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CRUM v. UNITED STATES PAROLE COMMN.

January 13, 1993

DAVID CRUM, Petitioner,
v.
UNITED STATES PAROLE COMMISSION, Respondent.



The opinion of the court was delivered by: STANLEY SPORKIN

 The Petitioner, David Crum, filed the instant action pro se and in forma pauperis requesting a Writ of Habeas Corpus. Petitioner, now represented by the Federal Public Defender, requests that this Court reconsider an Order entered on October 15, 1992 which granted the U.S. Parole Commission an additional enlargement of time within which to show cause why a Writ of Habeas Corpus should not be issued. In effect, Petitioner states that because he is incarcerated in a D.C. prison and is a parolee from a D.C. Code violation, he should not be in the custody of the United States Parole Commission. He claims that the additional period of time given to the respondent to reply to his last motion is prejudicial and violative of his due process rights. Accordingly, he demands that he be immediately released, or put into the custody of the District of Columbia Board of Parole.

 BACKGROUND:

 The Petitioner, David Crum, was convicted of Burglary in the District of Columbia on August 9, 1978 and sentenced to 10 to 31 years of imprisonment. During his period of imprisonment Mr. Crum was also convicted of escape and was sentenced to a one year term which ran consecutive to the original sentence. Mr. Crum was released on parole from Levenworth Penitentiary on November 26, 1991. On February 18, 1992, Petitioner's probation officer requested that the Commission issue a parole violation warrant because Petitioner had been arrested for burglary in Montgomery County, Maryland, and was in violation of his parole. A United States Parole Commission violator warrant was issued on March 20, 1992, and executed on April 6, 1992. This warrant was supplemented on April 20, 1992, after Petitioner was charged with burglary in the District of Columbia. Petitioner is now confined in the District of Columbia's Department of Corrections Penitentiary in Lorton, Virginia.

 A preliminary interview with Mr. Crum was held on April 8, 1992. The interviewer reviewed all charges with the defendant, who denied all of them. However, based upon the credible information the interviewer found that there was enough probable cause to find that Petitioner had violated the terms of his parole. Accordingly, the interviewer recommended that Petitioner be kept in custody.

 Between July 2, 1992, and September 16, 1992, Mr. Crum filed three pro se habeas corpus petitions against the United States Parole Commission. A revocation hearing was scheduled for September 10, 1992, but was delayed upon the request of new counsel who needed time to review the record.

 A new date for the hearing was scheduled for October 1, 1992. Petitioner was granted another continuance on the request of his attorney, so that the attorney could properly prepare for the hearing. A signed waiver confirming this request is in the record. Petitioner contends that the Commission forced him into signing the waiver.

 At present Petitioner remains incarcerated in the Lorton, Virginia, penal facility.

 ANALYSIS:

 Petitioner's primary argument is that the United States Parole Commission Board should not be given more time to respond to his writ, because it does not have jurisdiction over him. Petitioner argues that the statutory jurisdictional authority Congress granted to the Commission over District of Columbia Code violators does not extend to D.C. Code violators incarcerated presently in a District of Columbia prison.

 Petitioner contends that the jurisdiction to execute a parole violation warrant is surrendered by the United States Parole Commission once that individual is in District of Columbia custody. In particular Petitioner believes that the cases of Cosgrove v. Smith, 225 U.S. App. D.C. 235, 697 F.2d 1125 (D.C. Cir. 1983), and its progeny Cosgrove v. Thornburgh, 703 F. Supp. 995 (1988) support the proposition that the situs of incarceration determines which parole board or commission should control the mandatory review hearing. Accordingly, an analysis of those cases and the one at bar is necessary.

 In Smith, the United States Court of Appeals for the District of Columbia Circuit reversed and remanded a class action suit bought by male prisoners against the United States Parole Commission. Their complaint, which the District Court dismissed by summary judgement, challenged the categorization of parole guidelines by gender. Specifically, the male prisoners objected to the revised guidelines under which all female prisoners in federal detention incarcerated on the basis of a D.C. Code offense were to have their parole hearings before the District of Columbia Board of Review. Male prisoners, however, were still subject to either D.C. review or Federal review, depending upon the location of their incarceration.

 The Smith Court held that in the interest of equity and justice, an interpretation of D.C. Code § 24-209 by the District Court was necessary. In particular the Court of Appeals ordered that the District Court examine whether there was a substantial difference in parole suitability determination under Federal and District of Columbia guidelines and whether the U.S. Commission has a legitimate interest in applying federal parole standards to D.C. Code offenders. Smith, at 1135.

 On remand the District Court held that . . . "Congress intended, in enacting § 24-209, that all of the laws and regulations applied by the D.C. Board be utilized by the U.S. Commission as well." Thornburg, at 1004. In other words, § 24-209 was to reconcile the differences between the ...


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