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