Suffolk, ss.
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`Superior Court No. 2184-CV-2007-—[D
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`Commonwealth of Massachusetts
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`Khalid Ali Mustafa,
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`Petitioner
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`Vv.
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`Respondent.
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`Petitionet’s Reply Memorandum
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`On November 21, 2022, Petitioner Khalid Ali Mustafa moved for judgment on the pleadings
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`under Superior Court standing order 1-96, Rule 4 and Mass. R. Civ. P. 12(c). The respondent,
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`Massachusetts Parole Board,filed a cross motion and supporting memorandum (“Cross Motion”) on
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`December 6, 2022. Under Rule 4, which incorporates Superior Court Rule 9A, “the moving party
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`may file a reply memorandum limited to matters raised in the opposition that were not and could not
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`reasonably have been anticipated and addressed in the moving party’s initial memorandum.”
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`The Board’s Cross Motion urges this court to (1) find this case moot and (2) find that this
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`Court has no power to terminate parole. Both are incorrect.
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`1. The case is not moot.
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`Mr. Mustafa petitioned for termination of his parole in 2020.
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`‘Two years have passed. The
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`unlawfulness of the denial still presents an ongoing controversy. The Board now arguesthat the case
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`is “moot” because the Board “is agreeing to provide therelief available to petitioner in an action in
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`the nature of certiorari.” Cross Motion at 3. To the contrary, the Board has provided no suchrelief.
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`It has not provided the relief requested: to terminate Mr. Mustafa’s parole. The Board has merely said
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`that it will reconsider Mr. Mustafa’s termination request at some unknown future date under some
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`unpromulgated regulations. Cross Motion at 3 (“The Board expects that the new regulation will be
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`promulgated within a matter of weeks from today’s date.”).
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`This is a hollow claim.
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`Inits July 6, 2022, decision on the motion to dismiss, this Court wrote
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`that although the Board had published no regulations, “this should change soon.” Doc.6 at n. 2.
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`This has not changed in six months. Therearestill no regulations. Indeed, the Parole Board has been
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`promising to promulgate new regulations on termination for almost @year. See Cheek, et al v. Parole
`Ba. (SJ-2021-0430) (Parole Board agreeing to promulgate new regulations inJanuary of2022); Id. The
`Parole Board cannot moot a case by assuring the Court that it will someday reconsider it under
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`regulationsthatit “expects” will be promulgated. See Wolfv. Comm'r ofPub. Welfare, 367 Mass. 293, 299
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`(1975) (“to establish mootness in such circumstances, a defendant bears a heavy burden of showing
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`that there is no reasonable expectation that the wrong will be repeated; and a defendant’s mere
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`assurances on this point may well not be sufficient.”).
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`Second, the fact that the Board intends to promulgate new regulations is not relevant to this
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`case. As this Court recognizedin its July decision, “Neither
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`party
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`to this matter arguedthat the
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`regulations might moot Mustafa’s claim here.” Doc. 6 at n. 2 (emphasis added). This argument was
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`not raised in a motion to dismiss under M.R.C.P. 12(b) and not raised at the motion to dismiss
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`hearing.’ And yet, here, the Board is making this precise argument. The argumentis waived. See
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`Butler v. Turco, 93 Mass. App. Ct. 80, 89 (2018). The argument is also wrong. The Board:did not
`arguethis point at the hearing becausethepetition was properly filed in 2020 pursuant to G.L. c. 127 |
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`§130A;it did not make sense to apply future regulationsretroactively to evaluate a petition filed before
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`the regulations were even enacted. Koe ». Commissioner of Probation, 478 Mass. 12, 16 (2017) (aw is
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`* This Court even raised the issue of new regulationsat the heating, but the Board agreed they were
`not relevant.
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`»
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`retroactive when “new legal consequences attach to events completed before enactment”). It did not
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`make sense then;it certainly does not now.
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`2. This Court can terminate parole.
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`The Board has arguedthat it “need not address the metits of the abuse of discretion claim”
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`because it has “agree[d] to providethe relief available to petitioner in an action in the nature of
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`certiorari.” In this way, the Board has waived its opportunity to argue that Mr. Mustafa is not
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`suitable for termination. The only question, says the Board, is whatreliefis actually available to the
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`petitioner. Butthe cases cited by the Board are parole release cases under G.L. c.127 §130. The
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`Board hascited no casestanding for the proposition that a Court cannot grant termination under
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`§130A, or at the very least, find that termination is appropriate and remand with an order to proceed
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`consistent with this finding.
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`Forthe foregoing reasons, the petitioner requests that this Court enter judgmentin favor of
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`the petitioner and grant the petitioner termination of parole.
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`Respectfully submitted,
`Khalid Ali Mustafa
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`West Newton, MA 02465
`jh@jefthartislaw.com
`617 244 1989
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`Dated: December8, 2022
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