United States District Court, District of Columbia
Marlon Andre Wilson, Washington, DC, pro se.
Sherri Lee Berthrong, U.S. Attorney's Office, Washington, DC, for Respondent.
ELLEN SEGAL HUVELLE, District Judge.
Petitioner, proceeding pro se, filed this action on October 17, 2012, for a writ of habeas corpus under 28 U.S.C. § 2241, while confined at the District of Columbia
Jail on a parole violator warrant executed on August 27, 2012. (Pet. at 1.) Petitioner claims that his current confinement violates the due process clause and federal regulations because the United States Parole Commission (" Commission" ) denied him a timely probable cause hearing and failed to provide counsel to represent him. ( Id. at 2, 4-5, 7-9.) Petitioner seeks an appointment of counsel to represent him " for revocation" and his release " pending revocation and probable cause." ( Id. at 9.)
In its initial opposition, the Commission argues that petitioner's claim based on the denial of counsel is moot because the Federal Public Defender for the District of Columbia has agreed to represent petitioner during revocation proceedings in the District of Columbia. (U.S. Parole Commission's Opp'n to Pet'r's Pet. for a Writ of Habeas Corpus [Dkt. # 6] at 5-6.) In a supplemental opposition filed on November 24, 2012, the Commission suggests that this action is moot because the Commission has now " found probable cause to believe that the petitioner has violated the conditions of his release based on four violations of law." (U.S. Parole Commission's Supplement to Its Opp'n to Pet'r's Pet. for a Writ of Habeas Corpus ¶ 2 [Dkt. # 8] & Ex. A. [Nov. 15, 2012, Letter].) The Court agrees and will therefore deny the petition and dismiss the case on the grounds of mootness.
This action arises out of petitioner's aggregate sentence of 24 to 36 months' incarceration followed by three years' supervised release imposed by the Superior Court of the District of Columbia on September 21, 2007. (Resp't's Opp'n., Ex. 1.) On May 28, 2010, petitioner began serving the supervised release term. ( Id. at 1 & Ex. 2.) On August 24, 2011, the Commission issued a violator warrant for petitioner's arrest, citing seven violations of the terms of petitioner's supervised release that included four charges of criminal behavior. (Resp't's Exs. 6, 7.) On October 11, 2011, petitioner pleaded guilty in three separate cases in the Circuit Court for Montgomery County, Maryland, to credit card fraud and theft, and on June 26, 2012, petitioner was sentenced by the Circuit Court of Fairfax County, Virginia, to five years' imprisonment following his conviction for forging a public record on March 5, 2011. (Resp't's Exs. 8, 9, 10, 12, 13.)
The United States Marshals Service executed the Commission's violator warrant on August 27, 2012, by arresting petitioner and detaining him at the D.C. Jail. (Resp't's Ex. 6.) The Commission supplemented its charges on August 29, 2012, and September 5, 2012, to include petitioner's convictions in Maryland and Virginia. (Resp't's Exs. 13, 14.)
The Commission scheduled a probable cause hearing on September 4, 2012. According to the handwritten notes in the D.C. Probable Cause Hearing Digest, the Public Defender Service for the District of Columbia (" PDS" ) could not represent petitioner since he had filed suit against that office. (Resp't's Ex. 15 [Dkt. # 6-16] ); see 28 C.F.R. § 2.214(b) (designating PDS as counsel for supervisees facing probable cause hearings). The probable cause hearing was continued at petitioner's request " to secure atty representation" either from his " Atty in MD" or " Georgetown." (Ex. 15 at 3.) Petitioner's version of the proceeding is that the hearing examiner denied " his request to go forward" on September 4, 2012, and " informed [him] that he needs [sic] counsel to contact Georgetown law clinic." Pet. at 8. In any event, the hearing was continued to September 10, 2012 (Ex. 15 at 3), but occurred on September 11, 2012. (Resp't's Ex. 16 (Examiner's Memorandum).)
According to the hearing examiner's account of the rescheduled hearing on September 11, 2012, petitioner refused to proceed without counsel but did not want to continue the hearing. (Ex. 16.) Petitioner refused to sign a form indicating his request for or waiver of counsel. ( Id. ) Therefore, the hearing examiner was " prompted" by petitioner's " response and [ ] lack of cooperation ... to select on the Probable Cause Digest that [petitioner] will have a [combined] Probable Cause/Revocation Hearing." ( Id. ) Eventually, petitioner signed the form on November 2, 2012, and applied for representation by the Federal Public Defender for the District of Columbia. (Resp't's Ex. 17.) On November 20, 2012, Federal Public Defender A.J. Kramer informed Assistant United States Attorney Sherri Berthrong that he was no longer representing petitioner " as a result of [petitioner's] request that the office not represent him due to a conflict of interest." (Suppl. Opp'n, Ex. B.)
Meanwhile, the Commission informed petitioner on November 15, 2012, that it had found " [p]robable cause ... based on your guilty plea/conviction to each of [four listed] charges." ( Id., Ex. A.) In a letter dated November 20, 2012, addressed to the Designation and Sentence Computation Center, the Commission determined that petitioner " should be designated to a Federal Bureau of Prisons institution for his revocation hearing" and requested that petitioner be so designated. ( Id., Ex. C.) According to the Bureau of ...