in exercising its discretion. The first two criteria related to the
underlying offense and the offender’s prior criminal history. §§ 105.19(a), (b). Another
criterion related to the offender’s “institutional experience.” § 105.1(e). The other
criteria related to: the “[p]ersonal and social history of the offender, including such
factors as his family situation, educational development, socialization, marital history,
employment history, use of leisure time and prior military experience, if any,” § 105.1(c);
the offender’s “physical and emotional health and/or problems which may have played a

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role in [his] socialization process, and efforts made to overcome any such problems,”
§ 105.1(d); and the “[c]ommunity resources available to assist the offender with regard to
his needs and problems,” § 105.1(f).
The current guidelines make no provision for any of the criteria referenced in
§§ 105.1(c), (d), and (f). Potentially sympathetic consideration of the mental, physical,
and social problems plaguing an offender has been completely eliminated. Likewise, any
progress made by the offender in confronting these problems and resources available to
help the offender on the outside are no longer a factor. Whereas the prior guidelines
emphasized the internal and external problems that might have driven an offender to
commit a crime and his efforts to overcome them, the current guidelines focus almost
exclusively on the severity of the underlying crime and the offender’s criminal history.
See 28 C.F.R §§ 2.20, 2.80.
Although a parole agency or state “may learn from experience” and adjust its
parole criteria accordingly, that “does not mean that those who were sentenced at an
earlier juncture may now be more severely re-sentenced in the light of newly-found
wisdom. This is precisely what the Ex Post Facto Clause prohibits.” Mickens-Thomas,
321 F.3d at 387. The discrepancy between the emphasis placed on an offender’s mental,
physical, and social characteristics by the prior guidelines and the lack of consideration
given to those factors by the current guidelines indicates a substantive shift that might
subject Brown to a more severe sentence.

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V.
In sum, the additional weight given to the violent death of the victim and the
apparent de-emphasis of Brown’s mental, physical, and social characteristics collectively
indicate that retroactive application of the current parole guidelines might pose a
significant risk of prolonging Brown’s incarceration. We acknowledge that while finding
a potential ex post facto violation in retroactive application of the current guidelines for
reparole, the D.C. Circuit equated the current and 1987 guidelines for parole in terms of
“rehabilitative focus.” Fletcher v. Reilly, 433 F.3d 867, 869 (D.C. Cir. 2006).
Because parole was not at issue in Fletcher, however, the D.C. Circuit had no
reason to engage in a detailed comparison between the current guidelines and those in
effect in 1978. Thus, although we find the legal analysis in Fletcher helpful, its dictum
that the current guidelines for parole essentially mirror the 1987 guidelines is
unpersuasive in Brown’s case in light of our detailed explanation of the differences
between the current guidelines and the 1978 guidelines. Here, it appears that the
“substantive criteria for parole release [may] have changed” with the current guidelines.
Mickens-Thomas, 321 F.3d at 392.
In Richardson we denied an evidentiary hearing where the habeas petitioner
“provided no evidence, and for that matter . . . proffered no allegation, that a ‘significant
risk’ of increased punishment was created” by application of new parole guidelines.
Richardson, 423 F.3d at 293. In this appeal, Brown has pointed to specific disparities

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between the prior and current guidelines that could provide the basis for habeas relief.
Therefore, he is entitled to “a searching comparison of the old and new [parole] regimes
in order to determine whether the [] Parole Commission’s application of the federal . . .
regulations . . . created a significant risk that he will be subjected to a lengthier
incarceration than he would have been if the Commission had adhered to the rules and
practices of the D.C. Board.” Fletcher, 433 F.3d at 879.
For the foregoing reasons, we will vacate the order of the District Court and
remand the case for further proceedings consistent with this opinion.

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