The opinion of the court was delivered by: Date Emmet G. Sullivan United States District Judge
Petitioner Larry Owens filed this petition for writ of habeas corpus alleging that the U.S. Parole Commission was without jurisdiction to revoke his parole based on a supplemental warrant issued after the expiration of his sentence. The United States opposes the petition, arguing that the Commission was within its regulatory and statutory authority to add new grounds for revocation after the expiration of the sentence because a valid warrant was issued before the sentence expired and the conduct upon which the new grounds for revocation was based occurred during the sentence.
Upon consideration of the petition for writ of habeas corpus, the responses and replies thereto, the oral argument of counsel, and the applicable statutory, regulatory, and case law, this Court GRANTS Mr. Owens' habeas petition.
Mr. Owens is currently on parole under the supervision of the United States Parole Commission. His parole status was originally the result of three convictions for drug offenses in the District of Columbia Superior Court. His latest conviction occurred on September 28, 1994.
Mr. Owens was first released on parole on June 19, 1997 by the District of Columbia Board of Parole. At that time, that agency had jurisdiction over parolees whose incarceration was the result of convictions in the District of Columbia courts. At the time of his release, Mr. Owens had 39 months and 9 days remaining on his sentence, and his full-term expiration date was September 28, 2000.
On February 24, 2000 the D.C. Board of Parole issued a parole warrant for Mr. Owens, alleging violations of the conditions of parole resulting from the possession of drug paraphernalia and the commission of a paternity support violation. The warrant was lodged as a detainer while Mr. Owens was in pretrial custody on criminal charges in the District of Columbia Superior Court.
On July 11, 2000, Mr. Owens' file was transferred from the D.C. Board of Parole to the U.S. Parole Commission pursuant to the National Capital Revitalization and Self-Government Improvement Act of 1997. See Pub. L. 105-33, §11231(a)(1), 111 Stat. 712, 745. The effective date of the Revitalization Act's final transfer of authority to the Commission was August 5, 2000. On July 18, 2000 Mr. Owens pled guilty in D.C. Superior Court to a Bail Reform Act violation and was sentenced to time served. The parole warrant, which had been lodged as a detainer during the pre-trial custody, was executed on this date. Mr. Owens, however, was released from custody despite the execution of this warrant.
In November of 2000, the U.S. Parole Commission discovered the error and requested that the U.S. Marshals arrest Mr. Owens pursuant to the February 24, 2000 warrant. Mr. Owens was arrested by the U.S. Marshals on November 30, 2000. On December 15, 2000, Mr. Owens was given a preliminary interview. On December 26, 2000 the interviewing officer made a preliminary recommendation to the Commission that probable cause should be found, but no probable cause finding was issued at that time.
On April 18, 2001, the Commission issued a "Supplement to Warrant Application Dated February 24, 2000" which added a new charge to the February 24, 2000 warrant based on Mr. Owens' July 18, 2000 Bail Reform Act conviction. On April 19, 2001, the Commission issued a probable cause finding letter to Mr. Owens based only on the Bail Reform Act charge. The letter expressly stated that the Commission made no findings with respect to the charges contained in the original February 24, 2000 warrant. A final revocation hearing was scheduled for April 23, 2001. At that hearing Mr. Owens' attorney objected to the lack of notice given for the new charge in the Supplemental Warrant and requested a continuance. Mr. Owens' attorney also objected and argued that the Commission lacked jurisdiction because the full-term of Mr. Owens' sentence had expired by that time. The Commission granted the continuance.
A final revocation hearing was held on May 21, 2001. Once again Mr. Owens' attorney objected to the Commission's jurisdiction to revoke parole. The hearing examiner found that Mr. Owens had committed the Bail Reform Act offense, and recommended that parole be revoked and petitioner be paroled effective July 30, 2001, after service of 14 months. On June 1, 2001, the executive hearing examiner recommended that parole be revoked and that petitioner be paroled on September 28, 2001, after service of 16 months. On June 18, 2001, the Commission adopted the recommendation of the executive hearing examiner and revoked parole solely based on the Bail Reform Act violation. The period of incarceration imposed departed from the Parole Commission Guidelines. The Commission justified this departure because of petitioner's history of parole violations.
