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ALLSTON v. GAINES

July 31, 2001

AMU ALLSTON, PETITIONER,
V.
MICHAEL GAINES, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Paul L. Friedman, District Judge.

OPINION

This case is before the Court on petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner Amu Allston alleges that the United States Parole Commission was arbitrary and capricious in revoking his parole and issuing an 18-month set-off, that this decision was vindictive, that his due process rights were violated, and that the delay in scheduling his parole revocation hearing prejudiced him. Mr. Allston also claims that the 18-month set-off violated the Ex Post Facto Clause of the Constitution. Upon consideration of the arguments of the parties, the Court denies the petition for writ of habeas corpus.*fn1

I. BACKGROUND

Petitioner Amu Allston is serving aggregate sentences for two separate convictions for distribution of cocaine imposed by the Superior Court of the District of Columbia on April 9, 1992. Mr. Allston was released on parole in May 1999, but he was rearrested on May 9, 2000 for simple assault, destruction of property and unlawful entry for an incident that involved an altercation with his ex-girlfriend, Rainey Duncan. At the time of the alleged incident, a police report was prepared by Darrell Garner, an off-duty police officer who resided in Ms. Duncan's apartment building. See Parole Commission's Response to Court's Order to Show Cause ("Parole Commission's Response"), Appendix G. Officer Garner became alerted to the incident when he heard a loud noise in the hallway outside of his apartment. See id. at 2. As he exited his apartment, Officer Garner observed petitioner walking down the hallway and detained him. See id. Ms. Duncan then informed Officer Garner that Mr. Allston had "kicked in her apartment door and started punching her." Id. As the police report reflects, Ms. Duncan's sister, Tina Duncan, confirmed that petitioner had kicked in the apartment door and punched Rainey Duncan. See id.

The District of Columbia Board of Parole scheduled a parole revocation hearing for July 13, 2000, based on a report submitted by petitioner's Community Service Officer alleging two parole violations: (1) failure to obey all laws, and (2) failure to report on June 5. See Parole Commission's Response, Appendix F. For reasons that the parties do not make entirely clear, the hearing did not take place on July 13, and the Board of Parole issued a warrant for petitioner's arrest. On August 5, 2000, the United States Parole Commission assumed jurisdiction over Mr. Allston pursuant to the National Capital Revitalization and Self Improvement Act of 1997 and rescheduled the revocation hearing for October 3, 2000. See D.C.Code § 24-1231(a). On August 25, 2000, the criminal case on which Mr. Allston's May 9 arrest was based was dismissed in D.C. Superior Court because Ms. Rainey Duncan no longer wanted to press charges. See Petitioner's Response to Commission's Opposition ("Petitioner's Response"), Appendix 2.*fn2

At the October 3 revocation hearing, Ms. Duncan testified that she had lied to Officer Garner on the night of the alleged incident because she believed that Mr. Allston was seeing another woman. See Parole Commission's Response, Appendix J at 2. Petitioner's CSO also testified at the hearing, stating that Mr. Allston had failed to contact him after missing a June 5 appointment, tested positive for cocaine on the day he was arrested and had not reported for further testing on May 30. In view of this testimony, the Hearing Examiner, Jasper Clay, made no finding with respect to any of the alleged criminal law violations but did find an administrative violation for Mr. Allston's failure to report on June 5. See id. Examiner Clay classified the offense as a Category I parole violation with a salient factor score of 3, for which the Commission guideline range is 12 to 16 months; he recommended a 12-month set-off. See Parole Commission's Response, Appendix J at 5.

Petitioner's case was then reviewed by an Executive Hearing Examiner, S.D. Shoquist. See 28 C.F.R. § 2.23(a). Examiner Shoquist disagreed with Examiner Clay's conclusion and found that petitioner had committed an act of simple assault upon Ms. Duncan. See Parole Commission's Response, Appendix K. As a result, Examiner Shoquist upgraded petitioner's violation to a Category II offense with a salient factor score of 3, for which the Commission guideline range is 16 to 22 months; he recommended an 18-month set-off. See Parole Commission's Response, Appendix K.

Under U.S. Parole Commission regulations, the disagreement between Examiners Clay and Shoquist required the case to be reviewed by a third examiner leading to a "panel recommendation." See 28 C.F.R. § 2.23(b), (c). The panel unanimously agreed to revoke Mr. Allston's parole but disagreed as to the duration of the revocation. See Parole Commission's Response, Appendix M. The Commission then apparently held another vote on October 20 in which two Commissioners voted for an 18-month set-off and one Commissioner voted for a 12-month set-off. See Parole Commission's Response, Appendix L. In total, four Commissioners believed that an 18-month set-off was appropriate in petitioner's case while two recommended only twelve months. See id.

In its November 6 Notice of Action, the Parole Commission stated in, its Findings of Fact that it had made no finding of any criminal violation but still classified the parole violation as a Category II offense. See Parole Commission's Response, Appendix N. On December 4, the Commission issued a corrected Notice of Action in which it found a criminal violation of simple assault listing Officer Garner's police report as its basis. See Parole Commission's Response, Appendix O. Petitioner's attorney, however, did not receive a copy of this notice because the Parole Commission sent it to the wrong address. See id. at 2. On December 7, Mr. Allston filed this petition. On that same day, petitioner's attorney finally received the corrected Notice of Action.

II. DISCUSSION

A. Petitioner's Parole Revocation Process

1. The Parole Commission's Decision Petitioner's primary challenge to the Parole Commission's decision is that it lacks adequate support in the record. Specifically, he attacks Examiner Shoquist's reliance on Officer Garner's police report as hearsay evidence — and in some respects double hearsay — and argues that it should not trump Ms. Rainey Duncan's live testimony at the hearing. He contends that the hearsay evidence is unreliable because no evidence was presented at the hearing to support the police report and because Ms. Duncan's change in testimony is consistent with what she told the Assistant U.S. Attorney handling the case in Superior Court.

On a petition for a writ of habeas corpus, judicial review of the Parole Commission's decision to revoke parole is narrowly circumscribed. The Court is confined to determining whether there has been an "abuse of discretion," meaning that it may only consider whether there is a "rational basis" in the record to support the Parole Commission's conclusions. See Gambino v. E.W. Morris, 134 F.3d 156, 159-60 (3d Cir. 1998); Iuteri v. Nardoza, 732 F.3d 32, 37 (2d Cir. 1984). Furthermore, the Parole Commission need only find a violation of parole conditions by a preponderance of evidence. See 18 U.S.C. § 4214(d); 28 C.F.R. § 2.105(a).

Applying this standard, the Court finds that petitioner has not demonstrated the absence of a rational basis for the Parole Commission's finding of a simple assault violation by a preponderance of the evidence. Examiner Shoquist determined that the police report was a more reliable version of the facts than Ms. Duncan's revised testimony. His reasoning for this conclusion is clear: "While Ms. Duncan has subsequently changed her story, which is not unusual in these types of domestic cases, I believe the initial statements as provided to the officer are more believable and credible." Parole Commission's Response, Appendix K. According greater weight to a victim's initial representations rather than to her subsequent contradictory testimony is a legitimate practice of decision-makers engaging in credibility determinations. See Stinchfield v. Menifee, 119 F. Supp.2d 381, 385 (S.D.N.Y. 2000) (rational to credit police report over subsequent conflicting recantation). Moreover, ...


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