Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ramirezempuno v. United States Parole Commission

United States District Court, D. New Jersey

June 7, 2018

XAVIER E. RAMIREZEMPUNO, Petitioner,
v.
UNITED STATES PAROLE COMMISSION, Respondent.

          OPINION

          ROBERT B. KUGLER UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Petitioner 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.

         II. BACKGROUND

         Petitioner 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[1] 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).

         On 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 p. 1).

         On 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.[2] (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.).

         On 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[3] that would justify a decision above the guidelines. (See id.).

         On 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[4] has been fully briefed and is ripe for review.

         III. LEGAL STANDARD

         Federal 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].”[5] 28 U.S.C. § 2242.

         IV. DISCUSSION

         Petitioner's 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 pp. 6-8).

         A. Claims of USPC Error

         Petitioner 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).

         1. Application ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.