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Fox v. Tripp

United States District Court, E.D. North Carolina, Western Division

June 20, 2017

JAMES WALLACE FOX, Petitioner,
v.
BRICK TRIPP and THE UNITED STATES PAROLE COMMISSION, Respondents.

          ORDER

          LOUISE W. FLANAGAN, United States District Judge

         The 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.

         BACKGROUND

         On 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, [1] 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).

         On 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.)

         On May 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, [2] petitioner was released on parole to serve his consecutive DC Superior Court sentence. (Id. Ex. L).

         On June 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.

         DISCUSSION

         A. Standard of Review

         Respondent 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 exists.” Id.

         As for 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).

         B. Analysis

         1. Early Parole Termination Hearing

         Petitioner 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 ...


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