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Posey v. United States Parole Commission

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

March 19, 2018

MICHAEL POSEY, Petitioner,
v.
UNITED STATES PAROLE COMMISSION and WARDEN HOLLAND, Respondents.

          ORDER

          LOUISE W. FLANAGAN United States District Judge.

         The matter now is before the court on respondents' motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure (DE 19). The issues raised have been fully briefed and are ripe for adjudication.

         BACKGROUND

         On May 5, 1989, petitioner was convicted in the Superior Court of the District of Columbia on various drug offenses and sentenced to 15 yeas in prison. (Resp't. Ex. A (DE 20-1) at 4, 7, 13). Petitioner was paroled in 1994, and his parole has since been revoked a total of eight times. (Id. at 13-20). In 2013, the United States Parole Commission (“Commission”) revoked petitioner's parole after he was convicted of two drug distribution charges in Virginia state court. (Id. at 18-20). After he completed his sentence in Virginia, the United States District Court for the District of Columbia revoked petitioner's supervised release term and ordered the service of 20 months. (Id., at 3). He completed the service of this time on April 29, 2013 (Id.).

         Following a revocation hearing, on December 3, 2013, the Commission took the following action:

Revoke parole. None of the time spent on parole shall be credited. Continue to expiration.
You shall be subject to the Special Drug Aftercare Condition that requires you participate [sic], as instructed by your Supervision Officer, in an approved inpatient or outpatient program for the treatment of narcotic addiction or drug dependency. The treatment program may include testing and examination to determine if you have reverted to the use of drugs. You shall abstain from the use of alcohol and all other intoxicants during and after the course of treatment. If so instructed by a Bureau of Prisons institutional employee or your Supervision Officer, you shall reside in, and participate in a program of, the Re-Entry and Sanctions Center until discharged by the Center Director.
In addition, you shall be subject to the Special Mental Health Aftercare Condition that requires you participate [sic] in an in-patient or an out-patient mental health program as directed by your Supervision Officer.

(Id.) at 18.

Petitioner appealed this decision to the National Appeals Board (“NAB”), which affirmed the Commission's decision. (Id. at 23). Specifically, the NAB determined:
The grounds for your appeal are that you have not been given correct credit towards the expiration of your sentence for the time that you spent in custody, that you did not receive proper notice of the parole violations and evidence to be considered for revocation, that your parole revocation hearing was untimely, and that there are mitigating circumstances that warrant a more lenient decision.
The National Appeals Board has reviewed your claims and has found no merit to the claims that would justify a different decision. If you believe that your sentence has been computed incorrectly, you should address that with the Bureau of Prisons.
All decisions by the National Appeals Board on appeal are ...

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