Johnson v. District of Columbia

          Argued October 15, 2018

          Appeal from the United States District Court for the District of Columbia (No. 1:13-cv-01127)

          Stephen S. Gilstrap, appointed by the court, argued the cause as amicus curiae in support of appellant. With him on the brief were Zachary J. Howe and Jeremy C. Marwell, appointed by the court.

          Michael R. Johnson, pro se, was on the briefs for appellant.

          James M. Burnham, Senior Counsel, U.S. Department of Justice, argued the cause for federal appellees. With him on the brief were Jessie K. Liu, U.S. Attorney, and R. Craig Lawrence and Jane M. Lyons, Assistant U.S. Attorneys.

          Karl A. Racine, Attorney General, Office of the Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General, Stacy L. Anderson, Acting Deputy Solicitor General, and Mary L. Wilson, Senior Assistant Attorney General, were on the brief for appellee The District of Colombia.

          Before: Henderson and Srinivasan, Circuit Judges, and Edwards, Senior Circuit Judge.

          OPINION

          Srinivasan. Circuit Judge

         In 1990, Michael Roy Johnson pleaded guilty to an armed rape he committed while out on bond for another alleged rape. He became eligible for parole in 2000. At his parole hearings in 2000, 2005, and 2008, the U.S. Parole Commission denied him parole. Each time, the Commission applied parole guidelines promulgated in 2000 rather than the 1987 guidelines in effect at the time of his offense.

         Johnson brought an action claiming that the retroactive application of the 2000 guidelines in his parole hearings violated the Ex Post Facto Clause and Fifth Amendment Due Process Clause. He also alleged that his arrest had violated the Fourth Amendment because it was unsupported by probable cause. The district court granted a dismissal in favor of the defendants, and we affirm.

         I.

         A.

         Because the district court dismissed Johnson's complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, we "accept[] the allegations in the complaint as true" and grant him "the benefit of all inferences that can be derived from the facts alleged." Vila v. Inter-Am. Inv. Corp., 570 F.3d 274, 284 (D.C. Cir. 2009) (citation omitted). And because Johnson brings his action pro se, we consider the complaint "in light of all filings, including filings responsive to a motion to dismiss." Brown v. Whole Foods Mkt. Grp., Inc., 789 F.3d 146, 152 (D.C. Cir. 2015) (per curiam) (internal quotation marks omitted). The following facts thus are taken from his complaint, supplemented as necessary by his other filings.

         On December 27, 1989, Johnson was arrested by John Burke, a detective in the D.C. Metropolitan Police Department, and charged with armed rape. The alleged victim of the rape was Johnson's then-girlfriend. She had identified Johnson as the perpetrator and described the episode in detail, after which the police contacted him for an interview. Johnson provided a handwritten statement in which he said that he and his girlfriend had spent time together on the day in question and engaged in consensual intercourse. He described an altercation over accusations of infidelity that culminated with his girlfriend grabbing a knife to prevent him from leaving the apartment. He was eventually able to wrest the knife from her.

         Detective Burke described the victim's allegations in an affidavit supporting his application for an arrest warrant, in which he stated that Johnson had "admitted to arming himself with a knife and to engaging the Complainant in sexual intercourse." Johnson Compl. ¶ 22, App. 18. Burke obtained an arrest warrant for Johnson based on the affidavit.

         On March 17, 1990, Johnson was released on bond. While on release, he raped a different woman. Johnson eventually pleaded guilty to the second rape, and prosecutors dropped the first charge as part of the plea deal. Under the District of Columbia's indeterminate sentencing scheme, Johnson received a sentence of 15 years to life imprisonment.

         B.

         The National Capital Revitalization and Self-Government Improvement Act vests responsibility for parole determinations for D.C. Code offenders in the U.S. Parole Commission. See D.C. Code § 24-131. From 1987 to 2000, the Parole Commission (and its predecessor, the D.C. Board of Parole) applied a point system prescribed by municipal law to guide its parole determinations. See D.C. Mun. Regs. tit. 28 § 204.1-.22 (1987). In 2000, the Parole ...