The opinion of the court was delivered by: Simandle, District Judge:
HONORABLE JEROME B. SIMANDLE
In this application for habeas corpus relief pursuant to 28 U.S.C. § 2241, petitioner Thomas Fell seeks an Order from this Court directing the Bureau of Prisons ("BOP") to consider his eligibility for parole annually as opposed to biannually. The primary issue to be decided is whether the BOP violated the Ex Post Facto or Equal Protection Clauses of the United States Constitution by extending from one year to two the interval between petitioner's parole hearings after his transfer from military prison to general federal prison. For reasons discussed herein, the Court finds that the BOP's policies are not in violation of the Ex Post Facto or Equal Protection Clauses, and will deny petitioner's application for habeas relief.
On June 7, 1989, a United States Army Court-Martial sentenced petitioner to life imprisonment for murder, robbery, and sodomy committed while he was in military service. Petitioner's sentence was subsequently reduced to twenty-five years.
Having served one-third of his sentence in military prison, petitioner became eligible for parole in April of 1997. On April 14, 1997, however, the Army Clemency and Parole Board denied petitioner parole. On March 13, 1998, pursuant to an agreement between the Department of the Army and the Federal Bureau of Prisons, petitioner was transferred to the federal prison system. On January 6, 1999, having already served 119 months in prison, petitioner received his initial parole hearing from the United States Parole Commissioner. Petitioner was denied parole, and was ordered to serve at least 180 months (to February 9, 2004) before release on parole. The Parole commission also ordered, in accordance with 28 C.F.R. § 2.14(a)(ii), that petitioner receive an interim hearing two years after the initial hearing.
Petitioner has since filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner makes three claims in support of his petition, all relating to his failure to receive timely interim parole hearings. First, petitioner asserts that he should receive a parole hearing annually, instead of every two years. Second, petitioner asserts that he was improperly denied a hearing within 120 days of his transfer pursuant to 28 C.F.R. § 2.12. Lastly, petitioner contends that he was improperly denied a parole hearing during 1998, as was required under Army regulations.
Petitioner has also filed a motion for appointment of counsel and a motion for injunctive relief, both of which were returnable on November 5, 1999. Plaintiff's motion for appointment of counsel in this § 2241 case is governed by 18 U.S.C. § 3006A(a)(2), which provides in essence that counsel may be appointed under the Criminal Justice Act if the interests of justice so require for a person seeking relief under § 2241. In the present case, the motion for appointment of counsel will be denied because the Court finds that the interests of justice do not so require. The petitioner, Thomas Fell, has demonstrated that he is fully able to represent himself by citing the Court to facts and law relevant to his case. Moreover, as demonstrated below, this is not a case in which an evidentiary hearing must be convened to determine disputed facts material to the § 2241 relief sought, and thus no counsel is needed for such a hearing. For these reasons, the Court will deny petitioner's motion to appoint counsel.
Petitioner's motion for injunctive relief seeks to compel the Parole Commission to respond to an information request under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 and 28 C.F.R. §§ 2.55 & 2.56. The information sought under FOIA appears to be probing the reasons why petitioner's parole hearing was not convened within 120 days of his transfer to the Federal Bureau of Prisons. This is not a FOIA case, and the Court may not intrude into the FOIA process until there has been an adverse final agency decision, that has (1) improperly (2) withheld (3) agency records. United States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989) (quoting Kissinger v. Reporters Comm. For Freedom of the Press, 445 U.S. 136, 150 (1980)). Only once an agency has contravened all three components of its obligation under FOIA is judicial intervention proper. Kissinger, 445 U.S. at 150. The BOP had not committed such a violation of the FOIA at the time this motion was filed. Moreover, even if the Court were to construe this motion as a request to compel discovery, the issue of the Parole Board's exceeding the 120-day rule became moot upon their holding of a parole hearing in January 1999, as discussed below. Therefore this discovery would not be relevant to a material issue in the case and this motion will be denied.
B. Petitioner's Claim that He Should Receive Annual Parole Hearings
Turning to a discussion of the merits of Mr. Fell's petition, his first argument can be liberally construed as a claim for violation of the Ex Post Facto and Equal Protection Clauses of the United States Constitution. The gravamen of petitioner's claim is as follows. Under regulations established by the Secretary of the Army, military inmates with sentences similar to that of petitioner receive parole hearings annually. Dept. of Defense Directive 1325.4 (Encl.1), Procedures for the Administration of Correctional Programs and Operation of Correctional Facilities, § J(3)(a)(2)(c). *fn1 As a federal prisoner, however, inmates with sentences similar to that of petitioner receive parole hearings only biannually. 28 C.F.R. § 2.14(a)(1)(ii). Consequently, petitioner claims that his transfer to federal prison retroactively altered his sentence by increasing his punishment, and fails to provide him with equal protection of the laws under the Fifth Amendment of the Constitution.
As a threshold matter, the law clearly provides that military prisoners later transferred to civilian prisons are subject to ...