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Carter v. Tripp

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

March 20, 2018

GEORGE CARTER, Petitioner,
v.
BRICK TRIPP, Respondent.

          ORDER

          LOUISE W. FLANAGAN, United States District Judge

         This 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.

         BACKGROUND

         Petitioner, 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.[1] (Id. Ex. 1-B at 1).

         On 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 4).

         On 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).

         On 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.

         On 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).

         On 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).

         Petitioner 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).

         Petitioner 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.).

         A 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).

         In the 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 holding ...


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