UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
December 23, 2011
REESE BLAKENEY, PETITIONER,
SIMON T. WAINWRIGHT, RESPONDENT.
The opinion of the court was delivered by: John D. Bates United States District Judge
This matter is before the Court on Reese Blakeney's petition for a writ of habeas corpus and the respondent's motion to dismiss the petition. For the reasons discussed below, the respondent's motion will be granted.
Since February 9, 1993, the petitioner has been under parole supervision.*fn1 See United States' Motion to Dismiss Petitioner's Petition for a Writ of Habeas Corpus ("Resp't's Mot."), Ex. E (Certificate of Parole dated December 11, 1992). In June 2011, the United States Parole Commission ("Commission") charged the petitioner with six violations of the conditions of his parole release: failing to complete successfully a drug treatment program (Charge No. 1), failing to report to his parole officer as directed (Charge No. 2), possessing marijuana and drug paraphernalia (Charge No. 3), testing positive for marijuana use (Charge No. 4), driving under the influence of alcohol (Charge No. 5), and operating a motor vehicle after suspension of his driver's license (Charge No. 6). Id., Ex. G (Warrant Application dated September 23, 2011) at 2-3.*fn2 The warrant was executed on June 23, 2011. Id., Ex. H (Warrant for Return of Prisoner Released to Supervision).
On May 7, 2011, the petitioner was convicted of possession of marijuana and possession of drug paraphernalia, and the Superior Court imposed a suspended sentence of 120 days' incarceration and concurrent nine-month terms of supervised probation. Res't's Mot., Ex. G at 2. In addition, the petitioner was convicted in the Superior Court of "Attempted Operating After Suspension," for which the Superior Court imposed a suspended sentence of 90 days' incarceration followed by an 18-month term of unsupervised probation. Id., Ex. G at 3. Based on these convictions, the Commission dispensed with a hearing and found probable cause to believe that the petitioner had committed the three law violations, Charge Nos. 3, 5 and 6. See id., Ex. I (Probable Cause Worksheet -- SRAA) at 1 & Ex. J (Letter to petitioner from O.M. Goldson, Case Services Assistant, U.S. Parole Commission, dated September 26, 2011) at 1. The Commission then offered the following expedited parole revocation proposal:
Revoke parole; None of the time spent on parole shall be credited.
Parole effective on 06-29-12 after service of 12 months.
Id., Ex. K (Expedited Revocation Proposal) at 4. The petitioner accepted the proposal, and by his consent he is "accepting responsibility for [his] conduct, waiving [his] right to a revocation hearing, and waiving [his] right to appeal the decision." Id., Ex. O (Response to Expedited Revocation Proposal dated December 5, 2011).
By the time the petitioner filed his petition for habeas corpus, he had been in custody for over four months. According to the petitioner, he was denied a prompt parole revocation hearing following his return to custody, and for this alleged violation of his Fifth Amendment right to due process, he demands his immediate release. See Pet. at 5-6.
A delay in conducting a revocation hearing "is not itself a valid ground for immediate release," and instead a parolee's "remedy . . . is an action to compel a hearing." Hill v. Johnston, 750 F. Supp. 2d 103, 105-06 (D.D.C. 2010); see Sutherland v. McCall, 709 F.2d 730, 732 (D.C. Cir. 1983) (finding that the appropriate remedy for a delayed parole revocation hearing "is a writ of mandamus to compel the [Commission's] compliance . . . not a writ of habeas corpus to compel release . . . or to extinguish the remainder of the sentence" (emphasis in original)). Even if the delay were substantial, the petitioner would be entitled to habeas relief on this ground only if he could establish "actual prejudice" arising from the delay. See Sutherland, 709 F.2d at 733 (denying habeas petition absent showing that a 33-month delay prejudiced the petitioner's defense at the hearing). He cannot do so.
More importantly, the petitioner waived his right to a revocation hearing by accepting the Commission's expedited revocation proposal, and thus his claim is rendered moot. Hill, 750 F. Supp. 2d at 106 ("[P]petitioner waived his right to a revocation hearing by accepting the expedited revocation proposal, rendering this action subject to dismissal as moot."); West v. Gonzales, No. 2:06-cv-0336, 2007 WL 1188002, at *1 (N.D. Tex. Apr. 23, 2007) (dismissing as moot a habeas petition challenging validity of Commission's detainer warrant where petitioner accepted expedited revocation proposal and thus waived revocation hearing and accepted the Commission's revocation decision); Ogburn v. U.S. Parole Comm'n, No. 06CV00192, 2006 WL 1933363, at *2 (W.D. Va. July 13, 2006) (finding that, although ten months in custody without receiving a revocation hearing violated 28 C.F.R. § 2.101(e) and "was likely unreasonable . . . [his] claim was rendered moot by his acceptance of the expedited revocation proposal"); Caldwell v. U.S. Parole Comm'n, No. 03-cv-9116, 2005 WL 1153726, at *3 (S.D.N.Y. Apr. 13, 2005) (Magistrate Report and Recommendation concluding that petitioner's argument that he was denied a revocation hearing was moot when he accepted an expedited revocation agreement requiring him to waive the hearing and accept responsibility for a federal parole violation).
Although the Commission failed to conduct a timely revocation hearing, the petitioner's acceptance of the expedited revocation proposal rendered his claim moot. Accordingly, the Court will deny the habeas petition and dismiss this action. An Order accompanies this Memorandum Opinion.