The U.S. Parole Commission and the D.C. Department of Corrections records differ as to when Mr. Owens was once again released on parole. The United States maintains that he was released again on September 28, 2001, while as of November 16, 2001 the D.C. Department of Corrections believed he was still incarcerated. Despite this confusion, counsel for both petitioner and the United States confirmed that at least as of the December 12, 2001 status hearing in this Court that Mr. Owens had been released on parole.
Mr. Owens originally filed his habeas petition objecting to both the delay in granting him a revocation hearing and to the Commission's jurisdiction to revoke parole on April 23, 2001. At the same time, petitioner filed a Notice of Related Case, designating his petition as related to three other habeas petitions pending before this Judge. On April 26, 2001, the government filed an objection to the Notice of Related Case. The government did not file a response to the habeas petition pending the resolution of the related case issue.
On November 13, 2001, this Court held a hearing to determine the status of this habeas petition and Mr. Owens' incarceration. The Court ordered petitioner to supplement his habeas petition to reflect his current parole status, and ordered the government to respond. Briefing was completed on December 10, 2001, and oral argument was held on May 9, 2002. At that hearing, counsel for Mr. Owens and the government informed the Court that Mr. Owens continues to be supervised on parole by the U.S. Parole Commission, and his new full-term sentence will expire in 2006. *fn1
Mr. Owens raises three claims in his habeas petition, two of which are now moot: first, that the Parole Commission lacked authority to revoke his parole on May 23, 2001 because the full term of his sentence had expired in February of 2001 and therefore his current parole supervision is unlawful; second, that the Commission failed to provide a timely hearing in violation of the Due Process Clause, and third, that his continued incarceration violates the Eight Amendment. The United States argues in response: first, that Mr. Owens' petition should be dismissed for failure to exhaust his claims in Superior Court; second, that Mr. Owens' first claim should be denied because a proper warrant was issued during the term of his sentence thus tolling the sentence and giving the Commission jurisdiction to revoke parole; and third, that Mr. Owens' second and third claims are moot because he was eventually given a hearing and has been re-released on parole. Petitioner now concedes that his second and third claims are moot, and thus this Court will focus only on the first jursidictional claim.
The United States argues that because Mr. Owens' parole arose out of a conviction from the D.C. Superior Court, this Court should require Mr. Owens to first bring his habeas petition in that Court. Mr. Owens strenuously argues that this contention by the United States is frivolous, in light of the fact that Mr. Owens is currently in custody of the U.S. Parole Commission.
The exhaustion principle is not mandated by statute, but was created by the Supreme Court out of the principle of comity between state and federal courts. Rose v. Lundy, 455 U.S. 509, 102 S. Ct. 1198 (1982). Thus, while federal courts have the jurisdiction to hear habeas petitions brought by state prisoners, the principle of comity requires exhaustion of those claims in state court first in order to "protect the state courts' role in the enforcement of federal law and prevent disruption of state and judicial proceedings." Rose, 455 U.S. at 518. The Supreme Court has explained that the principle of comity "teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter." Darr v. Burford, 339 U.S. 200, 204, 70 S. Ct. 587 (1950).
The principle of comity does not apply to this case because Mr. Owens is not in the custody of a state correctional facility, but the U.S. Parole Commission. The proper court in which to challenge the supervision of the U.S. Parole Commission is this Court.
Furthermore, the United States' exhaustion argument ignores the fact that D.C. courts do not have "concurrent powers" with respect to challenges to U.S. Parole Commission activity. The D.C. Code actually precludes the filing of habeas petitions in Superior Court that challenge the actions of federal officials. D.C. Code §16-1901, in relevant part, states:
(b) Petitions for writs directed to Federal officers and employees shall be filed in the United States District Court for the District of Columbia.
(c) Petitions for writs directed to any other person shall be filed in the Superior Court of ...