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SIMMONS v. UNITED STATES PAROLE COMMISSION

United States District Court for the District of Columbia


April 1, 2005.

Frank Simmons, Petitioner,
v.
United States Parole Commission, et al., Respondents.

The opinion of the court was delivered by: EMMET SULLIVAN, District Judge

MEMORANDUM OPINION

This matter is before the Court on consideration of petitioner's pro se petition for a writ of habeas corpus.*fn1 For the reasons stated below, the petition will be denied.

I. BACKGROUND

  On October 5, 1988, petitioner was sentenced by the Superior Court of the District of Columbia to an aggregate term of two to six years' imprisonment. Resp't Resp., Faller Decl., ¶ 3. The District of Columbia Board of Parole granted parole on April 23, 1991. Id. On May 22, 1992, petitioner was convicted of attempted distribution of cocaine, and was sentenced by the Superior Court to a term of three to nine years' imprisonment.*fn2 Id., ¶ 4. On March 13, 1996, petitioner was paroled. Id. On this same day, however, a parole violator warrant was executed, so that petitioner was forced to serve time remaining on the sentences imposed in 1988. Id. Petitioner was paroled on March 24, 1997.*fn3 Resp't Resp., Ex. D (Certificate of Parole).

  Petitioner was returned to custody on July 21, 1999 upon execution of a parole violator warrant.*fn4 Faller Decl., ¶ 5. On October 18, 1999, the D.C. Board of Parole revoked petitioner's parole for criminal and noncriminal violations of the conditions of his release. Resp't Resp., Ex. E (Notice of Action). The United States Parole Commission, which in the interim assumed responsibility for District of Columbia offenders, reparoled petitioner on October 18, 2000.*fn5 Id., Ex. F (Certificate of Parole).

  Petitioner again found himself in custody on July 27, 2001 upon the execution of another parole violator warrant. Faller Decl., ¶ 6. He was reparoled on August 27, 2002. Resp't Resp., Ex. H (Certificate of Parole). The Parole Commission revoked his parole on March 12, 2003, and reparoled him on March 12, 2004. Id., Ex. I (Notice of Action), J (Certificate of Parole). Yet another parole violator warrant was issued on October 18, 2004. Id., Ex. L (Warrant). Petitioner was returned to custody on November 15, 2004. See id., Ex. M (D.C. Probable Cause Hearing Digest). After waiving his right to a revocation hearing, the Parole Commission revoked parole on January 5, 2005. Id., Ex. N (Waiver), Ex. O (Notice of Action). Petitioner's parole effective date is July 14, 2005, and his mandatory release date is December 14, 2005. Id., ¶ 7.

  II. DISCUSSION

  Petitioner contends that, although his sentences allegedly expired in 2000, he unlawfully remains in custody. Pet. at 5. He argues that the Parole Commission "has been `impersonating to be Article III Judges' to re-sentence all D.C. Code offenders without the power of being lawfully under the `Judicial Branch.'" Id. at 3. In addition, he contends that he wrongfully is denied credit for all time spent on parole prior to revocation, in violation of the ex post facto clause of the United States Constitution. Id. at 8. None of petitioner's arguments has merit.

  The Parole Commission has no authority to impose a prison sentence upon conviction of a crime; this authority rests with the Superior Court of the District of Columbia. See D.C. Code § 11-923(b) (granting jurisdiction to Superior Court over any criminal case under District of Columbia law). Rather, the Parole Commission has full authority to grant, deny, or revoke a District of Columbia offender's parole, and to impose or modify conditions upon an order of parole. See D.C. Code § 24-131(a). If a parolee allegedly has violated conditions of his release, the Parole Commission is authorized to "[i]ssue a warrant for the apprehension and return of the offender to custody." 28 C.F.R. § 2.98(a)(2). Among the available sanctions for a parolee's violation of conditions of his release is his return to custody. See 28 C.F.R. § 2.20. The Parole Commission does not add years to petitioner's prison sentence. Petitioner finds himself in custody long after his original Superior Court sentence ordinarily would have expired because of his own conduct while on parole.

  Furthermore, petitioner is not entitled to receive credit toward service of his sentence for "street time." See Davis v. Moore, 772 A.2d 204 (D.C. 2001) (en banc) (holding that retroactive application of Noble does not violate due process and ex post facto clauses); United States Parole Comm'n v. Noble, 711 A.2d 85 (D.C. 1998) (concluding that time offender spends on parole before revocation cannot be credited toward service of sentence).

  III. CONCLUSION

  A writ of habeas corpus shall not extend to a District of Columbia prisoner unless he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2241(c)(3) (1994). Petitioner has made no such showing, and, therefore the Court must deny his petition. An Order consistent with this Memorandum Opinion will be issued this same day.


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