United States Court of Appeals, District of Columbia Circuit
October 15, 2018
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.
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.
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.
Srinivasan. Circuit Judge
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.
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.
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.
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.
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
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.
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 ...