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Ali v. United States Parole Commission

March 2, 2007

BAKEER ABDULLAH ALI, PLAINTIFF,
v.
UNITED STATES PAROLE COMMISSION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

Bakeer Abdullah Ali, f/k/a Ernest Giles, has spent most of his adult life in prison, ever since he was convicted of murder in 1977 at the age of 30. Each time he has been paroled, he has quickly violated the conditions of parole, had his parole revoked, and been returned to jail. He complains here about a revocation hearing conducted by the United States Parole Commission ("USPC") on March 3, 2003, at which he asserts his constitutional right to due process was violated because the Hearing Examiner curtailed his cross-examination of an adverse witness, relied upon that witness's testimony although she had effectively been impeached by counsel for Mr. Ali, and unlawfully relied on inaccurate and inconsistent information. A careful review of the hearing transcript and the complete record before the Court shows that Mr. Ali's rights have not been violated. The complaint will be dismissed.

I. BACKGROUND FACTS

Mr. Ali began serving an 8-to-24 year sentence for Murder II while Armed and other crimes on November 30, 1977. He was first paroled in November 1987 and was in and out of jail until October 14, 1988, when he was released on parole with 4,773 days remaining to serve.

However, about a year later, on October 2, 1989, he received a 4-to-12 year consecutive sentence for Assault with a Deadly Weapon, which violated the terms of his parole. The new consecutive sentence was added to the 4,773 days remaining to serve. Thus, when the District of Columbia Board of Parole issued a Certificate of Parole in 1998, it required him to "remain under supervision . . . until March 16, 2014." Upon parole by the District in 1998, he was actually transferred to the custody of the United States Marshals Service ("USMS"), for service of a federal sentence of 41 months for Escape from Lorton. He was released by USMS on parole to the street in May 2001.

Barely out of jail, on May 28, 2001, Mr. Ali was arrested and charged with, inter alia, Kidnapping. In a Report of Alleged Violation of parole, the D.C. Court Services and Offender Supervision Agency ("CSOSA") notified the USPC that Mr. Ali had been arrested and that he "owe[d] 4,706 days" for the 1989 parole violation associated with the Assault with a Deadly Weapon conviction. USPC staff applied to the Board for a warrant and stated that Mr. Ali's sentence was 24 years, 10 months, and 20 days, and that his Termination of Supervision date was March 16, 2014. On June 15, 2001, USPC issued a warrant to the USMS to detain Mr. Ali, stating that he had been paroled on June 1, 1998, from the D.C. Department of Corrections with 5,767 days remaining to be served.

The Marshals lodged a detainer against Mr. Ali so that he would not be released on the new Kidnapping charge without going before the USPC for the alleged parole violation. Eventually, the Kidnapping and other charges were dropped by the U.S. Attorney on February 3, 2003. On February 5, 2003, Mr. Ali was turned over to the USPC on the violator warrant. The revocation hearing of which Mr. Ali complains here was held before Hearing Officer Rob Hayworth on March 3, 2003. At Mr. Hayworth's recommendation, USPC revoked Mr. Ali's parole on March 26, 2003, and sentenced him to 120 months (10 years) for violating his parole, with credit for time spent in D.C. Jail since May 28, 2001.

II. THE REVOCATION HEARING

The transcript of the revocation hearing is in the record. Rob Hayworth was the Hearing Examiner. Mr. Ali was represented by Olinda Moyd from the D.C. Public Defender Service. Although more people had been subpoenaed to appear, only one witness other than Mr. Ali appeared and testified. That witness was Jacqueline Carr, an eyewitness to the charged Kidnapping.

At the beginning of the hearing, Mr. Hayworth explained:

This is an administrative hearing. The rules that limit the admissibility of evidence that are applicable in a criminal trial do not apply in a parole revocation hearing. For example, any disputed charges will be resolved by what's called a preponderance of the evidence standard.

Now, in applying that standard of proof, what that means is that we accept the evidence that as a whole is considered to be more credible and convincing than the evidence offered in opposition to it.

Bakeer Abdul Ali v. Edward F. Reilly, Jr., Case No. 04-5178 (U.S. Parole Commission, March 13, 2003) at 4-5 (hereafter "Rev. Tr."). Immediately, however, Ms. Moyd and Mr. Ali raised an issue about Mr. Ali's full-term date. Mr. Ali insisted that his term of incarceration had already expired in January 2001. Id. at 12. He argued, "[M]y initial term is only 24 years. I have done 24 years is what I'm saying. There is no backup. When you do the whole sentence, there can't be any backup." Id. at 14-15. Most specifically, Ms. Moyd asserted that Mr. Ali's time was up, he was no longer on parole at the time of the alleged kidnapping, and the revocation hearing was therefore invalid. Id. at 16. Mr. Hayworth promised to make a note of the issue, which he did in his recommendation to the Commission, but explained that USPC gets its numbers from the Bureau of Prisons, which performs all computations. Id. at 14. Based on the 1998 Parole Certificate, which listed March 16, 2014 as the full-term date, id. at 9, he proceeded with the hearing.

Ms. Moyd then pointed out that the Kidnapping and other charges had all been dismissed. Mr. Hayworth agreed but advised that "the Parole Commission makes their own findings of whether they think you're guilty of it or not, and that's why we're having this hearing today. If that is dismissed in court doesn't mean the Parole Board will dismiss it." Id. at 18.

Mr. Ali then recounted events from his point of view. He had been released by the USMS on a Friday, after completing his prison term for Escape. He met the Complainant on Sunday in Southeast Washington, D.C., and she offered to perform a sexual act for $10. The two went into an abandoned cottage on the grounds of St. Elizabeth's Hospital for that purpose. The Complainant then used the $10 to buy some crack. Mr. Ali encountered the same woman on May 28, 2003. This time, he gave her the money up front, she bought some crack, and smoked it immediately. As they headed toward the cottage, the Complainant said she needed more money. He laughed "and then she swinged [sic] on [him] . . . [t]wice and [he] was still laughing." Id. at 20-21. The woman then led the way into the cottage and went into one of the upstairs bedrooms. Before he even entered the room, Mr. Ali heard noises in the front hall and went part way down the stairs, where he ran into Hospital Security. Id. at 21. He was handcuffed and put into a car and later turned over to the police.

Jacqueline Carr, a Hospital employee, then gave a statement at the revocation hearing. She said she was leaving her office about noon on May 28, 2003, when she heard some noise. Id. at 25. As she got into her car, she heard it again. Id. She turned around "and I saw this gentleman right here snatch this lady up off the avenue and took her into . . . the house . . . that I was parked behind." Id. The noise coming closer "made me turn around. And that's when he had his hand over her mouth. But I still heard her. She was screaming." Id. at 26. Ms. Carr returned to her office, where her supervisor called Security. Id. 28. They returned to the cottage and waited for Security and observed the arrest of Mr. Ali by Security.

Ms. Moyd then cross-examined Ms. Carr, relying on a statement Ms. Carr had given to an investigator to attempt to impeach her. In this regard, she asked:

* Do you remember stating to our investigator that when you saw the woman, she was carrying a grocery cart like people take their groceries home? And she had a bunch of junk in there. The cart that was left on the avenue? Id. at 40.

* On the day that you spoke with my investigator, you said that the guy was skinny build, he looked like he was in his 50's [sic]. He was wearing a blue windbreaker sweatpants, a black cloth jacket and no hat. [You] didn't pay attention to his shoes. [You] could tell from ...


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