United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN, United States District Judge
matter now is before the court on respondent's motion to
dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1)
and (6) (DE 9). The issues raised have been fully briefed and
are ripe for adjudication. For the following reasons, the
court grants respondent's motion.
August 23, 1988, petitioner, a District of Columbia
(“DC”) Code Offender, was convicted in the DC
Superior Court of possession with the intent to distribute
dilaudid, and sentenced to an 18-year term of imprisonment.
(Resp't's Ex. A, p. 8). On June 15, 1995, the DC
Board of Parole granted petitioner parole. (Id. Ex.
A, p. 7 and Ex. B). On August 6, 2001,  the United States
Parole Commission (the “Commission”) revoked
petitioner's parole, after conducting a parole revocation
hearing. (Id. Ex. C). The Commission ordered
petitioner to serve 24 months imprisonment and directed that
petitioner not receive credit for any time spent on parole.
(Id.) Petitioner was granted presumptive re-parole
on July 18, 2002, with a full term expiration date of October
22, 2011. (Id. and Ex. A, p. 9).
February 27, 2009, the Commission revoked petitioner's
parole for a second time, and ordered that petitioner serve a
term of 12 months imprisonment. (Id. Ex. D). The
Commission did not grant petitioner any credit for the time
he spent on parole. (Id.) Petitioner appealed the
decision to the Commission's National Appeals Board,
which affirmed the Commission's decision on May 27, 2009.
(Id. Ex. E). On October 29, 2009, petitioner was
released on re-parole and was to remain on parole supervision
until the expiration of petitioner's newly calculated
full term date of January 31, 2018. (Id. Ex. A, p. 7
and Ex. F). On June 27, 2012, the Commission conducted a
parole revocation hearing based upon allegations that
petitioner had violated his parole. (Id. Ex. G).
Although the Commission determined that petitioner violated
his parole, it decided that the violations did not warrant a
parole revocation. (Id.)
1, 2013, the Commission issued a warrant based upon
allegations that petitioner failed numerous drug tests,
failed to submit to other drug testing, and committed a new
law violation for possession with the intent to distribute
43.3 grams of crack cocaine and possession of four rounds of
.357 ammunition. (Id. Ex. H). On February 14, 2014,
the DC Superior Court convicted petitioner based upon the
conduct constituting the law violation, and sentenced
petitioner to a consecutive term of 66 months imprisonment.
(Id. Ex. I). On April 16, 2014, the Commission
conducted a parole revocation hearing, and revoked
petitioner's parole. (Id.) The Commission did
not provide petitioner credit for any time spent on parole
and granted petitioner presumptive re-parole on September 9,
2016. (Id.) The expiration of petitioner's full
term date was calculated as July 16, 2020. (Id. Ex.
A, p. 2). Petitioner appealed the Commission's decision,
and the National Appeals Board affirmed the Commission's
decision on January 5, 2017. (Id. Exs. J, K). On
October 24, 2016,  petitioner was released on parole to serve
his consecutive DC Superior Court sentence. (Id. Ex.
8, 2016, petitioner filed the instant petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241, and alleged
the following claims: (1) violation of the Due Process Clause
pursuant to the Fourteenth Amendment to the United States
Constitution because he was not notified that he was eligible
for an early parole termination hearing and did not receive
such hearing under 28 C.F.R. § 2.43; and (2) failure to
credit petitioner's sentence with time he spent on
parole. Respondent subsequently moved to dismiss this action
for lack of subject matter jurisdiction arguing that
petitioner failed to exhaust his administrative remedies
prior to filing the instant action. Respondent alternatively
argues that petitioner failed to state a claim upon which
relief may be granted. The motion was fully briefed.
Standard of Review
filed his motion to dismiss pursuant to Federal Rules of
Civil Procedure 12(b)(1) and (6). A Rule 12(b)(1) motion
challenges the court's subject matter jurisdiction, and
the petitioner bears the burden of showing that federal
jurisdiction is appropriate when challenged by the
respondent. McNutt v. Gen. Motors Acceptance Corp.,
298 U.S. 178, 189 (1936); Adams v. Bain, 697 F.2d
1213, 1219 (4th Cir. 1982). Such a motion may either 1)
assert the complaint fails to state facts upon which subject
matter jurisdiction may be based, or 2) attack the existence
of subject matter jurisdiction in fact, apart from the
complaint. Bain, 697 F.2d at 1219. Under the former
assertion, the moving party contends that the complaint
“simply fails to allege facts upon which subject matter
jurisdiction can be based.” Id. In that case,
“the [petitioner], in effect, is afforded the same
procedural protection as he would receive under a Rule
12(b)(6) consideration.” Id. “[T]he
facts alleged in the complaint are assumed true, and the
motion must be denied if the complaint alleges sufficient
facts to invoke subject matter jurisdiction.” Kerns
v. United States, 585 F.3d 187, 192 (4th Cir. 2009).
When the respondent challenges the factual predicate of
subject matter jurisdiction, a court “is to regard the
pleadings' allegations as mere evidence on the issue, and
may consider evidence outside the pleadings without
converting the proceeding to one for summary judgment.”
Richmond, Fredericksburg & Potomac R. Co. v. United
States, 945 F.2d 765, 768 (4th Cir. 1991). The nonmoving
party “must set forth specific facts beyond the
pleadings to show that a genuine issue of material fact
respondent's motion to dismiss pursuant to Rule 12(b)(6),
a motion to dismiss under Rule 12(b)(6) determines only
whether a claim is stated; “it does not resolve
contests surrounding the facts, the merits of a claim, or the
applicability of defenses.” Republican Party v.
Martin, 980 F.2d 943, 952 (4th Cir. 1992). A claim is
stated if the complaint contains “sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In
evaluating whether a claim is stated, “[the] court
accepts all well-pled facts as true and construes these facts
in the light most favorable to the [petitioner], ” but
does not consider “legal conclusions, elements of a
cause of action, . . . bare assertions devoid of further
factual enhancement [, ] . . . unwarranted inferences,
unreasonable conclusions, or arguments.” Nemet
Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d
250, 255 (4th Cir. 2009) (citations omitted). In other words,
this plausibility standard requires a petitioner to
articulate facts that, when accepted as true, demonstrate
that the petitioner has stated a claim that makes it
plausible he is entitled to relief. Francis v.
Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (internal
quotations omitted). On a motion to dismiss, courts
“may properly take judicial notice of matters of public
record.” Philips v. Pitt Cnty. Mem'l
Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
Early Parole Termination Hearing
contends that he was denied due process because the
Commission did not notify him of his eligibility for an early
parole termination hearing and because he did not have such
hearing as required ...