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Wayne Anthony Crowe v. Warden Isaac Johnston

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


November 29, 2011

WAYNE ANTHONY CROWE, PETITIONER,
v.
WARDEN ISAAC JOHNSTON, RESPONDENT.

The opinion of the court was delivered by: Amy Berman Jackson United States District Judge

MEMORANDUM OPINION

Petitioner is an inmate at the Correctional Treatment Facility in the District of Columbia. He seeks a writ of habeas corpus because allegedly his "street time [credit] [was] taken by [the] parole board and not restored," in violation of the Fifth Amendment's prohibition against double jeopardy. Pet. at 5 (Ground One). In Ground Two, petitioner states only that it is "unconstitutional to have time taken to be ordered [sic] to complete same time twice." Id.

"A court . . . entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue [a show cause] order . . ., unless it appears from the application that the applicant or person detained is not entitled thereto." 28 U.S.C. § 2243. A District of Columbia prisoner is entitled to habeas corpus relief when he establishes that his "custody is in violation of the Constitution or laws or treaties of the United States." 28 U.S.C § 2241(c)(3). Upon review of the instant application, the court finds that petitioner has stated no grounds for issuing the writ. Therefore, the application will be denied.

Under District of Columbia law effective May 20, 2009, "a parolee shall receive credit toward completion of the sentence for all time served on parole ['street-time credit']," except when: (1) he "is convicted of a crime committed during a period of parole" that is punishable by a prison term of "more than one year," (2) he is convicted of a crime punishable by a prison term "of one year or less unless the Commission determines that such forfeiture of credit is not necessary to protect the public welfare," or (3) he, while on parole "intentionally refuses or fails to respond to any reasonable request, order, summons, or warrant . . . ." D.C. Code § 24-406(c). Petitioner does not state when his street-time credit was "taken," and he does not supply any facts about his current custody.*fn1 Thus, whether the foregoing local statute is applicable to the instant petition is unknown.

Nevertheless, it is established that "jeopardy does not attach in probation or parole revocation proceedings because they are not new criminal prosecutions but rather continuations of the original prosecutions which resulted in probation or parole." Hardy v. United States, 578 A.2d 178, 181 (D.C. 1990) (citing Fifth, Sixth and Eighth circuit cases); see U.S. v. DiFrancesco, 449 U.S. 117, 137 (1980) ([T]here is no double jeopardy protection against revocation of probation [or parole] and the imposition of imprisonment [because] [such] criminal sanctions do not involve the increase of a final sentence."); accord Johnson v. United States, 529 U.S. 694, 700 (2000) (acknowledging that "most courts" have treated "postrevocation sanctions as part of the penalty for the initial offense," thereby avoiding double jeopardy "difficulties"); Campbell v. U.S. Parole Comm'n, 563 F. Supp. 2d 23, 27 (D.D.C. 2008) (the double jeopardy clause "is simply not applicable to parole decisions.") (citations omitted); see also Maddox v. Elzie, 238 F.3d 437, 447 (D.C. Cir. 2001) ("Unlike a trial judge or prosecutor, the [parole] Board is not constrained by doctrines such as . . . the prohibition on double jeopardy.") (citation omitted). Therefore, petitioner's habeas petition premised solely on the Constitution's double jeopardy clause must be denied. A separate final order accompanies this Memorandum Opinion.


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