UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
HARRY J. BENNETT, )
)
Petitioner, )
)
v. ) Civil Action No. 13-1809 (KBJ)
)
UNITED STATES )
PAROLE COMM ISSION, )
)
Respondent. )
)
MEMORANDUM OPINION
In this action for a writ of habeas corpus filed in November 2013,
Petitioner, a D.C. Code felon, claims that he was denied due process during
parole revocation proceedings because the “warrant issued was not under oath
and supported by affirmation as required under the 4 t h Amendment.” (Pet. at 5.)
In addition, Petitioner claims that his custody is “illegal” because the case
supporting the parole violation “was dismissed and no probable cause [was]
found,” and because his sentence has expired. (Id.)
In response to the court’s order to show cause why the writ should not
issue, Respondent United States Parole Commission (“USPC”) asserts that no
due process violation has occurred and that Petitioner’s incarceration is legal
insofar as he has had his parole revoked seven times and has not completed his
sentence. (USPC’s Opp’n to Pet’r’s Pet. for a Writ of Habeas Corpus, ECF No.
7.) On March 5, 2014, Petitioner was advised about repl ying to Respondent’s
opposition and the possibilit y of a summary dismissal if he failed to repl y b y
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April 15, 2014. (Order, ECF No. 8.) Petitioner was directed specificall y to the
following provision governing habeas actions:
The allegations of a return to the writ of habeas corpus or
of an answer to an order to show cause in a habeas corpus
proceeding, if not [responded to], shall be accepted as true
except to the extent that the judge finds from the evidence that
they are not true.
28 U.S.C. § 2248. Petitioner has neither replied to Respondent’s opposition nor
sought additional time to do so. Based on Respondent’s documented opposition,
the Court finds no grounds for issuing the writ and, therefore, will deny the
petition and dismiss the case.
BACKGROUND
Petitioner is serving a 30-year sentence imposed in June 1986 b y the
Superior Court of the District of Columbia for voluntary manslaughter and
robbery. Petitioner was first released to parole supervision in February 1998
with an expiration date of June 9, 2016. (USPC’s Opp’n, Ex. 2.) The instant
petition is based on events that ensued after petitioner’s seventh release to
parole.
Petitioner was released to parole on February 22, 2012, with an expiration
date of May 23, 2023 (Id., Ex. 14.) On August 20, 2012, Petitioner’s
Communit y Supervision Officer requested issuance of a parole violator warrant
based on Petitioner’s failure to report for supervision and other administrative
violations (Ex. 15). The USPC issued the warrant on September 12, 2012,
charging Petitioner with “Failure to Report to Supervising Officer as Directed”
and “Violation of Special Condition (Drug Aftercare)” (Ex.19). On April 20,
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2013, Petitioner was arrested in the District of Columbia and charged in the
Superior Court of the District of Columbia with unauthorized use of a vehicle
(“criminal charge”) (Ex. 20). As a result, the USPC supplemented the violator
warrant on April 30, 2013, to include a law violation charge (Ex.21). The
United States Marshal executed the violator warrant by arresting Petitioner on
May 17, 2013 (Ex.22), and the USPC found probable cause to detain Petitioner
following a hearing on May 28, 2013, at which Petitioner was represented by
counsel from the District of Columbia’s Public Defender Service (Ex. 23).
The Superior Court dismissed the criminal charge on Jul y 5, 2013 (Ex.
24), and Petitioner filed this case from the District of Columbia’s Correctional
Treatment Facilit y on November 19, 2013. Following a parole revocation
hearing on February 6, 2014 (Ex. 25), the USPC adopted the hearing examiner’s
recommendation to revoke Petitioner’s parole on February 12, 2014 without
rel ying on the law violation charge (Ex. 26). Petitioner has not sought to amend
the Petition to challenge the outcome of the latter proceedings.
ANALYSIS
District of Columbia prisoners are entitled to habeas corpus relief if they
establish that their “custod y is in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. § 2241(c)(3). A parolee has a Fifth
Amendment libert y interest in maintaining his conditional freedom and therefore
is entitled to due process prior to revocation. See Ellis v. District of Columbia,
84 F.3d 1413,1420 (D.C. Cir.1996) (citing Morrissey v. Brewer, 408 U.S. 471
(1972)). That entitlement, however, is limited to notice and an opportunit y to
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be heard in a meaningful and reasonabl y timel y manner, see id. at 1421-24
(discussing Morrissey’s standards), and to a decision that is neither “totall y
lacking in evidentiary support [n]or [] so irrational as to be fundamentall y
unfair.” Duckett v. Quick, 282 F.3d 844, 847 (D.C. Cir. 2002) (citations
omitted).
As to the specific claims raised in the instant Petition, Respondent argues
correctl y that the Fourth Amendment’s oath or affirmation clause does not
appl y to the administrative warrants the USPC is authorized to issue upon a
parole officer’s representation that a parole violation has occurred. Resp’t’s
Mem. at 4-5 (citing, inter alia, United States v. Garcia–Avalino, 444 F.3d 444,
447 (5th Cir. 2006) (concluding that “[g]iven the relaxed constitutional norms
that appl y in revocation hearings, a warrant for the arrest of a supervised
releasee need not compl y with the Oath or affirmation clause of the Fourth
Amendment.”); United States v. Collazo–Castro, 660 F.3d 516 (1st Cir. 2011)
(holding that the Fourth Amendment does not require a warrant based on an oath
or affirmation to revoke an individual on supervised release); see generally
Bethea v. U.S. Parole Comm’n, 751 F. Supp. 2d 83 (D.D.C. 2010) (discussing
the USPC’s paroling authorit y over D.C. prisoners). This is so because parole
proceedings are "separate administrative proceeding[s] at which the [parolee]
does not possess the same rights as a criminal defendant at trial." Maddox v.
Elzie, 238 F.3d 437, 445 (D.C. Cir. 2001); see Hardy v. United States, 578 A.2d
178, 181 (D.C. 1990) (noting that "jeopardy does not attach in probation or
parole revocation proceedings because they are not new criminal prosecutions
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but rather continuations of the original prosecutions which resulted in probation
or parole.") (Internal citations omitted.); see also Hyser v. Reed, 318 F.2d 225
(D.C. Cir. 1963) (observing that the powers of the then-Parole Board “to issue
warrants or effect an arrest for retaking” are derived from Congress, not the
Constitution).
Petitioner’s claim that his sentence has expired is belied by the record.
The record shows that when the violator warrant underl ying this action was
issued on February 12, 2012, Petitioner’s sentence was not due to expire until
May 2023 because, in accordance with District of Columbia law, the credit for
time Petitioner had served while on parole was rescinded upon each parole
revocation. See Resp’t’s Mem. at 5-9; Bethea, 751 F. Supp. 2d at 85, n.3 (“In
other words, petitioner forfeited ‘street time’ upon each parole revocation, and
none of the time spent on parole is credited toward service of the underl ying
sentence.”) (citing D.C. Code § 24-206 (a)).
CONCLUSION
For the foregoing reasons, the Court accepts as true the USPC’s unrefuted
response to the show cause order and agrees that the petition for a writ of
habeas corpus should be denied. A separate order accompanies this
Memorandum Opinion.
Ketanji Brown Jackson
Ketanji Brown Jackson
United States District Judge
DATE: May 12, 2014
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