United States District Court, D. New Jersey
XAVIER E. RAMIREZEMPUNO, Petitioner,
UNITED STATES PAROLE COMMISSION, Respondent.
B. KUGLER UNITED STATES DISTRICT JUDGE.
Xavier E. Ramirezempuno (“Petitioner”), is a
military prisoner currently incarcerated at FCI Fort Dix, in
Fort Dix, New Jersey. He is proceeding pro se with a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. Petitioner alleges that the United States Parole
Commission (“USPC” or the
“Commission”) violated his constitutional rights
by applying the federal parole guidelines rather than the
military's parole guidelines to his case. The petition is
ripe for disposition. For the reasons outlined below, the
petition will be denied.
is a former active duty member of the United States Marine
Corps. On January 18, 2013, Petitioner was convicted by a
Navy general court-martial of: (1) three
specifications of failure to obey a lawful general
regulation in violation of Article 92, Uniform Code of
Military Justice (“UCMJ”), 10 U.S.C. § 892;
(2) two specifications of aggravated sexual contact in
violation of Article 120, UCMJ, 10 U.S.C. § 920; (3) one
specification of assault by battery in violation of Article
128, UCMJ, 10 U.S.C. § 928; (4) one specification of
adultery in violation of Article 134, UCMJ, 10 U.S.C. §
934; and (5) one specification of obstruction of justice in
violation of Article 134, UCMJ, 10 U.S.C. § 934.
(See ECF No. 4, Ex. 1, at pp. 1-3). Petitioner was
sentenced to eight years of confinement and a dishonorable
discharge on May 6, 2013. (See ECF No. 1, Ex.
1. at p. 12).
January 23, 2015, the Navy Clemency and Parole Board
(“NC&PB”) reviewed Petitioner's case for
parole. (See ECF No. 4, Ex. 6 at pp. 1-2). The
NC&PB rated Petitioner's offense severity as a
Category Six and assigned Petitioner a salient factor score
of 9 points. (See id.). Based on the offense
severity and salient factor score, the NC&PB denied
Petitioner parole and determined his customary range of time
served in confinement before release on parole to be 40-52
months. (See Id. at p. 2). Petitioner received
notice on March 11, 2015 that the NC&PB denied his
parole. (See ECF No. 4, Ex. 5, at p. 1). On June 10,
2015, the Navy Council of Review Boards denied
Petitioner's appeal of the NC&PB's decision to
deny parole. (See ECF No. 4, Ex. 7, at p. 1). On
September 2, 2015, the NC&PB reviewed Petitioner's
case and denied clemency. (See ECF No. 4, Ex. 8, at
March 8, 2016, Petitioner was transferred from military
custody to federal custody at FCI Fort Dix in New Jersey.
(See ECF No. 4, Ex. 3, at p. 1). On January 9, 2017,
the USPC conducted an initial parole determination hearing.
(See ECF No. 4, Ex. 9, at p. 1). At the hearing, the
USPC assigned Petitioner a salient factor score of 9 points,
and rated his offense severity as Category Seven because it
involved forcible sodomy. (See id.). This
combination of salient factor score and offense severity
category yielded a parole guideline range of 52-80
months. (See Id. at pp. 1-2). The USPC
found that departure from the guidelines range was not
warranted and denied parole. (See Id. at p. 1). The
USPC notified Petitioner of this decision by notice of action
dated January 26, 2017. (See id.).
administrative appeal, the National Appeals Board affirmed
the USPC's decision on June 19, 2017. (See ECF
No. 4, Ex. 10). The Board explained that under Chapter 2,
Subchapter D, No. 231 of the USPC's Offense Behavior
Severity Index, 28 C.F.R. § 2.20, rape or forcible
sodomy is rated as a Category Seven offense unless the
offense involved a prior consensual sexual relationship.
(See id.). Because Petitioner was convicted under
Article 120, which requires a nonconsensual sexual act, the
Board found Petitioner's offense was properly rated as a
Category Seven. (See id.). Additionally, the Board
explained that Article 120 convictions are punishable by up
to 30 years, which would be rated as a Category Seven offense
under the miscellaneous offense rule in Chapter 12 of the
USPC's Offense Behavior Severity Index. (See
id.). Further, the Board found that even if
Petitioner's offense had been rated as a Category Six, it
involved aggravating factors that would justify a decision
above the guidelines. (See id.).
August 7, 2017, Petitioner filed a habeas corpus petition
pursuant to 28 U.S.C. § 2241, alleging that the USPC
erred in applying its parole guidelines rather than the
military's guidelines to his case. (See ECF No.
1, at pp. 6-7). Additionally, Petitioner claims that the USPC
is violating his constitutional rights as well as the Ex Post
Facto Clause in applying the federal parole rules, rather
than the military parole regulations. (See Id. at
pp. 7-8). The petition has been fully briefed and is ripe for
district courts can entertain petitions for writs of habeas
corpus, pursuant to 28 U.S.C. § 2241, filed by prisoners
incarcerated by order of a military court-martial. See
Burns v. Wilson, 346 U.S. 137, 139 (1953). A § 2241
petitioner may seek judicial review of the execution of his
sentence by filing a petition for a writ of habeas corpus in
the district court with jurisdiction over the facility in
which he is confined. He will succeed if he demonstrates that
he is confined in violation of the Constitution or laws of
the United States. See 28 U.S.C. § 2241(c)(3);
Rumsfeld v. Padilla, 542 U.S. 426, 447 (2004). A
§ 2241 petition should name as respondent “the
person who has custody over [the
prisoner].” 28 U.S.C. § 2242.
habeas petition raises the following claims: (1) the USPC
erred in categorizing his offense as a Category Seven under
the federal parole guidelines; (2) the USPC's application
of its parole guidelines violated his right to equal
protection under the Fifth Amendment; (3) the USPC's
application of its parole guidelines violated his right to
due process; (4) the USPC's application of its parole
guidelines violated the Ex Post Facto Clause; and (5) the
USPC improperly categorized his conviction of aggravated
sexual contact under Article 120 of the UCMJ as forcible
sodomy under the USPC guidelines. (See ECF No. 1 at
Claims of USPC Error
contends that the USPC erred by applying its parole
guidelines to his case and by categorizing Petitioner's
offense as a Category Seven rather than a Category Six.
(See ECF No. 1 at pp. 6-7). Petitioner also claims
that the USPC improperly categorized one of his convictions
as amounting to forcible sodomy under USPC guidelines.
(See Id. at p. 8).