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Marcus Armond Ferguson v. Simon T. Wainwright et al

March 28, 2012


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


In this action for a writ of habeas corpus, petitioner, proceeding pro se, claims that he was arrested on March 23, 2011, after he surrendered to a parole violator warrant issued by the United States Parole Commission ("Commission"). In Ground One of the application, petitioner alleges that he had "an expiration date of August 21, 2011[,] which less [his] educational good time[,] [he] was supposed to be released prior to a revocation hearing set . . . on May 25, 2011." Pet. at 5. In Ground Two, petitioner claims that he "was supposed to have a probable cause hearing within five days" after execution of the parole violator but "was not seen until the eighth day not including the weekend." Id. In a supplemental petition adding two additional grounds for relief, petitioner challenges certain aspects of his parole revocation proceeding that concluded after the commencement of this action. See generally Pet'r's Mot. to Alter and Amend the Original Writ of Habeas Filing ("Supp. Pet.") [Doc. # 11].

Upon consideration of the parties' submissions, the court finds no grounds for issuing the writ and, thus, will deny the petition. Consequently, the court will also deny petitioner's motion for summary judgment based on respondent's failure to oppose his supplemental petition [Doc. # 18]. However, the court, acting sua sponte, will issue a writ of mandamus to compel the Commission to re-examine its decision to rescind petitioner's credit for time spent on parole ("street-time credit") in light of the Equitable Street Time Credit Amendment Act of 2008 ("Amended Act"), codified at D.C. Code § 24-406(c),


The Superior Court of the District of Columbia sentenced petitioner on December 3, 1991, to a prison term of four to twelve years for distribution of cocaine. United States Opp'n to Pet'r's Pro Se Pet. for a Writ of Habeas Corpus (Resp.'t's Opp'n) [Doc. # 5], Ex. 1 (Judgment and Commitment Order). After several unsuccessful releases to parole supervision, petitioner was last paroled on March 20, 2008, with a sentence expiration date of August 21, 2011. Id., Ex. 2 (Certificate of Parole). On February 1, 2011, the Commission issued a parole violator warrant, charging petitioner with: a law violation stemming from his arrest on December 26, 2008 (Charge No. 1), a law violation stemming from his arrest on May 20, 2009 (Charge No. 2), and failing to report to his parole officer since April 8, 2010 (Charge No. 3). Id., Exs. 3, 4 (Warrant Application and Warrant). The warrant was executed by petitioner's arrest on March 23, 2011. Id., Ex. 5 (U.S. Marshal's Return Affidavit). On March 29, 2011, the Commission amended the violator warrant, charging petitioner with another law violation stemming from his arrest on February 1, 2011 (Charge No. 4); that "case was no papered on" February 2, 2011. Id., Ex. 6.

Following a probable cause hearing on April 1, 2011, at which petitioner was represented by counsel from the District of Columbia Public Defender Service ("PDS"), the Commission found probable cause to hold petitioner on the foregoing charges. Id., Ex. 7. Following a parole revocation hearing on May 25, 2011, at which petitioner was represented again by PDS, the Commission adopted the hearing examiner's recommendation and issued a Notice of Action on July 12, 2011, that revoked petitioner's parole, rescinded his street-time credit for the period of May 1, 2010, to March 22, 2011, and ordered his service of the remaining sentence to expiration. Id., Ex. 8 (Hearing Summary); Ex. 9 (Notice of Action). The Commission found sufficient evidence to support Charges 1-3, but found insufficient evidence to support Charge 4. Id., Ex. 9.

Petitioner filed this action on June 30, 2011, while confined at the District of Columbia Jail. He supplemented the petition on August 15, 2011, claiming in Ground Three that the Commission failed to issue a timely Notice of Action and in Ground Four that the Commission "allowed disclosure of additional evidence to be considered . . . in the dispositional portion of the hearing and relied upon undisclosed evidence in deciding that parolee should be revoked." Supp. Pet. at 1.


"A court . . . entertaining an application for a writ of habeas corpus shall forthwith award the writ . . ., 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). Petitioner does not identify a constitutional provision or federal law that the Commission supposedly violated, and the court does not discern any such violations from petitioner's four asserted grounds for relief that will be addressed seriatim.

Ground One

In Ground One, petitioner suggests that the Commission no longer had jurisdiction over him at the time of his parole revocation hearing because his "expiration date [was] August 21, 2011," and accounting for his "educational good time" and "good conduct" credit, he should have been released "prior to a revocation hearing." Pet. at 5 (emphasis supplied). This claim is without merit because at the critical time of petitioner's arrest on March 23, 2011, for violating the terms of his parole, petitioner was under the Commission's supervision. Therefore, the Commission was well within its authority to initiate revocation proceedings. See D.C. Code § 24-404 ("While on parole, a parolee shall remain in the legal custody and under the control of the Attorney General of the United States or his or her authorized representative until: (1) The expiration of the maximum of the term or terms specified in his or her sentence without regard to good time allowance . . . .").*fn1

Ground Two

In Ground Two, petitioner takes issue with the fact that he received a probable cause hearing eight days after his arrest. While it is true that the applicable regulation provides for a hearing "no later than five days from the date of [a parolee's] retaking," 28 C.F.R. ยง 2.214 (a), a three-day delay has no constitutional ramification absent a showing that the delay was both unreasonable and prejudicial. Sutherland v. McCall, 709 F.2d 730, 732 (D.C. Cir. 1983); see Vactor v. U.S. Parole Comm'n, 815 F. Supp. 2d 81, 83 (D.D.C. 2011), quoting Hill v. Johnston, 750 F. Supp. 2d, 103, 106 (D.D.C. 2010) (finding " 'challenge to the timeliness of [Petitioner's] revocation hearing . . . meritless' in the absence of 'a showing that the delay both was unreasonable and actually prejudiced petitioner' ") (other citation omitted) (alterations in original). Petitioner has made no such showing; even if had, the appropriate remedy would be "a writ of mandamus to compel the Commission's compliance with the statute[,] not a writ of habeas corpus ...

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