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Colts v. U.S. Parole Commission

January 9, 2008

ERNEST COLTS, PETITIONER,
v.
U.S. PAROLE COMMISSION, RESPONDENT.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

This matter is before the Court on a petition for a writ of habeas corpus. Having considered the petition, the United States Parole Commission's opposition, and petitioner's response, the Court will deny the petition.*fn1

I. BACKGROUND

On February 22, 2007, the United States Parole Commission ("USPC") issued a violator warrant for petitioner's arrest. U.S. Parole Commission's Opposition to Petitioner's Petition for a Writ of Habeas Corpus ("Resp't Opp'n"), Ex. G (Warrant Application).*fn2 The USPC charged petitioner with the following law violations: (1) assault on Annie Brown on August 27, 2006; (2) assault on Annie Brown on October 9, 2006; and (3) violation of a civil protection order. Id., Ex. G at 1-2. Although the United States Marshals Service executed the warrant on March 21, 2007, it did not notify the USPC until May 17, 2007. Id., Ex. G (Warrant) & Ex. J (SRAA Local Revocation Prehearing Assessment) at 2. At the request of petitioner's counsel, the USPC postponed the probable cause hearing from May 18 to May 22, 2007. Id., Ex. J at 2. The hearing examiner found probable cause as to the two assault charges. Id., Ex. I at 3.

Another USPC hearing examiner conducted petitioner's revocation hearing on June 6, 2007. Resp't Opp'n, Ex. K (Hearing Summary) at 1 (page numbers designated in the Hearing Summary). Ms. Annie Brown, the victim of both assaults and the mother of two children with petitioner, testified at the hearing. See id. at 2-5. Ms. Brown described an incident on August 27, 2006 during which petitioner tossed a bag of clothing at her and "pushed her from behind, causing her to fall on her stomach." Id. at 2. Ms. Brown made a statement to a Metropolitan Police Department officer and on the following day she obtained a civil protection order.*fn3 Id. The hearing examiner summarized a "very detailed cross-examination" by petitioner's counsel as follows:

She asked the witness about her mental health status. Ms. Brown stated she suffers from depression and cancer. [Counsel] questioned the witness about a [civil protection order] that had been filed AGAINST Ms. Brown as a result of her assaulting [petitioner] and a female friend, Ms. Dupree, and charged of Destruction of Property. As a part of a plea agreement, Ms. Brown was ordered to stay away from the 400 block of Missouri Avenue, N.W. (the home of Ms. Dupree). Upon incessant questioning by the attorney, Ms. Brown acknowledged she violated her own stay away order. She noted that she and [petitioner] had continued their intimate relationship in spite of the stay away order. Ms. Brown reiterated the details of the assault. [Counsel] questioned the witness as to whether she informed the police of the stay away order that had been imposed against her. Ms. Brown responded in the affirmative as well as noted that she had no known injuries or discoloration as a result of the assault.

Id. During a recess, Ms. Brown stated that she "was frightened of being in the same room as [petitioner]" and explained her belief that petitioner would not be present while she testified. Id. Over the objection of petitioner's counsel, the hearing examiner resumed the proceedings after petitioner was removed from the room. Id. at 3. Further cross-examination of Ms. Brown explored her 2004 arrest and whether Ms. Brown "had ever[] falsely accused [petitioner]" or had testified falsely at a prior revocation hearing. Id. Ms. Brown "acknowledged that she did lie" at a 2005 revocation hearing, recanting the charges at her son's request so that "his father could get out of prison." Id. In addition, she admitted that she "cancelled the stay away order so that her children could have access to their father." Id. Notwithstanding the testimony elicited on cross-examination, the hearing examiner "found Ms. Brown's testimony credible." In the examiner's words, she "has steadfastly provided an accounting of the events resulting in her being assaulted by [petitioner]." Id. He described Ms. Brown's account of her relationship with petitioner as "chaotic," and found that years-long involvement was "filled with arguments and physical confrontations." Id. Based on the "credible testimony of Ms. Brown," the hearing examiner found that petitioner violated the conditions of his release by assaulting Ms. Brown on August 26, 2006. Id.

Ms. Brown also testified regarding the alleged assault on October 9, 2006. Resp't Opp'n, Ex. K at 3-5. After petitioner's counsel in the hearing examiner's words "continued to badger the witness" on cross-examination, Ms. Brown "stated that she was no longer going to answer any further questions." Id. at 4. The hearing examiner called a recess and allowed Ms. Brown to leave. Id. Although he found that Ms. Brown's testimony about the assault "seemed credible, there were instances that this Examiner felt needed to be further explored." Id. In addition, Ms. Brown's premature departure prevented completion of counsel's cross-examination. Id. The hearing examiner made no finding on this charge due to the premature termination of cross-examination upon Ms. Brown's departure. Id. at 5.

The hearing examiner recommended revocation of petitioner's supervised release, a prison term of 16 months from the date of the warrant's execution, and a new 42-month term of supervised release. Resp't Opp'n, Ex. L at 5. The USPC departed from this recommendation in part, and instead imposed a 22-month term of imprisonment followed by a 36-month term of supervised release. Id., Ex. M (July 24, 2007 Notice of Action).

II. DISCUSSION

Petitioner was incarcerated at the District of Columbia's Correctional Treatment Facility at the time he filed the petition. According to the Federal Bureau of Prisons' Inmate Locator (http://bop.gov/iloc2/LocateInmate.jsp) petitioner has been transferred to the Hazelton United States Penitentiary in Bruceton Mills, West Virginia. Notwithstanding the transfer, this Court retains jurisdiction. See Rumsfeld v. Padilla, 542 U.S. 426, 434-35 (2004); Chatman-Bey v. Thornburgh, 864 F.2d 804. 806 n.1 (D.C. Cir. 1988) ("habeas jurisdiction . . . continues to be in the district where the petitioner was incarcerated at the time the habeas petition was filed").

Petitioner raises three challenges to the USPC's decision. Each is addressed below.

A. Probable Cause and Revocation Hearings

Petitioner asserts that the USPC failed to conduct timely probable cause and revocation hearings. Pet. at 3 (page numbers designated by the Court). According to the applicable regulations, "[a] supervised releasee who is retaken and held in custody in the District of Columbia on a warrant issued by the [USPC], and who has not been convicted of a new crime, shall be given a probable cause hearing by an examiner of the [USPC] no later than five days from the date of such retaking." 28 C.F.R. ยง 2.214(a). "If the examiner finds probable cause, the examiner shall schedule a final revocation hearing to be held within 65 days of the releasee's arrest." Id. The USPC ...


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