United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN, United States District Judge
matter is before the court on respondent's motion to
dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1)
and (6) (DE 15), petitioner's motion to supplement (DE
19) and petitioner's motion to expedite (DE 20). The
motion to dismiss has been fully briefed and respondent did
not respond to petitioner's motion to supplement or
motion to expedite. In this posture, the issues raised are
ripe for adjudication. For the following reasons, the court
grants respondent's motion to dismiss and denies
petitioner's motion to supplement and motion to expedite.
a District of Columbia Code Offender (“DC Code
Offender”), is serving a maximum aggregate prison term
of 67 years and 90 days, based on the following sentences
running consecutively: (1) nine to twenty-seven years'
imprisonment for armed robbery, imposed on March 18, 1986 by
the District of Columbia Superior Court; (2) 90-days'
imprisonment for escape, imposed on November 19, 1986 by the
U.S. District Court for the Eastern District of Virginia; (3)
thirteen to thirty-nine years' imprisonment for two
counts of armed robbery and carrying a deadly weapon, imposed
on March 24, 1988 by the District of Columbia Superior Court;
and (4) four months to one- year' imprisonment for
carrying a pistol without a license, imposed on October 14,
1988 by the District of Columbia Superior Court.
(See Resp't's Mem. (DE 16) Ex. 1-A at 5-9).
On January 30, 2009, the United States Parole Commission (the
“Commission”) granted petitioner parole, with a
supervision termination date of April 3, 2053. (Id. Ex.
1-B at 1).
November 30, 2009, petitioner was arrested for assault,
attempted threats to do bodily harm (2 counts), and attempted
possession of a prohibited weapon (2 counts). (Id.
Ex. 1-D at 2). On December 7, 2009, the Commission issued a
revocation warrant charging petitioner with violating the
terms of his parole by failing to submit to drug testing and
new law violations (based on the November 30, 2009 arrest)
(“First Revocation Warrant”). (Id. at
1-3). Petitioner was taken into custody on the First
Revocation Warrant on April 29, 2010. (See id. at
April 28, 2010, the District of Columbia Superior Court
dismissed the new charges without prejudice. (Id.
Ex. 1-E). The Commission, however, conducted a probable cause
hearing on the First Revocation Warrant, found that probable
cause existed to pursue the revocation, and scheduled a
revocation hearing for June 7, 2010. (Id. Ex. 1-F at
3-4). The June 7, 2010 hearing was continued because
petitioner and multiple witnesses failed to appear.
(Id. Ex. 1-G).
October 21, 2010, while still in custody awaiting his
revocation hearing, petitioner filed a petition for writ of
habeas corpus under 28 U.S.C. § 2241 in the U.S.
District Court for the District of Columbia. Carter-El v.
Fulwood, No. 1:10-CV-1778 (D.D.C. Oct. 21, 2010).
Petitioner sought release from custody on the First
Revocation Warrant, arguing in part that the Commission did
not have authority to revoke his parole because he had never
been sentenced to a term of parole. See
Carter-El v. Fulwood, 819 F.Supp.2d 38, 40 (D.D.C.
2011). The district court denied the petition, finding
without merit his claims that the Commission lacked
jurisdiction over him or authority to enforce the terms of
his parole. See id. at 40-41.
February 10, 2011, the Commission conducted the revocation
hearing. At the hearing, the examiner found insufficient
evidence for the violations, in part because the witnesses
had not appeared and the criminal charges had been dismissed.
(See Resp't's Mem. (DE 16) Ex. 1-H at 2-3).
The Commission dismissed the revocation proceedings, ordered
petitioner released from detention, and reinstated parole
supervision. (See id. Ex. 1-I).
September 14, 2011, petitioner was arrested for being a felon
in possession of a firearm, carrying a pistol without a
license, possessing an unregistered firearm, and unlawful
possession of ammunition. (Id. Ex. 1-K at 5-6). The
Commission issued a second revocation warrant (“Second
Revocation Warrant”) on December 13, 2011, charging
petitioner with: failure to make diligent efforts to find
employment; failure to submit to drug testing; and new law
violations (stemming from the September 14, 2011 arrest).
(Id. Ex. 1-L at 2-3). On August 14, 2012, petitioner
was convicted by a jury on all pending criminal charges and
the court sentenced him to 72 months imprisonment and 3 years
of supervised release. (Id. Ex. 1-M).
served his 72-month sentence at the Rivers Correctional
Institution (“Rivers”) in Winton, North Carolina.
On August 1, 2014, while petitioner was serving his sentence,
the United States Marshals Service issued a detainer for
petitioner on the Second Revocation Warrant, and sent it to
Rivers. (Id. Ex. 1-O at 1). Pursuant to 28 C.F.R.
§ 2.100, the Commission also conducted a dispositional
review of the Second Revocation Warrant, and, on January 7,
2015, found that the Commission has jurisdiction over the
petitioner and ordered that the detainer “stand”
until the new sentence was completed. (Id. Exs. 1-Q
at 1; Ex. 1-R); see also 28 C.F.R. § 2.100(c).
completed his 72-month sentence on the firearms charges on
December 4, 2016. (Resp't's Mem. (DE 16) Ex. 1-A at
3) That same day, the Rivers warden executed a copy of the
Second Revocation Warrant and provided a copy to Petitioner.
(Id. Ex. 1-S at 1). Petitioner refused to sign the
“warrant return” page. (Id.).
revocation hearing was set for January 23, 2017, but
petitioner refused to appear. (Id. Ex. 1-U).
According to petitioner's case manager, he claimed the
Commission lacked jurisdiction to conduct the revocation
hearing. (Id.). The Commission continued the hearing
to April 20, 2017, but petitioner again refused to appear.
(See id. Exs. 1-V, 1-W at 1). The hearing examiners
considered petitioner's case in his absence, and found
that petitioner failed to make diligent efforts to find
employment, failed to submit to drug testing, and committed
new law violations, all in violation of the terms of his
parole. (See id. Ex. 1-W at 2-3). Based on these
findings, the Commission revoked parole and ordered a new
parole effective date of August 13, 2017, contingent upon
approval of an appropriate release plan. (See id.
Ex. 1-X at 1-2).
interim, petitioner filed the instant habeas petition on
January 11, 2017. The petition is not a model of clarity.
Petitioner appears, however, to assert the following claims
for relief: (1) the Commission lacks jurisdiction over him
because he was not sentenced to a term of parole; (2) BOP
miscalculated his sentence for his 1986 and 1988 convictions;
and (3) the Commission violated his due process rights by